[Cite as State v. Brown, 2017-Ohio-184.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104095



                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                GREGORY D. BROWN
                                                    DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-600537-A

        BEFORE: Boyle, J., McCormack, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: January 19, 2017
ATTORNEY FOR APPELLANT

Judith M. Kowalski
333 Babbitt Road, Suite 323
Euclid, Ohio 44123


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Marcus A. Henry
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

      {¶1} In October 2015, defendant-appellant, Gregory Brown, was indicted on the

following counts: three counts of rape in violation of R.C. 2907.02(A)(1)(b) with one of

the counts carrying a furthermore clause that the victim was less than ten years of age at

the time of the offense; gross sexual imposition in violation of R.C. 2907.05(A)(4); and

kidnapping in violation of R.C. 2905.01(A)(4), which carried both a furthermore clause

that the victim was under 18 years of age and a sexual motivation specification.

Following a plea agreement reached with the state, Brown pleaded guilty to an amended

single count of rape in violation of R.C. 2907.02(A)(2). The trial court imposed an

agreed sentence of 11 years in prison.       Brown appeals, raising the following four

assignments of error:

      I. Appellant’s guilty plea was not made knowingly, intelligently and
      voluntarily, as it was made under duress, and the trial court erred to the
      prejudice of the appellant in accepting said guilty plea.

      II. The appellant was deprived of due process by reason of pre-indictment
      delay.

      III.   The appellant was denied effective assistance of counsel.

      IV.    The trial court abused its discretion to the prejudice of appellant by

      imposing a maximum sentence, in that the sentence was excessive for

      purposes set forth in Ohio Revised Code Section 2929.11 and not necessary

      for the protection of the public.

Finding no merit to the appeal, we affirm.

      A. Guilty Plea
      {¶2} In his first assignment of error, Brown argues that he was “under duress”

when he entered the plea.   Specifically, he contends that the state’s tactic of dismissing

the first indictment and reindicting on the more serious charges may have had a “coercive

effect on his decision” to plea guilty. Brown’s argument has no merit.

      {¶3} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily.    Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).

      {¶4} “The standard for reviewing whether the trial court accepted a plea in

compliance with Crim.R. 11(C) is a de novo standard of review.” State v. Cardwell, 8th

Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26, citing State v. Stewart, 51 Ohio St.2d

86, 364 N.E.2d 1163 (1977).     The appellate court is required to “review the totality of

the circumstances and determine whether the plea hearing was in compliance with

Crim.R. 11(C).” Id.

      {¶5} Crim.R. 11(C)(2) requires a court, prior to accepting a guilty plea, to address

the defendant personally; the court must specify each of the constitutional rights the

defendant is waiving by entering his plea and, further, must determine, in pertinent part,

that “he is making the plea voluntarily, with an understanding of the nature of the charge

and the maximum penalty involved,” that “he understands the effect of his plea of guilty,”

and that he understands the court “may proceed to judgment and sentence.” See State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621.
       {¶6} Apart from Brown failing to identify any evidence in the record to support his

claim of “duress,” the record unequivocally belies his claim on appeal.      First, although

the charges of the indictment carried a much greater prison term if Brown proceeded to

trial and was found guilty, this fact does not support a “duress” claim on appeal.

Second, the record reflects that the trial court fully complied with Crim.R. 11 prior to

accepting Brown’s guilty plea.      Notably, Brown does not even dispute this fact on

appeal.     Finally, Brown also expressly indicated that “no threats” had been made and

that the only promises given were those stated in open court as part of the plea agreement.

 Accordingly, based on the trial court’s full compliance with Crim.R. 11 and Brown’s

own statements during the plea colloquy, we find that Brown’s guilty plea was

knowingly, intelligently, and voluntarily made.

       {¶7} The first assignment of error is overruled.

       B.    Due Process

       {¶8} In his second assignment of error, Brown argues that the state failed to timely

indict on the underlying charges. Specifically, Brown challenges the state’s four-month

delay between the first indictment that was ultimately dismissed and the reindictment

filed in October 2015.

       {¶9} Brown’s argument easily fails.          First, he does not argue, let alone

demonstrate, any prejudice by the alleged delay that would support a due process

violation. See State v. Jones, Slip Opinion No. 2016-Ohio-5105, ¶ 13 (actual prejudice

is the first step in establishing unjustifiable preindictment delay). Second, his guilty plea
waives any alleged due process violation arising from preindictment delay.      See State v.

Moore, 2d Dist. Montgomery No. 22365, 2008-Ohio-4322, ¶ 12, citing State v.

Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 78 (“a guilty plea

waives all non-jurisdictional defects (other than errors affecting the validity of the guilty

plea) in the prior proceedings”).

       {¶10} Accordingly, because Brown’s argument is unsupported by the record and

has been waived by his guilty plea, his second assignment of error is overruled.

       C. Ineffective Assistance of Counsel

       {¶11} In his third assignment of error, Brown argues that he was denied effective

assistance of counsel.   Emphasizing that he received a maximum sentence on the rape

count, Brown argues that his trial counsel was ineffective because “counsel said very little

in mitigation at the sentencing hearing to try to persuade the court to accept a lesser

sentence.”   This argument has no merit.

       {¶12} To establish ineffective assistance of counsel, a defendant must show (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 proceeding’s result would have been different.           Strickland v.

Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the

syllabus.

       {¶13} Ohio courts have recognized that “‘[a]n attorney, who advises his client to
plead guilty as charged when the client receives no benefit at all in exchange therefore,

could possibly be deemed to have failed in his duty to competently represent his client.’”

State v. Orleans, 7th Dist. Mahoning No. 07-MA-175, 2008-Ohio-5937, ¶ 22, quoting

State v. Underwood, 4th Dist. Meigs No. 98CA11, 1999 Ohio App. LEXIS 2234 (May 7,

1999).     However, “the benefit a defendant receives as a result of pleading guilty is not

necessarily reflected by the penalty ultimately imposed on him.” Underwood at             7,

citing State v. Spivey, 81 Ohio St.3d 405, 692 N.E.2d 151 (1998). Instead, courts should

consider “the totality of the circumstances surrounding the plea in determining whether

the appellant received any benefit in exchange for the plea.” Id.

         {¶14} Brown’s argument misconstrues the sentencing proceedings and utterly

ignores the procedural posture of his case.   Brown’s trial counsel effectively negotiated a

plea agreement wherein the state agreed to dismiss four of the charges and a furthermore

clause on the rape count, which carried a mandatory term of life imprisonment due to the

victim’s age.    Brown clearly received a benefit from the plea agreement.    Moreover, as

part of the plea agreement, Brown and the state agreed to a sentence of 11 years.     Thus,

Brown’s counsel was not deficient in failing to advance any argument to depart from the

agreed-upon sentence, which would have jeopardized the favorable plea agreement

reached for Brown.

         {¶15} The third assignment of error is overruled.

         D.   Agreed Sentence

         {¶16} In his final assignment of error, Brown broadly argues that the trial court
erred in imposing the maximum sentence because it is not supported by the record.

Again, however, Brown completely ignores that the trial court imposed 11 years as part of

an agreed sentence.

       {¶17} R.C. 2953.08 sets forth specific grounds for appealing felony sentences.

As relevant here, R.C. 2953.08(D)(1) provides that “[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.” See State v. Jones, 8th Dist. Cuyahoga No. 103017,

2016-Ohio-932, ¶ 11; State v. Heisa, 8th Dist. Cuyahoga No. 101877, 2015-Ohio-2269, ¶

27.   “[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 provisions.” State

v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, paragraph two of the

syllabus.

       {¶18} The Supreme Court of Ohio has held that “[o]nce a defendant stipulates that

a particular sentence is justified, the sentencing judge need not independently justify the

sentence.” State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690,

paragraph three of the syllabus.   “The General Assembly intended a jointly agreed-upon

sentence to be protected from review precisely because the parties agreed that the

sentence is appropriate.”    Id. at ¶ 25. See also State v. Sergent, Slip Opinion No.

2016-Ohio-2696, ¶ 29 (recognizing that an agreed sentence that implicates a trial court’s

discretionary decisions, such as whether to impose consecutive sentences, is “authorized
by law” and unreviewable).

      {¶19} Brown and the state agreed to the 11-year sentence as part of the plea

agreement.    The sentence imposed is within the statutory range for rape and is

authorized under the law.      See R.C. 2929.14(A)(1).         Notably, Brown raises no

argument that the trial court failed to comply with any mandatory sentencing provision.

The trial court imposed the sentence in accordance with the parties’ joint

recommendation.    Thus, given that all three criteria exist in this case as set forth in R.C.

2953.08(D)(1), Brown’s challenge of his sentence is beyond the scope of appellate

review.

      {¶20} The final assignment of error is overruled.

      {¶21} Judgment affirmed.

      It is ordered that appellee recover from appellant the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.     Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE
TIM McCORMACK, P.J., and
MELODY J. STEWART, J., CONCUR
