[Cite as State v. Allen, 2014-Ohio-3923.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100986



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                     BRANDON ALLEN
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-12-568025-A

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

        RELEASED AND JOURNALIZED: September 11, 2014
ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen
3552 Severn Rd.
#613
Cleveland, OH 44118


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Milko Cecez
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

      {¶1} Defendant-appellant, Brandon Allen, appeals from the judgment of the trial

court, which accepted his guilty plea to one count of robbery. For the reasons that

follow, we affirm.

      {¶2} Allen was charged under a three-count indictment. Count 1 charged Allen

with aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the first degree.

Count 2 charged Allen with robbery in violation of R.C. 2911.02(A)(2), a felony of the

second degree.       And Count 3 charged Allen with kidnapping in violation of R.C.

2905.01(A)(2), a felony of the first degree. All charges stem from an incident that

occurred on April 30, 2011, while Allen was out on bond issued in another matter.

      {¶3} Allen initially entered a plea of not guilty to the charges. On February 21,

2013, pursuant to a plea agreement, Allen withdrew his previously entered not guilty plea

and pleaded guilty to amended Count 1, robbery in violation of R.C. 2911.02(A)(3), a

felony of the third degree. As part of the plea agreement, Allen agreed to pay $10,250 in

restitution, and the parties agreed and recommended that Allen receive the five-year

maximum sentence to be served concurrently to a sentence Allen was serving in another

matter. In exchange for the guilty plea, the state agreed to nolle the remaining counts.

Prior to accepting Allen’s plea, the court ensured that Allen understood the terms of the

plea agreement and the fact that the court was not bound by the sentencing agreement.
Thereafter, the court engaged in a plea colloquy, accepted Allen’s guilty plea and found

him guilty of the amended charge, and nolled the remaining counts.

       {¶4} On March 28, 2013, the trial court held a sentencing hearing, during which

the court heard statements from Allen and his counsel. Defense counsel reminded the

court that the recommended sentence was five years concurrent to Allen’s current prison

term on another matter. Allen then addressed the court. He took responsibility for the

crime, expressed remorse, and asked the court for leniency. At this time, the court

reminded Allen that the court is not bound by the plea agreement, to which Allen replied

that he understood.   The trial court then sentenced Allen to five years incarceration, to

be served consecutive to Allen’s prison term in a previous court case.

       {¶5} Allen now appeals, claiming in his sole assignment of error that counsel

was ineffective at his plea hearing for recommending Allen “consent to maximum time

with the understanding that time will run concurrent.”

       {¶6} In order to establish a claim of ineffective assistance of counsel, Allen must

show that his trial counsel’s performance was deficient in some aspect of his

representation and that deficiency prejudiced his defense. Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768

(1990). Under Strickland, our scrutiny of an attorney’s representation must be highly

deferential, and we must indulge “a strong presumption that counsel’s conduct falls

within the range of reasonable professional assistance.” Id. at 688. In Ohio, every
properly licensed attorney is presumed to be competent and, therefore, a defendant

claiming ineffective assistance of counsel bears the burden of proof. State v. Smith, 17

Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).

      {¶7} In proving ineffective assistance in the context of a guilty plea, Allen must

demonstrate that there is a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and he would have insisted on going to trial. State v. Wright, 8th

Dist. Cuyahoga No. 98345, 2013-Ohio-936, ¶ 12. As this court has previously recognized:

             [W]hen a defendant enters a guilty plea as part of a plea bargain, he
      waives all appealable errors that may have occurred at trial, unless such
      errors are shown to have precluded the defendant from entering a knowing
      and voluntary plea. State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658
      (1991). “A failure by counsel to provide advice [which impairs the
      knowing and voluntary nature of the plea] may form the basis of a claim of
      ineffective assistance of counsel, but absent such a claim it cannot serve as
      the predicate for setting aside a valid plea.” United States v. Broce, 488
      U.S. 563, 574, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Accordingly, a
      guilty plea waives the right to claim that the accused was prejudiced by
      constitutionally ineffective counsel, except to the extent the defects
      complained of caused the plea to be less than knowing and voluntary.
      State v. Barnett, 73 Ohio App.3d 244, 248, 596 N.E.2d 1101 (2d
      Dist.1991).

State v. Milczewski, 8th Dist. Cuyahoga No. 97138, 2012-Ohio-1743, ¶ 5.

      {¶8} Crim.R. 11(C) governs the process by which a trial court must inform a

defendant of certain constitutional and nonconstitutional rights before accepting a felony

plea of guilty or no contest. 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.
       {¶9} 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)(2). State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d

450 (1996). Crim.R. 11(C)(2) requires that a trial court determine from a colloquy with

the defendant whether the defendant understands (1) the nature of the charge and

maximum penalty, (2) the effect of the guilty plea, and (3) the constitutional rights waived

by a guilty plea.

       {¶10} In this case, Allen essentially contends that he “[did not] really understand”

that the court is not bound by a plea agreement and counsel was ineffective for not fully

explaining Allen’s rights under the agreement. We find that the record does not support

Allen’s claim.

       {¶11} At the plea hearing, the state informed the court that Allen agreed to plead

guilty to amended Count 1 and pay restitution, in exchange for a recommended sentence

of five years concurrent to his current sentence in another matter.              The state

acknowledged on the record that the court is not bound by the sentence to which the

parties agreed. Both the state and defense counsel advised the court that no threats or

promises were made in exchange for Allen’s guilty plea. Allen’s counsel further advised

the court that Allen understands the rights that he will be waiving and the consequences

of his plea.

       {¶12} The court began the hearing with the following exchange:
       Court: Do you understand that the sentence that they are recommending to
       the court is a maximum sentence on this count, five years? Do you
       understand that?

       Allen: Yes, the Honorable Judge * * *.

       Court: That they are recommending to the court to run it concurrent with
       two other cases, meaning to be served at the same time?

       Allen: Yes, the Honorable Judge * * *.

       Court: Do you understand that I do not have to go along with that
       recommendation and I could make the sentence consecutive to those two
       cases?

       Allen: Yes, the Honorable Judge * * *.

       Court: Do you understand that?

       Allen: Yes.

       Court:   And understanding that, are you still desirous of
                   going forward?

       Allen: Yes, ma’am. It’s my responsibility.

       {¶13} Thereafter, the court ensured that Allen was not under the influence of any

drugs or medication that would impair his understanding of the proceedings. It also

inquired of Allen’s education. Allen informed the court that he had 30 credit hours of

college education towards an associate degree in business management. The court then

advised Allen of his constitutional rights and that by pleading guilty, he is admitting guilt

and waiving those rights. Allen indicated that he understood, stating, “I accepted the

plea agreement. That’s it. * * * Nothing has been promised to me.”
       {¶14} Allen then assured the court that he was voluntarily pleading guilty to the

amended Count 1 and he was satisfied with counsel’s representation, stating, “I appreciate

her, everything she did. She’s worked hard for me.” Counsel stated that she believed

Allen’s plea was entered knowingly, voluntarily, and intelligently, and that the court had

satisfied the requirements of Crim.R. 11.

       {¶15} In light of the above, we find that the record does not support Allen’s claim

that defense counsel was ineffective during his plea hearing. The record reflects that he

understood the nature of the plea proceedings, particularly with respect to the jointly

drafted recommended sentence.

       {¶16} It is clearly understandable that where the defense and the prosecutor have

agreed to a recommended sentence, an accused would have an expectation that an

agreement had been reached. However, the court plays no role in negotiating the plea

agreement itself, and only the court knows what sentence it will impose. The question

then is whether the plea agreement, particularly with respect to an agreed recommended

sentence, is truly “knowingly.” Nonetheless, as the law stands today, once the court has

advised a defendant of his rights and the defendant indicates to the court on the record

that he understands the implication of his plea and the rights he is waiving, and he enters

his guilty plea, the defendant is powerless to object to the actual sentence ultimately

imposed. And upon review, this court cannot speculate. Rather it is confined to the

record before it.
      {¶17} Here, the record clearly indicates that prior to accepting Allen’s guilty plea,

the trial court specifically inquired whether Allen understood that the court is not bound

by the parties’ recommended sentence, to which Allen thrice replied in the affirmative.

There is no indication in the record of confusion or hesitation.        Rather, the record

demonstrates that Allen’s guilty plea was entered knowingly, voluntarily, and

intelligently. Moreover, Allen has failed to provide any examples of defense counsel’s

alleged deficient performance and how that performance caused his plea to be less than

knowing and voluntary.

      {¶18} Allen’s sole assignment of error is overruled.

      {¶19} Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      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.


______________________________________________
TIM McCORMACK, JUDGE

PATRICIA ANN BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR
