[Cite as State v. McGlown, 2013-Ohio-2762.]




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

 STATE OF OHIO                                    :
                                                  :     Appellate Case No. 25434
         Plaintiff-Appellee                       :
                                                  :     Trial Court Case No. 2012-CR-1852
 v.                                               :
                                                  :
 DOMINIQUE McGLOWN                                :     (Criminal Appeal from
                                                  :     (Common Pleas Court)
         Defendant-Appellant                      :
                                                  :
                                              ...........

                                              OPINION

                              Rendered on the 28th day of June, 2013.

                                              ...........

MATHIAS H. HECK, JR., by APRIL F. CAMPBELL, Atty. Reg. #0089541, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ELIZABETH C. SCOTT, Atty. Reg. #0076045, 120 West Second Street, Suite 703, Dayton,
Ohio 45402
       Attorney for Defendant-Appellant

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

FAIN, P.J.

        {¶ 1}    Defendant-appellant Dominique McGlown appeals from her conviction and
                                                                                                    2


sentence for Aggravated Arson. McGlown contends that the trial court abused its discretion by

sentencing her to a prison term instead of community control. McGlown further contends that

her trial counsel provided ineffective assistance by permitting her to enter into a guilty plea,

which waived her ability on appeal to contest the trial court’s denial of her motion to suppress.

        {¶ 2}   We conclude that the trial court did not abuse its discretion by sentencing

McGlown to a prison term within the applicable statutory range. We further conclude that

McGlown has failed to demonstrate ineffective assistance of trial counsel. Accordingly, the

judgment of the trial court is Affirmed.



                                   I. Course of the Proceedings

        {¶ 3}   McGlown was indicted on one count of Aggravated Arson, a felony of the first

degree in violation of R.C. 2909.02(A)(1), and one count of Arson, a felony of the second degree

in violation of R.C. 2909.02(A)(2). McGlown moved to suppress any incriminating statements

she made to a detective who had interviewed her about the arson. Following a suppression

hearing, the trial court overruled the motion.

        {¶ 4}   Pursuant to a plea bargain, McGlown pled guilty to Aggravated Arson. In

exchange for the guilty plea, the State agreed to dismiss the Arson count and cap any prison term

at four years. The trial court found McGlown guilty of Arson and sentenced her to three years in

prison and five years of post-release control. The court also ordered McGlown to pay $1,000 in

restitution.

        {¶ 5}   From the judgment, McGlown appeals.
                                                                                                   3


                      II. The Trial Court Did Not Abuse its Discretion by

                       Sentencing McGlown Within the Statutory Range

         {¶ 6}   McGlown’s First Assignment of Error states:

                 THE TRIAL COURT ERRED BY SENTENCING MS. MCGLOWN TO

         A SENTENCE GREATER THAN THE MINIMUM.

         {¶ 7}   When reviewing a felony sentence, an appellate court must first determine

whether the sentencing court complied with all applicable rules and statutes in imposing the

sentence, including R.C. 2929.11 and 2929.12, in order to decide whether the sentence is contrary

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

sentence is not clearly and convincingly contrary to law, the trial court's decision in imposing the

term of imprisonment must be reviewed under an abuse-of-discretion standard. Id. The term

“abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary or

unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248, (1985).

         {¶ 8}   McGlown contends that the trial court abused its discretion when it sentenced her

to prison instead of placing her on community control sanctions, because McGlown was a “first

time felony offender,” and she had been assaulted by her boyfriend. Brief, p. 3. We do not

agree.

         {¶ 9}   McGlown pled guilty to Aggravated Arson, a felony of the first degree. At the

plea hearing, the trial court explained to McGlown that she could be sentenced to a prison term of

between three and eleven years or could instead be sentenced to community control sanctions for

a period of up to five years. The trial court made it clear to McGlown that the only agreement in

place regarding sentencing was that if she was sentenced to prison, it would be no longer than a
                                                                                                 4


four-year prison sentence. Tr. 40-41.

        {¶ 10} The trial court sentenced McGlown to three years in prison. At the sentencing

hearing, the trial court stated, in part:

                Ma’am, this is your first felony.    You have a few misdemeanors, a

        juvenile record. You were not compliant with your EHDP. This could have

        resulted in very serious – it could have resulted in loss of life. And while I

        understand you and your boyfriend had a fight, you – I have to announce that you

        make some nonsensical arguments about, well maybe I should have just let him

        beat me up.

                Well, okay, I understand that. However, you left and then went back and

        started fire to the place. There were other people in that building. You didn’t

        appear to have any consideration for the – while you were mad, you didn’t seem to

        think about what you could have done to harm other people.

                Ma’am, after considering the serious – or purposes and principles of

        sentencing, the seriousness and recidivism factors, I’m going to sentence you to

        three years at the Ohio Reformatory for Women. Tr. 49.

        {¶ 11} The trial court considered the purposes and principles of sentencing and the

seriousness and recidivism factors before sentencing McGlown to a prison sentence within the

statutory range provided for a felony of the first degree. Furthermore, the sentence was less than

the cap to which McGlown and the State had agreed. We conclude that the trial court did not

abuse its discretion in sentencing McGlown to three years in prison.

        {¶ 12} McGlown’s First Assignment of Error is overruled.
                                                                                                    5




        III. McGlown Has Failed to Demonstrate Ineffective Assistance of Trial Counsel

         {¶ 13} McGlown’s Second Assignment of Error states:

                TRIAL COUNSEL WAS INEFFECTIVE BY PERMITTED [SIC] MS.

         MCGLOWN TO ENTER A GUILTY PLEA.

         {¶ 14} A claim of ineffective assistance of trial counsel requires both a showing that trial

counsel’s representation fell below an objective standard of reasonableness, and that the

defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984). A reviewing court “must indulge in a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The

prejudice prong requires a finding that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different, with a reasonable

probability being “a probability sufficient to undermine confidence in the outcome.” Id. at 694.

See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

         {¶ 15} McGlown contends that her “trial counsel was ineffective by allowing his client

to plead guilty, without any consideration, thus giving up Ms. McGlown’s ability to appeal

pre-trial rulings.” Brief, p. 4. We do not agree.

         {¶ 16} To begin with, we do not understand McGlown’s argument that she pled guilty

without any consideration. She pled guilty to Aggravated Arson, a felony of the first degree,

with a maximum prison term of eleven years. R.C. 2929.14(A)(1). As a result of the plea

agreement, her sentence was capped at four years. That was substantial consideration for her

plea.
[Cite as State v. McGlown, 2013-Ohio-2762.]
        {¶ 17} To establish on direct appeal McGlown’s claim of ineffective assistance of trial

counsel, the record would have to show that: (1) the State would have agreed to a no-contest plea

on the same terms; (2) her counsel failed to advise her that a no-contest plea, in contradistinction

to a guilty plea, would preserve the suppression issue for appeal; and (3) had McGlown been so

advised, she would have rejected the plea offer. The record fails to establish any of these facts.

        {¶ 18} McGlown’s Second Assignment of Error is overruled.



                                              IV. Conclusion

        {¶ 19} Both of McGlown’s assignments of error having been overruled, the judgment of

the trial court is Affirmed.

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

FROELICH and WELBAUM, JJ., concur.

Copies mailed to:

Mathias H. Heck
April F. Campbell
Elizabeth C. Scott
Hon. Mary K. Huffman
