[Cite as State v. Parham, 2018-Ohio-1631.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 105983




                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                        DWJUAM A. PARHAM

                                                        DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED




                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-17-614955-A

        BEFORE: E.T. Gallagher, P.J., Celebrezze, J., and Keough, J.

        RELEASED AND JOURNALIZED: April 26, 2018
ATTORNEYS FOR APPELLANT

James M. Price, Jr.
James M. Price Attorney At Law
1496 Westford Circle, Apt. 203
Westlake, Ohio 44145


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Amy Venesile
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN T. GALLAGHER, P.J.:

       {¶1} Defendant-appellant, Dwjuam Parham, appeals from his convictions and sentence

following a guilty plea. He raises the following assignments of error for review:

       1. The trial court erred by accepting appellant’s guilty plea to felonious assault
       when appellant’s statements indicated a lack of understanding of the nature of the
       offense.

       2. The trial court erred by failing to forewarn appellant that it would not be bound
       by any sentencing agreement and by imposing maximum prison sentences in the
       absence of evidence that appellant committed the worst form of the offenses.

       3. Defense counsel rendered ineffective assistance by failing to follow through on
       his agreement to recommend a five-year prison sentence and for remaining silent
       when the trial court imposed the maximum sentence of 11 years.

       4. Defense counsel’s failure to object to hostile comments from the bench
       constituted ineffective assistance.
         {¶2} After careful review of the record and relevant case law, we affirm Parham’s

convictions and sentence.

                              I. Procedural and Factual History

         {¶3} In September 2016, Parham approached a female who was walking alone in an open

field in Cleveland, Ohio. According to the state, Parham pointed a handgun at the female, said

“it ain’t worth it,” and repeatedly fired the weapon. Ultimately, the victim survived, but was shot

nine times. After the victim fell to the ground, Parham took $175 in cash from her pockets.

         {¶4} In March 2017, Parham was named in a five-count indictment, charging him with

attempted murder, two counts of aggravated robbery, and two counts of felonious assault. Each

count contained one- and three-year firearm specifications.

         {¶5} In June 2017, Parham pleaded guilty to an amended count of attempted aggravated

robbery in violation of R.C. 2923.02 and 2911.01(A)(1); and felonious assault in violation of R.C.

2903.11(A)(2), with a three-year firearm specification. The remaining counts were nolled.

         {¶6} Following a Crim.R. 11 colloquy, the trial court accepted Parham’s guilty plea and

directly proceeded with sentencing. Upon questioning Parham about his motives, the trial court

imposed an eight-year prison sentence on the attempted aggravated robbery offense, to run

concurrently with an eight-year prison term imposed on the felonious assault offense. The

eight-year sentence imposed on the felonious assault offense was ordered to be served

consecutively with the attendant three-year firearm specification, for a total prison term of 11

years.

         {¶7} Parham now appeals from his convictions and sentence.
                                        II. Law and Analysis

                                    A. Nature of the Offenses

       {¶8} In his first assignment of error, Parham argues the trial court erred by accepting his

guilty plea to felonious assault when his statements indicated that he did not understand the nature

of the offense.

       {¶9} 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). To ensure that a defendant enters

a plea knowingly, voluntarily, and intelligently, a trial court must engage in an oral dialogue with

the defendant in accordance with Crim.R. 11(C). Id. The underlying purpose of Crim.R. 11(C)

is to convey certain information to a defendant so that he or she can make a voluntary and

intelligent decision regarding whether to plead guilty. State v. Schmick, 8th Dist. Cuyahoga No.

95210, 2011-Ohio-2263, ¶ 5.

       {¶10} As relevant here, Crim.R. 11(C)(2)(a) provides that, before a trial court may accept

a guilty plea, the court must first address the defendant personally and determine:

       that the defendant is making the plea voluntarily, with understanding of the nature
       of the charges and of the maximum penalty involved, and, if applicable, that the
       defendant is not eligible for probation or for the imposition of community control
       sanctions at the sentencing hearing.
       {¶11} Thus, Crim.R. 11(C)(2)(a) requires the trial court to ensure that, before a defendant

pleads guilty to a felony, he or she understands (1) the nature of the charges; (2) the maximum

penalty involved, and, if applicable; (3) that the defendant is not eligible for community control

sanctions, i.e., prison is mandatory.
       {¶12} The reviewing court conducts a de novo review to determine whether the trial court

accepted a plea in compliance with Crim.R. 11(C). State v. Cardwell, 8th Dist. Cuyahoga No.

92796, 2009-Ohio-6827, ¶ 26. A trial court must strictly comply with the Crim.R. 11(C)(2)

requirements regarding the waiver of constitutional rights, which means that the court must

inform the defendant of the constitutional rights he is waiving and make sure the defendant

understands them. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18.

Where the issue concerns a nonconstitutional requirement, such as whether the defendant

understood the nature of the charges or the maximum penalties for the offenses, we review for

substantial compliance. See State v. Jordan, 8th Dist. Cuyahoga No. 103813, 2016-Ohio-5709, ¶

46, citing Veney at ¶ 14-17.

       {¶13} “Substantial compliance means that under the totality of the circumstances the

defendant subjectively understands the implications of his plea and the rights he is waiving.”

State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing State v. Stewart, 51 Ohio

St.2d 86, 92, 364 N.E.2d 1163 (1977).        “[A] slight deviation from the text of the rule is

permissible; so long as the totality of the circumstances indicates that ‘the defendant subjectively

understands the implications of his plea and the rights he is waiving.’” State v. Clark, 119 Ohio

St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31, quoting Nero at 108.

       {¶14} If an appellate court finds that a trial court did not substantially comply with a

requirement of Crim.R. 11(C)(2)(a), which governs the advisement of nonconstitutional rights, the

appellate court must make a further determination as to whether the trial court “partially

complied” or “completely failed” to comply with the requirement. Clark at ¶ 32. If the trial

court partially complied, the plea may be vacated only if the defendant demonstrates a prejudicial

effect, i.e., “‘whether the plea would have otherwise been made.’”   Id., quoting Nero at 108. If,
however, the trial court completely failed to comply, the plea must be vacated because “‘[a]

complete failure to comply with the rule does not implicate an analysis of prejudice.’” Id.,

quoting State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.

       {¶15} In challenging the validity of the plea colloquy, Parham argues that the trial court

failed to ensure that he understood the nature of the felonious assault charge when the record

reflects that “neither the prosecutor’s narrative nor the court mentioned the statutory elements of

the offenses that [he] was pleading guilty to.” In addition, Parham relies on statements he made

during the sentencing hearing to suggest that he did not understand the mens rea element of

“knowingly” for felonious assault.

       {¶16} In determining whether a defendant is making a plea with an understanding of the

nature of the charge, a trial court is not necessarily required to advise the defendant of the elements

of the crime or to specifically ask the defendant if he understands the charge, provided the totality

of the circumstances support the trial court’s determination that the defendant understands the

charge. State v. Minifee, 8th Dist. Cuyahoga No. 99202, 2013-Ohio-3146, ¶ 14, citing State v.

Esner, 8th Dist. Cuyahoga No. 90740, 2008-Ohio-6654, ¶ 3; State v. Carpenter, 8th Dist.

Cuyahoga No. 81571, 2003-Ohio-3019, ¶ 2.           Indeed, “[w]here a defendant indicates that he

understands the nature of the charge, in the absence of evidence to the contrary or anything in the

record that indicates confusion, it is typically presumed that the defendant actually understood the

nature of the charge against him.”          State v. Wangul, 8th Dist. Cuyahoga No. 84698,

2005-Ohio-1175, ¶ 10, citing State v. Dickey, 7th Dist. Carroll No. 03 CA 94, 2004-Ohio-3198, ¶

11.

       {¶17} A review of the plea-hearing transcript in this case supports a determination that

Parham understood the nature of the charges against him. The record reflects that the trial court
began its Crim.R. 11 colloquy by having the prosecutor outline the terms of the plea agreement

and the charges to which Parham would plead guilty.       The trial court then went on to explain the

constitutional and nonconstitutional rights Parham would be waiving by entering a guilty plea.

At that point, the trial court identified the charges and accompanying specifications, stating, in

pertinent part:

         By proceeding here today, you’re pleading guilty to amended attempted aggravated
         robbery, deleting the firearm specification. It would be a felony of the second
         degree punishable by two to eight years and a $15,000 fine.

         You’re also pleading guilty to felonious assault in [c]ount five with a firearm spec.
          * * * Three-year firearm specification. Punishable by two to eight with the
         three year firearm specification.

         These offenses, as far as this court is concerned, are not probational. You plead
         here today, you’re going to prison. The only promise I will make you is I won’t
         consecutively sentence you.

         {¶18} The trial court then asked Parham to answer general questions, including whether he

was under the influence of drugs, alcohol, or medication; whether he had any questions about his

plea; and whether he was “freely, knowledgably, and voluntarily” entering the plea. Parham

responded appropriately to each question and affirmatively stated that he had no questions for the

court.

         {¶19} Contrary to Parham’s position on appeal, there is nothing in the transcript from the

plea hearing to suggest that Parham was confused or otherwise did not understand the nature of

the offenses.     Moreover, our review of the trial court’s compliance with Crim.R. 11 is limited to

the transcript of the plea hearing.   Any statements made by Parham during his sentencing hearing

would not provide this court with a basis to conclude that Parham did not understand the nature of

the charges. See State v. Cookson, 2d Dist. Montgomery No. 13368, 1993 Ohio App. LEXIS

2797, 9-10 (June 1, 1993), quoting State v. Hartwell, 2d Dist. Montgomery No. 11422, 1989 Ohio
App. LEXIS 4684, 7-8 (Dec. 13, 1989). (“[A]ppellant’s claim that the trial court erred in

accepting appellant’s plea because it was not voluntarily made with an understanding of the nature

of the charges ‘is limited [to] the record as it existed at the time the trial court accepted his guilty

plea * * *.’”) Accordingly, the trial court had no obligation to explain the substantive elements

of the charges in detail and further inquiry was not required to ensure that Parham understood the

felonious assault offense.

       {¶20} Under the totality of these circumstances, the record demonstrates that Parham

subjectively understood the nature of the felonious assault offense. Accordingly, we find the trial

court substantially complied with the requirements of Crim.R. 11(C)(2)(a).

       {¶21} Parham’s first assignment of error is overruled.

                                   B.   Recommended Sentence

       {¶22} In his second assignment of error, Parham argues his plea was not voluntarily made

because the trial court failed to forewarn him that the court would not be bound by any sentencing

agreement recommended by the parties.

       {¶23} A trial court is vested with sound discretion when implementing plea agreements.

State v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶ 13 (5th Dist.),

citing Akron v. Ragsdale, 61 Ohio App.2d 107, 399 N.E.2d 119 (9th Dist.1978).

       {¶24} A plea agreement is generally “contractual in nature and subject to contract-law

standards.”   State v. Butts, 112 Ohio App.3d 683, 679 N.E.2d 1170 (8th Dist.1996). Plea

agreements should be construed strictly against the government. United States v. Fitch, 282 F.3d

364 (6th Cir.2002). “When a plea rests in any significant degree on a promise or agreement of

the prosecutor, so that it can be said to be part of the inducement or consideration, such promise

must be fulfilled.” Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
“When an allegation is made that a plea agreement has been broken, the defendant must merely

show that the agreement was not fulfilled.” State v. Legree, 61 Ohio App.3d 568, 573 N.E.2d

687 (6th Dist.1988). A prosecutor’s failure to comply with the terms of the plea agreement may,

in some circumstances, render a defendant’s plea involuntary and undermine the constitutionality

of a conviction based upon that plea. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52

L.Ed.2d 136 (1977).

       {¶25} In order to determine whether a plea agreement has been breached, courts must

examine what the parties reasonably understood at the time the defendant entered his guilty plea.

State v. Latimore, 8th Dist. Cuyahoga No. 92490, 2010-Ohio-1052, ¶ 7. Therefore, we must

identify the terms of the purported plea agreement before we can determine if the state or the trial

court breached the agreement.

       {¶26} On appeal, Parham “maintains that as a condition of the oral plea agreement, he was

promised that [defense] counsel would recommend a five-year prison sentence.”              Thus, he

asserts that the trial court erred by failing to advise him that the court would not be bound by such

a sentencing agreement. In support of his position, Parham relies on a lineage of cases from this

court that hold that a trial court may only impose a sentence greater than that forming the

inducement for the defendant to plead guilty when the court forewarns the defendant of the

applicable penalties, including the possibility of imposing a greater sentence than that

recommended by the prosecutor. See, e.g., State v. Dunbar, 8th Dist. Cuyahoga No. 87317,

2007-Ohio-3261, ¶ 115. For the reasons that follow, we find Parham’s reliance on the foregoing

proposition of law to be inapplicable to the facts of this case.

       {¶27} In this case, the transcript is devoid of any reference to a sentencing agreement or

any indication that the state agreed to jointly recommend a five-year prison sentence as part of the
plea agreement.   The transcript of the plea hearing contains statements by the prosecutor relaying

the terms of the plea agreement to the court.    Significantly, the prosecutor never mentioned an

agreed-upon sentence, nor did defense counsel object to the terms as provided by the prosecutor.

Beyond the dismissal of Counts 1, 3, and 4, the only stipulation referenced by the prosecutor was

the parties’ agreement that the attempted aggravated robbery and felonious assault counts would

not merge. In addition, the trial court promised Parham during the plea colloquy that it would

not impose consecutive sentences. On appeal, the state maintains that a sentencing agreement

did not exist.

        {¶28} After careful review, we find nothing in the record that can be reasonably construed

as creating a contractual obligation by the state or the trial court to sentence Parham to a specific

sentence in exchange for his guilty pleas. Accordingly, the trial court had no obligation to

forewarn Parham that it would not be bound by a jointly recommended sentence.

        {¶29} We further note, to the extent that Parham contends that he mistakenly believed he

would receive a sentence of five years by the trial court, we find nothing in the record to establish

such a belief. See State v. Penrod, 6th Dist. Lucas No. L-16-1152, 2017-Ohio-773. In State v.

Hooks, 92 Ohio St.3d 83, 748 N.E.2d 528 (2001), the Supreme Court noted, “a reviewing court

cannot add matter to the record before it that was not a part of the trial court’s proceedings, and

then decide the appeal on the basis of the new matter.” Id. at 83.          Thus, this court is not

permitted to consider any factual assertions raised in Parham’s appellate brief relating to

conversations or representations that were made to him by defense counsel off the record.

        {¶30} Parham’s second assignment of error is overruled.

                              C. Ineffective Assistance of Counsel
       {¶31} In his third assignment of error, Parham argues defense counsel rendered ineffective

assistance of counsel during the plea hearing by failing “to follow through on his agreement to

recommend a five-year prison sentence and for remaining silent when the trial court imposed the

maximum sentence of eleven years.” In his fourth assignment of error, Parham contends that

counsel’s failure “to object to hostile comments from the bench constituted ineffective assistance

of counsel.” We consider these assignments of error together for judicial clarity.

       {¶32} Under certain circumstances, ineffective assistance of counsel can constitute a

manifest injustice warranting a withdrawal of a guilty plea. State v. Montgomery, 8th Dist.

Cuyahoga No. 103398, 2016-Ohio-2943, ¶ 4. However, where a defendant enters a guilty plea,

he or she waives ineffective assistance of counsel except to the extent that the ineffective

assistance of counsel caused the defendant’s plea to be less than knowing, intelligent, and

voluntary. State v. Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11.

        A defendant who has entered a guilty plea can prevail on a claim of ineffective
        assistance of counsel only by demonstrating (1) deficient performance by counsel,
        i.e., that counsel’s performance fell below an objective standard of reasonable
        representation, that caused the defendant’s guilty plea to be less than knowing,
        intelligent and voluntary and (2) that there is a reasonable probability that, but for
        counsel’s deficient performance, the defendant would not have pled guilty to the
        offenses at issue and would have, instead, insisted on going to trial.
Id. at ¶ 11, citing State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), and Hill v.

Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see also Strickland v. Washington,

466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A “reasonable probability”

is a “probability sufficient to undermine confidence in the outcome.”   Strickland at 694.

       {¶33} As discussed, Parham maintains that defense counsel promised to recommend a

five-year sentence as a condition of the plea agreement.   However, these discussions are not part

of the trial record.   The law is well settled that “‘when allegations of ineffective assistance of
counsel hinge on facts not appearing in the record, the proper remedy is a petition for

postconviction relief rather than direct appeal.’”      State v. Jackson, 8th Dist. Cuyahoga No.

104132, 2017-Ohio-2651, ¶ 59, quoting State v. Curtis, 8th Dist. Cuyahoga No. 89412,

2008-Ohio-916, ¶ 8. Accordingly, this court is unable to review the basis of Parham’s claim that

counsel rendered ineffective assistance of counsel by failing to comply with a promise made to

Parham off the record.

       {¶34} Parham further alleges that counsel rendered ineffective assistance of counsel by

failing to object to allegedly hostile comments made by the trial court during the plea hearing.

The challenged comments include (1) the trial court asking Parham where he lives “when [he]’s

not in jail,” (2) the trial court’s critique of Parham’s prior employment as a door-to-door salesman,

and (3) the trial court’s repeated reprimand of Parham for failing to look at the court during the

plea colloquy.

       {¶35} After careful review, we are unable to conclude that the challenged comments rose

to the level of judicial bias or impaired the validity of Parham’s plea. Although the trial court’s

comments may have been unnecessary, Parham has failed to articulate how counsel’s failure to

object to the trial court’s statements caused his guilty plea to be less than knowing, intelligent, and

voluntary.   Furthermore, Parham has failed to establish that, but for counsel’s failure to object,

he would not have pled guilty to the offenses and would have insisted on going to trial.

       {¶36} Accordingly, Parham’s third and fourth assignments of error are overruled.

       {¶37} Judgment affirmed.

       It is ordered that appellee recover from appellant 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 convictions 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.



EILEEN T. GALLAGHER, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
