[Cite as State v. Parks, 2012-Ohio-1981.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :            C.A. CASE NO.    24493

v.                                                     :            T.C. NO.   10CR3394/3

DANA H. PARKS                                          :            (Criminal appeal from
                                                                    Common Pleas Court)
        Defendant-Appellant                  :

                                                       :

                                            ..........

                                            OPINION

                         Rendered on the         4th       day of       May      , 2012.

                                            ..........

JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third
Street, 5th Floor, Dayton, Ohio 45422
        Attorney for Plaintiff-Appellee

LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 W. Second Street, Suite 400, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                            ..........

FROELICH, J.

                 {¶ 1} Defendant-appellant Dana Parks appeals from his conviction and
                                                                                               2

sentence for aggravated burglary.

                                                I

               {¶ 2} On November 15, 2010, Parks was indicted on one count each of

aggravated burglary and rape; each charge carried a firearm specification. His co-defendant

Dominique Sharpe was charged with aggravated burglary, and his co-defendant Daywone

Dewberry was charged with felonious assault.

               {¶ 3} On the morning of trial, Sharpe and Dewberry entered into plea

agreements with the State to plead as charged in exchange for sentencing caps of five years.

Later that morning, Parks pled guilty to the aggravated burglary charge. In exchange, the

State agreed to dismiss the rape charge and the two firearm specifications, and the State

agreed to a sentencing cap of eight years.

               {¶ 4} The trial court ordered a pre-sentence investigation (PSI) report and

scheduled the case for a sentencing hearing. Dewberry was sentenced to four years and

Sharpe was sentenced to three years. The trial court sentenced Parks to six years in prison.

       {¶ 5}           The following day, Parks sent to the trial court judge a letter, which

the judge construed as a motion to withdraw his plea. In that motion, Parks indicated that

he wanted to withdraw his plea because Sharpe, who had been convicted of the same crime,

had only been sentenced to three years in prison. After conducting a hearing on Parks’s

motion, the trial court overruled his request to withdraw his plea. Parks appeals.

                                                II

               {¶ 6} Parks’s            First         Assignment            of         Error:

                          “MR. PARKS WAS DENIED EFFECTIVE ASSISTANCE OF
                                                                                              3

COUNSEL.”

               {¶ 7} In his First Assignment of Error, Parks offers a cursory claim that his

trial counsel was ineffective for failing to make an oral motion to withdraw Parks’s guilty

plea prior to sentencing. In order to prevail on a claim of ineffective assistance of counsel,

the defendant must show both deficient performance and resulting prejudice. Strickland

v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 104 L.Ed.2d 2052 (1984). See also State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is entitled to a strong

presumption that his conduct falls within the wide range of effective assistance, and to show

deficiency the defendant must demonstrate that counsel’s representation fell below an

objective standard of reasonableness. Id.

               {¶ 8} Parks maintains that during his sentencing hearing, but prior to

learning of his sentence, he asked his attorney, off the record, if he could withdraw his plea.

Counsel advised Parks that it would not be in his best interest to do so. Neither Parks nor

his counsel said anything to the court about withdrawing the plea at that time, and the

sentencing hearing continued. Parks and defense counsel testified at the motion hearing,

and counsel agrees that this brief exchange took place, but he could not remember whether it

occurred before or after Parks learned what his sentence would be.             In the decision

overruling Parks’s motion to withdraw his plea, the trial court did observe that “Parks can be

seen, as the court began the sentencing, briefly talking with his attorney, but the substance of

the very brief interaction between them cannot be overheard on the video recording herein.”

Therefore, for the sake of this assignment of error, we will assume that the exchange took

place before Parks had learned of his sentence.
                                                                                           4

                {¶ 9} Criminal Rule 32.1 states: “A motion to withdraw a plea of guilty or

no contest may be made only before sentence is imposed; but to correct manifest injustice

the court after sentence may set aside the judgment of conviction and permit the defendant to

withdraw his or her plea.” Relying on this rule, Parks insists that, had counsel made an oral

motion to withdraw his plea prior to sentencing, the motion would have been granted,

because a lower standard is applied to motions made prior to sentencing than to motions

made after sentencing. However, this argument focuses entirely on the “prejudice” prong of

Strickland, and ignores the first prong, that of “deficient performance.”

       {¶ 10}    “A defendant's motion to withdraw a guilty plea, made before sentencing,

should be freely and liberally granted, provided the movant demonstrates a reasonable and

legitimate basis for the withdrawal.” State v. Xie, 62 Ohio St.3d 521, 526-27, 584 N.E.2d

715 (1992). This does not mean that a defendant has an absolute right to withdraw his plea

prior to sentencing. Id. at paragraph one of the syllabus. A trial court does not abuse its

discretion in denying a pre-sentencing motion to withdraw a guilty plea

          (1) where the accused is represented by highly competent counsel,

          (2) where the accused was afforded a full hearing, pursuant to Crim.R.

          11, before he entered the plea, (3) when, after the motion to withdraw is

          filed, the accused is given a complete and impartial hearing on the

          motion, and (4) where the record reveals that the court gave full and fair

          consideration to the plea withdrawal request. State v. Peterseim, 68

          Ohio App.2d 211, 428 N.E.2d 863, (8th Dist. 1980) paragraph three of

          the syllabus.
                                                                                              5

        {¶ 11}   In this assignment of error, Parks offers no reasonable or legitimate basis

for withdrawing his plea. He did argue in his motion to withdraw his plea and in his

Second and Third Assignments of error that he should have been allowed to withdraw his

plea because he had received a lengthier sentence than Sharpe.

        {¶ 12}   During the motion hearing, Parks also claimed that he was unhappy with

counsel’s representation and felt forced to accept the plea. However, as the trial court

pointed out, the transcript of the plea hearing belies this claim. Moreover, we agree with

the trial court’s conclusion that “Parks’s real dissatisfaction is with the sentence imposed by

this court; and in an effort to attempt to avoid that sentence, he is now attempting to blame

his trial counsel for his dilemna [sic].” “Even in pre-sentence motions to withdraw a guilty

plea, a change of heart is still not sufficient grounds to allow withdrawal of the guilty plea.”

State v. Sylvester, 2d Dist. Montgomery No. 22289, 2008-Ohio-2901, ¶ 19, citing Xie.

        {¶ 13}   Under these circumstances, even had counsel moved to withdraw Parks’s

plea at the sentencing hearing, when there would have been a “lesser” burden, it is highly

unlikely that such a motion would have been successful. Counsel has no duty to file a

motion that had no reasonable probability of success. State v. Carmon, 10th Dist. Franklin

No. 11AP-818, 2012-Ohio-1615, ¶ 12, citations omitted. See also State v. Meeds, 2d Dist.

Miami No. 2003 CA 5, 2004-Ohio-3577, ¶ 11.

        {¶ 14}   The mere fact that counsel did not request that Parks be allowed to

withdraw his plea at the sentencing hearing does not mean that counsel’s performance was

deficient.   Parks had been charged with two first-degree felonies, each with a firearm

specification, and faced a very lengthy sentence as well as sexual offender registration. He
                                                                                            6

pled to the one non-registration offense, without a mandatory firearm specification, and a

cap of eight years. If, as Parks alleges, his desire to withdraw his plea was discussed prior

to sentencing, then the inconsistency he alleges in his other assignments was not known to

him.   He proffers no other reason that would be contrary to his counsel’s advice or

somehow make that advice deficient. Therefore, we must assume that counsel’s advice was

sound, and well within the wide range of effective representation. Absent any evidence in

the record to the contrary, we will not presume that counsel’s representation fell below an

objective standard of reasonableness.

       {¶ 15}    Parks’s First Assignment of Error is overruled.

                                             III

       {¶ 16}    Parks’s           Second           Assignment             of          Error:

                  “THE TRIAL COURT ERRED IN OVERRULING MR. PARKS’S

MOTION TO WITHDRAW HIS PLEA.”

       {¶ 17}    In his Second Assignment of Error, Parks argues that the trial court erred in

denying his post-sentence motion to withdraw his guilty plea because his sentence was

manifestly unjust in that he should not have received a harsher sentence than those of his

co-defendants.

       {¶ 18}    Withdrawal of a guilty plea after sentencing is permitted only in the most

extraordinary cases. State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). A

defendant who files a post-sentence motion to withdraw his guilty plea bears the burden of

establishing manifest injustice.    Crim.R. 32.1; State v. Harris, 2d Dist. Montgomery

No. 19013, 2002-Ohio-2278, at ¶ 7, citing Smith at paragraph one of the syllabus.
                                                                                            7

Consideration of “[t]he motion is ‘addressed to the sound discretion’ of the trial court.”

Harris at ¶ 7, citing Smith at paragraph two of the syllabus. Thus, an appellate court

reviews the trial court’s decision under an abuse of discretion standard. Id. at ¶ 7, citing

State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). An abuse of discretion

means “that the court’s attitude is unreasonable, arbitrary or unconscionable.” Id.

       {¶ 19}    Parks argues that the trial court abused its discretion in denying his motion

to withdraw his guilty plea because his sentence was not “consistent” with either the

four-year sentence imposed upon Dewberry or the three-year sentence received by Sharpe.

He insists that the “inconsistent” sentences violate R.C. 2929.11(B), which states that a

felony sentence “shall be * * * consistent with sentences imposed for similar crimes

committed by similar offenders.”

       {¶ 20}    However, referring to State v. Hayes, 10th Dist. Franklin No. 08AP-233,

2009-Ohio-1100, ¶ 9, and State v. Rupert, 11th Dist. Lake No. 2003-L-154,

2005-Ohio-1098, ¶ 11, rev’d on other grounds, sub nom. In re Ohio Criminal Sentencing

Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, 847 N.E.2d 1174, Parks concedes that

the R.C. 2929.11(B) consistency requirement “has not been interpreted to mean that

co-defendants must receive equal sentences.” Instead, consistent sentencing occurs when a

trial court properly considers the statutory sentencing factors and guidelines found in R.C.

2929.11 and 2929.12 in each case. See, e.g., State v. O’Keefe, 10th Dist. Franklin Nos.

08AP-724, 08AP-725 & 08AP-726, 2009-Ohio-1563, ¶ 41; State v. Ward, 4th Dist. Meigs

No. 07CA9, 2008-Ohio-222, ¶ 17; State v. Wilson, 6th Dist. Lucas No. L-06-1303,

2008-Ohio-80, ¶ 6. As detailed in response to Parks’s Third Assignment of Error, the trial
                                                                                                                                  8

court did properly consider the statutory sentencing factors and guidelines in Parks’s case.

         {¶ 21}        Furthermore, at sentencing “[t]he evidence the court may consider is not

confined to the evidence that strictly relates to the conviction offense because the court is no

longer concerned * * * with the narrow issue of guilt.” State v. Bowser, 186 Ohio App.3d

162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d Dist.). For example, the trial court may

consider facts supporting a charge that was dismissed pursuant to a plea agreement, such as

the rape and firearm specifications in this case. Id. at ¶ 15-16. Those facts will frequently

differ from one defendant to another.

         {¶ 22}        Parks concludes by asking this Court to review his PSI, and those of

Dewberry and Sharpe and to compare them in order to determine whether the sentences were

“consistent.”

         {¶ 23}        “The purpose of a pre-sentence investigation report is to inform the

sentencing judge of relevant aspects of the defendant’s history, so that the court will

sentence the defendant in an informed, responsible, and fair manner.” State v. Hay, 3d Dist.

Union No. 14-04-18, 2005-Ohio-3443, ¶ 6, citation omitted. Moreover, “[t]he report is

confidential and its contents are governed by * * * R.C. 2951.03. In particular, R.C.

2951.03(B)(1) provides that ‘the court, at a reasonable time before imposing sentence, shall

permit the defendant or the defendant’s counsel to read the report.’”1 Id.

         {¶ 24}        In summary, the trial court was not required to allow Parks to withdraw his

guilty plea merely because he received a harsher sentence than those of his co-defendants.


             1
               We note Appellant’s brief says he does not have access to the PSI. However, we routinely grant requests for appellate
   counsel to review the PSI relevant to the appeal or to otherwise supplement the record.
                                                                                            9

The trial court did not abuse its discretion in denying Parks’s motion to withdraw his guilty

plea, Parks’s Second Assignment of Error is overruled.

                                             IV

       {¶ 25}     Parks’s          Third            Assignment            of           Error:

                    “THE TRIAL COURT’S SENTENCE WAS CONTRARY TO LAW

AND EXCESSIVE.”

       {¶ 26}     In his Third Assignment of Error, Parks insists that his sentence was not

authorized by law because it was excessive, in that it was longer than the sentences received

by his co-defendants and because the trial court improperly considered his use of a firearm in

the commission of the crime.

       {¶ 27}     We begin with the question of whether Parks has waived his right to appeal

his sentence. “A sentence imposed upon a defendant is not subject to review under this

section if the sentence is authorized by law, has been recommended jointly by the defendant

and the prosecution in the case, and is imposed by a sentencing judge.” R.C. 2953.08(D)(1)

(emphasis added).

       {¶ 28}     The sentencing range that Parks faced for his aggravated burglary

conviction was three to ten years. R.C. 2929.14(A)(1). As part of the plea agreement,

Parks’s sentence was capped at eight years. The trial court sentenced Parks to six years,

four years less than the statutory maximum, and two years less than the agreed-upon

sentencing cap.

       {¶ 29}     “A sentence is ‘authorized by law’ and is not appealable within the

meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing
                                                                                            10

provisions.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,

paragraph two of the syllabus.       In other words, we must examine the trial court’s

compliance with all applicable rules and statutes to determine whether the sentence is

contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4.

A sentence is not contrary to law when the trial court imposes a sentence within the statutory

range, after expressly stating that it had considered the purposes and principles of sentencing

set forth in R.C. 2929.11, as well as the R.C. 2929.12 factors. Id. at ¶ 18.

       {¶ 30} If the defendant’s sentence is not clearly and convincingly contrary to law,

we must review the trial court’s sentencing decision under an abuse of discretion standard.

State v. Bailey, 2d Dist. Clark No. 2011CA40, 2012-Ohio-1569, ¶ 14, citing State v. Ulrich,

2d Dist. Montgomery No. 23737, 2011-Ohio-758, ¶ 22. In the context of felony sentencing,

an abuse of discretion may be found if the sentencing court unreasonably or arbitrarily

weighs the statutory factors. Id. at ¶ 15, citing State v. Saunders, 2d Dist. Greene No. 2009

CA 82, 2011-Ohio-391, ¶ 15.

       {¶ 31}    Parks argues that his sentence fails to comply with R.C. 2929.12(B), which

establishes that a felony sentence “shall be * * * consistent with sentences imposed for

similar crimes committed by similar offenders.” He seems to argue that co-defendants

convicted of the same crime must receive the same or very similar sentences without regard

to any other factors.     However, determining whether offenders and their crimes are

“similar” involves the weighing of many factors.

       {¶ 32}    Here, prior to imposing sentence, the trial court gave a thorough

explanation of the reasons for imposing a six-year sentence. The court noted that Parks had
                                                                                            11

a lengthy juvenile record that included two adjudications for grand theft of a motor vehicle

and criminal damaging, and adjudications for fleeing and eluding, disorderly conduct,

underage consumption, menacing, theft, assault, and aggravated menacing.

       {¶ 33}    Additionally, as an adult, Parks had numerous misdemeanor convictions

including two convictions for each of the following charges: disorderly conduct, public

intoxication, driving without a license, possession of marijuana, obstructing official

business, and theft; and one conviction for each of the following charges: domestic violence,

liquor control, open container, criminal trespass, and possession of drugs. Parks also had a

prior felony conviction, for receiving stolen property (motor vehicle), for which he was

sentenced to community control. According to the trial court during the sentencing, Parks’s

compliance with the terms of his supervision “was marginal at best.”

       {¶ 34}    The court also stated that it believed that Parks’s role in the criminal

activity with his co-defendants was “much more serious than [he had] ever acknowledged.”

The court further explained, “your sentence is not the same as your co-defendants, because

of the serious nature of the factual allegations regarding you. The fact that even though the

firearm specification was dismissed, that there was evidence that you had a firearm on your

person when this occurred, [is] certainly a factor for me to consider in the seriousness of the

offense.”

       {¶ 35}    The court concluded by expressly stating it had “[c]onsider[ed] the

purposes and principles of sentencing, the seriousness and recidivism factors, and all of the

other factors” detailed above. The court also considered the victims’ statements, which

were made part of the PSI. Furthermore, we note that Parks knew when he entered his plea
                                                                                             12

that he was agreeing to a sentencing cap three years greater than the caps to which his

co-defendants agreed.

        {¶ 36}   Finally, Parks argues that his sentence is not authorized by law because the

trial court improperly considered his use of a gun in the commission of the crime. In

support of this claim, Parks directs our attention to State v. Sims, 4th Dist. Gallia No.

10CA17, 2012-Ohio-238, in which the court held that “[a] trial court may not elevate the

seriousness of an offense by pointing to a fact that is also an element of the offense itself.”

Id. at ¶ 16, citations omitted. However, the Sims case is distinguishable from the instant

case.

        {¶ 37}   Specifically, the Sims court found that because the use of a deadly weapon

is an element of every aggravated robbery case, the trial court could not consider the

defendant’s use of a knife while committing the crime, in order to support a finding that the

offense was of a more serious nature for the purpose of sentencing. Id. at ¶ 19, citations

omitted. On the other hand, Parks was convicted of aggravated burglary, in violation of

R.C. 2911.11(A)(1), which states: “No person, by force, stealth, or deception, shall trespass

in an occupied structure * * * when another person other than an accomplice of the offender

is present, with purpose to commit * * * any criminal offense, if * * * [t]he offender inflicts,

or attempts, or threatens to inflict physical harm on another.” Thus, unlike a conviction

under R.C. 2911.11(A)(2), the use of a deadly weapon is not an element of the offense of

which Parks was convicted.

        {¶ 38}   Nevertheless, Parks maintains that the trial court’s consideration of his use

of a weapon during the aggravated burglary was improper because the firearm specification
                                                                                          13

was dismissed. Therefore, he “asks this Court to review the PSI to see if evidence is

contained therein that Mr. Parks used a weapon during the commission of the convicted

crime.” We have reviewed the PSI, and it does support the trial court’s finding that Parks

used a handgun during the commission of the aggravated robbery.

        {¶ 39}    Because Parks’s sentence is authorized by law, the range was agreed to by

both the State and the defense, and the sentencing court imposed it, Parks has waived his

right to appeal that sentence.

        {¶ 40} Furthermore, to the extent that Parks has not waived this assignment, we

find it not well-taken. With the record before us, his sentence was neither excessive, nor

was it inconsistent with sentences imposed for similar crimes committed by similar

offenders merely because it was lengthier than the sentences imposed upon his

co-defendants.

        {¶ 41}    Parks’s Third Assignment of Error is overruled.

                                              V

        {¶ 42}    Having overruled all three of Parks’s assignments of error, the judgment of

the trial court is affirmed.

                                         ..........

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

Johnna M. Shia
Lucas W. Wilder
Hon. Mary Katherine Huffman
14
