State v. Harrington

S
[Cite as State v. Harrington, 2021-Ohio-343.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 8-20-37

        v.

ROBERT E. HARRINGTON,                                    OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR 19 11 0336

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                            Date of Decision: February 8, 2021




APPEARANCES:

        William T. Cramer for Appellant

        Alice Robinson-Bond for Appellee
Case No. 8-20-37


ZIMMERMAN, J.

       {¶1} Although originally placed on our accelerated calendar, we have elected

pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary journal entry.

Defendant-appellant, Robert E. Harrington (“Harrington”), appeals the July 14,

2020 judgment entry of sentence of the Logan County Court of Common Pleas. For

the reasons that follow, we affirm in part and reverse in part.

       {¶2} On November 12, 2019, the Logan County Grand Jury indicted

Harrington on two counts of rape in violation of R.C. 2907.02(A)(2), (B), first-

degree felonies. (Doc. No. 2). Harrington appeared for arraignment on November

26, 2019 and entered pleas of not guilty. (Doc. No. 11).

       {¶3} On July 14, 2020, Harrington withdrew his pleas of not guilty and

entered guilty pleas, under a negotiated-plea agreement, to an amended indictment.

(Doc. No. 89). Specifically, in exchange for Harrington’s change of pleas, the State

agreed to amend Count One to attempted felonious assault in violation of R.C.

2903.11(A)(1) and 2923.02, a third-degree felony, and Count Two to sexual

imposition in violation of R.C. 2907.06(A)(1), a first-degree misdemeanor. (Id.).

The trial court accepted Harrington’s guilty pleas, found him guilty, and sentenced

him to a concurrent sentence of 48 months in prison on Count One and 180 days in

jail on Count Two. (Id.). The trial court also classified Harrington as a Tier I sex

offender. (Id.).


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Case No. 8-20-37


           {¶4} On July 27, 2020, Harrington filed a notice of appeal. (Doc. No. 102).

He raises three assignments of error.

                                      Assignment of Error No. I

           The sentence of forty-eight months for a third-degree felony
           attempted felonious assault was contrary to law.

           {¶5} In his first assignment of error, Harrington argues that his sentence is

contrary to law. Specifically, Harrington contends that the trial court imposed a

sentence for his attempted-felonious-assault conviction which exceeds the

statutorily permissible sentence for that offense.1 The State concedes this error.

                                            Standard of Review

           {¶6} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 

146 Ohio St. 3d 516

, 2016-Ohio-1002,

¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’”

Id. at ¶ 22,

quoting Cross v. Ledford, 

161 Ohio St. 469

(1954), paragraph three of the

syllabus.




1
    Harrington does not challenge the trial court’s sentence as to his sexual-imposition conviction.

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Case No. 8-20-37


                                       Analysis

       {¶7} “Trial courts have full discretion to impose any sentence within the

statutory range.” State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶

9. As a third-degree felony, attempted-felonious assault carries a possible sentence

of 9- to 36-months imprisonment.               R.C. 2903.11(A)(1), 2923.02 and

2929.14(A)(3)(b). See State v. South, 

144 Ohio St. 3d 295

, 2015-Ohio-3930, ¶ 16.

Because the trial court sentenced Johnson to 48 months in prison on the attempted-

felonious-assault charge, the trial court’s sentence does not fall within the statutory

range. Accordingly, Harrington’s sentence is contrary to law.

       {¶8} Therefore, Harrington’s first assignment of error is sustained.

                            Assignment of Error No. II

       Appellant’s plea bargain was violated when the prosecution
       breached a condition requiring it to remain silent during
       sentencing.

       {¶9} In his second assignment of error, Harrington argues that the State

breached the negotiated plea agreement when it made remarks during the sentencing

hearing. Specifically, Harrington contends that, because the State violated its

“pledge to remain silent,” he should be able “to preserve the plea agreement and

seek[] specific performance through resentencing before a different judge * * * .”

(Appellant’s Brief at 5).




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Case No. 8-20-37


                                 Standard of Review

       {¶10} “Whether a party to a plea agreement breached the terms and

obligations of the agreement is a matter entrusted to the sound discretion of the trial

court, which will not be disturbed absent an abuse of discretion.” State v. Tite, 6th

Dist. Huron No. H-12-017, 2013-Ohio-1361, ¶ 7, citing State v. Matthews, 8 Ohio

App.3d 145, 146 (10th Dist.1982). See also State v. Flowers, 2d Dist. Montgomery

No. 22751, 2009-Ohio-1945, ¶ 6. An abuse of discretion implies that the trial court

acted unreasonably, arbitrarily, or unconscionably. State v. Adams, 

62 Ohio St. 2d 151

, 157-158 (1980).

                                       Analysis

       {¶11} “Any time a prosecutor induces a defendant into pleading guilty

because of certain promises the prosecutor gives the defendant, the prosecutor must

keep those promises.” State v. McGinnis, 3d Dist. Van Wert No. 15-08-07, 2008-

Ohio-5825, ¶ 5, citing Santobello v. New York, 

404 U.S. 257

, 

92 S. Ct. 495

(1971).

“If the prosecutor fails to keep his promises under the plea agreement, then the trial

court should ‘either require specific performance by the State or allow the defendant

to withdraw the plea.’”

Id., quoting State v.

Montgomery, 4th Dist. Adams No.

07CA858, 2008-Ohio-4753, ¶ 14, citing State v. Sideris, 4th Dist. Athens No.

04CA37, 2005-Ohio-1055, ¶ 37, citing State v. Simpson, 

158 Ohio App. 3d 441

,

2004-Ohio-4690, ¶ 14 (2d Dist.). See also State v. Liles, 3d Dist. Allen No. 1-14-


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Case No. 8-20-37


61, 2015-Ohio-3093, ¶ 11 (“The State’s failure to abide by the terms of the plea

agreement entitles the defendant to either specific performance—i.e., the

defendant’s resentencing by a different judge, or withdrawal of his or her guilty

plea.”), citing McGinnis at ¶ 5 and Santobello at syllabus.

       {¶12} In this case, Harrington entered into a negotiated plea agreement with

the State in which the State agreed (in relevant part) to “remain silent” in exchange

for Harrington’s guilty pleas to the amended counts. (Doc. No. 89). However, at

sentencing, in response to the trial court’s request that it provide “its views on

sentencing,” the State stated that

       Mr. Harrington is a repeat sex offender. Although this is a
       misdemeanor plea for a sex offense, it is a felony plea. We note that
       [Harrington] admitted to law enforcement that the victim told him to
       stop and he did not. The Court has [Harrington’s] criminal history in
       front of it.

(July 14, 2020 Tr. at 20). The State did not request a specific length of sentence.

       {¶13} Notwithstanding the State’s statement at sentencing following its

promise to “remain silent,” Harrington did not object to the State’s statement at

sentencing. See McGinnis at ¶ 8; Liles at ¶ 18. Because Harrington failed to object

to the State’s statement, he has forfeited all but plain error on appeal related to the

State’s breach of its obligation under the negotiated plea agreement. See McGinnis

at ¶ 8, citing Montgomery at ¶ 15, citing Sideris at ¶ 38, and citing United States v.

Barnes, 

278 F.3d 644

, 646 (6th Cir.2002) and State v. Dudas, 11th Dist. Lake Nos.


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Case No. 8-20-37


2006-L-267 and 2006-L-268, 2007-Ohio-6739, ¶ 93; Liles at ¶ 18, citing Puckett v.

United States, 

556 U.S. 129

, 135, 

129 S. Ct. 1423

(2009) and State v. Hartley, 3d

Dist. Hancock No. 5-14-04, 2014-Ohio-4536, ¶ 9-10.

       {¶14} “Crim.R. 52(B) governs plain-error review in criminal cases.” State

v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 55, citing State v. Risner,

73 Ohio App. 3d 19

, 24 (3d Dist.1991). “To establish plain error, [Harrington] must

point to an obvious error that affected the outcome of the proceedings below.” Liles

at ¶ 18, citing State v. Rohrbaugh, 

126 Ohio St. 3d 421

, 2010-Ohio-3286, ¶ 6. “A

court recognizes plain error with the utmost caution, under exceptional

circumstances, and only to prevent a miscarriage of justice.” State v. Smith, 3d Dist.

Hardin No. 6-1414, 2015-Ohio-2977, ¶ 63, citing State v. Saleh, 10th Dist. Franklin

No. 07AP-431, 2009-Ohio-1542, ¶ 68. See also Montgomery at ¶ 16. Accordingly,

“[r]eversal is warranted only if the outcome ‘clearly would have been different

absent the error.’” Liles at ¶ 18, quoting State v. Hill, 

92 Ohio St. 3d 191

, 203 (2001).

       {¶15} Here, the outcome at issue is whether Harrington’s sentence would

have been different absent the State’s breach of the negotiated plea agreement. See

Liles at ¶ 19, citing State v. Kline, 2d Dist. Champaign No. 2009-CA-02, 2010-Ohio-

3913, ¶ 5, citing Puckett at 142, fn. 4. However, based on our resolution of

Harrington’s first assignment of error, we need not address whether Harrington’s

sentence would have been different absent the error. Rather, the remedy that


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Case No. 8-20-37


Harrington seeks under his second assignment of error is for resentencing by a

different judge.

       {¶16} In addition to the State’s promise to “remain silent,” the negotiated

plea agreement further called for the State to amend the indictment in exchange for

Harrington to plead guilty to the amended counts. The record reflects that the State

satisfied this portion of the negotiated plea agreement. Specifically, prior to the

negotiated plea agreement, Harrington was exposed to a possible maximum-

minimum-prison term of 3- to 11-years imprisonment for each count. See R.C.

2929.14(A)(1)(a). The negotiated plea agreement reduced the sentencing range to

a possible prison term of 9- to 36-months imprisonment as to the amended third-

degree-felony charge and a possible jail term of not more than 180 days in jail as to

the amended first-degree-misdemeanor charge.            See R.C. 2929.14(A)(3)(b),

2929.24(A)(1). Accordingly, the amendment of the indictment was a significant

part, if not the significant part, of the negotiated plea agreement. See Liles at ¶ 21.

       {¶17} Furthermore, Harrington cannot demonstrate that he was prejudiced

by the State’s comments at sentencing. Indeed, the totality of the States comments

relate to information contained in the presentence-investigation report, which was

provided to the trial court prior to Harrington’s sentencing. Accordingly, based on

the totality of our review of the circumstances, we cannot say that the outcome

would have been different absent the error to entitle Harrington to resentencing by


                                          -8-
Case No. 8-20-37


a different judge. That is, Harrington failed to satisfy his burden of establishing that

resentencing before a different judge is necessary (absent the State’s breach of the

negotiated plea agreement) in order to prevent a miscarriage of justice. See

id. at ¶ 30. {¶18}

Therefore, Harrington’s second assignment of error is overruled.

                            Assignment of Error No. III

       Appellant was deprived of his federal and state rights to the
       effective assistance of counsel when trial counsel failed to object
       when the prosecution violated the plea agreement and failed to
       object to a sentence that exceeded the lawful statutory maximum.

       {¶19} In his third assignment of error, Harrington argues that his trial counsel

was ineffective for failing to object to the State’s breach of the negotiated plea

agreement and the trial court’s imposition of a sentence that exceeded the statutory

maximum.

                                 Standard of Review

       {¶20} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 

92 Ohio St. 3d 303

, 306 (2001), citing Strickland v. Washington, 

466 U.S. 668

,

687, 

104 S. Ct. 2052

(1984). In order to show counsel’s conduct was deficient or

unreasonable, the defendant must overcome the presumption that counsel provided

competent representation and must show that counsel’s actions were not trial

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Case No. 8-20-37


strategies prompted by reasonable professional judgment.          Strickland at 687.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie, 

81 Ohio St. 3d 673

, 675

(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally

constitute ineffective assistance. State v. Carter, 

72 Ohio St. 3d 545

, 558 (1995).

Rather, the errors complained of must amount to a substantial violation of counsel’s

essential duties to his client. See State v. Bradley, 

42 Ohio St. 3d 136

, 141-42 (1989),

quoting State v. Lytle, 

48 Ohio St. 2d 391

, 396 (1976), vacated in part on other

grounds, 

438 U.S. 910

, 

98 S. Ct. 3135

(1978).

       {¶21} “Prejudice results when ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting

Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’”

Id., quoting Bradley at

142

and citing Strickland at 694.

                                       Analysis

       {¶22} First, based on our resolution of Harrington’s second assignment of

error, Harrington’s argument that his trial counsel was ineffective for failing to

object to the State’s breach of the negotiated plea agreement is without merit. That




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Case No. 8-20-37


is, we determined in Harrington’s second assignment of error that his substantial

rights were not prejudiced by the State’s statements at sentencing.

       {¶23} Furthermore, in light of our resolution of his first assignment of error,

Harrington’s argument in his third assignment of error that his trial counsel was

ineffective for failing to object to the trial court’s imposition of a sentence which

exceeded the statutory maximum is moot and we decline to address it. See State v.

Rusu, 9th Dist. Summit No. 25597, 2012-Ohio-2613, ¶ 14, citing State v. Ross, 9th

Dist. Summit No. 25778, 2012-Ohio-1389, ¶ 29-30; App.R. 12(A)(1)(c).

       {¶24} For these reasons, Harrington’s third assignment of error is overruled.

       {¶25} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued in assignments of error two and three, we affirm the

judgment of the trial court. Having found error prejudicial to the appellant herein

in the particulars assigned and argued in assignment of error one, we reverse the

judgment of the trial court as to those matters and remand for further proceedings

consistent with this opinion.

                                                        Judgment Affirmed in Part,
                                                             Reversed in Part and
                                                                Cause Remanded

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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