Patton, Judge.
A jury found defendant Maurice Mitchell guilty of one count of carrying a concealed weapon and one count of having a weapon while under disability. The two issues presented in this appeal are (1) whether the trial court abused its discretion by sentencing defendant Maurice Mitchell to a term of incarceration longer than that promised during plea negotiations and (2) whether counsel failed
to provide effective representation by neglecting to file a motion to suppress evidence.
The state’s evidence consisted solely of testimony from two police officers who heard a gunshot while on night patrol. They headed in the direction of the gunshot, arriving about thirty seconds later. As they drove up the street they saw defendant coming toward them, with both hands in his pockets. The officers exited their cruiser and ordered defendant to remove his hands from his pockets. Defendant withdrew his hands, holding a firearm in his right hand. He placed the firearm behind his back, finally dropping the weapon after repeated warnings from the officers. The firearm contained one chambered round and four other rounds in the magazine.
I
Defendant’s first assignment of error complains that the trial court abused its discretion when it imposed a lengthier sentence after defendant refused a plea bargain and insisted upon going to trial.
Before beginning trial, the court placed on the record a summation of plea discussions it had with both defendant and the state. The court said that in exchange for a guilty plea it would impose a sentence of four and one-half years, incorporating a three-year term of actual incarceration for the firearm specification to be served consecutively to a one-and-one-half-to-five-year minimum term for the charge of having a weapon while under a disability. The court noted that it ordinarily would not impose such a lenient sentence given defendant’s past criminal history (which it described as “anything but attractive”), but believed a minimum sentence would be appropriate in light of defendant’s age.
Defendant refused the plea bargain because he believed the parole authority would deny him parole at the expiration of four and one-half years based upon his criminal history. He believed he would ultimately serve as much time on a four- and-one-half-year sentence as he would with a ten-year sentence.
The court voiced its disagreement with defendant’s conclusion stating, “I think you’re hurting yourself going to trial here today, but of course, we’ll go to trial if that’s your wish, because I’m still ready, willing and able to give you that four- and-a-half-year open-ended sentence. * * * If you tell me you want a jury, why we’re gonna bring the jury up here and give you a fair trial.”
When addressed at sentencing, defendant voiced his opinion that the testifying officers had lied, that he had been represented incorrectly, and that the court had “influenced the jury.” The court said it agreed with the jury’s verdict and stated, “And assuming you’re guilty, I think you’re a damn fool for not accepting a very kind offer that was made by this judge.”
The court went on to sentence defendant to a
term
of
three
to
ten
years on the concealed weapon charge, consecutive to a three-to-five-year term on the charge of having a weapon while under a disability. Both sentences were ordered to be consecutive to the three-year term of actual incarceration for the firearm specification. In announcing sentence, the court stated, “It isn’t my intention to impose the maximum sentence on you. I wouldn’t do that, just because you got convicted. You have a right to a trial, and you had the trial.”
As a general proposition, the trial court has broad discretion to impose an indeterminate sentence, and that discretion is not abused if the sentence falls within the applicable statutory limit.
Toledo v. Reasonover
(1965), 5 Ohio St.2d 22, 34 O.O.2d 13, 213 N.E.2d 179, paragraph one of the syllabus.
However, once it appears in the record that the court has participated in plea negotiations, a tentative sentence has been discussed, and the court ultimately imposed a harsher sentence following a breakdown in negotiations, the record must show that the court gave no improper weight to the offender’s failure to plead guilty and that the court sentenced the offender solely upon the facts of his case and his personal history.
Columbus v. Bee
(1979), 67 Ohio App.2d 65, 75, 21 O.O.3d 371, 378, 425 N.E.2d 409, 416-417.
In
Alabama v. Smith
(1989), 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865, the court held that there is no presumption of vindictiveness on the part of the sentencing judge simply because the offender received a harsher sentence after being tried following vacation of a guilty plea. The court noted that “relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial.”
Id.
at 801, 109 S.Ct. at 2205, 104 L.Ed.2d at 874. During trial the judge may well gain “a fuller appreciation of the nature and extent of the crimes charged” as well as “insights into [the offender’s] moral character and suitability for rehabilitation.”
Id.
Therefore, unless circumstances are those in which there is a reasonable likelihood that the increase in sentence is the result of actual vindictiveness on the part of the sentencing judge, the offender has the burden of proving actual vindictiveness.
Id.
at 800, 109 S.Ct. at 2205, 104 L.Ed.2d at 873.
We find no abuse of discretion, since the record fails to show a reasonable likelihood that the sentence was the product of vindictiveness stemming from defendant’s decision to go to trial. Several factors lead to our conclusion that the greater sentence was not imposed as a result of vindictiveness.
First, the court expressly stated that it would not impose the maximum sentence on the concealed weapons charge merely because defendant insisted upon his right to trial. True to its word, the court imposed a three-year term when it could have imposed a four-year term. It is important for purposes of
analyzing the length of the sentences received that we recognize that defendant, by rejecting the plea agreement, put the concealed weapon charge back into play. He thus opened the door to the possibility of having the court impose sentence for two counts instead of the one count discussed in the plea negotiations.
Second, the court found defendant’s prior criminal history troubling, particularly his prior conviction for having a weapon while under a disability. During sentencing, the court told defendant:
“The sentence that I’m going to impose is going to be commensurate with the fact that you’re guilty of these offenses, and you have a prior record for involuntary manslaughter and weapons disability. And I’m especially troubled by the weapons disability, because a person who has a prior weapons disability record should well understand that they can’t carry a gun.”
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Patton, Judge.
A jury found defendant Maurice Mitchell guilty of one count of carrying a concealed weapon and one count of having a weapon while under disability. The two issues presented in this appeal are (1) whether the trial court abused its discretion by sentencing defendant Maurice Mitchell to a term of incarceration longer than that promised during plea negotiations and (2) whether counsel failed
to provide effective representation by neglecting to file a motion to suppress evidence.
The state’s evidence consisted solely of testimony from two police officers who heard a gunshot while on night patrol. They headed in the direction of the gunshot, arriving about thirty seconds later. As they drove up the street they saw defendant coming toward them, with both hands in his pockets. The officers exited their cruiser and ordered defendant to remove his hands from his pockets. Defendant withdrew his hands, holding a firearm in his right hand. He placed the firearm behind his back, finally dropping the weapon after repeated warnings from the officers. The firearm contained one chambered round and four other rounds in the magazine.
I
Defendant’s first assignment of error complains that the trial court abused its discretion when it imposed a lengthier sentence after defendant refused a plea bargain and insisted upon going to trial.
Before beginning trial, the court placed on the record a summation of plea discussions it had with both defendant and the state. The court said that in exchange for a guilty plea it would impose a sentence of four and one-half years, incorporating a three-year term of actual incarceration for the firearm specification to be served consecutively to a one-and-one-half-to-five-year minimum term for the charge of having a weapon while under a disability. The court noted that it ordinarily would not impose such a lenient sentence given defendant’s past criminal history (which it described as “anything but attractive”), but believed a minimum sentence would be appropriate in light of defendant’s age.
Defendant refused the plea bargain because he believed the parole authority would deny him parole at the expiration of four and one-half years based upon his criminal history. He believed he would ultimately serve as much time on a four- and-one-half-year sentence as he would with a ten-year sentence.
The court voiced its disagreement with defendant’s conclusion stating, “I think you’re hurting yourself going to trial here today, but of course, we’ll go to trial if that’s your wish, because I’m still ready, willing and able to give you that four- and-a-half-year open-ended sentence. * * * If you tell me you want a jury, why we’re gonna bring the jury up here and give you a fair trial.”
When addressed at sentencing, defendant voiced his opinion that the testifying officers had lied, that he had been represented incorrectly, and that the court had “influenced the jury.” The court said it agreed with the jury’s verdict and stated, “And assuming you’re guilty, I think you’re a damn fool for not accepting a very kind offer that was made by this judge.”
The court went on to sentence defendant to a
term
of
three
to
ten
years on the concealed weapon charge, consecutive to a three-to-five-year term on the charge of having a weapon while under a disability. Both sentences were ordered to be consecutive to the three-year term of actual incarceration for the firearm specification. In announcing sentence, the court stated, “It isn’t my intention to impose the maximum sentence on you. I wouldn’t do that, just because you got convicted. You have a right to a trial, and you had the trial.”
As a general proposition, the trial court has broad discretion to impose an indeterminate sentence, and that discretion is not abused if the sentence falls within the applicable statutory limit.
Toledo v. Reasonover
(1965), 5 Ohio St.2d 22, 34 O.O.2d 13, 213 N.E.2d 179, paragraph one of the syllabus.
However, once it appears in the record that the court has participated in plea negotiations, a tentative sentence has been discussed, and the court ultimately imposed a harsher sentence following a breakdown in negotiations, the record must show that the court gave no improper weight to the offender’s failure to plead guilty and that the court sentenced the offender solely upon the facts of his case and his personal history.
Columbus v. Bee
(1979), 67 Ohio App.2d 65, 75, 21 O.O.3d 371, 378, 425 N.E.2d 409, 416-417.
In
Alabama v. Smith
(1989), 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865, the court held that there is no presumption of vindictiveness on the part of the sentencing judge simply because the offender received a harsher sentence after being tried following vacation of a guilty plea. The court noted that “relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial.”
Id.
at 801, 109 S.Ct. at 2205, 104 L.Ed.2d at 874. During trial the judge may well gain “a fuller appreciation of the nature and extent of the crimes charged” as well as “insights into [the offender’s] moral character and suitability for rehabilitation.”
Id.
Therefore, unless circumstances are those in which there is a reasonable likelihood that the increase in sentence is the result of actual vindictiveness on the part of the sentencing judge, the offender has the burden of proving actual vindictiveness.
Id.
at 800, 109 S.Ct. at 2205, 104 L.Ed.2d at 873.
We find no abuse of discretion, since the record fails to show a reasonable likelihood that the sentence was the product of vindictiveness stemming from defendant’s decision to go to trial. Several factors lead to our conclusion that the greater sentence was not imposed as a result of vindictiveness.
First, the court expressly stated that it would not impose the maximum sentence on the concealed weapons charge merely because defendant insisted upon his right to trial. True to its word, the court imposed a three-year term when it could have imposed a four-year term. It is important for purposes of
analyzing the length of the sentences received that we recognize that defendant, by rejecting the plea agreement, put the concealed weapon charge back into play. He thus opened the door to the possibility of having the court impose sentence for two counts instead of the one count discussed in the plea negotiations.
Second, the court found defendant’s prior criminal history troubling, particularly his prior conviction for having a weapon while under a disability. During sentencing, the court told defendant:
“The sentence that I’m going to impose is going to be commensurate with the fact that you’re guilty of these offenses, and you have a prior record for involuntary manslaughter and weapons disability. And I’m especially troubled by the weapons disability, because a person who has a prior weapons disability record should well understand that they can’t carry a gun.”
Defendant well knew this could be an important factor because the court expressly told him prior to trial that he would normally give an offender with defendant’s prior record a substantially greater sentence than the one agreed to in plea negotiations. In fact, the court told defendant that, if convicted, his “terrible” past history left him facing the possibility of a ten-year maximum sentence. The greater sentence was therefore suggested based upon independent evidence of defendant’s prior record, not simply because defendant insisted upon going to trial.
Finally, the court noted defendant’s refusal to accept responsibility for his actions, in direct contradiction to the unrefuted evidence. Defendant choose to blame his conviction on perjured police testimony, incompetent counsel, and an unfair judge. The court found that this attitude reflected poorly on defendant’s prospects for rehabilitation and cautioned against a lesser term of incarceration.
Admittedly, the court’s role in brokering the plea bargain left it open to questions of coercion and possible compromise. See
State v. Byrd
(1980), 63 Ohio St.2d 288, 292, 17 O.O.3d 184, 187, 407 N.E.2d 1384, 1387-1388. In addition, certain remarks taken in isolation (for example, calling defendant “a damn fool” for rejecting the plea bargain) may well give the impression that the sentence imposed found its basis in part in the court’s consternation with defendant’s refusal to accept the plea bargain.
Nevertheless, we find that the factors outlined above gave the court a fuller appreciation of the nature of the offenses and a better insight into defendant’s prospects for rehabilitation.
Alabama v. Smith, supra,
490 U.S. at 801, 109 S.Ct. at 2205-2206, 104 L.Ed.2d at 873-874;
State v. Paige
(Dec. 22, 1994), Cuyahoga App. No. 66743, unreported, 1994 WL 716530. These factors alone sufficiently justified sentences that indisputedly fell within the statutory limits. Accordingly,
we find no abuse of discretion in the sentence imposed and overrule the first assignment of error.
II
In his second assignment of error, defendant complains that his appointed counsel failed to provide effective representation because counsel failed to move to suppress evidence of the firearm on the basis that the arresting officers did not objectively form a reasonable, articulable suspicion that defendant had fired the firearm.
In order to establish a claim of ineffective assistance of counsel, the burden is on the defendant to show that counsel’s performance was deficient and that the deficient performance prejudiced the defense.
Strickland v. Washington
(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;
State v. Johnson
(1986), 24 Ohio St.3d 87, 89, 24 OBR 282, 283-284, 494 N.E.2d 1061, 1063.
There
is no
per se
rule that a defendant is entitled
to
a new trial if defense counsel fails to move to suppress evidence.
State v. Gibson
(1980), 69 Ohio App.2d 91, 94-95, 23 O.O.3d 130, 132-133, 430 N.E.2d 954, 956-957. When the alleged deficiency in counsel’s performance relates to the failure to litigate
a
Fourth Amendment claim, “the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.”
Kimmelman v. Morrison
(1986), 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305, 319;
State v. Flors
(1987), 38 Ohio App.3d 133, 139, 528 N.E.2d 950, 956-957.
We find no actual prejudice present as a result of defense counsel’s failure to move to suppress evidence, because defendant fails to show that the arresting officers lacked a reasonable and articulable suspicion to search him.
Under
Terry v. Ohio
(1968), 392 U.S. 1, 22, 88 S.Ct. 1868, 1880-1881, 20 L.Ed.2d 889, 906-907, an officer may approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest, as long as the officer has reasonable, articulable facts indicating that criminal activity is in progress or is about to be committed. An investigatory stop must be evaluated in light of the totality of the circumstances, viewed through the eyes of the reasonably prudent police officer, with due consideration to the officer’s experience and knowledge.
State v. Bobo
(1988), 37 Ohio St.3d 177, 524 N.E.2d 489, paragraph one of the syllabus;
State v. Andrews
(1991), 57 Ohio St.3d 86, 88, 565 N.E.2d 1271, 1273-1274.
The arresting officers testified that they were patrolling east on Kosciuszko near East 87th Street at about 2:35 a.m. when they heard a single gunshot
coming from the south by Superior Avenue. They immediately turned their cruiser around and drove south a very short distance on East 87th Street in the direction of the gunshot. Less than thirty seconds later they saw defendant walking alone on the sidewalk, with both hands in his coat pockets. For their own protection, they ordered defendant to remove his hands from his pockets. One of the officers specifically stated, “I believed he had a weapon on him from the moment we started going down the street, cause I heard the shot. That’s when I believed he had a weapon.” Both officers testified that except for defendant, the area was deserted.
The facts relating to the officers’ decision to stop defendant are understandably sparse because they were not at issue. The only issues were the charges of the concealed weapon and having a weapon while under a disability, both of which required relatively straightforward proof that defendant had a firearm on his person. Hence, the state had no need to sidetrack its case by presenting evidence of the circumstances showing why the officers stopped defendant, other than to place their testimony in context. Accordingly, we find under the totality of the circumstances and upon the limited facts relating to the stop itself that a motion to suppress evidence would have been unavailing. Consequently, defense counsel did not fail to perform an essential duty. The second assignment of error is overruled.
Judgment affirmed.
Porter, J., concurs.
Harper, P.J., dissents.