[Cite as State v. Davis, 2014-Ohio-5371.]


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

STATE OF OHIO,                                 :     Case Nos. 13CA3589
                                                               13CA3593
        Plaintiff-Appellee,                    :

v.                                             :     DECISION AND
                                                     JUDGMENT ENTRY
JOSEPH B. DAVIS,                               :

        Defendant-Appellant.                   :     RELEASED: 11/26/2014

                                            APPEARANCES:

Joseph Davis, London, Ohio, pro se appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County
Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
Harsha, J.
        {¶1}     Joseph Davis entered into an agreement in which he pleaded guilty to

illegal manufacture of methamphetamine within the vicinity of a juvenile, attempted

burglary, and illegal possession of chemicals for the manufacture of drugs in return for

the dismissal of other charges. The Scioto County Court of Common Pleas imposed an

agreed aggregate prison sentence of ten years, with six years of mandatory prison time.

        {¶2}     In his first assignment of error, Davis asserts that the trial court erred

when it imposed consecutive sentences without making the findings required by R.C.

2929.14(C). Because Davis and the state agreed to and jointly recommended the

imposition of consecutive sentences, review of the propriety of those sentences is

precluded by R.C. 2953.08(D)(1). Thus we reject Davis’s contention.

        {¶3}     In his second assignment of error Davis contends that he was denied the

effective assistance of trial counsel because counsel did not first contact him until the
Scioto App. Nos. 13CA3589 and 13CA3593                                                       2


sentencing hearing and failed to investigate the case. We reject this contention

because Davis relies on allegations that are not supported by the record on appeal.

         {¶4}   In his third assignment of error Davis claims that the trial court’s coercive

participation in the plea agreement process compromised his right to a fair trial. The

record reveals that the trial court did not coerce Davis to accept a guilty plea and that

his plea was knowingly, intelligently, and voluntarily made. Consequently, we deny his

claim.

         {¶5}   Therefore, we overrule his assignments of error and affirm the judgment

entered by the trial court.

                                           I. FACTS

         {¶6}   In Scioto C.P. Case No. 12CR789, a Scioto County grand jury returned an

indictment charging Davis with illegal manufacture of drugs or cultivation of

methamphetamine within the vicinity of a juvenile, illegal possession of chemicals for

the manufacture of drugs within the vicinity of a juvenile, burglary, obstructing official

business, and possession of drugs/methamphetamine. The trial court appointed

counsel to represent him.

         {¶7}   Upon request, the state submitted a bill of particulars that stated:

                 On or about the 2nd day of October, 2012, in the area of 57
         Oakwood Avenue, Lucasville, Scioto County, Ohio, defendant was located
         by officers of the Southern Ohio Drug Task Force trespassing in the
         residence owned by victim Teddy Weeks, when someone was present or
         likely to be present. Defendant was observed in the process of making
         methamphetamine inside the residence. Upon being confronted by law
         enforcement, defendant made a threatening gesture and attempted to flee
         out the rear of the residence. Items located by officers in the residence
         were an active pot of methamphetamine cook; a hydrogen chloride gas
         generator; mason jar containing ethyl ether; petroleum distillate; sulfuric
         acid; salt; lye; ammonium nitrate; coffee filters; tubing; spent lithium
         batteries with lithium removed; a punched star[t]ing fluid can; and a piece
Scioto App. Nos. 13CA3589 and 13CA3593                                                   3


       of plastic containing methamphetamine. Defendant committed the
       offenses within the vicinity of a juvenile.

       {¶8}   After Davis failed to appear for a pretrial hearing, his attorney withdrew as

his appointed counsel.

       {¶9}   In Scioto C.P. Case No. 13CR553C, a Scioto County grand jury returned

an indictment charging Davis with illegal possession of chemicals for the manufacture of

drugs and aggravated possession of drugs. The trial court appointed counsel, who filed

a request for bill of particulars and demand for discovery.

       {¶10} The state filed a bill of particulars, which described the alleged offenses:

               On or about the 6th day of June, 2013 at Scioto Street, Lucasville,
       Scioto County, Ohio, defendants’ vehicle was stopped for a headlight
       violation. As the vehicle came to a stop, the driver, co-defendant Christina
       Dyke, and rear seat passenger, defendant Joseph Davis, fled on foot.
       Upon making contact with the remaining two passengers in the vehicle,
       co-defendant Johnathan Collins and co-defendant Sarah Manns, troopers
       observed in plain view in the vehicle a jar containing methamphetamine.
       A search of the vehicle revealed chemicals to manufacture meth, including
       lithium batteries, used coffee filters with white powder residue, corners of
       plastic baggies, a receipt for the purchase of starting fluid, receipts for the
       purchase of pseudoephedrine, a bottle of Liquid Fire, and a can of
       camping fuel, along with syringes and other paraphernalia.

       {¶11} The trial court held a pretrial conference in the foregoing cases, as well as

a case involving Davis’s failure to appear for the pretrial hearing in Case No. 12CR789.

There, Davis was represented by his appointed attorney, and the parties indicated that

they had engaged in plea negotiations in which the last offer was that Davis would enter

a guilty plea to certain charges in return for the dismissal of the other charges and an

agreed aggregate sentence of ten years, with six years mandatory and no agreement

for judicial release. The following discussion occurred at which Davis initially rejected

the offer, but then reconsidered and accepted it:
Scioto App. Nos. 13CA3589 and 13CA3593                                                 4


     MR. WISECUP: * * * he’s looking at 34 and a half years in prison if he’s
     convicted. At least, a third of that to a half of that would be mandatory
     time. The State has offered Mr. Davis ten years today to resolve all three
     cases. Six years, of which would be mandatory with no agreement
     regarding judicial release. It’s the State’s understanding that Mr. Davis is
     not interested in that offer. If that’s the case today the State will take that
     off the table, and we will proceed to jury trial in these three cases.

     THE COURT: Sir, have you conveyed the offer to your client, Mr.
     Meadows?

     ***

     MR. MEADOWS: Your Honor, we’ve discussed this extensively today and
     I -- we’ve -- we’ve had different offers and different counter offers. We’ve
     made different counter offers. Mr. Davis’ last counter offer was he would
     accept the ten years but get a judicial to Star after six, and the State has
     not agreed to that. So at this point, I -- I don’t know that we’re anywhere
     other than setting it for trial.

     THE COURT: Okay. Mr. Davis, do you understand the offer, sir?

     DEFENDANT: Yes, sir.

     THE COURT: Okay. Ten years, mandatory six. Okay. And you’re
     declining that offer, is that correct?

     DEFENDANT: I mean, I can’t get out -- I can’t get out to a Star Program
     after six? I mean, he’s saying --

     THE COURT: All—all I do is implement --

     DEFENDANT: Right -- right, sir. I understand that.

     THE COURT: -- your agreement. Okay. If the State of Ohio and you
     can’t come to an agreement, that’s why we have trials.

     DEFENDANT: Right.

     THE COURT: And I can’t tell you what I’m going to sentence you to if
     you’re convicted. I can’t tell you that because I haven’t heard the case.

     DEFENDANT: Right. Right, sir.

     THE COURT: Okay.
Scioto App. Nos. 13CA3589 and 13CA3593                                                   5


       DEFENDANT: I mean --

       MR. MEADOWS: He’s -- he’s not willing to make the offer at ten months to
       Star.

       THE COURT: If -- if you don’t take this offer it[’]s Mr.Kuhn’s position that
       the offer only gets worse down the road.

       DEFENDANT: How -- I mean -- I mean, --

       THE COURT: It’s just the way they operate.

       DEFENDANT: Can I ride out -- can I ride out tomorrow? I mean, ride me
       out soon, because, listen, I’m -- I’m a wreck. Yeah, I’ll take it. We’ll take
       it. Guilty. But I ride out -- I ride out --

       THE COURT: Are you doing this of your own free will? I mean --

       DEFENDANT: Yes, sir. Yes, sir. Nobody –

       THE COURT: Are you sure you want to do this?

       DEFENDANT: Yes, sir. Yes, sir.

       {¶12} Davis executed written forms in which he specified that he understood that

the maximum penalties for the three crimes that he was pleading guilty to were 11 years

(illegal manufacture of drugs or cultivation of methamphetamine within the vicinity of a

juvenile), 36 months (attempted burglary), and 36 months (illegal possession of

chemicals for the manufacture of drugs) and waived his rights and pleaded guilty to the

crimes.

       {¶13} The trial court engaged in a lengthy colloquy with Davis to determine that

he was knowingly, intelligently, and voluntarily waiving his rights and pleading guilty. In

the discussion the trial court specified that the parties’ plea agreement included the

imposition of consecutive sentences, and Davis and his counsel admitted that this was

their understanding of the agreement:
Scioto App. Nos. 13CA3589 and 13CA3593                                                6


      THE COURT: The record will reflect we’re here on * * * 12CR789 and
      13CR553(C), both captioned State of Ohio versus Joseph Davis, with the
      understanding the failure to appear, 13-006, is to be dismissed.

              It’s the Court[’]s understanding he’s prepared to change his plea on
      12CR789, on Count 1 Illegal Manufacture of Drugs for the Cultivation of
      Methamphetamine within the Vicinity of a Juvenile, that will be a felony of
      the first degree, in violation of 2925.04(A)/(C)(3)(B). And also pleading to
      Count 3 Attempted Burglary, a felony of the third degree, and that’s in
      violation of 2923.02 of the Revised Code. On case number 13CR553(C),
      he’s also changing his plea to Illegal Possession of Chemicals for the
      Manufacture of Drugs, a felony of the third degree, in violation of
      2925.041(A).

              The record should further reflect it’s a negotiated plea pursuant to
      Section 2953.08(D) * * * on case number 789, Count 1, he will receive a
      six year mandatory prison term, on Count 3, he will receive a one year
      non-mandatory prison term, and on 13-553(C), you’re pleading to Count 1,
      and will receive a three year non-mandatory prison term, for an aggregate
      ten year prison term, all running consecutively with each other. As -- his
      driver’s license has to be suspended, by law, for six month[s]. Mr.
      Meadows, [is] this your complete understanding, sir?

      MR. MEADOWS: It is, Your Honor.

      THE COURT: And Mr. Davis, your understanding, sir?

      DEFENDANT: Yes, sir.

      THE COURT: And you understand by proceeding in this fashion, sir,
      you’re waiving your right to appeal?

      DEFENDANT: Yes, sir.

(Emphasis added.)

      {¶14} In accordance with the jointly recommended sentence, the trial court

accepted Davis’s plea and pronounced an aggregate sentence of ten years, with six

years mandatory as follows: a mandatory sentence of six years for illegal manufacture

of drugs or cultivation of methamphetamine within the vicinity of a juvenile, 12 months

for attempted burglary, and 36 months for illegal possession of chemicals for the
Scioto App. Nos. 13CA3589 and 13CA3593                                                  7


manufacture of drugs. The trial court specified that the sentences would be served

consecutively with each other, although it did not make all of the requisite findings for

doing so. The trial court subsequently issued judgment entries reflecting the sentence

but did not include the statutory findings normally required to impose consecutive

sentences.

       {¶15} Davis appealed from the judgment entries, and his appeals were

consolidated for purposes of decision.

                             II. ASSIGNMENTS OF ERROR

       {¶16} Davis assigns the following errors for our review:

       1. The trial court erred when it imposed consecutive sentences without
          making the supported findings required of O.R.C. 2929.14(C)(4).

       2. Defendant was denied his constitutional right to effective assistance of
          counsel as provided by the Sixth Amendment by assignment of court
          appointed counsel whose first contact with Defendant was at trial and
          who failed to investigate the case.

       3. The trial judge’s coercive participation in the plea agreement process
          compromised Defendant’s right to a fair trial.

                                 III. LAW AND ANALYSIS

                                A. Consecutive Sentences

       {¶17} In his first assignment of error Davis asserts that the trial court erred when

it imposed consecutive sentences without making the findings required by R.C.

2929.14(C)(4). In State v. Brewer, 2014-Ohio-1903, 11 N.E.3d 317, ¶ 33, we recently

held that when reviewing felony sentences, we apply the standard of review set forth in

R.C. 2953.08(G)(2). Id. (“we join the growing number of appellate districts that have

abandoned the Kalish plurality’s second step abuse-of-discretion standard of review;

when the General Assembly reenacted R.C. 2953.08(G)(2), it expressly stated ‘[t]he
Scioto App. Nos. 13CA3589 and 13CA3593                                                   8


appellate court’s standard of review is not whether the sentencing court abused its

discretion”). See also State v. Graham, 4th Dist. Highland No. 13CA11, 2014-Ohio-

3149, ¶ 31. R.C. 2953.08(G)(2) specifies that an appellate court may increase, reduce,

modify, or vacate and remand a challenged felony sentence if the court clearly and

convincingly finds either that “the record does not support the sentencing court’s

findings” under the specified statutory provisions or “the sentence is otherwise contrary

to law.”

       {¶18} Davis argues that his aggregate sentence is clearly and convincingly

contrary to law because the trial court imposed consecutive sentences without making

the findings required by R.C. 2929.14(C)(4). Under the tripartite procedure set forth in

R.C. 2929.14(C)(4), to impose consecutive sentences the trial court had to find that (1)

consecutive sentences are necessary to protect the public from future crime or to

punish the offender, (2) consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the

public, and (3) the court finds that one of the three circumstances specified in the

statute applies. See, generally, State v. Baker, 4th Dist. Athens No. 13CA18, 2014-

Ohio-1967, ¶ 35-36. The trial court is required to make these findings at the sentencing

hearing and to incorporate its findings in its sentencing entry. State v. Bonnell, 140

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus.

       {¶19} It is undisputed that the trial court failed to make all of the requisite

findings to impose consecutive sentences at the sentencing hearing. And it is also

uncontroverted that the trial court did not incorporate these findings into its sentencing

entries in the underlying cases.
Scioto App. Nos. 13CA3589 and 13CA3593                                                             9


       {¶20} Nevertheless, the state claims that these findings were unnecessary

because through his plea agreement, Davis agreed to the imposition of consecutive

sentences for an aggregate prison sentence of 10 years, with 6 years mandatory, and

R.C. 2953.08(D)(1) thus precludes review of his sentence on appeal. If the sentence is

contrary to law, a defendant who is convicted of or pleads guilty to a felony may appeal

the sentence as a matter of right. R.C. 2953.08(A)(4). R.C. 2953.08(D)(1) provides an

exception to the defendant’s general right to appeal in felony cases by stating 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.”

       {¶21} “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. When consecutive sentences are imposed pursuant to

R.C. 2929.14(C)(4), review of the consecutive nature of the sentences is not precluded

under R.C.2953.08(D)(1). See State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095,

829 N.E.2d 690, paragraph two of the syllabus and ¶ 19-24.1 In Underwood at ¶ 19-20,

the Supreme Court emphasized that jointly recommended sentences that do not comply

with the mandatory requirements for consecutive sentences are not insulated from

review by R.C. 2953.08(D)(1):



1
  The Supreme Court’s decisions in Underwood and Porterfield refer to the consecutive-sentence findings
requirements in former R.C. 2929.14(E)(4). Am.Sub.S.B. No. 86, which became effective on September
30, 2011 after the decisions in those cases, revived the language in former R.C. 2929.14(E)(4) and
moved it to R.C. 2929.14(C)(4). See State v. Salim, 5th Dist. Delaware No. 14 CAA 01 0005, 2014-Ohio-
3602, ¶ 80.
Scioto App. Nos. 13CA3589 and 13CA3593                                                   10


             We begin with the meaning of “authorized by law.” The term is not
       defined in R.C. 2953.08. Several courts of appeals have held that a
       sentence is authorized by law within the meaning of the statute simply if
       the sentence falls within the statutory range for the offense. * * *

               We do not agree with such a narrow interpretation of “authorized by
       law.” Adopting this reasoning would mean that jointly recommended
       sentences imposed within the statutory range but missing mandatory
       provisions, such as postrelease control (R.C. 2929.19(B)(3)(c)) or
       consecutive sentences (R.C. 2929.14(D) and (E) [now R.C. 2929.14(C)])
       would be unreviewable. * * * Nor can agreement to such sentences
       insulate them from appellate review for they are not authorized by law.
       We hold that 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. A trial court does not have the
       discretion to exercise its discretion in a manner that ignores mandatory
       statutory provisions. * * *

       {¶22} If, however, the defendant stipulates to the propriety of the consecutive

sentences, the sentencing judge need not independently justify the sentences. See

Porterfield, at paragraph three of the syllabus (“Once a defendant stipulates that a

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

sentence”). In Porterfield, the Supreme Court held that the findings now required by

R.C. 2929.14(C) were unnecessary because the defendant stipulated in the written plea

agreement the required statutory findings to justify imposition of consecutive sentences.

Id. at ¶ 2, 7.

       {¶23} In State v. Deeb, 6th Dist. Erie No. E-12-052, 2013-Ohio-5175, ¶ 9-11,

the Sixth District Court of Appeals held that R.C. 2953.08(D)(1) did not preclude

appellate review of the consecutive sentences if the defendant only agreed to the

aggregate sentence, but not the imposition of consecutive sentences to achieve that

sentence:

             Reviewing the cases relied upon by the parties and our
       independent research of the issue, we find that Ohio courts have affirmed
Scioto App. Nos. 13CA3589 and 13CA3593                                                               11


        the negotiated sentence where, in addition to the term of imprisonment,
        the defendant agreed to consecutive sentences. See State v. Porterfield,
        106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690; State v. Berryman,
        2d Dist. Montgomery No. 20611, 2005-Ohio-2531; State v. Cremeens, 4th
        Dist. Vinton No. 06CA646, 2006-Ohio-7092.

               In the present case, the plea form states that “defendant agrees to
        a ten-year prison term with three years mandatory.” While it is true that
        appellant was sentenced to the agreed-upon term, the record is silent as
        to whether he agreed to be sentenced to consecutive terms. In fact,
        during the plea hearing the state indicated that appellant had been
        informed that “the counts can be ordered to be served concurrently or
        consecutively.” At the July 26, 2012 sentencing hearing, the trial court
        stated * * * [that the terms] “would run consecutive for a total of the ten
        year sentence.” Although the court certainly had the ability to sentence
        appellant to consecutive terms, because appellant did not consent to
        consecutive terms the court was first required to make the requisite
        statutory findings.

               Accordingly, because the court failed to make the necessary
        statutory findings under R.C. 2929.14(C)(4), we find that appellant’s first
        and sixth assignments of error are well-taken.

        {¶24} Conversely, the trial court’s detailed colloquy here establishes that the

parties’ plea agreement included Davis’s and his trial counsel’s stipulation to

consecutive sentences. Under these circumstances, R.C. 2953.08(D)(1) insulated his

sentences from review for compliance with R.C. 2929.14(C)(4). Deeb; see also State v.

Weese, 2d Dist. Clark No. 2013-CA-61, 2014-Ohio-3267, ¶ 3-5 (court is precluded from

reviewing propriety of consecutive sentences where defendant agreed to imposition of

consecutive sentences); State v. Jefferson, 10th Dist. Franklin No. 12AP-238, 2014-

Ohio-11, ¶ 3 (“a criminal defendant cannot legitimately pursue an appeal of a sentence

to which he or she agreed in the trial court”). 2


2
 In State v. Miller, 4th Dist. Pickaway No. 13CA5, 2014-Ohio-1803, a divided panel of this court recently
held that the invited-error doctrine precluded a defendant from challenging the propriety of maximum,
consecutive sentences because he was aware that these sentences could be imposed as part of his plea
agreement. We note that the state does not request the application of this doctrine here so we need not
consider it.
Scioto App. Nos. 13CA3589 and 13CA3593                                                      12


       {¶25} Therefore, once Davis stipulated to the propriety of the imposition of

consecutive sentences, the trial court did not need to independently justify them by

making the findings normally required by R.C. 2929.14(C)(4). Weese at ¶ 5, citing

Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, at ¶ 25. Because

review of the sentences is precluded by R.C. 2953.08(D)(1), we overrule Davis’s first

assignment of error.

                            B. Ineffective Assistance of Counsel

       {¶26} In his second assignment of error, Davis claims that he was denied his

constitutional right to the effective assistance of counsel because his attorney’s first

contact with him was at trial and he failed to investigate the case.

       {¶27} 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; State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 23. The

defendant had the burden of proof because in Ohio, a properly licensed attorney is

presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 62; State v. Moore, 4th Dist. Adams No. 13CA965, 2014-Ohio-3024, ¶ 25.

Failure to satisfy either part of the test is fatal to the claim. Strickland at 697; State v.

Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).
Scioto App. Nos. 13CA3589 and 13CA3593                                                     13


       {¶28} Davis’s claim of ineffective assistance of counsel is premised on his

contention that his attorney did not contact him for the 104 days he was in jail on the

pending charges, did not contact him until the plea and sentencing hearing, and did not

investigate the facts of the underlying cases. However, the record before us does not

support this claim. That is, there is nothing in the record establishing that his counsel

did not contact Davis for 104 days when he was in jail on the pending charges, that he

did not contact him until the August 14, 2013 plea and sentencing hearing, or that he did

not investigate the facts of the cases. Insofar as Davis attempts to introduce new

“evidence” in this appeal, it is axiomatic that “ ‘[a] reviewing court cannot add matter to

the record before it, which was not part of the trial court’s proceedings, and then decide

the appeal on the basis of the new matter.’ ” State v. Maxwell, 139 Ohio St.3d 12,

2014-Ohio-1019, 9 N.E.3d 930, ¶ 179, quoting State v. Ishmail, 54 Ohio St.2d 402, 377

N.E.2d 500 (1978), paragraph one of the syllabus.

       {¶29} Moreover, the record that is before us refutes some of Davis’s claims. His

counsel was not appointed for Davis in Scioto C.P. Case No. 13CR553C until July 17,

2013, so his appearance on Davis’s behalf at the August 14, 2013 plea and sentencing

hearing occurred less than a month after his appointment, not after Davis was sitting in

jail for 104 days. In the interim, Davis had filed a request for a bill of particulars and a

demand for discovery from the state and had engaged in plea negotiations. At the

hearing, Davis specified that he was satisfied with his attorney’s efforts.

       {¶30} Under these circumstances, Davis has failed to establish either that his

attorney’s performance was deficient or that his performance prejudiced him. We

overrule his second assignment of error.
Scioto App. Nos. 13CA3589 and 13CA3593                                                    14


                                  C. Trial Court Coercion

       {¶31} In his third assignment of error, Davis asserts that the trial judge’s

coercive participation in the plea-agreement process compromised his right to a fair

trial. In essence he claims that his plea was not voluntarily given because it was made

because of the trial court’s coercion. “ ‘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. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527,

660 N.E.2d 450 (1996) An appellate court determining whether a guilty plea was

entered knowingly, intelligently, and voluntarily conducts a de novo review of the record

to ensure that the trial court complied with the constitutional and procedural safeguards.

State v. Smith, 4th Dist. Washington No. 12CA11, 2013-Ohio-232, ¶ 10.

       {¶32} Davis does not contend that the trial court failed to comply with Crim.R.

11(C) by determining that his plea was knowingly, intelligently, and voluntarily made.

See Veney at ¶ 8 (“Crim.R. 11(C) governs the process that a trial court must use before

accepting a felony plea or guilty or no contest”).

       {¶33} Instead, he cites the trial court’s isolated statement that explained that the

settled practice of the prosecutor’s office was that if a defendant refused its plea offer,

there would not be a better offer in the future. “Although strongly discouraged by the

Ohio Supreme Court, a trial judge’s participation in plea negotiations does not render a

defendant’s plea invalid per se under the Ohio and United States Constitutions.” State

v. Jabbaar, 2013-Ohio-1655, 991 N.E.2d 290 (8th Dist.), ¶ 26, citing State v. Byrd, 63
Scioto App. Nos. 13CA3589 and 13CA3593                                                    15


Ohio St.2d 288, 293-294, 407 N.E.2d 1384 (1980). Instead, “a trial judge’s participation

in the plea bargaining process must be carefully scrutinized to determine if the judge’s

intervention affected the voluntariness of the defendant’s guilty plea.” Byrd at 293.

Generally, a plea is involuntary and unconstitutional “if the judge’s active conduct could

lead a defendant to believe he cannot get a fair trial because the judge thinks that a trial

is a futile exercise or that the judge would be biased against him at trial.” Id. at 293-294.

       {¶34} Although we agree that the judge’s comment might seem ill-advised, the

solitary remark on the purported standard practice of the state’s plea offers could not

have led Davis to reasonably believe that he could not get a fair trial because the judge

either suggested that trial would be futile or that he would be biased against him. In the

context of the entire hearing, in which the judge repeatedly asked whether the plea was

knowingly, intelligently, and voluntarily made, the isolated remark did not render the

plea ineffective. This case is consequently distinguishable from those cases in which

“strong-arm measures” were used by the trial judges to coerce plea agreements. See

Disciplinary Counsel v. Parker, 116 Ohio St.3d 64, 2007-Ohio-5635, 876 N.E.2d 556, ¶

13-22; Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815 N.E.2d

286, ¶ 4-20. We overrule Davis’s third assignment of error.

                                    IV. CONCLUSION

       {¶35} Accordingly, having overruled Davis’s assignments of error, we affirm the

judgment of the trial court.

                                                                  JUDGMENT AFFIRMED.
Scioto App. Nos. 13CA3589 and 13CA3593                                                     16


                                    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 Scioto
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, P.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.
