State v. Frazier

2019 Ohio 1546

Opinion

[Cite as State v. Frazier, 2019-Ohio-1546.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-33 : v. : Trial Court Case No. 2017-CR-597 : TRAVON M. FRAZIER : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 26th day of April, 2019.

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

V. GAYLE MILLER, Atty. Reg. No. 0091528, P.O. Box 10124, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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WELBAUM, P.J. -2-

{¶ 1} Defendant-appellant, Travon M. Frazier, appeals from his conviction and

sentence in the Clark County Court of Common Pleas after he pled guilty to one count of

improperly handling a firearm in a motor vehicle. In support of his appeal, Frazier claims

that the six-month prison sentence he received for his offense was contrary to law.

Frazier also claims that his guilty plea and sentence should be vacated as a result of the

State’s breach of the parties’ plea agreement. Frazier further claims that his trial counsel

provided ineffective assistance by failing to object to the State’s breach of the plea

agreement. Having found no merit to any of Frazier’s claims, we will affirm the judgment

of the trial court.

Facts and Course of Proceedings

{¶ 2} On October 10, 2017, the Clark County Grand Jury returned an indictment

charging Frazier with one count of trafficking in marijuana in violation of R.C.

2925.03(A)(2), with an attached firearm specification, one count of improperly handling a

firearm in a motor vehicle in violation of R.C. 2923.16(B), and one count of carrying a

concealed weapon in violation of R.C. 2923.12(A). Each count included a forfeiture

specification for certain items of property that Frazier allegedly used in the commission of

the indicted offenses.

{¶ 3} As part of a plea agreement with the State, Frazier agreed to plead guilty to

improperly handling a firearm in a motor vehicle. Frazier also agreed to forfeit the items

of property that were identified in the forfeiture specifications. In exchange for Frazier’s

guilty plea and the forfeiture of property, the State agreed to dismiss the remaining -3-

charges and firearm specification. The State also agreed to request a presentence

investigation (“PSI”) and to recommend community control sanctions.

{¶ 4} At the plea hearing, the prosecutor who negotiated the plea agreement with

Frazier stated the terms of the plea agreement on the record. With regard to

recommending community control, the prosecutor specifically advised that “the State of

Ohio will recommend community control at disposition.” Plea Trans. (Jan. 19, 2018), p.

3-4.

{¶ 5} The terms of the plea agreement were also memorialized on a plea form

signed by Frazier and counsel. The plea form provided that in exchange for Frazier’s

guilty plea, the State would “[d]ismiss remaining counts and specifications. PSI.

Recommendation of community control.” Plea of Guilty (Jan. 19, 2018), Docket. No. 22,

p. 2.

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

plea. The parties thereafter appeared at court for sentencing on February 9, 2018. The

prosecutor who covered the sentencing hearing was not the same prosecutor who had

negotiated the plea agreement with Frazier.

{¶ 7} During the sentencing hearing, the trial court asked why the negotiating

prosecutor had agreed to dismiss the other counts in the indictment and recommend

community control. The prosecutor covering the hearing stated that his file did not

indicate that a recommendation of community control was part of the plea agreement and

that, if such a recommendation had been agreed to, he did not know why. In an attempt

to clarify the matter, Frazier’s defense counsel advised the trial court that: “The

[negotiating] prosecutor was not going to recommend probation. He wasn’t opposed to -4-

it. That’s what we talked about in the plea arrangement.” Attempted Disposition Trans.

(Feb. 9, 2018), p. 5.

{¶ 8} The trial court ultimately decided to continue the sentencing hearing so that

the negotiating prosecutor could be present. A second sentencing hearing was

thereafter held on February 28, 2018. At the second sentencing hearing, the prosecutor

who had negotiated the plea agreement with Frazier advised the trial court that he was

aware the court had some questions about the plea agreement. The prosecutor then

proceeded to explain why he had agreed to accept a plea to improperly handling a firearm

in a motor vehicle as opposed to trafficking in marijuana. Following that explanation, the

prosecutor asked the trial court “to impose a sentence that is consistent with protecting

the public and punishing Mr. Frazier for the offense that he committed[.]” Disposition

Trans. (Feb. 28, 2018), p. 4-5.

{¶ 9} At no point during the second sentencing hearing did the prosecutor

recommend that Frazier be placed on community control, nor did the prosecutor discuss

any agreement for such a recommendation. Defense counsel did not object to any of

the prosecutor’s statements or lack thereof at the sentencing hearing. Accordingly, the

trial court proceeded to sentencing and sentenced Frazier to six months in prison for his

offense.

{¶ 10} Frazier now appeals from his conviction and sentence, raising four

assignments of error for review.

First and Second Assignments of Error

{¶ 11} For purposes of clarity, we will address Frazier’s First and Second -5-

Assignments of Error together, as they both challenge Frazier’s six-month prison

sentence as being contrary to law. Under his First Assignment of Error, Frazier contends

that his sentence was contrary to law because the trial court did not indicate, at the

sentencing hearing, that it considered the seriousness and recidivism factors in R.C.

2929.12. Under his Second Assignment of Error, Frazier contends that his sentence

was contrary to law because the trial court failed to comply with R.C. 2929.19(A) by not

affording him the opportunity to make a statement at the sentencing hearing after his

sentence was imposed.

{¶ 12} As a preliminary matter, we note that in reviewing felony sentences,

appellate courts must apply the standard of review set forth in R.C. 2953.08(G)(2). State

v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Under R.C.

2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may

vacate the sentence and remand for resentencing, only if it “clearly and convincingly”

finds either (1) that the record does not support certain specified findings or (2) that the

sentence imposed was contrary to law.

{¶ 13} “In general, a sentence is not contrary to law when it is within the authorized

statutory range and the trial court states that it has considered the principles and purposes

of sentencing [set forth in R.C. 2929.11] and the seriousness and recidivism factors [set

forth in R.C. 2929.12].” (Citation omitted.) State v. Bradley, 2d Dist. Greene No. 2017-

CA-64, 2018-Ohio-3192, ¶ 5. “ ‘The trial court has full discretion to impose any sentence

within the authorized statutory range, and the court is not required to make any findings

or give its reasons for imposing maximum or more than minimum sentences.’ ” State v.

Fyffe, 2018-Ohio-112, 109 N.E.3d 51, ¶ 31 (2d Dist.), quoting State v. King, 2013-Ohio- -6-

2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).

{¶ 14} However, in exercising its discretion, a trial court must consider the statutory

policies set out in R.C. 2929.11 and R.C. 2929.12. State v. Castle, 2016-Ohio-4974, 67

N.E.3d 1283, ¶ 26 (2d Dist.). A defendant’s sentence is not contrary to law when the

trial court expressly states in its sentencing entry that it has considered the principles and

purposes of sentencing in R.C. 2929.11 and the seriousness and recidivism factors in

R.C. 2929.12, but neglects to mention those statutes at the sentencing hearing. State v.

Battle, 2d Dist. Clark No. 2014 CA 5, 2014-Ohio-4502, ¶ 15, citing State v. Miller, 2d Dist.

Clark No. 09-CA-28, 2010-Ohio-2138, ¶ 43. Even if there is no specific mention of R.C.

2929.11 or R.C. 2929.12 in the record, it is presumed that the trial court gave proper

consideration to those statutes. State v. English, 2d Dist. Montgomery No. 26337, 2015-

Ohio-1665, ¶ 22.

{¶ 15} In this case, the trial court specifically stated in the sentencing entry that it

had considered “the principles and purposes of sentencing under Ohio Revised Code

Section 2929.11, and then balanced the seriousness and recidivism factors under Ohio

Revised Code Section 2929.12.” Judgment Entry of Conviction (Mar. 1, 2018), Docket

No. 25, p. 1. The fact that the trial court did not make a similar statement at the

sentencing hearing is irrelevant, as no such statement was required. Therefore,

Frazier’s claim that his sentence was contrary to law because the trial court failed to state

at the sentencing hearing that it considered the factors under R.C. 2929.12 lacks merit.

{¶ 16} Also lacking in merit is Frazier’s claim that his sentence was contrary to law

due to the trial court’s failure to comply with R.C. 2929.19(A). That statute provides, in

pertinent part, as follows: -7-

The court shall hold a sentencing hearing before imposing a sentence under

this chapter upon an offender who was convicted of or pleaded guilty to a

felony[.] * * * The court shall * * * ask the offender whether the offender has

anything to say as to why sentence should not be imposed upon the

offender.

R.C. 2929.19(A).

{¶ 17} Crim.R. 32(A)(1) similarly provides that: “At the time of imposing sentence,

the court shall * * * address the defendant personally and ask if he or she wishes to make

a statement in his or her own behalf or present any information in mitigation of

punishment.”

{¶ 18} “R.C. 2929.19(A) and Crim.R. 32(A)(1) unambiguously require that an

offender be given an opportunity for allocution whenever a trial court imposes a sentence

at a sentencing hearing.” State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, 81

N.E.3d 1237, ¶ 10, citing State v. Campbell, 90 Ohio St.3d 320, 738 N.E.2d 1178 (2000),

paragraph one of the syllabus. Both this court and the Supreme Court of Ohio have

recognized that a trial court complies with a defendant’s right of allocution when it

personally addresses the defendant and asks whether he or she has anything to say.

See, e.g., State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 180

(finding the trial court complied with defendant’s right of allocution when, prior to being

resentenced, the trial court asked the defendant “whether he wished to say anything, and

[defendant] said that he did not”); State v. Shuri, 2d Dist. Greene No. 2009-CA-39, 2010-

Ohio-1616, ¶ 4-6 (finding no violation of Crim.R. 32(A)(1) when, prior to sentencing, the

trial court stated: “[Y]ou have the right to make a statement if you wish at this point in -8-

time. You’re not required to say anything, but if you want to say anything, I’m certainly

willing to listen.”). See also State v. Hunter, 2d Dist. Montgomery No. 13614, 1993 WL

290216, *5-6 (July 23, 1993).

{¶ 19} In this case, the record indicates that at both the attempted sentencing

hearing and the actual sentencing hearing, the trial court asked Frazier if he wanted to

say anything prior to being sentenced. Although he was given the opportunity to speak

before he was sentenced, Frazier nevertheless claims his right of allocution was violated

because the trial court did not give him the opportunity to speak after his sentence was

imposed.

{¶ 20} Frazier has not provided any authority supporting the proposition that a

defendant must be afforded the right to allocation after the trial court has imposed a

sentence. In fact, the plain language of both R.C. 2929.19(A) and Crim.R. 32(A)(1)

indicates otherwise.

{¶ 21} As previously noted, R.C. 2929.19(A) provides that the court shall “ask the

offender whether the offender has anything to say as to why sentence should not be

imposed upon the offender.” (Emphasis added.) Crim.R. 32(A)(1) also provides that

the court must afford the defendant the opportunity to make a statement “at the time of

imposing sentence” and that the defendant may “make a statement in his or her own

behalf or present any information in mitigation of punishment.” (Emphasis added.) The

language in both provisions indicates that a defendant must be given an opportunity to

speak on his or her own behalf before the trial court imposes a sentence. This is logical

because the right to allocution “represents a defendant’s last opportunity to plead his case

or express remorse.” State v. Green, 90 Ohio St.3d 352, 360, 738 N.E.2d 1208 (2000). -9-

{¶ 22} In Green, the Supreme Court of Ohio specifically held that “the trial court

clearly erred in not explicitly asking [the defendant], in an inquiry directed only to him,

whether he had anything to say before he was sentenced.” (Emphasis added.) Id. at

359. In so holding, the Supreme Court explained that:

[U]nder the comparable Federal Rules: “Trial judges before sentencing

should * * * unambiguously address themselves to the defendant. * * *

[J]udges should leave no room for doubt that the defendant has been issued

a personal invitation to speak prior to sentencing.”

(Emphasis added.) Id., quoting Green v. United States, 365 U.S. 301, 305, 81 S.Ct. 653,

5 L.Ed.2d 670 (1961). Therefore, Frazier’s claim that his sentence was contrary to law

because the trial court did not give him an opportunity to speak after imposing his

sentence lacks merit.

{¶ 23} Frazier’s First and Second Assignments of Error are overruled.

Third Assignment of Error

{¶ 24} Under his Third Assignment of Error, Frazier claims that the State breached

the parties’ plea agreement by failing to recommend community control at sentencing.

Frazier claims that because his decision to enter a guilty plea rested significantly on the

State’s agreement to recommend community control, his guilty plea was induced by a

false promise, which warrants vacating his plea and sentence. Frazier also takes issue

with the fact that the trial court was aware of the plea agreement and yet went forward

with sentencing even though the State failed to recommend community control.

{¶ 25} “When a prosecutor induces a defendant to plead guilty based upon certain -10-

promises, the prosecutor has a duty to keep those promises.” State v. Simpson, 158

Ohio App.3d 441, 2004-Ohio-4690, 816 N.E.2d 609, ¶ 14 (2d Dist.), citing Santobello v.

New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). (Other citation omitted.)

Upon a breach of the agreement, the defendant is entitled to either specific performance

by the State or withdrawal of the plea. Id.

{¶ 26} In an effort to establish that the State did not breach the parties’ plea

agreement, the State cites this court’s opinion in State v. Gibson, 2d Dist. Greene No.

2017-CA-7, 2017-Ohio-6995. In Gibson, the defendant and the State entered a plea

agreement wherein the State agreed to recommend community control sanctions. Id. at

¶ 3. On appeal, the defendant argued that the State breached the plea agreement by

remaining silent at sentencing and not advocating for community control. Id. at ¶ 5. In

finding no breach of the plea agreement, we stated as follows:

[W]e see no breach of the plea agreement by the prosecutor. Unlike some

agreements, the agreement in this case did not obligate the prosecutor to

recommend community control at sentencing. The agreement simply

stated: “The Defendant will plead guilty as charged in the indictment. The

State recommends Community Control Sanctions and will not bring forward

any new charges * * *.” The State made its present-tense recommendation

in the plea agreement itself, and the agreement was made part of the

record. Nothing in the agreement obligated the prosecutor to repeat, at

sentencing, the recommendation that already had been made and

memorialized in the record.

(Emphasis sic.) Id. at ¶ 7. -11-

{¶ 27} The instant case is distinguishable from Gibson in that the prosecutor

specifically indicated at the plea hearing that “the State of Ohio will recommend

community control at disposition.” (Emphasis added.) Plea Hearing Trans. (Jan. 19,

2018), p. 3-4. However, even then, at the first attempted sentencing hearing, defense

counsel later advised the trial court that “[t]he prosecutor was not going to recommend

probation. He wasn’t opposed to it. That’s what we talked about in the plea

arrangement.” Attempted Disposition Trans. (Feb. 9, 2018), p. 5. The record indicates

the State in fact made no recommendation for community control at the sentencing

hearing, which was consistent with what defense counsel had told the trial court.

Therefore, when considering defense counsel’s statement, it does not appear as though

the prosecutor breached the parties’ actual plea agreement.

{¶ 28} That said, even if we were to find that the prosecutor breached the plea

agreement by not recommending community control at sentencing, we are limited to a

plain-error review since Frazier did not object to the prosecutor’s silence. Gibson at ¶ 8,

citing State v. Becraft, 2d Dist. Clark No. 2016-CA-9, 2017-Ohio-1464, ¶ 37; State v. Kline,

2d Dist. Champaign No. 2009-CA-02, 2010-Ohio-3913, ¶ 5; Puckett v. United States, 556

U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (holding that a plain-error review is

appropriate in the context of failing to object to the government’s breach of a plea

agreement).

{¶ 29} “To establish plain error, [Frazier] must point to an obvious error that

affected the outcome of the proceedings below.” Kline at ¶ 5, citing State v. Rohrbaugh,

126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 6. “Reversal is warranted only

if the outcome ‘clearly would have been different absent the error.’ ” Id., citing State v. -12-

Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001). Notice of plain error “is to be taken

with the utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus.

{¶ 30} In this case, Frazier cannot establish that the outcome of his case would

have been different had the prosecutor recommended community control at the

sentencing hearing. This is because the trial court would not have been bound to follow

any such recommendation. See State v. Alvarez, 154 Ohio App.3d 526, 2003-Ohio-

5094, 797 N.E.2d 1043, ¶ 15-16 (noting the sentencing court “was not in any way bound

by the state’s recommendation [that defendant receive community control sanctions]”); In

re Disqualification of Mitrovich, 74 Ohio St. 3d 1219, 1220, 657 N.E.2d 1333 (1990) (“the

acceptance or rejection of a plea bargain is within the sound discretion of the trial judge”).

{¶ 31} We also note that the prosecutor did not advocate for a prison sentence at

the sentencing hearing. Instead, the prosecutor simply asked the court “to impose a

sentence that is consistent with protecting the public and punishing Mr. Frazier for the

offense that he committed.” Disposition Trans. (Feb. 28, 2018), p. 4-5. In doing so, the

trial court determined that a prison sentence was appropriate. This was well within the

trial court’s discretion.

{¶ 32} It would be mere speculation to conclude that Frazier would have been

sentenced differently had the prosecutor recommended community control. It is well-

established that speculation does not suffice to demonstrate plain error. See State v.

Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 108 (finding no plain

error when the accused’s claim “is totally speculative”); State v. Sanders, 92 Ohio St.3d -13-

245, 265, 750 N.E.2d 90 (2001) (finding no plain error because defendant’s claim “rests

wholly on speculation” and “it is not clear that the outcome would have been otherwise

but for the error”); State v. Belcher, 2d Dist. Montgomery No. 24968, 2013-Ohio-1234,

¶ 66 (finding no plain error “because any finding of prejudice would have to rely on

speculation”). Therefore, when considering the facts of this case, the State’s failure to

recommend community control at the sentencing hearing did not constitute plain error.

{¶ 33} Frazier’s Third Assignment of Error is overruled.

Fourth Assignment of Error

{¶ 34} Under his Fourth Assignment of Error, Frazier contends that his trial counsel

provided ineffective assistance by failing to raise an objection at the sentencing hearing

when the prosecutor failed to recommend community control. Frazier contends that he

was prejudiced by this failure because it waived all but plain error with regard to his claim

that the State breached the parties’ plea agreement.

{¶ 35} Alleged instances of ineffective assistance of trial counsel are reviewed

under the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To prevail on an ineffective

assistance claim, a defendant must establish: (1) that his or her trial counsel’s

performance was deficient and (2) that the deficient performance resulted in prejudice.

Strickland at paragraph two of the syllabus; Bradley at paragraph two of the syllabus.

The failure to make a showing of either deficient performance or prejudice defeats a claim

of ineffective assistance of counsel. Strickland at 697. -14-

{¶ 36} To establish deficient performance, it must be shown that trial counsel’s

performance fell below an objective standard of reasonable representation. Id. at 688.

In evaluating counsel’s performance, “a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance; that

is, the defendant must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, quoting Michel

v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

{¶ 37} To establish prejudice, the defendant must demonstrate that there is “a

reasonable probability that, but for counsel’s errors, the proceeding’s result would have

been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864,

¶ 204, citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. “ ‘A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.’ ” Bradley at 142, quoting Strickland at 694.

{¶ 38} We stress that “ ‘[a] claim of ineffective assistance of counsel cannot be

predicated upon a matter which did not constitute error.’ ” State v. Lanier, 2d Dist. Clark

No. 2007 CA 77, 2008-Ohio-4018, ¶ 42, quoting State v. Harrison, 2d Dist. Montgomery

No. 21548, 2007-Ohio-2421, ¶ 22. As previously noted, Frazier’s defense counsel

advised the trial court that “[t]he prosecutor was not going to recommend probation. He

wasn’t opposed to it. That’s what we talked about in the plea arrangement.” Attempted

Disposition Trans. (Feb. 9, 2018), p. 5. Frazier does not mention this comment in his

appellate brief nor challenge it in any manner. Rather, in support of his ineffective

assistance claim, Frazier simply argues that his trial counsel was ineffective in failing to

object when the State did not recommend community control at sentencing. However, -15-

when considering defense counsel’s comment about the parties’ plea agreement, it does

not appear as though such an objection would have been warranted.

{¶ 39} Although the record establishes that the State, for whatever reason,

indicated a recommendation of community control was part of the plea agreement,

defense counsel later explained to the trial court that the parties’ actual agreement did

not include a recommendation for community control. Rather, defense counsel

explained that the State was simply not going to oppose community control, which is what

transpired at the second sentencing hearing. Based on defense counsel’s clarification

of the plea agreement, which Frazier does not challenge on appeal, we do not find that

defense counsel was deficient in failing to object when the State did not recommend

community control at sentencing. Therefore, because Frazier cannot establish deficient

performance on the part of this trial counsel, his ineffective assistance claim must fail.

{¶ 40} Frazier’s Fourth Assignment of Error is overruled.

Conclusion

{¶ 41} Having overruled all four assignments of error raised by Frazier, the

judgment of the trial court is affirmed.

HALL J., concurs.

FROELICH, J., concurs:

{¶ 42} The State promised, both orally at the plea hearing and in a written plea

form, that in exchange for Frazier’s plea of guilty it would recommend community control -16-

at disposition. Instead, at disposition, the prosecutor explicitly asked the court “to impose

a sentence that is consistent with protecting the public and punishing Mr. Frazier for the

offense that he committed.”

{¶ 43} When defense counsel stated that the “prosecutor was not going to

recommend probation. He wasn’t opposed to it…,” he specifically contradicted the oral

and written representations of the State; this was compounded by the court’s failure to

inform the Frazier that it was not bound by the State’s recommendation.

{¶ 44} Frazier’s only assigned error challenges the court’s sentence. As in tort law,

there can be an unintended breach of a duty, but still be no remedy unless there is proven

injury or damages; even if the State had kept its promises, it is, on this record, speculation

as to what the sentence would have been.

Copies sent to:

Andrew P. Pickering V. Gayle Miller Hon. Douglas M. Rastatter