[Cite as State v. Armstrong, 2015-Ohio-3343.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 101961




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                               HARVEY ARMSTRONG
                                                      DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-14-581662-A

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

        RELEASED AND JOURNALIZED: August 20, 2015
ATTORNEY FOR APPELLANT

Kevin M. Cafferkey
1370 Ontario Street
2000 Standard Building
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brian Kraft
        Melissa Riley
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} Defendant-appellant, Harvey Armstrong, appeals his convictions and

sentence following a plea. For the reasons that follow, we affirm.

       {¶2} In January 2014, Armstrong was charged with two counts of rape, each

containing notice of prior conviction, repeat violent offender, and sexually violent

predator specifications.   He was also charged with one count each of gross sexual

imposition with a sexually violent predator specification, kidnapping, with notice of prior

conviction, repeat violent offender, sexual motivation, and sexually violent predator

specifications; aggravated burglary with notice of prior conviction and repeat violent

offender specifications; menacing by stalking, with sexually violent offender

specification; and one count of telecommunications harassment. Armstrong pleaded not

guilty to the charges and trial was scheduled for Monday, August 4, 2014.

       {¶3} From the record, we can glean that defense counsel and the prosecutor met

with the trial judge in chambers the week prior to trial.        During that in-chambers

meeting, the parties discussed a possible sentence Armstrong would receive if he entered

into a plea agreement. It is apparent that the trial judge and the parties discussed a

possible sentencing “range of three to five, or three to six” years. Whether the trial judge

indicated that this range “could be fair” or “would be fair,” is not entirely clear from the
record.      (Emphasis added.)   But, what is clear is that the trial judge indicated that

defense counsel could take the content of their in-chamber discussion back to his client.

       {¶4} On the day of trial, Armstrong entered into a plea agreement with the state.

He pleaded guilty to an amended count of rape with the attendant notice of prior

conviction and repeat violent offender specification, an amended count of kidnapping

with notice of prior conviction, repeat violent offender and sexual motivation

specifications, menacing by stalking as amended, and telecommunications harassment.

The state nolled the remaining charges and specifications.

       {¶5} Defense counsel agreed with the plea agreement and further stated on the

record,

             * * * Respectfully, I have met with my client both Friday, Saturday,
       and Sunday. We have gone over the case. We have gone over the —
       what the plea would be. And, obviously, my client has concerns because
       of the potential spread of years that are involved in the plea with these kind
       of charges, okay. I would highlight I have gone over everything with him.
       I have indicated to him that myself and [assistant prosecutor] have
       presented some of the facts of the case with this Honorable Court so the
       Court would at least have some idea.
               I have also indicated to Mr. Armstrong that this Honorable Court has
       indicated that they would like a presentence investigation to get kind of a
       better picture of my client and what he’s been doing, certainly, you know, in
       his life in the last few years and get a better idea about this case.

(Tr. 8-9.)

       {¶6} Armstrong denied that any threats or promises had been made to induce him

into changing his plea. (Tr. 12.) Thereafter, the trial court set forth the penalties for the

offenses — that rape carried a possible penalty of three to eleven years, that kidnapping

carried a possible penalty of three to eleven years, menacing by stalking carried a
potential penalty of six to eighteen months, and that telecommunications harassment

carried a potential penalty of up to six months. The court also explained that it could

sentence him to consecutive sentences; thus, the minimum sentence he was facing was

three years with a maximum sentence of 23.5 years.

       {¶7} The court then advised Armstrong of his Crim.R. 11 rights. At the end of the

plea colloquy, the court again questioned Armstrong whether any threats or promises

were made to him other than what was stated in open court and on the record.

       THE DEFENDANT: Right, no promises, no threats, Your Honor.

       THE COURT: Do you understand that there is no promise of a particular
       sentence?

       THE DEFENDANT: I understand, Your Honor. My concern is more of
       an agreement.

       THE COURT: Uh - huh. Well, I understand that you and your counsel
       may have spoke about a certain time that you will be spending in prison;
       and as I indicated to your counsel — and I am sure he indicated the same to
       you — this Court will look at all of the factors on the day of sentencing
       when determining how much time you can get. That’s the reason why I
       went through everything with you, because I want you to understand that
       you are looking at potentially as much as 22 years in prison. Doesn’t mean
       you will get 22 years. But you need to understand at the time you are
       pleading that that’s what you’re looking at.
              And there’s no promise from this Court of how much time that
       you’re going to get. Do you understand that?

       THE DEFENDANT: I understand, Your Honor.

(Tr. 21-22.)

       {¶8} Thereafter, both defense counsel and the state agreed that the court complied

with Crim.R. 11. Armstrong pleaded guilty in accordance with the plea agreement and
the court found that Armstrong made a knowing, intelligent, and voluntary plea. The

matter was continued for sentencing in September following a presentence investigation.

      {¶9} At sentencing, the trial court heard statements from the parties, including the

victim and the defendant, and reviewed the presentence investigation report.         After

considering the relevant statutory factors of R.C. 2929.11 and 2929.12, the trial court

imposed a total prison term of seven years. After stating all the terms and conditions of

Armstrong’s sentence, the court asked Armstrong whether he understood the court’s

sentence. Armstrong replied,

      THE DEFENDANT: Yes. But in accepting this plea initially, the
      agreement was for a certain amount of time. That time exceeds my
      agreement, which what do I do about that?

      THE COURT: You had an agreement with who?

      THE DEFENDANT: According to what I was told, the agreement was
      made between my attorney and the prosecutor, and I have a paper here to
      prove it and signed.

(Tr. 46-47.)

      {¶10} It became readily apparent that Armstrong was referencing the conversation

that occurred during the in-chamber conference the week prior to Armstrong accepting

the plea agreement. Despite the insinuation by Armstrong, the record reflects that no

written plea agreement was entered into.

      {¶11} Armstrong’s attorney explained to the court what had occurred.

      Respectfully, Judge, highly respectfully, I had conversations with this
      honorable court on Friday before trial and we had agreed to a range of —
      and I can’t think of the exact words — but if I told my client the range was
       between three and five and three and six, would be an honest
       representation; and you indicated to me that it would be.

       ***

       So at this point in time I gather my client would want to withdraw his plea
       because I indicated to him what the agreement was, and my understanding
       is — and I think [assistant prosecutor] had the victim actually — well, I
       think he at the time of the plea indicated the victim was requesting a
       three-year prison sentence or around the three-year prison sentence. * * *

       THE COURT: My remembering of all of this, first of all, there was never
       an agreement. And at the time of plea I’m very careful to tell the
       defendants what the maximum time is. Now, [assistant prosecutor] just
       spoke, and I think he indicated that there was no agreement on time.
              Was there an agreement on time, [assistant prosecutor]?

       [Assistant Prosecutor]: Your Honor, there was no agreement on time in
       terms of you know, the state wasn’t agreeing to any particular amount of
       years. * * *
              And I’m aware that there is kind of a range that the Court was
       considering, but there was not anything that was definite, I guess I should
       say. And there wasn’t any agreed time between the State of Ohio and the
       defendant.

(Tr. 47-49.)

       {¶12} The court explained its justification for imposing the seven-year prison

sentence, denying that it promised a specific sentence.

       But at no time — at no time did this court say that they would give this
       defendant three years, four years, five years, six years, or 11 years. I never
       — I never do that. For this very reasons I do not do that. There are —
       attorneys come to me all the time and they say, hey, I have an agreed — I
       have an agreement. This time you didn’t even have an agreement with the
       prosecution. What you had was what you had kind of sold your client on,
       and the prosecutor says, well, I’m not in agreement.

(Tr. 50.)
       {¶13} The court further denied defense counsel’s oral motion to withdraw

Armstrong’s plea. However, the court admitted that it told defense counsel during the

chambers meeting that a sentence of three to six years “could be fair.”

       [Defense Counsel]: All right. So because I did represent to my client that
       having talked to the Court and the prosecutor in that meeting that his range
       — that a fair range would be three to five or three to six years, that — I told
       my client that my client —
              My question to you, Judge, or my response to you is if I told my
       client a fair range would be three to five or three to six years and you
       indicated to me that would be fair to tell your client that —

       THE COURT: It was fair to tell him.

       [Defense Counsel]: All right.

       THE COURT: It was fair to tell him.

(Tr. 53.)

       {¶14} Armstrong now appeals, raising two assignments of error, both challenging

that his plea was coerced and involuntarily made.

       {¶15} A defendant’s plea must be knowingly, intelligently, and voluntarily made.

State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). The enforcement of a

plea that does not satisfy all three of these criteria is unconstitutional under both the

United States and Ohio Constitutions. Id.

                                       I. Coercion

       {¶16} In his first assignment of error, Armstrong contends that the court

committed reversible error and abused its discretion when it improperly coerced

defendant’s guilty plea and his plea was therefore involuntary and void.
       {¶17} Although a trial judge’s participation in the plea bargaining is not prohibited

under Crim.R. 11, the Ohio Supreme Court has cautioned that “the judge’s position in the

criminal justice system presents a great potential for coerced guilty pleas and can easily

compromise the impartial position a trial judge should assume.” State v. Byrd, 63 Ohio

St.2d 288, 292, 407 N.E.2d 1384 (1980). Judicial participation is strongly discouraged

but does not render a plea per se involuntary; the ultimate inquiry is whether the judge’s

active conduct could have led the defendant to believe he could not get a fair trial,

including a fair sentence after trial, and whether the judicial participation undermined the

voluntariness of the plea.   State v. Sawyer, 183 Ohio App.3d 65, 2009-Ohio-3097, 915

N.E.2d 715, ¶ 54 (1st Dist.), citing Byrd at 293.

       {¶18} Since the United States Supreme Court’s decision in Missouri v. Frye, ___

U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), it is important that a record be made

demonstrating that a defendant is aware of a plea deal if one is presented, which may

necessarily involve the participation of the trial judge in placing the plea deal on the

record. State v. Jabbaar, 8th Dist. Cuyahoga No. 98218, 2013-Ohio-1655, 991 N.E.2d

290, ¶ 27. “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. A judge’s comments must not be considered in

isolation, however; instead, we consider the record in its entirety to determine the

voluntariness of the guilty plea. Jabbaar at ¶ 29, citing State v. Finroy, 10th Dist.

Franklin No. 09AP-795, 2010-Ohio-2067, ¶ 7.
       {¶19} Moreover, a guilty plea, if induced by promises or threats that deprive it of

the character of a voluntary act, is void. State v. Kelly, 8th Dist. Cuyahoga Nos. 91875

and 91876, 2010-Ohio-432, ¶ 21, citing State v. Allen, 6th Dist. Sandusky No. S-09-004,

2009-Ohio-3799, ¶ 16. In State v. Triplett, 8th Dist. Cuyahoga No. 69237, 1997 Ohio

App. LEXIS 493 (Feb. 13, 1997), this court found that: “[w]here the trial court promises a

certain sentence, that promise becomes an inducement to enter a plea, and unless that

sentence is given, that plea is not voluntary. Thus, a trial court commits reversible error

when it participates in plea negotiations but fails to impose the promised sentence.” See

also State v. Simms, 8th Dist. Cuyahoga No. 47796 (Dec. 6, 1984); State v. Elias, 8th

Dist. Cuyahoga No. 88945, 2007-Ohio-5444 (the trial court committed reversible error

when it failed to impose the promised sentence).

       {¶20} In this case, the issue is whether the trial court’s comments made in an

in-chamber meeting induced or coerced the defendant into accepting the plea. Based on

the record before this court, we cannot say that the trial court coerced Armstrong into

accepting the plea. Unlike in Kelly, Elias, Triplett, and Simms, the trial court in this case

did not expressly promise any particular sentence.

       {¶21} During the plea hearing and after Armstrong acknowledged that no promises

or threats were made, the trial court explained to Armstrong the sentencing possibilities

regarding his plea. When the court again asked Armstrong about any promises after the

maximum penalty advisement, Armstrong again agreed that he received no promises for

his plea. However, when Armstrong questioned the court about the “agreement,” the
court made it very clear on the record that as it told his attorney, “this Court will look at

all of the factors on the day of sentencing when determining how much time you can get.”

 (Tr. 22.) The court reiterated that he could be sentenced up to 22 years in prison and

that the court was making no promises. Armstrong stated that he understood. At that

point, Armstrong could have chosen not to accept the plea agreement if he believed that

he would not receive the “three to five” or “three to six” range as discussed with his

counsel. However, even after being told by the court that it was not promising any

particular sentence, Armstrong still pleaded guilty.

       {¶22} We recognize that the trial court allowed defense counsel to take a

sentencing range back to the defendant, knowing that the basis for doing so was to

facilitate a plea. The defense attorney, in good faith, expressed to his client that the trial

court stated that a sentencing range of “three to five” or “three to six” was fair. In such

instances, a written plea agreement, including an agreed sentence, is the better option for

all parties involved, especially the defendant. See State v. Padilla, 8th Dist. Cuyahoga

No. 98187, 2012-Ohio-5892 , ¶ 32, 36 (S. Gallagher, J., concurring).

       {¶23} Armstrong’s first assignment of error is overruled.

                                  II. Motion to Withdraw

       {¶24} Armstrong argues in his second assignment of error that the court committed

reversible error and/or abused its discretion when it denied his motion to withdraw his

guilty plea.
       {¶25} “A motion to withdraw a plea of guilty or no contest may be made only

before sentence is imposed; but to correct manifest injustice the court after sentence may

set aside the judgment of conviction and permit the defendant to withdraw his or her

plea.” Crim.R. 32.1. The Supreme Court of Ohio has defined “manifest injustice” as a

clear or openly unjust act. State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208,

699 N.E.2d 83 (1998). This standard permits a defendant to withdraw his plea only in

extraordinary cases. State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977).

The defendant moving for a postsentence withdrawal of a guilty plea, has the burden of

establishing the existence of a manifest injustice. Id. at paragraph one of syllabus.

       {¶26} The decision to grant or deny a Crim.R. 32.1 motion is committed to the

sound discretion of the trial court. Id. at paragraph two of the syllabus. We will not

reverse a trial court’s decision absent an abuse of discretion. Id., citing State v. Xie, 62

Ohio St.3d 521, 584 N.E.2d 715 (1992). A trial court abuses its discretion when its

judgment is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶27} In this case, after sentencing, Armstrong orally moved to withdraw his plea

on the basis that the trial court did not impose the sentence in the range that Armstrong

believed he was receiving. Therefore, Armstrong bears the burden of establishing the

existence of a manifest injustice. In the absence of an agreed and promised sentence, we

cannot find, nor has Armstrong even argued, that the sentence imposed constitutes a
manifest injustice considering that he was fully aware that he was facing over 20 years in

prison for his offenses.

       {¶28} Accordingly, Armstrong has failed to withstand his burden of establishing

the existence of a manifest injustice. The trial court did not abuse its discretion in

denying Armstrong’s oral postsentence motion to withdraw his plea.              The second

assignment of error is overruled.

       {¶29} 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.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., CONCURS IN JUDGMENT ONLY;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY
