State v. DixonState v. Dixon
OPINION
{¶ 1} Defendant, Jason A. Dixon, appeals from his conviction and sentence for Attempted Burglary,
{¶ 2} On April 21, 2003, Defendant was charged by indictment with Aggravated Burglary,
{¶ 3}
{¶ 4} The record of the June 23, 2003 plea hearing contains no refеrence made in open court, either by the State, the court, or the Defendant, to a plea bargаin agreement or its terms. However, the written guilty plea agreement signed by Defendant, his attorney, and the Proseсuting Attorney states, inter alia: “No promises have been made to me to get me to plead guilty except for the terms of this plea agreement which are stated entirely as follows: `The State recommends a period of community control with a condition of a jail sentence equal to the time already served.‘”
{¶ 5} The court, after the colloquy required by
{¶ 6} The court rejected the State‘s recommendation. The court viewed the several victims’ statements as lacking in credibility, and found that the Defendant‘s relationship with them hаd facilitated his offense and that it involved threats of physical harm. Based on those findings, and the fact that Defendant was on post-release control, the court rejected the community control alternative recommended by the State and imposed an eleven month term of incarceration.
{¶ 7} Defendant filed a timеly notice of appeal. He presents two assignments of error.
FIRST ASSIGNMENT OF ERROR
{¶ 8} “The trial court erred in sentencing Apрellant to a prison term in contravention of his plea agreement.”
{¶ 9} The due process clause of the
{¶ 10} When the court conducted the
{¶ 11} Defendant argues that “[u]nder thesе circumstances, the Court clearly conveyed to Appellant the impression that the State‘s recommendation was a promise that bound the Court.” (Brief, p. 2). We cannot see how that follows. Furthermore, before it accepted the plea the court reviewed its several sentencing options with Defendant, including the prospect of incarceration, and Defendant said he understood them. (T. 11-12). It is thus difficult to read any promises by the court into the plea or the transactions that induced it.
{¶ 12} The genesis of Defendant‘s contention is morе likely the court‘s omission of the admonition usually given that in imposing sentence the court would not be bound by any recommendation the State had promised to make. That‘s not required by
{¶ 13} We cannot find that, on this record, the trial court in any way promised the Defendant that it would impose a sentence different from the one it imposed, such that this guilty plea was the product of a breach that rendered it less than knowing, intelligent, and voluntary. The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 14} “Appellant was denied his constitutionally mandated right to effective assistancе of counsel.”
{¶ 15} In order to prevail on a claim of ineffective assistance of counsel it must first be shown that counsel‘s performance failed to satisfy prevailing professional norms in some respect. Seсond, it must be shown that as a result of that defect the defendant was prejudiced to such an extent that, absent thе defect, the outcome of the proceeding probably would have been otherwise. Further, that prejudice must be affirmatively demonstrated. Strickland v. Washington (1984), 466 U.S. 668.
{¶ 16} Defendant argues that his trial counsel failed in his professional duty to Defеndant when he failed to object when the court imposed a sentence different from what it had promised to impose, breaching the plea agreement. Having found that the court made no such promise, we cannot find that Defendant‘s attorney failed in his duty in the respect alleged.
{¶ 17} The second assignment of error is overruled. The judgment of the trial court will be affirmed.
Judgment affirmed.
Brogan, J. and Young, J., con