[Cite as State v. Sweet, 2018-Ohio-4505.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       ADAMS COUNTY

STATE OF OHIO,                                       :    Case No. 18CA1063

        Plaintiff-Appellee,                          :

        v.                                           :    DECISION AND
                                                          JUDGMENT ENTRY
BRYANT SWEET,                                        :

        Defendant-Appellant.                        :    RELEASED: 11/01/2018
                                            APPEARANCES:

Alex F. Kochanowski, Cincinnati, Ohio, for appellant.

Kris D. Blanton, Adams County Assistant Prosecuting Attorney, West Union, Ohio, for
appellee.
Harsha, J.
        {¶1}     Bryant Sweet pleaded guilty to aggravated possession of drugs as part of

a plea agreement that included a jointly recommended four-year prison sentence. The

trial court accepted his plea, sentenced him in accordance with the parties’

recommended sentence and imposed a fine. We granted Sweet’s request to file a

delayed appeal.

        {¶2}     Sweet contends that he was deprived of his right to the effective

assistance of counsel, which rendered his guilty plea invalid. He contends that his

attorney should have investigated his mental health and addiction history and presented

more details about it to the state during plea negotiations in an effort to obtain a

minimum two-year sentence. However, Sweet has failed to establish that his lawyer’s

performance was deficient or that he was prejudiced. Nothing in the record indicates the

extent to which Sweet’s trial attorney investigated – or failed to investigate – Sweet’s

health history or the extent it was discussed in plea negotiations. Sweet has failed to
Adams App. No. 18CA1063                                                               2


establish that he would not have pleaded guilty and would have insisted on going to

trial, that the state would have recommended a shorter sentence, or that the court would

have imposed a shorter sentence had his counsel presented a more complete health

history. To the extent his claim of ineffective assistance relies upon evidence outside

the record on appeal, a direct appeal is not the appropriate vehicle for Sweet to raise

this claim.

       {¶3}   Sweet also contends that the trial court erred when it failed to give

adequate weight to mitigating factors and it should have sentenced him to the two-year

statutory minimum prison term rather than four years. However, because the four-year

term was a jointly recommended sentence imposed by the trial court and authorized by

law, it is not subject to our review.

       {¶4}   We affirm the judgment of the trial court.

                                         I. FACTS

       {¶5}   The Adams County Grand Jury indicted Bryant Sweet on one count of

aggravated possession of drugs, a second-degree felony in violation of R.C. 2925.11.

While represented by counsel, Sweet agreed to plead guilty in return for a jointly

recommended four-year prison sentence. At the sentencing hearing Sweet explained to

the court that he had addiction issues and had remained drug free for six years before

his mother, whom he cares for, became ill and he relapsed. Sweet’s cancer diagnosis

was also summarily discussed. The trial court determined that the plea was entered

knowingly, intelligently and voluntarily, imposed the jointly-recommended four-year

prison sentence, and imposed a fine, which it partially waived due to Sweet’s indigency.

       {¶6}   This delayed appeal followed.
Adams App. No. 18CA1063                                                                             3


                                III. ASSIGNMENTS OF ERROR1

        {¶7}    Sweet assigns the following errors for our review:

        1. MR. SWEET RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
           IN VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENT
           RIGHTS UNDER THE OHIO AND UNITED STATES
           CONSTITUTIONS RESULTING IN AN UNKNOWING AND
           INVOLUNTARY PLEA.

        2. MR. SWEET WAS DENIED DUE PROCESS AND FAIR TRIAL
           DURING SENTENCING WHEN THE TRIAL COURT FAILED TO
           SENTENCE MR. SWEET TO THE STATUTORY MINIMUM BASED
           ON HIS PERSONAL FACTORS IN MITIGATION, IN VIOLATION OF
           HIS FIFTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE
           OHIO AND UNITED STATES CONSTITUTIONS.

                                     IV. LAW AND ANALYSIS

                              A. Ineffective Assistance of Counsel

        {¶8}    Sweet argues because he was deprived of his right to the effective

assistance of counsel, his guilty plea was involuntary and unknowing. To prevail on a

claim of ineffective assistance of counsel, a criminal defendant must establish (1)

deficient performance by counsel, i.e., performance falling below an objective standard

of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but

for counsel's errors, the result of the proceeding would have been different. State v.

Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

        {¶9}    His guilty plea forfeited the claim of ineffective assistance of counsel

unless it precluded him from knowingly, intelligently, and voluntarily entering that plea.

See State v. Betts, 4th Dist. Vinton No. 18CA710, 2018-Ohio-2720, ¶ 26, quoting State



1Appellant’s brief does not contain a statement of the assignments of error. However, we take the
statements identified as “I” and “II” in the argument section to be the assignments of error.
Adams App. No. 18CA1063                                                                  4

v. Grove, 8th Dist. Cuyahoga No. 103042, 2016-Ohio-2721, ¶ 26 (“ ‘[a] claim of

ineffective assistance of counsel is * * * waived by a guilty plea, unless the ineffective

assistance of counsel precluded the defendant from knowingly, intelligently, and

voluntarily entering a guilty plea’ ”).

       {¶10} Sweet claims that his trial counsel was ineffective because counsel: (1)

failed to properly investigate his personal background and psychological status; (2)

failed to present his psychological and addiction history to the state during plea

negotiations; and (3) failed to present these mitigating factors to the court during the

sentencing hearing. He argues that had counsel made a proper investigation, the

findings would have provided grounds for the state to consider and the court to approve

a jointly recommended two-year minimum sentence.

       {¶11} The record does not reveal how his counsel’s conduct made his plea less

than knowing, intelligent, and voluntary. His counsel’s efforts to investigate Sweet’s

psychological or addiction history are not contained in the record, nor does the record

contain any discussion that occurred during the plea negotiations. We would have to

speculate that counsel’s performance was deficient. Moreover, Sweet has failed to

show any prejudice, i.e. a reasonable probability that, but for counsel’s errors, the result

of the proceeding would have been different. Sweet has failed to provide any evidence

that the state would have agreed to recommend a two-year minimum sentence or that

the court would have sentenced Sweet accordingly if counsel had presented more

about Sweet’s psychological health and addiction history during plea negotiations and

sentencing.
Adams App. No. 18CA1063                                                                5


       {¶12} Sweet concedes that he was responsible for having large quantities of

illegal drugs in his possession. Despite this, his counsel was able to obtain a plea offer

that resulted in a sentence of four fewer years than the maximum eight-year term he

could have received had he been convicted at trial. Our de novo review of the record

establishes that the trial court complied with the constitutional and procedural

safeguards to ensure that Sweet’s plea was knowingly, intelligently, and voluntarily

entered and fully complied with Crim.R. 11. Sweet does not contend otherwise.

       {¶13} Moreover, Sweet’s brief is largely bereft of any record citations and little of

the psychological or addiction history presented extensively in Sweet’s brief is contained

in the record. To the extent Sweet is relying on evidence that is outside the record to

support his claim, postconviction relief—not direct appeal—is the appropriate method to

seek relief based on a claim of ineffective assistance. See State v. Williams, 4th Dist.

Jackson No. 15CA3, 2016-Ohio-733, ¶ 37, citing State v. Hampton, 4th Dist. Lawrence

No. 15CA1, 2015-Ohio-4171, ¶ 28 (petition for postconviction relief is the proper vehicle

to raise a claim of ineffective assistance of counsel that relies upon evidence outside

the record). We overrule Sweet’s first assignment of error.

                           B. Jointly Recommended Sentence

       {¶14} Sweet contends that the trial court erred when it failed to sentence him to

the two-year statutory minimum because the court did not give adequate weight to

several mitigating factors, like his remorse and lack of prior criminal history. However,

the trial court imposed a jointly recommended sentence. Sweet repeatedly stated that

he understood the sentence, agreed to it, and understood that the trial court intended to

follow the joint recommendation.
Adams App. No. 18CA1063                                                                 6


       {¶15} R.C. 2953.08(D)(1) states, “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.” “In other words, a sentence that is ‘contrary to law’ is

appealable by a defendant; however, an agreed-upon sentence may not be if (1) both

the defendant and the state agree to the sentence, (2) the trial court imposes the

agreed sentence, and (3) the sentence is authorized by law. R.C. 2953.08(D)(1). If all

three conditions are met, the defendant may not appeal the sentence.” State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 16

       {¶16} Here the record shows that both the defendant and the state agreed to the

sentence. At the plea and sentencing hearing the parties stated that it was a jointly

recommended sentence and the trial court stated it would follow the recommendation of

the parties. The four-year sentence is authorized by law under R.C. 2929.14(A)(2),

which authorizes a two to eight-year incarceration for a second-degree felony. And, it

was imposed by the trial court. Accordingly, Sweet’s sentence is not reviewable.

       {¶17} We overrule Sweet’s second assignment of error.

                                    IV. CONCLUSION

       {¶18} Having overruled both of Sweet’s assignments of error, we affirm the

judgment of the trial court.

                                                                 JUDGMENT AFFIRMED.
Adams App. No. 18CA1063                                                                   7


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Adams
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, J. & McFarland, J.: Concur in Judgment and Opinion.


                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
