[Cite as State v. Johnston, 2019-Ohio-4296.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                       MIAMI COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 2018-CA-26
                                                    :
 v.                                                 :   Trial Court Case No. 2012-CR-207
                                                    :
 STEVEN A. JOHNSTON                                 :   (Criminal Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                               OPINION

                           Rendered on the 18th day of October, 2019.

                                               ...........

PAUL M. WATKINS, Atty. Reg. No. 0090868, Assistant Prosecuting Attorney, Miami
County Prosecutor’s Office, 201 West Main Street, Troy, Ohio 45373
      Attorney for Plaintiff-Appellee

STEVEN H. ECKSTEIN, Atty. Reg. No. 0037253, 1208 Bramble Avenue, Washington
Court House, Ohio 43160
      Attorney for Defendant-Appellant

                                               .............




WELBAUM, P.J.
                                                                                        -2-




       {¶ 1} Defendant-appellant, Steven A. Johnston, appeals from the judgment of the

Miami County Court of Common Pleas overruling his post-sentence motion to withdraw

his guilty plea. For the reasons outlined below, the judgment of the trial court will be

affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On July 13, 2012, the Miami County Grand Jury returned an indictment

charging Johnston with one count of rape of a person less than 13 years of age in violation

of R.C. 2907.02(A)(1)(b), a felony of the first degree. The charge included a specification

that the victim was less than ten years of age at the time of the offense.          At his

arraignment, Johnston pled not guilty to the charge, and he subsequently filed a motion

to suppress certain incriminating statements he made to law enforcement officials. The

trial court, however, overruled the motion to suppress, and Johnston thereafter entered

into a plea agreement with the State.

       {¶ 3} As part of the plea agreement, Johnston agreed to plead guilty to the rape

offense as charged in the indictment in exchange for the State dismissing the specification

that the victim was less than ten years of age. At the plea hearing, Johnston’s defense

counsel also advised the trial court that the parties had agreed to jointly recommend a

prison sentence of “ten years.” Plea Hearing Trans., p. 2. Immediately following that

statement, the State clarified that the parties had actually agreed to jointly recommend a

prison sentence of “ten years to life.” Id. at p. 3. Neither Johnston nor his defense

counsel objected to the State’s clarification.
                                                                                          -3-


      {¶ 4} The written plea form reviewed and signed by Johnston also indicated that

he was facing a possible sentence of “10 yrs-life.” Plea of Guilty, Docket No. 38, p. 1.

However, the plea form further provided the following:

      No promises have been made except as part of this plea agreement which

      is stated entirely as follows:   The State withdraws its specification and

      jointly recommends a ten-year prison sentence for Mr. Johnston in

      exchange for his guilty plea to a felony rape charge.

(Emphasis added.) Id. at 2.

      {¶ 5} After the parties notified the trial court of the plea agreement, the trial court

conducted a Crim.R. 11 plea colloquy. As part of the colloquy, the trial court advised

Johnston that because of the specific code section involved with his rape offense, his

sentence would be “a minimum of not less than ten years to a maximum of life

imprisonment.” Plea Hearing Trans., p. 6. Upon being so advised, Johnston indicated

that he understood the prison sentence that would be imposed. Johnston also indicated

that he understood all the rights he was waiving by entering a guilty plea. Following the

colloquy, the trial court accepted Johnston’s guilty plea, ordered a presentence

investigation report, and scheduled the matter for sentencing. At Johnston’s sentencing

hearing, the trial court imposed a prison term of ten years to life in prison, ordered

Johnston to pay court costs, and designated him a Tier III sex offender.             Neither

Johnston nor his defense counsel made any statement regarding the sentence after it

was imposed.

      {¶ 6} On February 6, 2014, over a year after his conviction, Johnston filed a motion

for leave to file a delayed appeal. This court overruled Johnston’s motion on February
                                                                                           -4-


25, 2014. Other than making several requests for the transcript of his motion to suppress

hearing, Johnston took no other action with regard to his case until four years later.

Then, on January 30, 2018, Johnston filed a motion to withdraw his guilty plea alleging

that he received ineffective assistance of counsel. In support of his motion, Johnston

argued that his plea was not knowingly, intelligently, and voluntarily entered because his

trial counsel misinformed him about the jointly-recommended prison sentence.

According to Johnston, trial counsel advised him that the parties were jointly

recommending a definite prison sentence of ten years, not ten years to life. Johnston

claimed that he would not have entered his guilty plea had he known about the life tail on

the ten-year sentence.

       {¶ 7} On June 19, 2018, the trial court held an evidentiary hearing on Johnston’s

motion to withdraw his guilty plea. Following this hearing, the trial court issued a written

decision overruling Johnston’s motion. In overruling the motion, the trial court found that

Johnston did not seek to withdraw his guilty plea until more than five years after his

conviction and did not attempt to explain the reason for the delay. The trial court also

found that the five-year delay was prejudicial to the State given that the testimony of a

child-victim was critical evidence. Although the trial court determined that Johnston’s

undue delay was sufficient grounds to overrule the motion, the trial court also considered

the merits of his motion to withdraw his guilty plea.

       {¶ 8} When considering the merits of Johnston’s motion, the trial court found that,

despite the misinformation provided by his trial counsel and in the plea form, there was

overwhelming evidence that Johnston knew the joint recommendation was for a prison

sentence of ten years to life. Specifically, the trial court pointed to the fact that the plea
                                                                                         -5-


agreement was properly stated on the record at the plea hearing and that the trial court

had properly advised Johnston of the penalties associated with his plea during the plea

colloquy without objection. As a result, the trial court found that if Johnston had truly

believed that he had negotiated a definite ten-year prison sentence, it was “inconceivable”

that he would have remained silent throughout the plea and sentencing hearings while

the court repeatedly referenced the life term.        Although the trial court ultimately

concluded that counsel’s misinformation regarding the jointly-recommended sentence

may have constituted deficient performance, it found that Johnston was not prejudiced

because the trial court corrected said misinformation on the record at the plea hearing.

Therefore, even when reviewing the merits of Johnston’s claim, the trial court determined

that Johnston had failed to establish a manifest injustice warranting the withdrawal of his

guilty plea.

       {¶ 9} Johnston now appeals from the trial court’s decision overruling his motion to

withdraw his guilty plea, raising three assignments of error for review.



                               First Assignment of Error

       {¶ 10} Under his first assignment of error, Johnston argues that his ten-year-to-life

prison sentence is void and that the matter should be remanded to the trial court for

resentencing. Johnston claims that his sentence is void because the statutory scheme

that penalizes the rape offense in question limited the trial court to imposing a maximum

sentence of 11 years in prison.       Johnston, however, is not only wrong about his

sentence, but the alleged sentencing error is beyond the scope of this appeal.

       {¶ 11} The record indicates that Johnston’s appeal is from the trial court’s
                                                                                       -6-


judgment overruling his post-sentence motion to withdraw his guilty plea. As previously

noted, the trial court overruled the motion on grounds of undue delay and Johnston’s

failure to establish a manifest injustice warranting the withdrawal of his guilty plea. In

turn, the only question presently before this court is whether that decision was in error.

Therefore, the alleged sentencing error raised by Johnston under his first assignment of

error is beyond the scope of this appeal. See State v. Ogletree, 2d Dist. Clark No. 2014-

CA-16, 2014-Ohio-3431, ¶ 20.

       {¶ 12} In addition to being beyond the scope of this appeal, the argument that

Johnston’s sentence is void lacks merit.     Johnston contends that pursuant to R.C.

2907.02(B), the trial court was only permitted to sentence him to a maximum sentence of

11 years in prison, which was the maximum allowable prison sentence for first-degree

felonies at the time he was sentenced in 2013.         See former R.C. 2929.14(A)(1).

Johnston, however, has misread the plain language of R.C. 2907.02(B). As previously

noted, Johnston was convicted of rape of a person less than 13 years of age in violation

of R.C. 2907.02(A)(1)(b). R.C. 2907.02(B) generally provides that “[e]xcept as otherwise

provided in this division, notwithstanding sections 2929.11 to 2929.14 of the Revised

Code, an offender under division (A)(1)(b) of this section shall be sentenced to a prison

term or term of life imprisonment pursuant to section 2971.03 of the Revised Code.”

(Emphasis added.)     R.C. 2907.02(B).     There are, however, two exceptions to this

provision.

       {¶ 13} One exception provides that an offender under R.C. 2907.02(A)(1)(b) shall

not be sentenced under R.C. 2971.03 if the offender was under sixteen years of age, did

not cause serious physical harm to the victim, the victim was ten years of age or older,
                                                                                            -7-

and the offender had not previously been convicted of rape. R.C. 2907.02(B). This

exception does not apply here, as Johnston was in his forties at the time of the offense in

question.

       {¶ 14} The    other   exception    provides    that   if   an   offender   under   R.C.

2907.02(A)(1)(b) had previously been convicted of rape under division (A)(1)(b), caused

serious physical harm to the victim, or if the victim was less than ten years of age, the trial

court has discretion to impose life in prison without parole in lieu of sentencing the

offender pursuant to R.C. 2971.03. R.C. 2907.02(B). None of these criteria apply to

Johnston, as the State dropped the specification in the indictment that the victim was

under ten years of age, there was no allegation of serious physical harm to the victim,

and Johnston had never previously been convicted of a criminal offense. Therefore,

based on the plain language of R.C. 2907.02(B), the trial court in this case was not

authorized to impose life in prison without parole in lieu of sentencing Johnston pursuant

to R.C. 2971.03.      The trial court was instead required to sentence Johnston in

accordance with R.C. 2971.03.

       {¶ 15} R.C. 2971.03 provides, in relevant part, as follows:

       (B)(1) * * * [I]f a person is convicted of or pleads guilty to a violation of

       division (A)(1)(b) of section 2907.02 of the Revised Code committed on or

       after January 2, 2007, if division (A) of this section does not apply

       regarding the person, and if the court does not impose a sentence of

       life without parole when authorized pursuant to division (B) of section

       2907.02 of the Revised Code, the court shall impose upon the person

       an indefinite prison term consisting of one of the following:
                                                                                          -8-


       (a) Except as otherwise required in division (B)(1)(b) or (c) of this section, a

       minimum term of ten years and a maximum term of life imprisonment.

       (b) If the victim was less than ten years of age, a minimum term of fifteen

       years and a maximum of life imprisonment.

       ***

(Emphasis added.) R.C. 2971.03 (B)(1)(a) and (b).

       {¶ 16} The foregoing statutory provision provides that, if R.C. 2971.03(A) does not

apply to the offender and if the court does not impose life without parole as authorized by

R.C. 2907.02(B), an offender guilty of violating R.C. 2907.02(A)(1)(b) shall be sentenced

to an indefinite term of ten years to life in prison. R.C. 2971.03(B)(1)(a). An offender’s

sentence is increased to an indefinite term of 15 years to life in prison if the victim was

less than ten years of age. R.C. 2971.03(B)(1)(b).

       {¶ 17} In this case, R.C. 2971.03(A) does not apply because Johnston’s case does

not involve a violent sex offense with a sexually violent predator specification. Also,

since the trial court dismissed the specification that the victim was under ten years old,

the trial court was not authorized to sentence Johnston to life without parole under R.C.

2907.02(B). Because the State dismissed that specification, the trial court was statutorily

required to sentence Johnston pursuant to R.C. 2971.03(B)(1)(a), which mandates the

imposition of an indefinite prison term of ten years to life in prison. See State v. Murrell,

2d Dist. Montgomery No. 24717, 2012-Ohio-2108, ¶ 30. That is the exact sentence the

trial court imposed on Johnston. Given that the trial court imposed the ten-year-to-life

sentence required by law, Johnston’s sentence is not void and his claim to the contrary

lacks merit.
                                                                                          -9-


        {¶ 18} Johnston’s first assignment of error is overruled.



                              Second Assignment of Error

        {¶ 19} Under his second assignment of error, Johnston argues that the trial court

erred in overruling his post-sentence motion to withdraw his guilty plea. Johnston’s claim

fails for multiple reasons.

        {¶ 20} Pursuant to Crim.R. 32.1, a trial court may permit a defendant to withdraw

a plea after imposition of sentence only to correct a manifest injustice. State v. Wilson,

2d Dist. Montgomery No. 26354, 2015-Ohio-1584, ¶ 16.                “ ‘A “manifest injustice”

comprehends a fundamental flaw in the path of justice so extraordinary that the defendant

could not have sought redress from the resulting prejudice through another form of

application reasonably available to him or her.’ ” State v. Brooks, 2d Dist. Montgomery

No. 23385, 2010-Ohio-1682, ¶ 8, quoting State v. Hartzell, 2d Dist. Montgomery No.

17499, 1999 WL 957746 (Aug. 20, 1999). Under this standard, a post-sentence motion

to withdraw is allowable only in extraordinary cases. State v. Smith, 49 Ohio St.2d 261,

264, 361 N.E.2d 1324 (1977).

        {¶ 21} We review a trial court’s ruling on a post-sentence motion to withdraw a plea

for an abuse of discretion. Xenia v. Jones, 2d Dist. Greene No. 07-CA-104, 2008-Ohio-

4733, ¶ 6. “The lynchpin of abuse-of-discretion review is the determination whether the

trial court’s decision is reasonable.” State v. Chase, 2d Dist. Montgomery No. 26238,

2015-Ohio-545, ¶ 17, citing AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).1 “A decision is


1   Chase was abrogated on other grounds by State v. Braden, Slip Op. No. 2018-Ohio-
                                                                                          -10-


unreasonable if there is no sound reasoning process that would support that decision.”

AAAA Ents. at 161.

       {¶ 22} In this appeal, Johnston claims that the trial court abused its discretion in

overruling his post-sentence motion to withdraw his guilty plea because the trial court

failed to advise him at the plea hearing of the correct maximum possible sentence he

could receive as required by Crim.R. 11(C)(2)(a). This argument, however, was not

raised by Johnston as part of his motion to withdraw his guilty plea nor was it raised during

the evidentiary hearing on the motion. The only issue brought before the trial court was

whether Johnston’s trial counsel rendered ineffective assistance by misinforming him

about the jointly-recommended sentence and whether said misinformation constituted a

manifest injustice warranting the withdrawal of his guilty plea. At no point prior to this

appeal did Johnston ever contend that the trial court failed to comply with Crim.R.

11(C)(2)(a) by misinforming him of the maximum possible sentence he could receive.

Accordingly, Johnston is improperly raising this claim for the first time in this appeal. See

State v. Schneider, 2d Dist. Greene No. 95-CA-18, 1995 WL 737910, *1 (Dec. 13, 1995).

       {¶ 23} Johnston’s claim that the trial court misinformed him of the maximum

possible sentence is also barred by the doctrine of res judicata because it could have

been demonstrated on the record and raised in a direct appeal. State v. Bonilla, 2d Dist.

Greene No. 2008 CA 68, 2009-Ohio-4784, ¶ 39 (“where a claim of ineffective assistance

of trial counsel could be resolved based on the record on direct appeal, such a claim must

be raised and a subsequent attempt to raise the claim will be barred by res judicata”).

       {¶ 24} However, even if Johnston’s claim was not barred, the record indicates that


5079, __ N.E.3d __.
                                                                                          -11-


the trial court did properly inform Johnston of the maximum possible sentence at the plea

hearing. The trial court told Johnston that, because of the specific code section involved

with his rape offense, his sentence would be “a minimum of not less than ten years to a

maximum of life imprisonment.”       Plea Hearing Trans., p. 6.      The written plea form

reviewed and signed by Johnston also stated that he could receive a possible sentence

of “10 yrs-life.” Plea of Guilty, Docket No. 38, p. 1. A ten-year-to-life prison sentence

was mandated by R.C. 2902.07(B) and R.C. 2971.03(B)(1)(a); therefore, the record

indicates that the trial court advised Johnston of the correct prison sentence that he would

receive if he pled guilty.

       {¶ 25} We further note that the trial court’s decision to overrule Johnston’s motion

to withdraw his guilty plea was partially based on his undue delay in filing the motion.

“[A]n undue delay between the occurrence of the alleged cause of a withdrawal of a guilty

plea and the filing of a Crim.R. 32 motion is a factor adversely affecting the credibility of

the movant and militating against the granting of the motion.” State v. Harden, 2d Dist.

Montgomery No. 22839, 2009-Ohio-3431, ¶ 7, citing Smith, 49 Ohio St.2d 261, 361

N.E.2d 1324. “The more time that passes between the defendant’s plea and the filing of

the motion to withdraw it, the more probable it is that evidence will become stale and that

witnesses will be unavailable.” State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894,

820 N.E.2d 355, ¶ 40. “The state has an interest in maintaining the finality of a conviction

that has been considered a closed case for a long period of time.” Id. “It is certainly

reasonable to require a criminal defendant who seeks to withdraw a plea to do so in a

timely fashion rather than delaying for an unreasonable length of time.” Id.

       {¶ 26} Here, Johnston filed his motion to withdraw his guilty plea five years after
                                                                                          -12-


his conviction and sentence and provided no excuse for the delay. As determined by the

trial court, such a delay is prejudicial to the State because if the plea was withdrawn and

the matter went to trial, the critical evidence would be the testimony of the child victim,

who was only five years old at the time of the offense. It is likely that the victim has spent

the past five years attempting to forget the offense and to move on with her life, which

would make recalling the details of the offense for trial difficult and traumatic. Under

these circumstances, we do not find that the trial court abused its discretion in considering

the undue delay as a reason to overrule the motion.

       {¶ 27} The trial court’s reasoning for overruling Johnston’s motion on the merits

was also reasonable and not an abuse of discretion. As previously noted, Johnston

argued in his motion that his guilty plea was not knowingly, intelligently, and voluntarily

entered because his trial counsel misinformed him that the jointly-recommended prison

sentence was ten years as opposed to ten years to life. The record, however, indicates

that the jointly-recommended sentence of ten years to life was correctly stated on the

record by the State at the plea hearing and that the trial court properly advised Johnston

of the penalties associated with his offense during the plea colloquy. The record also

indicates that Johnston never objected when the State advised the trial court that the

jointly-recommended sentence was ten years to life or when that term was subsequently

imposed at sentencing. Under these circumstances, it was reasonable for the trial court

to conclude that any misinformation Johnston received from his trial counsel regarding

the jointly-recommended sentence was cured at the time of the plea hearing. Therefore,

the trial court did not abuse its discretion when it concluded that Johnston failed to

establish a manifest injustice warranting the withdrawal of his guilty plea.
                                                                                         -13-


       {¶ 28} Johnston’s second assignment of error is overruled.



                               Third Assignment of Error

       {¶ 29} Under his third assignment of error, Johnston argues that his trial counsel

provided ineffective assistance at the plea hearing by failing to correct the trial court’s

alleged misstatement about the maximum possible sentence that Johnston could receive

if he pled guilty to the rape charge. Johnston also contends that his trial counsel provided

ineffective assistance by failing to advise him of an available defense—that there was

insufficient proof of “sexual conduct” with the victim. These claims also fail for multiple

reasons.

       {¶ 30} As a preliminary matter, we note that the ineffective assistance claims

raised by Johnston were not raised in the motion to withdraw his guilty plea that is the

subject of this appeal. Therefore, the ineffective assistance claims at issue are being

improperly raised for the first time on appeal. See Schneider, 2d Dist. Greene No. 95-

CA-18, 1995 WL 737910, at *1. Johnston’s claim that his trial counsel failed to correct

the trial court’s alleged misstatement at the plea hearing is also barred by res judicata

since it could have been demonstrated on the record and raised in a direct appeal. See

Bonilla, 2d Dist. Greene No. 2008 CA 68, 2009-Ohio-4784, at ¶ 39. But, regardless of

these deficiencies, both of Johnston’s ineffective assistance claims also lack merit.

       {¶ 31} In order to succeed on an ineffective assistance claim, a defendant must

establish: (1) his trial counsel’s performance was deficient; and (2) the deficient

performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d
                                                                                          -14-


136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. The failure to make a

showing of either deficient performance or prejudice defeats a claim of ineffective

assistance of counsel. Strickland at 697.

       {¶ 32} To establish deficient performance, a defendant must show that his trial

counsel’s performance fell below an objective standard of reasonable representation. Id.

at 688; Bradley at 142. In evaluating counsel’s performance, a reviewing court “must

indulge in a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.”        Strickland at 689.     “[A] debatable decision

concerning trial strategy cannot form the basis of a finding of ineffective assistance of

counsel.” State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964,

¶ 37 (2d Dist.), citing Strickland at 689. (Other citation omitted.)

       {¶ 33} To establish prejudice, a defendant must show that there is “a reasonable

probability that, but for counsel’s errors, the proceeding’s result would have been

different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,

citing Strickland at 687-688 and Bradley at paragraph two of the syllabus.               “ ‘A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.’ ” Bradley at 142, quoting Strickland at 694.

       {¶ 34} Johnston initially claims that his trial counsel provided ineffective assistance

at the plea hearing because counsel failed to correct the trial court’s alleged misstatement

about the maximum possible sentence he could receive if he pled guilty to the rape

charge.    This claim lacks merit because, as discussed under Johnston’s second

assignment of error, the trial court correctly advised Johnston that it would be statutorily

required to impose a sentence of ten years to life in prison if he pled guilty. Therefore,
                                                                                         -15-


because the trial court’s statement at the plea hearing was correct, there was no reason

for Johnston’s trial counsel to make any correction. Thus, counsel’s performance at the

plea hearing was not deficient and no prejudice resulted. Accordingly, Johnston’s first

ineffective assistance of counsel claim lacks merit.

       {¶ 35} Johnston also claims that his trial counsel failed to advise him that he could

defend against the rape charge by arguing that there was no proof of “sexual conduct,”

which is an essential element of rape. See R.C. 2907.02(A)(1). Johnston asserts that

there was no proof of “sexual conduct” because, during his interview with law

enforcement, he only admitted to touching the victim’s vagina, which constitutes “sexual

contact” not “sexual conduct.” See R.C. 2907.01(A) and (B).

       {¶ 36} The West Milton Police Department case report, however, indicates that the

victim told law enforcement that Johnston licked her vagina.        The case report also

indicates that Johnston admitted to putting his mouth on the victim’s vagina, as the report

provides as follows:

                 Sgt. Hendricks then asked [Johnston] if he put his mouth on [the

       victim’s] vagina, which he stated he did not. We informed [Johnston] this

       is the story [the victim] was giving us and told him if he did it, we know it

       was a mistake. After this, [Johnston] stated, “I did it, I did it, I just real

       quick.”

                 [Johnston] stated again “I did it” and it was stupid and he regrets

       doing it. Johnston further stated he knows it was wrong and doesn’t know

       why he did it.

Transcript of Criminal Docket from Miami County Municipal Court - West Milton Police
                                                                                          -16-


Case Report Supplement of May 29, 2012 (June 8, 2012), Docket No. 1, p. 8. Therefore,

as can be seen, the information in the case report belies Johnston’s claim that he only

admitted to touching the victim’s vagina. Even if Johnston had not admitted to putting

his mouth on the victim’s vagina, there were other ways in which that fact could have

been established at trial, including the victim’s testimony.

       {¶ 37} It is well established that placing one’s mouth on a female’s vagina is

sufficient to constitute the act of cunnilingus. State v. Bailey, 78 Ohio App.3d 394, 395,

604 N.E.2d 1366 (1st Dist.1992). Accord State v. Wilson, 2d Dist. Montgomery Nos.

16728, 16752, 1998 WL 639100, *3-4 (Aug. 7, 1998). Cunnilingus is considered “sexual

conduct” under R.C. 2907.01(A). Therefore, Johnston’s claim that there was no proof

that he engaged in “sexual conduct” with the victim lacks merit.

       {¶ 38} Under these circumstances, the fact that Johnston’s trial counsel did not

approach Johnston with the defense that he did not engage in “sexual conduct” with the

victim did not fall below an objective standard of reasonable representation. Johnston’s

trial counsel was undoubtedly aware of Johnston’s admission to law enforcement and the

victim’s allegations and likely realized that the victim’s testimony alone would be sufficient

to prove the “sexual conduct” element of rape. We cannot say that Johnston’s trial

counsel performed deficiently by allowing Johnston to plead guilty without informing him

of this implausible defense. Instead, Johnston’s trial counsel negotiated a favorable plea

agreement whereby the State agreed to dismiss the specification that the victim was

under ten years of age, thus preventing Johnston from receiving a 15-year-to-life prison

sentence. See R.C. 2971.03(B)(1)(b). By doing so, trial counsel reduced Johnston’s

mandatory prison time to ten years.       Trial counsel’s performance was therefore not
                                                                                          -17-


deficient, meaning Johnston’s second ineffective assistance claim also lacks merit.

       {¶ 39} Johnston’s third assignment of error is overruled.



                                           Conclusion

       {¶ 40} Having overruled all the assignments of error raised by Johnston, the

judgment of the trial court is affirmed.

                                      .............



TUCKER, J., concurs.

FROELICH, J., concurs:

       {¶ 41} Steven Johnston was indicted on one count of rape of a child less than 13

years of age, with a specification that the child was less than 10 years of age at the time

of the offense. Johnston agreed to enter a guilty plea to the charged offense. According

to the plea form, in exchange for the plea, the State agreed to (1) withdraw the

specification, and (2) “jointly recommend[ ] a ten-year prison sentence for Mr. Johnston.”

The plea form indicated that, without the agreed sentence, Johnston faced a potential

sentence of “10 years – life.” The form further stated: “I understand the MAXIMUM

penalty COULD be: a maximum basic prison term of life prison years/months of which 10

yrs is mandatory, during which I am not eligible for judicial release. * * *” The terms “life

prison” and “10 yrs” were handwritten.

       {¶ 42} The plea form unambiguously stated that the State agreed to a joint

recommendation of a definite prison sentence of 10 years. Such a definite sentence

would be unlawful, since R.C. 2971.03(B)(1) specifically requires the trial court to “impose
                                                                                             -18-

upon the person an indefinite prison term.” (Emphasis added.) The relevant indefinite

prison term was “a minimum term of ten years and maximum term of life imprisonment.”

R.C. 2971.03(B)(1)(a).

       {¶ 43} When the plea hearing began, defense counsel informed the court that “the

joint recommendation would be in exchange for my client’s guilty plea to the felony one

rape charge, uh, the State will remove the specification and the joint agreement of a ten

year prison sentence, Your Honor.” Defense counsel’s statement was consistent with

the plea form. The prosecutor responded, however, “That is correct, Your Honor, except

I believe the sentence will be ten years to life.” The court replied, “That’ll be correct.”

       {¶ 44} The court then conducted a plea colloquy, during which it told Johnston that,

“because of the specific code section involved[,] the penalty in this case would be a

sentence of not less than ten years to, a minimum of not less than ten years to a maximum

of life imprisonment” and a $20,000 fine. The trial court subsequently asked Johnston if

he had a chance to “go over” the plea form with his attorney and whether he understood

it and voluntarily signed it. Johnston responded “yes” to those questions. The court’s

advisement and questions about the plea form arguably could have led Johnston to

understand that his sentence could be, as stated on the plea form, not less than ten years

nor more than life in prison, but that a definite sentence was permissible. Specifically,

Johnston could have reasonably believed that he could receive a definite sentence of ten

years or possibly more than ten years, but still less than the possible maximum sentence

of life in prison, which the plea form said “could be” (i.e., not required to be) imposed.

       {¶ 45} The court did not address the apparent discrepancy between the jointly-

recommended sentence and the statutorily-required indefinite sentence, nor did it
                                                                                          -19-


expressly state that it could not impose a definite 10-year sentence. On the other hand,

the court agreed with the prosecutor’s statement that the sentence would be “ten years

to life,” and the court gave no indication at the plea hearing that it would impose a definite

10-year sentence, as the parties had, on paper, agreed to recommend. At sentencing,

the court imposed a sentence of “10 years to life.”

       {¶ 46} Although the discrepancy between the jointly-recommended definite

sentence, the colloquy’s and the form’s wording, and the indefinite sentence imposed is

troubling, I agree that Johnston’s lack of a direct appeal and the substantial delay (with

consequential prejudice to the State) in filing a motion to withdraw his plea requires an

affirmance.




Copies sent to:

Paul M. Watkins
Steven H. Eckstein
Hon. Jeannine N. Pratt
