[Cite as State v. Nocera, 2019-Ohio-2424.]


                                   COURT OF APPEALS
                                  STARK COUNTY, OHIO
                               FIFTH APPELLATE DISTRICT


 STATE OF OHIO                               :   JUDGES:
                                             :
                                             :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :   Hon. John W. Wise, J.
                                             :   Hon. Patricia A. Delaney, J.
 -vs-                                        :
                                             :   Case No. 2018CA00111
                                             :
 DANIEL MICHAEL NOCERA                       :
                                             :
                                             :
        Defendant-Appellant                  :   OPINION


CHARACTER OF PROCEEDING:                         Appeal from the Stark County
                                                 Court of Common Pleas, Case
                                                 No. 2018CR0545



JUDGMENT:                                        AFFIRMED




DATE OF JUDGMENT ENTRY:                          June 14, 2019




APPEARANCES:

 For Plaintiff-Appellee:                         For Defendant-Appellant:

 JOHN D. FERRERO, JR.                            AARON KOVALCHIK
 STARK CO. PROSECUTOR                            116 Cleveland Ave. N.W.
 RONALD MARK CALDWELL                            808 Courtyard Centre
 110 Central Plaza South, Ste. 510               Canton, OH 44702
 Canton, OH 44702-1413
Stark County, Case No. 2018CA00111                                                2

Delaney, J.

       {¶1} Appellant Daniel Michael Nocera appeals from the July 5, 2018

Judgment Entry of the Stark County Court of Common Pleas. Appellee is the state

of Ohio.

                      FACTS AND PROCEDURAL HISTORY

       {¶2} A statement of the facts underlying appellant’s criminal convictions

is not necessary to our resolution of this appeal.

       {¶3} Appellant was charged by indictment with one count of violation of a

protection order pursuant to R.C. 2919.27(A)(2), a felony of the third degree [Count

I]; one count of menacing by stalking pursuant to R.C. 2903.211(A)(1) and

(B)(2)(g), a felony of the fourth degree [Count II]; and one count of

telecommunications harassment pursuant to R.C. 2917.21(A)(1), a felony of the

fifth degree [Count III].

       {¶4} On May 23, 2018, appellant appeared before the trial court and

changed his previously-entered pleas of not guilty to ones of guilty as charged in

the indictment.     The trial court deferred sentencing pending a pre-sentence

investigation (P.S.I.).

       {¶5} On June 27, 2018, appellant appeared for sentencing and the trial

court suspended a 36-month prison term on the condition that appellant complete

a 36-month period of community control. Appellant was ordered to, e.g., complete

a term in a community-based corrections facility, complete drug and alcohol

treatment, obtain employment, complete community service, and to have no

contact with the victim.
Stark County, Case No. 2018CA00111                                                3


       {¶6} Appellant now appeals from the trial court’s July 5, 2018 Judgment

Entry of conviction and sentence.

       {¶7} Appellant raises one assignment of error:

                           ASSIGNMENT OF ERROR

       {¶8} “APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL.”

                                    ANALYSIS

       {¶9} In his sole assignment of error, appellant argues he received

ineffective assistance of counsel because the trial court suspended a jail term of 3

years instead of one year. We disagree.

       {¶10} To succeed on a claim of ineffectiveness, a defendant must satisfy a

two-prong test. Initially, a defendant must show that trial counsel acted

incompetently. See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052

(1984). In assessing such claims, “a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’”

Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 (1955).

       {¶11} “There are countless ways to provide effective assistance in any

given case. Even the best criminal defense attorneys would not defend a particular

client in the same way.” Strickland, 466 U.S. at 689. The question is whether

counsel acted “outside the wide range of professionally competent assistance.” Id.

at 690.
Stark County, Case No. 2018CA00111                                                   4


       {¶12} Even if a defendant shows that counsel was incompetent, the

defendant must then satisfy the second prong of the Strickland test. Under this

“actual prejudice” prong, the defendant must show that “there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694.

       {¶13} On the record at the change-of-plea hearing, the trial court indicated

appellant was subject to a potential prison sentence of up to 36 months upon Count

I, up to 18 months upon Count II, and 6 to 12 months upon Count III. Appellant

was further advised that those terms could be served concurrently or

consecutively.     Appellant stated affirmatively that he understood the potential

penalties. He also executed a Crim.R. 11(C) plea form acknowledging those

potential penalties and that he understood the rights he waived in entering the

guilty pleas.

       {¶14} At the sentencing hearing on June 27, 2018, the trial court stated it

was in receipt of the P.S.I. and would sentence appellant to a community-control

term of 36 months. The following statements were then made:

                       THE COURT: ****.

                       As indicated, going to be held for a bed at the Regional

                Correctional Facility. I remind you that the balance of 36 months will

                be imposed if you fail to comply or otherwise violate.

                       Do you understand that?

                       [APPELLANT:] Uh—

                       THE COURT: Do you understand that?
Stark County, Case No. 2018CA00111                                                 5


                     [APPELLANT:] I thought it was a year.

                     (Private conversation held between Defense attorney and

              [appellant].)

                     THE COURT: You mean that’s being held?

                     [APPELLANT:] Yeah.

                     THE COURT:          No. And that’s—that really shouldn’t be

              something you should worry about.

                     [APPELLANT:] No, I’m not.

                     THE COURT: Because you’re not going to be back in front of

              me so it isn’t going to matter, but if you do, then it’s going to be 36

              months. We’re not going to mess around.

                     Listen! Be careful.

                     That will be all.

                     [DEFENSE TRIAL COUNSEL:] Thank you, Your Honor.

                     T. 4-5.

       {¶15} Appellant has framed his argument on appeal as one of ineffective

assistance of counsel, although he summarily mentions that his plea was not

knowing, intelligent, or voluntary because he expected to receive a suspended

prison term of one year instead of three years. Appellant has not offered any

explanation why he believed only one year would be suspended. Nor does he

point to any support for his belief in the record. Instead, he points to the exchange

above with the trial court as evidence of the second Strickland prong of ineffective

assistance: he would not have entered the guilty pleas and would have gone to
Stark County, Case No. 2018CA00111                                                6


trial if he had known three years would be suspended instead of one. This self-

serving statement is not supported by any evidence in the record.

       {¶16} The conversation cited supra does not establish the circumstances

surrounding appellant's decision to enter the pleas of guilty. Appellant does not

make any claims about the conversation that he had with defense counsel off the

record, and we observe that a claim requiring proof that exists outside of the trial

record cannot appropriately be considered on a direct appeal. State v. Hartman,

93 Ohio St.3d 274, 299, 754 N.E.2d 1150 (2001) (if establishing ineffective

assistance of counsel requires proof outside the record, then such claim is not

appropriately considered on direct appeal).

       {¶17} Appellant alleges that but for the ineffectiveness of his attorney, he

would not have pleaded guilty and would have insisted on going to trial. We find

no evidence that appellant failed to knowingly, intelligently, and voluntarily enter

his pleas. See, State v. Congrove, 5th Dist. Delaware No. 09 CAA 09 0080, 2010-

Ohio-2933, ¶ 35. Nor do we find any evidence in support of appellant’s argument

of ineffective assistance of counsel. Appellant has not alleged any specific error

by counsel, and has not established that but for counsel’s ineffectiveness, he

would not have entered the guilty pleas.

       {¶18} Appellant’s sole assignment of error is overruled.
Stark County, Case No. 2018CA00111                                          7


                                CONCLUSION

      {¶19} Appellant’s sole assignment of error is overruled and the judgment

of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Wise, John, J., concur.
