[Cite as State v. Snider, 2016-Ohio-1576.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SHELBY COUNTY




STATE OF OHIO,
                                                          CASE NO. 17-15-08
       PLAINTIFF-APPELLEE,

       v.

KENNETH W. SNIDER,                                        OPINION

       DEFENDANT-APPELLANT.




                  Appeal from Shelby County Common Pleas Court
                            Domestic Relations Division
                           Trial Court No. 15-CR-000049

                                      Judgment Affirmed

                              Date of Decision: April 18, 2016




APPEARANCES:

        Jim R. Gudgel for Appellant

        Brandon W. Puckett for Appellee
Case No. 17-15-08


WILLAMOWSKI, J.

       {¶1} Defendant-appellant, Kenneth Snider, brings this appeal from the

judgment of the Common Pleas Court of Shelby County, Ohio, accepting his plea

of guilty to one count of attempted felonious assault, a felony of the third degree in

violation of R.C. 2923.02 and 2903.11(A)(2), and sentencing him to thirty months

in prison. For the reasons that follow, we affirm the trial court’s judgment.

                              Procedural Background

       {¶2} On February 26, 2015, a two-count indictment was filed against

Snider in the trial court case number 15CR000049.            The indictment charged

Snider with one count of kidnapping, a felony of the first degree in violation of

R.C. 2905.01(A)(3), and one count of felonious assault, a felony of the second

degree in violation of R.C. 2903.11(A)(2). (R. at 1.) Snider pled not guilty. (R. at

11.) It is apparent from the record that at the time of the proceedings in this case,

Snider had another case pending in the Shelby County Common Pleas Court,

labeled as 15CR000099. Although that case is not on appeal before us, we make

references to it in our opinion due to the fact that certain trial court proceedings for

both cases were held together and both cases were referenced by the parties and

the trial court.

       {¶3} On May 14, 2015, Snider entered a plea agreement with the State.

The State agreed to dismiss the kidnapping charge and amend the charge of

felonious assault, a felony of the second degree, to a count of attempted felonious

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assault, a felony of the third degree. In exchange, Snider agreed to plead guilty to

the amended charge of attempted felonious assault. (See R. at 42-43; Tr. of

Proceedings at 3-4, May 14, 2015.) The petition to enter a plea of guilty, which

was signed by Snider and his attorney, indicated that the State was to recommend

concurrent sentencing with respect to Snider’s conviction in case number

15CR000099, and otherwise remain silent at sentencing. (R. at 42.) At the

change of plea hearing, however, the State only indicated that it would “enter into

a joint recommendation with respect to the handling of sentencing.” (Tr. at 4.)

During the hearing the trial court asked Snider, “Other than what’s been said in

open court today, has anyone promised you anything to cause you to enter this

plea of guilty?” Snider responded in the negative. (Id. at 9.) The judgment entry,

acceptance of guilty plea, filed on the same day and signed by the trial court,

Snider, Snider’s attorney, and the prosecuting attorney, does not refer to any

agreement with respect to sentencing. (R. at 43.)

       {¶4} The sentencing hearing took place on July 7, 2015.         During that

hearing, both Shelby County cases pending against Snider were addressed. (See

Tr. of Proceedings, July 7, 2015.) After Snider and his counsel had made their

statements, the prosecuting attorney made comments, stating that he “was a little

surprised to hear the comments coming from Mr. Snider today.” (Id. at 7.) After

briefly summarizing the extent of Snider’s offenses, the prosecuting attorney

stated, “Your Honor, given his history, we believe that prison time is appropriate

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and the State is asking for three years of prison time, sir.” (Id. at 7-8.) Snider’s

counsel immediately asserted that according to the agreement of the parties, the

State was to “recommend concurrent sentence, but otherwise remain silent as part

of the plea agreement.” (Id. at 8.) The prosecuting attorney responded, “I—my

notes say that—if that’s the case, my notes don’t reflect that, sir. My—notes just

indicate that there was a concurrent recommendation.” (Id.)

        {¶5} As a result of the exchange, Snider’s counsel suggested that the plea

agreement had been violated. (Id. at 9.) He further stated, “I suppose I would

need a minute to consult with my client to ask him if he wants to now withdraw

his plea or we could ask the Court perhaps to—to disregard the remarks of the

Prosecutor in forming its sentence.” (Id. at 9.) Upon reviewing some further

documentation, the prosecuting attorney conceded that the State was to remain

silent with respect to sentencing and apologized for his mistake. (Id.) The trial

court then stated that it was “prepared to disregard the statements” made by the

prosecuting attorney. (Id. at 10.) It then stated that the prosecuting attorney’s

comments had no impact on the sentence it intended to impose because “the court

has had a chance to review [the case] in detail.” (Id. at 10.)

        {¶6} Snider did not move to withdraw the plea at this time and the trial

court sentenced him to thirty months in prison.1 (Id. at 12; R. at 56.) He filed a


1
  Although the trial court also pronounced a sentence in case 15CR000099 and ordered it to be served
consecutively to the sentence in the instant case, that part of the sentencing is not before us on appeal
because the appeal was taken from case 15CR000049 only.

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Case No. 17-15-08


notice of appeal on August 17, 2015, requesting delayed appeal and the

appointment of counsel. (R. at 71-77.) We granted Snider’s motion for delayed

appeal on September 10, 2015.2 The assignments of error before us read as

follows.

        I.       THE DEFENDANT WAS DENIED DUE PROCESS DUE
                 TO THE PROSECUTOR’S FAILURE TO HONOR THE
                 PLEA AGREEMENT ENTERED INTO ON MAY 14,
                 2015.

        II.      THE DEFENDANT WAS DENIED EFFECTIVE
                 ASSISTNACE [sic] OF COUNSEL WHEN THE
                 DEFENDANT’S ATTORNEY FAILED TO REQUEST A
                 WITHDRAWAL FO [sic] THE DEFENDANT’S PLEA
                 BASED ON THE PROSECUTOR’S STATEMENTS.

         First Assignment of Error—Failure to Honor the Plea Agreement

        {¶7} Snider alleges that the State breached the plea agreement and

therefore, he was denied due process of law at the sentencing hearing. Of note,

although Snider generally asserts prejudice stemming from the State’s alleged

violation, he does not claim that the State’s comments resulted in a harsher

sentence or that they affected the trial court’s decision in any way.

        {¶8} We have previously held that “when a guilty 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.’


2
  On October 19, 2015, Snider moved to withdraw his guilty plea, asserting that the State breached the plea
agreement when it spoke at sentencing. (R. at 91.) This motion was dismissed by the trial court, which
found that it lacked jurisdiction to consider the motion as a result of the appeal currently pending.
(Decision/Order Dismissing for Lack of Jurisdiction, Oct. 29, 2015.) This ruling of the trial court is not
challenged on appeal.

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Case No. 17-15-08


” State v. Crump, 3d Dist. Logan No. 8-04-24, 2005-Ohio-4451, ¶ 10, quoting

Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971);

accord State v. McGinnis, 3d Dist. Van Wert No. 15-08-07, 2008-Ohio-5825, ¶ 5.

The state’s failure to abide by the terms of the plea agreement entitles the

defendant to either specific performance or to withdrawal of his or her guilty plea.

Crump at ¶ 10; State v. Bonner, 3d Dist. Defiance No. 4-04-05, 2004-Ohio-6043, ¶

16. The choice of a remedy upon a breach of the plea agreement rests within the

sound discretion of the trial court. State v. Fulton, 66 Ohio App.3d 215, 217, 583

N.E.2d 1088 (3d Dist.1990).

       {¶9} In the instant case, we need not determine whether the breach of the

plea agreement actually occurred in order to resolve the issues on appeal. It

appears that the alleged breach was remedied when the State apologized for the

purported mistake and the State’s comments were disregarded by the trial court.

This had the same effect as enforcing specific performance of the plea agreement

by the State. Snider does not demonstrate or even allege that this remedy was

insufficient or that it was an abuse of discretion.

       {¶10} We additionally recognize that the trial court imposed a sentence that

was lower than the State’s “recommendation” of three years in prison. Therefore,

we reject Snider’s allegations of prejudice that are unsupported by any legal

argument or citations to the record.

       {¶11} For the foregoing reasons, we overrule the first assignment of error.

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          Second Assignment of Error—Ineffective Assistance of Counsel

       {¶12} In the second assignment of error Snider alleges that his trial counsel

was ineffective for failure to request a withdrawal of his guilty plea based on the

State’s alleged breach of the plea agreement. In order to prevail on a claim of

ineffective assistance of counsel, a criminal defendant must first show that the

counsel’s performance was deficient in that it fell “below an objective standard of

reasonable representation.” State v. Keith, 79 Ohio St.3d 514, 534, 684 N.E.2d 47

(1997).    Second, the defendant must show “that the deficient performance

prejudiced the defense so as to deprive the defendant of a fair trial.” Id., citing

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). In order to demonstrate prejudice, the defendant must prove a reasonable

probability that the result of the proceedings would have been different but for his

or her counsel’s errors. Id. In applying these standards, the court must “indulge a

strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” State v. Cassano, 96 Ohio St.3d 94, 2002-

Ohio-3751, 772 N.E.2d 81, ¶ 108, quoting Strickland at 669. Therefore, the court

must be highly deferential in its scrutiny of counsel’s performance.       State v.

Walker, 90 Ohio App.3d 352, 359, 629 N.E.2d 471 (3d Dist.1993), quoting

Strickland at 689.

       {¶13} In the record before us, there is no evidence that Snider’s trial

counsel acted deficiently by failing to move to withdraw the guilty plea. We have

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recently addressed a similar issue in State v. Panning, 3d Dist. Van Wert No. 15-

14-05, 2015-Ohio-1423, where we analyzed:

       In the instant case, * * * there is no evidence that Panning had ever
       asked attorney Gordon to move for a withdrawal of his guilty plea. *
       * * Without any evidence that Panning had, at any point, requested
       that his plea be withdrawn and that his counsel ignored the request,
       we cannot find that attorney Gordon’s assistance fell “below an
       objective standard of reasonable representation” for failure to move
       for the plea withdrawal. Keith, 79 Ohio St.3d at 534, 684 N.E.2d 47.
       Accordingly, Panning has failed to satisfy the first prong of the test
       for ineffective assistance of counsel.

Id. at ¶ 11. In Panning we further noted that the defendant presented no evidence

that had his counsel moved to withdraw the plea, the court would have allowed the

motion. Id. at ¶ 12. Accordingly, he failed to satisfy the prejudice element of the

Strickland test and his claim failed. Id.

       {¶14} The instant case calls for the same conclusion as the one we reached

in Panning. There are no allegations that Snider wanted to withdraw his plea

based on the State’s comments prior to sentencing. The record indicates that

Snider’s attorney raised the issue and there is no indication that Snider requested

the remedy of withdrawal over specific performance.          Although Snider now

criticizes his trial counsel for not moving to withdraw the plea, there is nothing in

the record to suggest that had his counsel made the motion, the trial court would

have granted the withdrawal when an alternative remedy of specific performance

was available upon the trial court’s discretion. Additionally, as we concluded

above, Snider was not prejudiced by the alleged breach, which is the only basis

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under which he asserts his counsel should have requested the plea withdrawal.

Therefore, Snider’s claim of ineffective assistance of counsel fails on both prongs

of the Strickland test.

       {¶15} For the foregoing reasons, we reject Snider’s contention that his trial

counsel was ineffective for failure to move to withdraw his guilty plea and we

overrule the second assignment of error.

                                    Conclusion

       {¶16} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued. The judgment of the Common Pleas Court of Shelby County, Ohio is

therefore affirmed.

                                                               Judgment Affirmed

PRESTON and ROGERS, J.J, concur.

/hls




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