[Cite as State v. Emch, 2023-Ohio-3553.]

COURT OF APPEALS

TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vsDANIEL R. EMCH

Defendant-Appellant

JUDGES:

: Hon. W. Scott Gwin, P.J.

: Hon. William B. Hoffman, J.

: Hon. Andrew J. King, J.

:

:

: Case No. 2023AP050031

:

:

: OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Tuscarawas 

County Court of Common Pleas, Case No. 

2022 CR 01 0021

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 28, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KRISTINE W. BEARD DANIEL EMCH PRO SE

Assistant Prosecutor Inmmate #907-750

125 E. High Avenue Noble Correctional Institution

New Philadelphia, OH 44663 Caldwell, OH 43724
Tuscarawas County, Case No. 2023AP050031 2

Gwin, P.J.

{¶1} Defendant-appellant Daniel R. Emch [“Emch”] appeals from the 

Tuscarawas County Court of Common Pleas, April 18, 2023 Judgment Entry denying his 

motion to withdraw his no contest plea.

Facts and Procedural History

{¶2} Emch was indicted on February 1, 2022 by the Tuscarawas County Grand 

Jury for one count of Felonious Assault a violation of R.C. 2903.11(A)(2)/(D)(1)(a) a 

second-degree felony, one count of Abduction in violation of R.C. 2905.02(A)(2)/(C) a 

third-degree felony, and one count of Robbery in violation of R.C. 2911.02(A)(3)/(B) a 

third-degree felony.

{¶3} On May 26, 2022, the trial court filed a Memorandum of Pretrial in which the 

court scheduled a Change of Plea or Final pretrial for September 19, 2022. [Docket Entry 

No. 31].

{¶4} On September 19, 2022, Emch appeared for a plea hearing represented by 

counsel. During the hearing the state amended the count of Felonious Assault to one 

count of Aggravated Assault a fourth-degree felony. The state represented that in 

exchange for a plea to the amended indictment the state would recommend a thirty-sixmonth prison sentence to be reserved in favor of community control. Plea T., Sept., 2022 

at 2. During the hearing, the trial judge informed Emch of the plea agreement and inquired 

if Emch believed he was promised anything more than the state had represented. Id. at 

6. Emch responded he did not believe any other promises were made in exchange for 

his plea. Id. The trial judge further asked Emch if he understood that the judge “did not 

promise a specific sentence in exchange for your plea[.]” Id. at 7. Emch told the trial judge 
Tuscarawas County, Case No. 2023AP050031 3

he understood. Id. He further assured the trial judge that he was satisfied with his attorney 

and that he was not coerced or forced in any way to enter a no contest plea. Id. at 6.

{¶5} The record demonstrates the trial court very carefully adhered to Criminal 

Rule 11, and strictly complied with all of the requirements of Criminal Rule 11. The trial 

court conducted a complete and thorough colloquy. Emch acknowledged he understood 

his rights, the charges, the plea agreement, the maximum penalties, and the specific 

constitutional rights he was waving with the plea. Thereafter, Emch entered a plea of no

contest to the amended indictment and executed an Acknowledgement of No Contest

Plea in accordance with Criminal Rule 11(C) and (F). [Docket Entry No. 52]. The trial 

judge accepted Emch’s no contest pleas, ordered the preparation of a presentence 

investigation report and deferred sentenced.

{¶6} On November 10, 2022, the state expressed its reservations concerning 

the recommendation it agreed to make concerning sentencing. Specifically, the 

prosecutor told the trial judge,

Your honor, as you know this was a case that was resolved by a 

negotiated plea based on the evidence in the case and to an aggravated 

assault F-4, an abduction F-3, and a robbery F-3. The State recommended 

that the Defendant serve thirty-six months in prison and that the Court 

reserve that in favor of community control sanctions. When the Court looks 

at the sentencing factors, we would say that this is more serious because 

of the nature of the offense, not just the offense itself, but that it went over 

a prolonged period, that it involved numerous people, and that there were 

opportunities to diffuse the situation which gave rise to this. We would also 
Tuscarawas County, Case No. 2023AP050031 4

say that, given the record, recidivism is more likely. There's a twenty-seven 

score on the ORAS which as the Court knows is the test used to determine 

whether somebody is likely to reoffend. And we would say that more weight 

should be given to recidivism or the fact that this Defendant is more likely 

to commit the offense again. Perhaps, the recommendation was made 

because of what appears to be the wrong acts of all the characters involved 

in this case, but the only thing that really disturbed me in the PSI was there 

was an indication of, of kind of not accepting responsibility and, and playing 

the victim in this case. When you resort to self-help your honor, and then 

bad things happen, you can't claim self-defense and you can't claim you're 

not at fault. The other thing that bothered me is that the wounds to the other 

individual involved in what appeared to be a knife, knife fight were 

minimized by this Defendant in his typewritten statement. If he would have 

reviewed his own discovery, he would find out that they were not superficial 

stab wounds to the victim in this case. That being said, we made the 

recommendation we did and we will stand by our recommendation.

Sent. T., Nov. 10, 2022 at 2-3. (Emphasis added).

{¶7} The trial judge addressed Emch prior to sentencing. The judge stated in 

pertinent part as follows:

In doing that evaluation of a sentence, I'm required to look at whether 

or not the matter is more or less serious than what normally constitutes the 

offense. And I think that there's no doubt that it is, it's more serious in some 

aspects, the abduction maybe isn't more serious than what normally 
Tuscarawas County, Case No. 2023AP050031 5

constitutes the offense, but certainly the assaultive behaviors. Your 

attorney has referred to it as a free-for-all. I think in pretrial we used the 

word melee, but certainly a lot of people involved. I read every report that 

was provided in the PSI and every witness statement and no big surprise 

everybody's perspective is a little bit different. One of the victims here was 

stabbed. The offense was facilitated by your relationship with the one 

victim, the victim of the robbery was someone you knew and the victim of 

the stabbing was the acquaintance of that person. The offense was 

committed while you were armed with a knife and I think that the phrase the 

State used, the self help, and, and you said it yourself, you should have 

gone to small claims. I mean, this is over less than five hundred dollars. I 

think, I, for some reason I was thinking it was two hundred fifty, I can't place 

my, place, place that in the facts right now, but I know it was a minimal 

amount. But certainly, showing up to collect armed with a knife is not what 

we expect people to do. The other thing I'm required to look at is the 

likelihood of reoffending, which we phrase as recidivism. In this case, you 

do have prior adjudications as a juvenile and a prior history of criminal 

convictions... But prior, prior to, prior to this, you do have the failure to 

comply with the order or signal of a police officer and then some other felony 

drug charges, possession, a felony three, felony four, other misdemeanors. 

But the most troubling thing is the list of prior convictions for felony crimes 

of violence and that's, I just want to make sure, yeah, so that list is probably 

the longest list of felony crimes of violence I've seen. Murder in the second 
Tuscarawas County, Case No. 2023AP050031 6

degree in California, battery on police, peace officer, assault with a deadly 

weapon, three counts of aggravated robbery, a felonious assault, and 

escape. In the terms of history, there were three prior prison terms and 

previous revocations on parole under two institution numbers. A 

demonstrated pattern of substance abuse from the age of seventeen with 

marijuana and alcohol. Testing positive for marijuana at the PSI interview. 

The risk assessment score is high at a twenty-seven and I have a note here 

that you have engaged in telehealth services for bipolar disorder, antisocial 

personality disorder, post-traumatic stress disorder, and that you were 

compliant on post-release control. Overall, the, the balance is that the 

recidivism is more likely. I cannot go along with the State's recommendation 

for community sanctions. You have a long history and I know you say 

twenty years, and there have been some things more recently, criminal 

damaging, criminal trespass, I realize they're misdemeanors but you still 

don't take a knife and show up at somebody's house to collect money. And 

get into this, this free-for-all and stab somebody. That's just not a 

reasonable response to this. And I don't protect the public by saying that's 

okay, go ahead and just live your life out there in this community.

Sent. T., Nov. 10, 2022 at 5-7.

{¶8} The trial judge sentenced Emch to serve an aggregate 24-month prison 

sentence. Emch filed an appeal from his conviction and sentence which was 

subsequently dismissed voluntarily1.

1 5th Dist. Tuscarawas No. 2022 AP 12 0053.
Tuscarawas County, Case No. 2023AP050031 7

{¶9} On December 5, 2022, Emch filed a pro se motion to Withdraw from or Void 

Plea Agreement/ Reinstate Original Plea. [Docket Entry No. 65]. On January 20, 2023, 

Emch filed a Motion to Set Aside the Judgment of Conviction and Permit Defendant to 

Withdraw his Guilty Plea. [Docket Entry No. 75]. On March 17, 2023, the state filed a 

response in opposition to Emch's motions. [Docket Entry No. 83]. By Judgment Entry filed 

April 18, 2023, the trial judge denied Emch’s motions.

Assignments of Error

{¶10} Emch has set forth three Assignments of Error,

{¶11} “I. A MANIFEST INJUSTICE OCCURRED WHEN THE STATE 

BREACHED DEFENDANT’S PLEA AGREEMENT. PLEA AGREEMENTS ARE 

CONTRACTUAL AND MUST BE HONORED.

{¶12} “II. A DEFENSE ATTORNEY'S FAILURE TO OBJECT TO A VIOLATION 

OF HIS CLIENT'S PLEA AGREEMENT CONSTITUTES INEFFECTIVE ASSISTANCE 

OF COUNSEL.

{¶13} “III. IT WAS PLAIN ERROR FOR THE TRIAL COURT TO NOT HOLD THE 

STATE TO SPECIFIC PERFORMANCE AND SUBSEQUENTLY OVERRULE 

DEFENDANT'S MOTION TO WITHDRAW HIS PLEA WHEN THE STATE'S FAILURE 

TO HONOR THAT AGREEMENT IS A MATTER OF RECORD.”

Pro se Appellant

{¶14} We understand that Emch has filed this appeal pro se. Nevertheless, “like 

members of the bar, pro se litigants are required to comply with rules of practice and 

procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP–116, 2006–Ohio–

3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007–T–0022, 2008–Ohio–2128, ¶ 11. 
Tuscarawas County, Case No. 2023AP050031 8

We also understand that “an appellate court will ordinarily indulge a pro se litigant where 

there is some semblance of compliance with the appellate rules.” State v. Richard, 8th 

Dist. No. 86154, 2005–Ohio–6494, ¶ 4 (internal quotation omitted). We realize that an 

incarcerated litigant is subject to restrictions and has limited access to research materials, 

making it more difficult to timely comply with certain appellate rules. See, Karmasu v. 

Tate, 4

th Dist. Scioto No 94 CA 2217, 1994 WL 521235. Although in a pro se action the 

court allows latitude to the unrepresented defendant in the presentation of his case, the 

court is not required to totally throw the Rules out the window. See, Wellington v. 

Mahoning Cty. Bd. of Elections, 117 Ohio St.3d 143, 2008-Ohio-554, 882 N.E.2d 554, 

¶18. (A substantial disregard for the rules cannot be tolerated).

{¶15} One area where this Court does not have discretion to overlook, is where 

facts, argument or evidence has been presented in the appellate brief that were not 

presented to the trial court during the proceedings in the lower court. In State v. Hooks, 

92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the Supreme Court noted, “a 

reviewing court cannot add matter to the record before it that was not a part of the trial 

court’s proceedings, and then decide the appeal on the basis of the new matter. See, 

State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978).” It is also a longstanding rule 

“that the record cannot be enlarged by factual assertions in the brief.” Dissolution of Doty 

v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. 

Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227(1963). New 

material and factual assertions contained in any brief in this court may not be considered. 

See, North v. Beightler, 112 Ohio St.3d 122, 2006–Ohio–6515, 858 N.E.2d 386, ¶ 7, 

quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006–Ohio–1195, 843 N.E.2d 1202, ¶ 
Tuscarawas County, Case No. 2023AP050031 9

16. Therefore, we have disregarded facts and documents in the parties brief that are 

outside of the record. 

{¶16} Before addressing Emch’s assignments of error, we must note the following 

procedural issue. In his appellate brief, Emch has failed to separately argue his first, 

second and third assignments of error as required by App.R. 16(A)(7). Instead, Emch 

has presented just one argument in support of all three assignments of error. Under 

App.R. 12(A)(2), we may choose to disregard any assignment of error that an appellant 

fails to separately argue. Therefore, we could exercise our discretionary authority to 

summarily overrule Emch’s assignments of error. See Comisford v. Erie Ins. Property 

Cas. Co., 4

th Dist. Gallia No. 10 CA 3, 2011-Ohio-1373, ¶29; Newman v. Enriquez, 171 

Ohio App.3d 117, 869 N.E.2d 735, 2007–Ohio–1934, (4th Dist.), ¶ 18; Hyde v. SherwinWilliams Co., 8

th Dist. Cuyahoga No. 95687, 2011-Ohio-4234, ¶12; Pahounds v. Beamer, 

5

th Dist. Coshocton No. 09 CA 017, 2009-Ohio-6881, ¶65.

{¶17} Nevertheless, in the interest of justice, we will address Emch’s assignments 

of error. Further, we will consider some of them together, as they all relate to the trial 

court’s denial of his motion to withdraw his no contest plea on the basis that the state 

breached the plea bargain agreement with Emch.

I & III

{¶18} After reviewing Emch’s brief including his contentions, we have interpreted 

Emch’s first and third assignments of error in the following manner: The state breached 

the plea agreement entered into with Emch resulting in a manifest miscarriage of justice. 

Therefore, the trial court erred in not granting Emch’s post-sentence motion to withdraw 

his no contest plea.
Tuscarawas County, Case No. 2023AP050031 10

Standard of Appellate Review

{¶19} Crim. R. 32.1 governs the withdrawal of a guilty or no contest plea and 

states: "[a] motion to withdraw a plea of guilty or no contest may be made only before 

sentence is imposed; but to correct manifest injustice the court after sentence may set 

aside the judgment of conviction and permit the defendant to withdraw his or her plea.” In 

the case at bar, because Emch’s request was made after the sentence was imposed, the 

standard by which the motion was to be considered was "to correct manifest injustice." 

{¶20} The accused has the burden of showing a manifest injustice warranting the 

withdrawal of a guilty plea. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324(1977),

paragraph one of the syllabus. A manifest injustice has been defined as a "clear or openly 

unjust act." State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 1998-Ohio-271, 

699 N.E.2d 83(1998). “‘Manifest injustice relates to some fundamental flaw in the 

proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands 

of due process.'” State v. Ruby, 9th Dist. No. 23219, 2007-Ohio-244, ¶ 11, quoting State 

v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. Accordingly, under the 

manifest injustice standard, a post-sentence withdrawal motion is allowable only in 

extraordinary cases. Smith, 49 Ohio St.2d at 264.

Issue for appellate review: Whether Emch has demonstrated a fundamental 

flaw in the proceedings which results in a miscarriage of justice or is inconsistent with 

the demands of due process.

{¶21} Emch argues that the state breached the plea bargain it entered into with 

him in exchange for his no contest plea. 
Tuscarawas County, Case No. 2023AP050031 11

{¶22} It is the duty of the trial court as a trier of fact to determine whether there 

has been compliance with a plea agreement. State v. Curry, 49 Ohio App.2d 180, 183, 

359 N.E.2d 1379 (9th Dist. 1976). In order to determine whether a plea agreement has 

been breached, courts must examine what the parties reasonably understood at the time 

the defendant entered his guilty plea. See United States v. Partida–Parra, 859 F.2d 629 

(9th Cir. 1988).

{¶23} A plea agreement is generally “contractual in nature and subject to 

contract-law standards.” State v. Butts, 112 Ohio App.3d 683, 679 N.E.2d 1170 (8th Dist. 

1996). The intent of the parties to a contract presumptively resides in the ordinary 

meaning of the language employed in the agreement. Kelly v. Med. Life Ins. Co., 31 Ohio 

St.3d 130, 509 N.E.2d 411 (1987). Contractual language giving rise to doubt or ambiguity 

must be interpreted against the party who used it. Graham v. Drydock Coal Co., 76 Ohio 

St.3d 311, 667 N.E.2d 949 (1996).

{¶24} Plea agreements should be construed strictly against the government. 

United States v. Fitch, 282 F.3d 364 (6th Cir. 2002). “When a plea rests in any significant 

degree on a promise or agreement of the prosecutor, so that it can be said to be part of 

the inducement or consideration, such promise must be fulfilled.” Santobello v. New York,

404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). “When an allegation is made that a 

plea agreement has been broken, the defendant must merely show that the agreement 

was not fulfilled.” State v. Legree, 61 Ohio App.3d 568, 573 N.E.2d 687 (6th Dist. 1988). 

A prosecutor’s failure to comply with the terms of the plea agreement may, in some 

circumstances, render a defendant’s plea involuntary and undermine the constitutionality 

of a conviction based upon that plea. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 
Tuscarawas County, Case No. 2023AP050031 12

52 L.Ed.2d 136 (1977). Accordingly, we must identify the terms of the purported plea 

agreement before we can determine if the state breached the agreement. State v. 

Winfield, 5th Dist. Richland No. 2005-CA-32, 2006-Ohio-721.

{¶25} In the case at bar, the Criminal Rule 11(C) and (F) plea form signed by 

Emch, his attorney and the assistant prosecuting attorney, contained the following,

I, Daniel R. Emch, further state the following:

1) That I have had the opportunity to discuss these matters with my 

attorney;

2) That I have confidence in my attorney, and accept his 

representation of me in this matter;

3) That I have not been coerced or required to plead No Contest, 

and that no promises have been made to me by the Prosecuting Attorney, 

or anyone representing the State of Ohio; EXCEPT that:

•AGREED The State will recommend the Court select a term of thirty

six months in the Ohio Department of Rehabilitation and Correction to be 

reserved in favor of Community Control Sanctions.

This agreement is conditioned upon the defendant not participating 

in any further criminal activity prior to sentencing.

I FURTHER UNDERSTAND THAT ANY AGREEMENTS 

CONCERNING SENTENCING HEREIN ARE ONLY BETWEEN MY 

ATTORNEY AND THE STATE OF OHIO; AND, THEY ARE NOT BINDING 

ON THE JUDGE HEREIN, TO WIT: JUDGE ELIZABETH LEHIGH 

THOMAKOS.
Tuscarawas County, Case No. 2023AP050031 13

Acknowledgement of No Contest Plea, filed Sept. 20, 2022 at 5. [Docket Entry No. 52].

{¶26} At appellant’s entry of plea hearing, the prosecutor described the State of 

Ohio’s obligation under the plea agreement as follows:

The State has agreed to move to amend the indictment to one count 

of aggravated assault, a felony of the fourth degree, one count of abduction, 

a felony of the third degree and one count of robbery a felony of the third 

degree. In exchange, Mr. Emch has agreed to plead no contest to those 

charges...And the State would recommend that Mr. Emch serve a term of 

thirty-six months in the Ohio Department of Rehabilitation and Corrections, 

to be reserved in favor of community control sanctions.

Plea T., Sept. 19, 2022 at 2.

{¶27} The record establishes that the indictment was amended in accordance with 

the state’s representations. Although the state seemed to be suggesting to the trial judge 

that she not sentence Emch to community control sanctions, the prosecutor did tell the 

judge that he stood by his recommendation that Emch serve thirty-six months in prison 

and that the court reserve that in favor of community control sanctions. Sent. T., Nov. 10, 

2022 at 3. Thus, the state fulfilled its promises under the terms of the plea agreement. 

Accordingly, the state did not breach the agreement.

{¶28} Emch’s objection appears to be that the trial court did not follow the 

recommendation and sentence him to community control sanctions. However, even if the 

prosecutor’s remarks could be construed as his disavowing the plea agreement, the trial 

judge never promised Emch that she would impose community control sanctions if he 

entered no contest pleas.
Tuscarawas County, Case No. 2023AP050031 14

{¶29} It is well settled that the terms of a plea agreement do not bind the discretion 

of the trial court. State v. Pettiford, 12th Dist. Fayette No. CA2001-08-014, 2002-Ohio1914. Crim.R. 11 does not anticipate that punishment will be the result of a successful 

bargain because sentencing is determined expressly either by statute or rests within the 

sound discretion of the trial court. State v. Mathews, 8 Ohio App.3d 145, 146, 456 N.E.2d 

539 (10th Dist. 1982). Simply stated, final judgment on acceptance of a plea agreement 

and sentencing rests with the discretion of the trial court. State v. Fraternal Order of 

Eagles, Aerie No. 1224, 12th Dist. Clinton No. CA2017-08-011, 2018-Ohio-548, ¶ 6; State 

ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6, quoting 

State v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶ 13 (5th 

Dist.), quoting State v. Pettiford, at *3. “A trial court does not err by imposing a sentence 

greater than ‘that forming the inducement for the defendant to plead guilty when the trial 

court forewarns the defendant of the applicable penalties, including the possibility of 

imposing a greater sentence than that recommended by the prosecutor.’” State ex rel. 

Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6. (Citations 

omitted.)

{¶30} In the case at bar, the trial court informed Emch at the plea hearing of the 

possible sentences for each charge to which Emch was entering a no contest plea. The 

trial judge further informed Emch before he entered his pleas that the trial judge was not 

bound by the state’s sentencing recommendation. The Criminal Rule 11(C) and (F) plea 

form signed by Emch, his attorney and the assistant prosecuting attorney, also advised 

him the trial court was not bound to follow the state’s sentencing recommendation. 

Further, the trial judge explained her reasons for not accepting the recommendation for 
Tuscarawas County, Case No. 2023AP050031 15

community control sanctions in lieu of a prison term. The trial judge noted that she 

reviewed the pre-sentence investigation report and every witness statement. She noted 

that Emch’s list of prior convictions for felony crimes of violence is probably the longest 

list of felony crimes of violence she had seen. The trial judge noted Emch’s prior prison 

sentences, pattern of substance abuse, testing positive for marijuana at the PSI interview, 

and a risk assessment score of twenty-seven. Under the facts of this case, it is clearly 

apparent that the judge would have found in good conscience she could not accept 

community control sanctions as the disposition, regardless of anything the prosecutor 

agreed to during plea negotiations with Emch.

{¶31} In the present case, the trial judge in no way promised Emch that she would 

impose the recommended sentence. Accordingly, there is no indication that a “manifest 

injustice” has occurred warranting the withdrawal of Emch’s post-sentence no contest 

plea.

{¶32} Emch’s First and Third Assignments of Error are overruled.

II.

{¶33} After reviewing Emch’s brief including his contentions, we have interpreted 

Emch’s second assignment of error in the following manner: Emch’s trial attorney’s failure 

to object to a violation of his client's plea agreement constitutes ineffective assistance of 

counsel.

Standard of Appellate Review

{¶34} “To prevail on a Sixth Amendment claim alleging ineffective assistance of 

counsel, a defendant must show that his counsel’s performance was deficient and that 

his counsel’s deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 
Tuscarawas County, Case No. 2023AP050031 16

668, 694 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, a defendant must 

show that “counsel’s representation fell below an objective standard of reasonableness.” 

Id., at 688, 104 S.Ct. 2052. In addition, to establish prejudice, a defendant must show 

“that there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Andtus 

v. Texas, 590 U.S. __, 140 S.Ct. 1875, 1881, 207 L.Ed.2d 335 (June 15, 2020). 

Issue for Appellate Review: Whether there is a reasonable probability that, but 

for counsel’s failure to object to the state’s breach of the plea agreement, the result of 

the proceeding would have been different.

{¶35} As we have found in our disposition of Emch’s First and Third Assignments 

of Error, the state did not breach the plea agreement. Accordingly, there is no reasonable 

probability that the result of the proceeding would have been different had trial counsel 

objected as Emch contends. Therefore, we do not find Emch was prejudiced by counsel’s 

failure to object to the enforcement of the plea agreement.
Tuscarawas County, Case No. 2023AP050031 17

{¶36} Emch’s Second Assignment of Error is overruled.

{¶37} The judgment of the Tuscarawas County Court of Common Pleas is 

affirmed.

By Gwin, P.J.,

Hoffman, J., and

King, J., concur