[Cite as State v. Dietrich, 2011-Ohio-4347.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 1-10-76

        v.

BRAD DIETRICH,                                           OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2010 0063

                      Judgment Affirmed in Part, Reversed in Part

                             Date of Decision: August 29, 2011




APPEARANCES:

        Jason N. Flower for Appellant

        Alissa M. Sterling for Appellee
Case No. 1-10-76



ROGERS, P.J.

       {¶1} Defendant-Appellant, Brad Dietrich, appeals from the judgment of the

Court of Common Pleas of Allen County sentencing him to a ten-year prison term.

On appeal, Dietrich contends that he received ineffective assistance of counsel,

and that his pleas of guilty were involuntary. Based on the following, we affirm in

part and reverse in part the judgment of the trial court.

       {¶2} In September 2009, the Allen County Grand Jury indicted Dietrich on

Count One: aggravated trafficking of a controlled substance, methamphetamine, in

violation of R.C. 2925.03(A)(1), (C)(1)(a), a felony of the fourth degree; Count

Two: aggravated trafficking of a controlled substance, methamphetamine, in

violation of R.C. 2925.03(A)(1), (C)(1)(a), a felony of the fourth degree; Count

Three: aggravated trafficking of a controlled substance, methamphetamine, in

violation of R.C. 2925.03(A)(1), (C)(1)(a), a felony of the fourth degree; Count

Four: aggravated trafficking of a controlled substance, methamphetamine, in

violation of R.C. 2925.03(A)(1), (C)(1)(a), a felony of the fourth degree; Count

Five: aggravated possession of a controlled substance, methamphetamine, in

violation of R.C. 2925.11(A), (C)(1)(a), a felony of the fifth degree; Count Six:

illegal assembly or possession of chemicals for the manufacture of a controlled

substance, methamphetamine, in violation of R.C. 2925.041(A),(C), a felony of

the third degree; Count Seven: conspiracy to manufacture methamphetamine in

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Case No. 1-10-76



violation of R.C. 2925.04(A), (C)(3)(a) and R.C. 2923.01(A)(1), a felony of the

second degree; and, Count Eight: engaging in a pattern of corrupt activity in

violation of R.C. 2923.32(A)(1), (B)(1), a felony of the first degree.            The

indictment arose following an investigation wherein law enforcement discovered

that   Dietrich   was   purchasing     pseudoephedrine   for   the   production    of

methamphetamine.

       {¶3} On February 23, 2010, Dietrich was arraigned.            Dietrich, being

indigent, requested court-appointed counsel. F. Stephen Chamberlain (“attorney

Chamberlain”) was appointed as counsel for Dietrich. Thereafter, Dietrich entered

a plea of not guilty to all counts in the indictment.

       {¶4} On April 7, 2010, Dietrich filed two motions to suppress. One motion

sought suppression of Dietrich’s statements to law enforcement. The other motion

sought suppression of evidence gathered via the use of a GPS tracking device

placed on Dietrich’s vehicle by law enforcement.

       {¶5} On June 10, 2010, a hearing was held on both motions to suppress.

During the hearing attorney Chamberlain addressed the trial court, stating, in

pertinent part:

       At this point in time, after discussing the matter with my client
       and doing a little more research after some other (sic) additional
       discovery was made by the State of Ohio. There are two motions
       that are pending; one is a motion to suppress statements; the
       other is a motion to suppress G-P-S tracking evidence. At this

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         point in time, those motions in my opinion, are deemed not
         necessary based upon the status of the law and the uh, evidence
         that I know would be presented at any sort of hearing. So at this
         point in time, we’re gonna be withdrawing those two motions.
         I’ll put something on more formal, but we do need (sic) do it on
         record, I’ve advised my client of the same and the reasons why
         we’re doing it. And just to advise the Court, we’re still in uh,
         we’re discussing and there’s has been a proposed uh, settlement
         made by the State of Ohio that I’ve communicated with my
         client. We’re still discussing that matter * * *.

June 10, 2010, Motion to Suppress Hearing Tr., p. 2. The trial court asked

Dietrich if attorney Chamberlain spoke with him about withdrawing the motions

to suppress and whether he consented to the withdrawal, to which Dietrich

responded in the affirmative. Id. at pp. 2-3. Accordingly, the motions to suppress

were withdrawn.

         {¶6} On June 21, 2010, the matter proceeded to the final pre-trial hearing.

As a preliminary matter attorney Chamberlain notified the trial court that Dietrich

desired other counsel, resulting in the following colloquy:

         Mr. Chamberlain: * * * I met with my client last night
         regarding the matter for today and coming up for trial next
         week. And then just talked to him very briefly this morning
         after I spoke with Miss Sterling regarding the case just to
         confirm where we were at negotiation-wise. Negotiations are
         still where they were; the offer is still the offer that’s been
         made.1 My client has told me a couple of times he’s rejecting

1
  Although there is no plea offer sheet in the record memorializing the aforementioned plea offer (“original
plea offer”), a fact Dietrich concedes, we find that there is sufficient evidence in the record to demonstrate
that the original plea offer existed. The record, however, only reveals that the original plea offer was set to
expire on July 30, 2010. Final Pre-trial Hearing Tr., pp. 13-14. There is nothing in the record that reveals
the original plea offer’s sentencing recommendations.

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Case No. 1-10-76



      that, and I just advise him again that the offer has not been
      modified by the State of Ohio this morning. First thing that he
      advised me is that he wants another attorney. So at this point
      we’re here to put that on the record. I’m not withdrawing as
      counsel, however, I believe that that’s - - it’s a matter that needs
      to be heard and placed on the record for purposes of keeping the
      record uh, complete.

      The Court: Okay, very well. The Court, in order to make a
      record of the issue then, is that correct, Mr. Dietrich?

      Mr. Dietrich: Yes, your Honor

      The Court: What seems to be the problem?

      Mr. Dietrich: He don’t come and see - - he didn’t come and see
      me all this time; that all these times I’ve requested him to come
      up and see me, that he should have had an expert hired already.
      I just don’t trust him. He’s not - - I don’t feel he’s doing what
      his job (sic) in the interest of my best interest. * * *

      ***

      Mr. Chamberlain: * * * He’s basically not happy with the fact
      that I can’t get him a better offer. And he thinks that if uh,
      either another attorney or if there was a hired attorney, would
      somehow then be able to persuade the State of Ohio to give him
      a better offer in terms of years than what Miss Sterling has put
      on the table.

      Mr. Dietrich: I never said that they would get me a better offer.

      Mr. Chamberlain: I’ve advised Miss Sterling that - - or advised
      him that Miss Sterling, that absent bribery or physical force, I’m
      not going to get Miss Sterling to come to change her mind on this
      offer, and I’m not going to do either one of those. So he
      understands that position * * * And I have advised him basically
      that’s where - - that’s where the negotiations stand and he has - -
      there are limited choices at this point. which (sic) is, he either

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Case No. 1-10-76



       accepts an offer that’s been offered, or we prepare the matter
       and go to trial. * * *

       The Court: Okay. Mr. Dietrich, just so we make a record,
       anything else you want to say?

       Mr. Dietrich: I’m not real sure. I just - - I don’t feel I trust him,
       and this is my life in his hands.

 Final Pre-trial Hearing Tr., pp. 2-5. Upon considering attorney Chamberlain’s

 and Dietrich’s testimony, the trial court denied Dietrich’s motion to withdraw

 attorney Chamberlain as counsel. The trial court, however, informed Dietrich

 that he had the right to hire an attorney. Final Pre-trial Hearing Tr., p. 7. Also

 during the hearing, there was discussion of the original plea offer, resulting in the

 following colloquy:

       Mr. Chamberlain: * * * [J]ust to indicate that I’ve advised my
       client of [the original plea offer], obviously beforehand, and now
       he’s heard it in open court, so he knows what the - - what the
       final date for any offer. And I guess just so it’s clear on the
       record for my client’s benefit, that Miss Sterling is completely
       not really serious that if there is no uh, up-taking by our side of
       this offer, that it is off the table and there is nothing uh, being
       presented other than to go to trial on the indictment. * * *

       The Court: Well, to make it even clearer, for the record, Mr.
       Dietrich, do you understand that, right?

       Mr. Dietrich: Yes, your Honor.

Id. at p. 14.




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Case No. 1-10-76



       {¶7} On July 19, 2010, Robert Blackwell (“attorney Blackwell”) filed a

notice of substitution of counsel with the trial court.     In his notice, attorney

Blackwell notified the trial court that he would be representing Dietrich in place of

attorney Chamberlain.

       {¶8} On August 17, 2010, Dietrich filed a motion to suppress any and all

information obtained by law enforcement from pharmacies arguing that release of

such information was prohibited under HIPPA. On August 23, 2010, Dietrich

filed a motion to suppress his statements to law enforcement. On that same day, a

hearing was held on Dietrich’s first motion to suppress. The following day the

trial court filed a judgment entry denying Dietrich’s first motion to suppress. On

September 2, 2010, Dietrich filed a motion to suppress evidence gathered via the

use of a GPS tracking device placed on Dietrich’s vehicle by law enforcement.

On that same day, a hearing was held on Dietrich’s second motion to suppress.

On September 6, 2010, the trial court filed a judgment entry denying Dietrich’s

second motion to suppress.

       {¶9} On September 7, 2010, the matter proceeded to a change of plea

hearing. Prior to entering pleas of guilty the trial court conducted a thorough

Crim.R. 11 colloquy. See Change of Plea Hearing Tr., pp. 3-18. Thereafter,

pursuant to the plea agreement (“amended plea offer”), Dietrich withdrew his

pleas of not guilty and entered pleas of guilty to Counts One, Two, Three, Six, and

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Eight of the indictment, and signed a written plea of guilty. Based on Dietrich’s

responses during the Crim.R. 11 colloquy, the trial court found that Dietrich

knowingly and voluntarily plead guilty to the foregoing counts. Upon the State’s

motion, the trial court dismissed Counts Four, Five, and Seven of the indictment.

      {¶10} On October 12, 2010, Dietrich filed a letter with the trial court

notifying it that he terminated his relationship with attorney Blackwell, and

requested re-appointment of attorney Chamberlain. On October 18, 2010, the

matter proceeded to an appointment of counsel hearing, during which Dietrich’s

letter was entered as an exhibit, and the trial court again appointed attorney

Chamberlain to represent Dietrich.

      {¶11} On October 25, 2010, the matter proceeded to sentencing. The trial

court sentenced Dietrich to a one-year prison term on Count One, a one-year

prison term on Count Two, a one-year prison term on Count Three, a five-year

prison term on Count Six, and a five-year prison term on Count Eight. The trial

court further ordered that Count One, Count Two, and Count Three be served

concurrently to each other and concurrently to the prison term imposed in Count

Eight, and that the prison terms imposed on Counts One, Two, Three, and Eight be

served consecutively to the prison term imposed on Count Six, resulting in a total

prison term of ten years.    The trial court further ordered Dietrich to pay a

mandatory fine of $5,000.00 on Count Six, which may be waived upon the proper

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Case No. 1-10-76



filing of an affidavit of indigency, and “pay $1,000.00 as restitution to the West

Central Ohio Crime Task Force – all payments to be made through the Clerk of

Courts Office.” October 26, 2010 Judgment Entry, p. 4.

       {¶12} It is from this judgment Dietrich appeals, presenting the following

assignments of error for our review.

                             Assignment of Error No. I

       APPELLANT’S TRIAL COUNSEL DID NOT ADEQUATELY
       ADVISE OR REPRESENT APPELLANT TO APPELLANT’S
       DETRIMENT.

                            Assignment of Error No. II

       APPELLANT’S PLEA WAS AN INVOLUNTARY PLEA.

                             Assignment of Error No. I

       {¶13} In his first assignment of error, Dietrich contends that attorney

Blackwell did not adequately advise or represent him.          Specifically, Dietrich

contends that attorney Blackwell did not adequately investigate the case,

unreasonably changed trial strategy from cooperative to adversarial, did not

understand the legal arguments put forth in the motions to suppress, did not brief

an issue of first impression, and, as a result, he (Dietrich) received a less desirable

plea offer. We disagree.

       {¶14} This Court has previously held in State v. Streets, 3d Dist. No. 5-98-

09, 1998 WL 682284, *2:

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Case No. 1-10-76



       A plea of guilty waives a claim of ineffective assistance of
       counsel, except to the extent the defects complained of caused the
       plea to be less than knowing and voluntary. State v. Barnett
       (1991), 73 Ohio App.3d 244, 249, 596 N.E.2d 1101. If a
       defendant can demonstrate that he [or she] received ineffective
       assistance of counsel in entering his [or her] guilty plea and that
       but for that ineffective assistance he [or she] would have
       proceeded to trial, then we would be required to reverse a
       defendant’s sentence and remand the matter to the trial court to
       allow the defendant to withdraw his [or her] plea. State v.
       Freeman (July 3, 1997), Shelby App. Nos. 17-96-18 and 17-96-19,
       unreported, citing Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct.
       366, 88 L.Ed.2d 203. The defendant bears the burden of proof in
       demonstrating ineffective assistance of counsel. State v. Smith
       (1985), 17 Ohio St.3d 98, 477 N.E.2d 1128.

See also, State v. Jackson, 3d Dist. No. 1-98-78, 1999 WL 253236; State v.

Kitzler, 3d Dist. No. 16-02-06, 2002-Ohio-5253, ¶¶12-13, State v. Cook, 3d Dist.

No. 14-10-05, 2010-Ohio-4814, ¶18. The contentions lodged in Dietrich’s first

assignment of error address attorney Blackwell’s failure to investigate Dietrich’s

case, his unreasonable trial strategy, his misunderstanding of the applicable law,

and his failure to brief issues. While Dietrich does contend that the cumulative

effect of attorney Blackwell’s foregoing failures resulted in a less-than-desirable

plea bargain, at no point, throughout his first assignment of error, does Dietrich

contend that these failures affected his ability to enter a knowing, intelligent, and

voluntary plea. Consequently, these contentions, even if meritorious, are outside

our scope of review.

       {¶15} Accordingly, we overrule Dietrich’s first assignment of error.

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                            Assignment of Error No. II

       {¶16} In his second assignment of error, Dietrich contends that his plea was

involuntary. Specifically, Dietrich argues that his plea was involuntary as a result

of attorney Blackwell’s erroneous representations about receiving a better

outcome than that offered in the original plea deal, and allowing the initial plea

deal to expire. Had it not been for attorney Blackwell’s erroneous representations,

and failure to encourage acceptance of the original plea deal, Dietrich contends

that he would have not been in a situation where he had to accept the amended

plea deal.   As a result of this situation, Dietrich contends that his plea was

involuntary. We disagree.

       {¶17} Prior to accepting a plea of guilty or no contest the trial court must

personally address the defendant and determine that the plea is being made

voluntarily, knowingly, and intelligently. Crim.R. 11.

       {¶18} In State v. Langenkamp, 3d Dist. No. 17-08-03, 17-08-04, 2008-

Ohio-5308, this Court dealt with an issue similar to that raised in the present case.

In Langenkamp, appellant argued that he entered his plea of no contest because his

attorney had assured him that the plea agreement provided for concurrent

sentencing. Appellant subsequently discovered that there was no agreement for

concurrent sentencing when the trial court ordered his sentences to be served



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consecutively.2 Consequently, appellant filed a motion to withdraw his plea of no

contest, which the trial court denied. On appeal, the appellant maintained that his

counsel’s erroneous representations concerning sentencing induced his plea of no

contest, rendering it involuntary. Considering the record and applicable law this

Court affirmed the trial court’s judgment overruling appellant’s motion to

withdraw his no contest plea. In doing so, this Court conducted an extensive

review of case law addressing the differences between defense counsel’s

erroneous speculation and defense counsel’s erroneous representations of a

promised sentence, and the effect thereof on the knowing, intelligent, and

voluntary nature of defendant’s plea. Langenkamp, 2008-Ohio-5308, ¶¶24-26.

After conducting its review of the applicable case law, this Court stated:

        [T]hat in order for a defendant to establish a manifest injustice
        sufficient for a post-sentence withdrawal of a guilty or no contest
        plea, a defendant must establish that: (1) defense counsel
        mistakenly represented what has been promised by way of a
        sentence; (2) the erroneous representation played a substantial
        part in his/her decision to plead guilty or no contest; and (3)
        he/she was reasonably justified in relying upon counsel’s
        erroneous representation.

Id. at ¶27. We remain cognizant of the fact that the present case does not involve

a post-sentence motion to withdraw a plea of guilty or no contest. Nevertheless,

we find the foregoing analysis useful in determining whether defense counsel’s

2
  The trial court in Langenkamp found, and this Court agreed, that there was never an agreement for
concurrent sentencing, Langenkamp, 2008-Ohio-5308, at ¶17, but concluded that Langenkamp was not
reasonably justified in relying on counsel’s erroneous representations. Id. at ¶28.

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Case No. 1-10-76



alleged erroneous representations induced appellant to enter his plea of guilty,

resulting in an unknowing, unintelligent, and involuntary plea.

       {¶19} In order to satisfy the first prong of the Langenkamp analysis it must

be apparent from the record that an erroneous representation did in fact occur. See

State v. Radel, 5th Dist. No. 2009-CA-00021, 2009-Ohio-3543, citing State v.

Cooperrider (1983), 4 Ohio St.3d 226. Furthermore, defendant bears the burden

to identify those portions of the record demonstrating the existence of counsel’s

erroneous representations. In Langenkamp, this Court, citing the record, found

that appellant’s defense counsel, via defense counsel’s testimony and testimony of

appellant’s psychologist, had in fact guaranteed appellant that he was going to be

sentenced concurrently if he plead no contest. Langenkamp, 2008-Ohio-5308, at

¶¶19-23. Consequently, this Court presumed that the first and second prongs were

satisfied, and determined the merits of appellant’s appeal based on the third prong.

       {¶20} In addressing the first prong of the analysis, we, like the Langenkamp

court, review the record to determine whether attorney Blackwell made erroneous

representations to Dietrich concerning his ability to secure a more favorable

outcome in the case.      Unlike Langenkamp, the only evidence of attorney

Blackwell’s alleged erroneous representations appear in Dietrich’s October 12,

2010 letter and Dietrich’s statements during the sentencing hearing. However, this

Court has previously held that defendant’s own self-serving testimony (i.e., self-

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Case No. 1-10-76



serving affidavits, which do not exist here, or statements) alone are insufficient to

establish manifest injustice. State v. Young, 3d Dist. Nos. 13-08-21, 13-08-22, 13-

08-23, 2008-Ohio-6072, ¶26, citing State v. Rockwell, 5th Dist. No. 2008-CA-

00009, 2008-Ohio-2162, ¶42, citing State v. Brown, 167 Ohio App.3d 239, 2006-

Ohio-3266, ¶13. Consequently, the statements contained in Dietrich’s letter and

testimony, without more, are insufficient to demonstrate the existence of attorney

Blackwell’s alleged erroneous representations.        See Langenkamp, 2008-Ohio-

5308, at ¶¶19-23. Accordingly, Dietrich has failed to satisfy the first prong,

rendering his second assignment of error meritless.

       {¶21} Nevertheless, Dietrich invites us to infer the existence of attorney

Blackwell’s erroneous representations by considering the change in Dietrich’s

defense strategy, from cooperative to adversarial, which occurred after attorney

Blackwell was hired. We decline to draw such inferences.

       {¶22} Upon review of the record, it appears that Dietrich, prior to attorney

Blackwell’s appearance as counsel of record, decided to defend against the

charges, rather than admit to them via a guilty plea. This strategic shift is evident

during the final pre-trial hearing. At that point in time the original plea offer was

in existence. Attorney Chamberlain explained that he had discussed the original

plea offer with Dietrich, the improbability of receiving a better offer, and notified

Dietrich of the original plea offer’s deadline. Final Pre-trial Hearing Tr., pp. 2, 4,

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14. Nevertheless, Dietrich, according to attorney Chamberlain, repeatedly rejected

the offer, and sought appointment of new counsel, which Dietrich confirmed

during the hearing. Id. at p. 2. On the face of the record Dietrich, prior to attorney

Blackwell’s involvement, had decided that he was not going to accept the original

plea offer, which consequently placed him in a situation where he could either

accept the amended plea offer or go to trial. Although there may have been

discussions between attorney Blackwell and Dietrich concerning this decision,

they are not in the record, and we will not infer their existence at this juncture.

Accordingly, the record reveals that Dietrich, not attorney Blackwell, was

responsible for the predicament which he now claims resulted in an involuntary

plea.

        {¶23} Furthermore, the record demonstrates that Dietrich knowingly,

intelligently, and voluntarily entered his pleas of guilty.      Prior to accepting

Dietrich’s pleas of guilty the trial court conducted a thorough Crim.R. 11

colloquy. See Change of Plea Hearing Tr., pp. 3-18. “The underlying purpose,

from the defendant’s perspective, of Crim.R. 11(C) is to convey to the defendant

certain information so that he [or she] can make a voluntary and intelligent

decision whether to plead guilty.” State v. Ballard (1981), 66 Ohio St.2d 473,

479-80. Crim.R. 11(C) creates a record by which an appellate court can determine

if the pleas were entered voluntarily. State v. Griggs, 103 Ohio St.3d 85, 2004-

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Case No. 1-10-76



Ohio-4415, ¶11. However, Crim.R. 11(C)’s ultimate purpose “is to insure that

there was a voluntary, knowing, and intelligent waiver of the constitutional rights

abandoned by a plea of guilty, and of the nature and extent of the punishment

involved by such a plea.” State v. Branham, 3d Dist. No. 11-86-3, 1987 WL

15004. As such, a trial court’s adherence to Crim.R. 11(C), absent any indicia of

coercion, creates a presumption that the defendant’s plea was entered knowingly,

voluntarily, and intelligently. State v. Ogletree, 2nd Dist. No. 21995, 2008-Ohio-

772, ¶7, citing State v. Ferbrache, 6th Dist. No. WD-06-042, 2007-Ohio-746.

       {¶24} According to Dietrich’s responses during the Crim.R. 11 colloquy,

he understood the charges in the indictment, including the offenses to which he

would plead guilty, and the potential sentence that the trial court could impose.

The record further shows that Dietrich was twenty-seven years old at the time of

his plea; he was not under the influence of drugs or alcohol; he understood the

terms of the plea agreement, which were also set forth in a written plea agreement

that he signed; and, he was not coerced into entering the plea. Moreover, Dietrich

did not voice any concerns or complaints about attorney Blackwell’s advice and

representations, the expiration of the original plea offer, or the amended plea offer.

Having considered the colloquy in its entirety, we find that Dietrich knowingly,

intelligently, and voluntarily entered his pleas of guilty.



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       {¶25} Additionally, we find that Dietrich’s predicament between accepting

the amended plea offer or going to trial did not render his plea involuntary. The

nature of a plea deal involves the inescapable conflict between accepting the deal

or going to trial. The mere fact that a defendant choses to accept the plea deal to

avoid the inconvenience of trial and the possibility of receiving a longer sentence

does not render the defendant’s decision involuntary. See State v. Richter, 8th

Dist. Nos. 46122, 46123, 1983 WL 4787, citing State v. Piacella (1971), 27 Ohio

St.2d 92, and State v. Stone (1975), 43 Ohio St.2d 163.       Consequently, we find

Dietrich’s acceptance of the amended plea offer and his resulting pleas of guilty

were not involuntary but were calculated decisions.

       {¶26} For the foregoing reasons, we find that Dietrich knowingly,

intelligently, and voluntarily entered his pleas of guilty.

       {¶27} Accordingly, we overrule Dietrich’s second assignment of error.

       {¶28} In addition to Dietrich’s assignments of error, we, sua sponte,

address plain error in Dietrich’s sentencing, particularly the trial court’s award of

restitution to the West Central Ohio Crime Task Force. In order to have plain

error under Crim.R. 52(B) there must be an error, the error must be an “obvious”

defect in the trial proceedings, and the error must have affected “substantial

rights.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68. Plain error is to be

used “with the utmost caution, under exceptional circumstances and only to

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prevent a manifest miscarriage of justice.” Id. Plain error exists only in the event

that it can be said that “but for the error, the outcome of the trial would clearly

have been otherwise.” State v. Biros, 78 Ohio St.3d 426, 431, 1997-Ohio-204; see

State v. Johnson, 3d Dist. No. 2-98-39, 1999-Ohio-825.

       {¶29} As it stands now, Dietrich has been ordered to “pay $1,000.00 as

restitution to the West Central Ohio Crime Task Force – all payments to be made

through the Clerk of Courts Office.” October 26, 2010 Judgment Entry, p. 4. This

is plain error.

       {¶30} R.C. 2929.18 governs a trial court’s ability to award restitution. The

statute provides, in pertinent part:

       * * * Financial sanctions that may be imposed pursuant to this
       section include, but are not limited to, the following:

       (1) Restitution by the offender to the victim of the offender’s
       crime or any survivor of the victim, in an amount based on the
       victim’s economic loss. * * *

R.C. 2929.18(A)(1).

       {¶31} This Court has held that the plain language of R.C. 2929.18(A)(1)

makes restitution available only to actual victims of an offense. State v. Stewart,

3d Dist. No. 16-08-11, 2008-Ohio-5823, ¶9, citing State v. Toler, 174 Ohio

App.3d 335, 338, 2007-Ohio-6967; State v. Christy, 3d Dist. No. 16-04-04, 2004-

Ohio-6963, ¶16. “A victim of a crime is defined as the person or entity that was


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the ‘object’ of the crime.” State v. Samuels, 4th Dist. No. 03CA8, 2003-Ohio-

6106, ¶5, citing Black’s Law Dictionary (5th Ed.1979) 1405.                In certain

circumstances, a government entity may be considered a victim of a crime under

R.C. 2929.18(A)(1): For example, when government funds are embezzled or when

government property is vandalized. Id. However, a government entity voluntarily

advancing its own funds to pursue a drug buy through an informant is not one of

the scenarios contemplated by R.C. 2929.18(A)(1). See State v. Pietrangelo, 11th

Dist. No. 2003-L-125, 2005-Ohio-1686, ¶¶12-15; State v. Justice, 5th Dist. No.

09-CA-66, 2010-Ohio-4781, ¶¶24, 30; State v. Jones, 7th Dist. Nos. 08 JE 20, 08

JE 29, 2010-Ohio-2704, ¶44; State v. Collins, 6th Dist. Nos. H-09-001, H-09-005,

2009-Ohio-6346, ¶52, State v. Frazier, 4th Dist. No. 10CA15, 2011-Ohio-1137,

¶18.

       {¶32} In light of this plain error, we hereby vacate the restitution order.

       {¶33} Having found no error prejudicial to Dietrich herein, in the

particulars assigned and argued, but having found plain error in the trial court’s

award of restitution to the West Central Ohio Crime Task Force, we affirm in part,

and reverse in part, the judgment of the trial court.

                                                        Judgment Affirmed in Part,
                                                                 Reversed in Part
PRESTON and WILLAMOWSKI, J.J., concur.

/jlr

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