State v. HarderState v. Harder
Amanda A. Krzystan, for appellant.
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DECISION AND JUDGMENT
PIETRYKOWSKI, J.
{¶ 1} Frederick B. Harder, appellant, appeals a February 12, 2014 judgment of the Ottawa County Court of Common Pleas of conviction and sentence on four counts of rape, violations of
{¶ 3} Under a plea agreement, appellant pled guilty to four counts of rape (Counts one, two, four, and six of the indictment). The state agreed to dismiss counts three, five, and seven through seventy-three of the indictment as well as the 2013 criminal case charges at sentencing and to recommend a sentence of no more than 30 years on the four rape convictions. The trial court did not follow the state‘s recommendation as to sentence. The court sentenced appellant to serve ten year prison terms on each rape count, and also ordered that the sentences be served consecutively to each other, for an aggregate total period of incarceration of 40 years.
Assignments of Error
{¶ 4} Appellant asserts three assignments of error on appeal:
A. Assignment of Error I: The appellant was not afforded effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States.
B. Assignment of Error II: The appellant did not voluntarily and knowingly enter guilty pleas relative to Counts I, II, IV and VI given the
C. Assignment of Error III: The appellant‘s sentence should be vacated based upon the trial court‘s failure to comply with
{¶ 5} We consider appellant‘s challenge to his guilty pleas under assignment of error No. 2 first. Appellant contends that his guilty pleas were not voluntarily and knowingly made, because the trial court imposed an aggregate term of imprisonment on the four rape convictions of 40 years, rather than a sentence of no more than 30 years, as recommended by the state in the plea bargain. Appellant contends that the trial court erred because it “represented to the Appellant that it would sentence the defendant consistent with the agreement between the Appellant and the State,” failed to inform appellant of its changed intent, and did not afford appellant an opportunity to withdraw his plea.
{¶ 6} The state argues that the record demonstrates that appellant understood that under the plea agreement the trial court could impose an aggregate sentence of up to 40 years on the rape convictions and that the court had not agreed to impose a lesser sentence.
{¶ 7} A trial court is not bound to accept the state‘s recommended sentence in a plea agreement. Akron v. Ragsdale, 61 Ohio App.2d 107, 109, 399 N.E.2d 119 (9th Dist.1978). The better practice, not followed here, is for the trial court to specifically forewarn the defendant that “it was not bound by the sentencing agreement.” State v. Walker, 6th Dist. Lucas No. L-98-1210, 1999 WL 278120, *4 (May 7, 1999); see State v. Darmour, 38 Ohio App.3d 160, 529 N.E.2d 208 (8th Dist.1987), syllabus. A trial court does not err in imposing a sentence greater than that recommended by the state under a negotiated plea agreement where “the trial court forewarns the defendant of the applicable penalties, including the possibility of imposing a greater sentence than that recommended by the prosecutor.” State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6, quoting State v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶ 13 (5th Dist.). This standard can be met without the court specifically telling the defendant that it was not bound by the state‘s recommendation as to sentence. Walker at * 4; State v. Martinez, 7th Dist. Mahoning No. 03 MA 196, 2004-Ohio-6806, ¶ 8-9; State v. Dixon, 2d Dist. Clark No. 03CA0045, 2994-Ohio-4262, ¶ 11-12.
{¶ 8} The record discloses that in the
Court: All right. Do you understand, Mr. Harder, what the state would need to prove in order to find you guilty of the offense of rape”
Defendant: Yes.
Q. What do you understand the maximum penalty to be for these offenses?
A. Ten years maximum per charge.
Q. All right.
A. And bail, a bond, darn it, that isn‘t the right wording, a fine of $25,000 per offense.
Q. A maximum basic prison terms of ten years none of which is mandatory, and you are eligible for Judicial Release during that time period, a maximum possible fine of $25,000, none of that is mandatory. Do you understand that?
A. Yes, I do.
Q. Now do you understand that those sentences can be given consecutively, meaning end to end, for a total of 40 years in prison?
A. Yes, I do. (Emphasis added.)
{¶ 9} The written plea agreement, signed by appellant and filed with the court on the date of the plea hearing also provided notice that appellant faced a potential aggregate sentence of 40 years under the plea agreement. The written agreement provides for appellant withdraw his pleas of not guilty to rape charges under Counts one, two, four and six of the indictment and entered a plea of guilty separately on each count. As to each rape charge to which appellant changed his plea to guilty, the plea agreement stated:
I understand the MAXIMUM sentence COULD be: a maximum basic prison term of ten (10) years of which none is mandatory, during which I am eligible for judicial release. The maximum fine possible is $25,000, of which none is mandatory. Restitution, other financial costs are possible in my case. (Emphasis sic.)
{¶ 10} The document, the plea agreement signed by appellant also stated: “I understand that the Court may impose said sentences consecutively.”
{¶ 11} The document sets forth what the state promised to do under the plea agreement:
No threats have been made to me. No promises have been made except as part of this plea agreement: The state will dismiss Counts #Three, #Five, #Seven through #Seventy-three of the indictment and Case No. 13-CR-086 at the time of sentencing. Further, the State will recommend a prison sentence of not more than thirty (30) years.
{¶ 12} In our view, the totality of the circumstances including the plea colloquy and the signed plea agreement demonstrate appellant knew at the time he changed his pleas that (1) the court was not required to follow the state‘s recommendation as to sentence and (2) appellant faced a potential maximum sentence of consecutive ten year terms on each count for an aggregate period of incarceration of 40 years (the sentence imposed by the trial court).
{¶ 13} We find assignment of error no. 2 not well-taken.
{¶ 15} To prevail on a claim of ineffective assistance of counsel, a defendant must prove two elements: “First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Proof of prejudice requires a showing “that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.
{¶ 16} In the context of convictions based upon guilty pleas, the prejudice element generally requires a showing “that there is a reasonable probability that, but for counsel‘s errors * * * [the defendant] * * * would not have pleaded guilty and would have insisted
{¶ 17} Where proof of a claim of ineffective assistance of counsel requires consideration evidence outside of the record, the claim “is not appropriately considered on direct appeal.” State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 162, quoting State v. Madrigal, 87 Ohio St.3d 378, 391, 721 N.E.2d 52 (2000); State v. Estis, 6th Dist. Wood No. WD-11-069, 2013-Ohio-318, ¶ 16.
{¶ 18} We conclude that consideration of evidence outside the record is necessary in this case to prove appellant‘s claim of ineffective assistance of counsel. Evidence is lacking in the record upon which to determine the nature of trial counsel‘s advice concerning appellant‘s decision to plead guilty to the rape charges. Specifically evidence is lacking to demonstrate that counsel advised appellant that he faced a maximum term of 30 years imprisonment under the plea agreement. Evidence is also lacking to establish that there is a reasonable probability that appellant would not have pled guilty to the rape charges but would have insisted on going to trial but for counsel‘s errors.
{¶ 19} We find assignment of error No. 1 not well-taken on that basis.
{¶ 20} Under assignment of error No. 3, appellant argues that his sentences should be vacated because the trial court abused its discretion in that it failed to consider the overriding purposes and principles of felony sentencing under
R.C. 2953.08(G)(2) establishes that an appellate court may increase, reduce, modify, or vacate and remand a disputed sentence if it clearly and convincingly finds either of the following:(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 (B) or (D), division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law. Tammerine at ¶ 11, quoting
R.C. 2953.08(G)(2) .
{¶ 22} Although the abuse of discretion standard set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, is no longer controlling in appellate review of felony sentencing, we recognized in Tammerine that Kalish still can provide guidance for determining whether a sentence is clearly and convincingly contrary to law:
Significantly, Kalish determined that a sentence was not clearly and convincingly contrary to law in a scenario in which it found that the trial court had considered the
R.C. 2929.11 purposes and principles of sentencing, had considered theR.C. 2929.12 seriousness and recidivism factors, had properly applied post release control, and had imposed a
sentence within the statutory range. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124 at ¶ 18. Tammerine at ¶ 15.
{¶ 23} At the sentencing hearing the trial court discussed
{¶ 24}
{¶ 25}
{¶ 26} The court stated that it had reviewed the presentence investigative report, appellant‘s criminal history, psychiatric evaluations, employment history and appellant‘s background. The court stated that the original charges included 37 counts of rape and 36
{¶ 27} The court noted that the rapes began on the victim‘s 12th birthday and there are photographs depicting appellant having sexual conduct with the victim as early as when the victim was age six. The court concluded that appellant failed to show remorse.
{¶ 28} The court noted that Dr. Charlene Cassel, who conducted the psychiatric evaluation of appellant, stated in her report that appellant attempted to fake his psychiatric evaluation. The court also considered Dr. Cassel‘s findings that “[t]here is nothing in this man‘s history that suggests that he has ever had a serious mental illness. No mental illness or mental defect which may have prevented the Defendant from knowing the wrongfulness of his behavior.”
{¶ 29} The court stated that “I cannot in good conscience sentence you to 30 years.”
{¶ 30} In our view, the record demonstrates that the trial court considered the overriding purposes of felony sentencing under
{¶ 31} We find assignment of error No. 3 not well-taken.
{¶ 32} Justice having been afforded the party complaining, we affirm the judgment of the Ottawa County Court of Common Pleas. We order appellant to pay the cost of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
JUDGE
Stephen A. Yarbrough, P.J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.