[Cite as State v. Garza , 2020-Ohio-520.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals No. WD-18-024 Appellee Trial Court No. 2017CR0327

v. Ray Garza, Jr. DECISION AND JUDGMENT Appellant Decided: February 14, 2020

* * * * * Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold and Jim A. Hoppenjans, Assistant Prosecuting Attorneys, for appellee. Edward J. Stechschulte, for appellant.

* * * * * OSOWIK, J. {¶ 1} This is an appeal from a judgment of the Wood County Common Ple as Court in which appellant entered a guilty plea to burglary, in violation of R.C. 2911.12(A)(2).2. {¶ 2} Appellant submits three assignments of error: 1. Appellant’s plea was not intelligently, knowingly and volu ntarily given. 2. The Trial Court committed reversible error by failing to e ither order specific performance of the plea agreement or allow Appel lant to withdraw his guilty plea wherein the State violated the terms o f the plea agreement by recommending that Appellant be sentenced to seven years in prison. 3. Appellant received ineffective assistance of counsel as guaranteed by the Sixth, and Fourteenth Amendments to the Unite d States Constitution and comparable provisions of the Ohio Constitution

. {¶ 3} The following facts relevant to this appeal are as follows. On July 20, 2017, appellant was indicted by the Wood County Grand Jury on one cou nt of burglary, in violation of R.C. 2911.12(A)(2) and (D), a felony of the second degree, with a specification of a prior conviction. {¶ 4} On January 12, 2018, appellant entered a plea of guilty to the charge of burglary. In exchange, the state agreed to amend the indictmen t so as to remove the prior conviction specification and further, to recommend that appella nt be placed on community control, with a condition that he complete the SEARCH Program. {¶ 5} Under both the United States and Ohio Constitutions, a guilty p lea must be made knowingly, intelligently, and voluntarily to be valid. Boykin v. Alabama , 395 U.S.3. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Engle , 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). {¶ 6} In appellant’s first assignment of error, he argues that his pl ea was unknowing and involuntary because the trial court did not orall y inform him of his constitutional right to require the state to prove his guilt be yond a reasonable doubt, as required by Crim.R. 11(C). {¶ 7} Under Crim.R. 11(C), before a trial court accepts a guilty plea , the trial court must personally inform the defendant that by pleading guilty he or she is waiving the constitutional and non-constitutional rights stated in that rul e. {¶ 8} Here, the trial court engaged in the following colloquy with ap pellant at the plea hearing regarding his constitutional rights: THE COURT: Now, you understand that you also, as a citizen of the United States and as a defendant in this courtroom, have ce rtain other constitutional rights. As I said, you could have a jury trial. If you had insisted upon it, we would have brought jurors from Wood County in here, who would have heard the case, would have determined whether or not you were guilty or not guilty of the charged offense. At trial the State of Ohio would have the obligation of proving each and every element of the charged offense. Further, at trial you would have the opportun ity through you attorney to confront and cross-examine each and every one o f the witnesses brought by the state. You could have the opportunity to provide4. your own witnesses. You could testify. If you chose not to te stify, no one could comment upon the fact that you didn’t testify. Do you un derstand that by entering a plea of guilty to the charged offense you ar e waiving those specific constitutional rights? THE DEFENDANT: Yes, sir. THE COURT: And you are still willing to proceed forward?

THE DEFENDANT: Yes. {¶ 9} In this instance, appellant takes particular exception to the f act that the trial court orally failed to indicate that not only was he waiving hi s right to have the prosecution prove that he was guilty of burglary, but that the burden of proof was beyond a reasonable doubt. Appellant argues that this incomplete verb atim recitation of Crim. R. 11(C)(2)(c) somehow spoils the advisement, thereby warranting a reversal. {¶ 10} The Supreme Court of Ohio has held that an appellate court is p ermitted to consider additional record evidence to reconcile an alleged amb iguity that results when a trial court unartfully explains the defendant’s constitutional rights during the Crim.R. 11 plea colloquy. State v. Barker , 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 25. {¶ 11} For the purposes of this discussion, if an ambiguity is defined as “something lacking clarity or having multiple meanings,” we wil l look to the complete record to confirm that appellant has been properly informed tha t the burden of proof was beyond a reasonable doubt.5. {¶ 12} At the plea hearing, relevant portions of the plea colloquy wen t as follows: THE COURT: Mr. Garza, I need to go through a discussion with you to make sure that your plea here is knowingly and voluntari ly made, so let’s get going with that. You are Ray Garza, Jr. THE DEFENDANT: Yes, Sir. THE COURT: How old are you? THE DEFENDANT: Twenty-eight. THE COURT: You’ve completed through high school? THE DEFENDANT: Yes, sir. THE COURT: And you are able to read and write English?

THE DEFENDANT: Yes. THE COURT: Now, I have in front of me this plea agreement. I note that this plea agreement is executed on five pages. It is divided into paragraphs. Each paragraph is enumerated with a letter of the alphabet. I also note that next to each paragraph are the initials R.G. Ar e those your

initials? THE DEFENDANT: Yes, sir. THE COURT: Did you read the document with your attorney present? THE DEFENDANT: Yes, Your Honor. THE COURT: Were any questions that you had fully answered?6. THE DEFENDANT: Yes, your Honor

THE COURT: I note at the end of the document is below the wor ds approved by. There is a line that says defendant, and it has t he signature Ray Garza, Jr. Is that your signature? THE DEFENDANT: Yes, sir. THE COURT: Did you place it there as an acknowledgment or recognition that you read, understood and agreed with what was in this

document? THE DEFENDANT: Yes, Your honor. {¶ 13} Subsequent to the Barker holding, we have held that when the trial court orally completely fails to even mention that the appellant was giving up his constitutional right to require the state to prove its case beyond a reasonabl e doubt, the waiver is

defective. State v. Clinton , 6th Dist. Erie No. E-17-069, 2018-Ohio-3509 (finding the tria l court’s complete failure to inform the defendant of the state’s burden to prove its case). {¶ 14} Here, the trial court’s oral colloquy does not evidence a compl ete failure to inform appellant of the state’s burden to prove its case. Furt her, appellant acknowledged that he read and understood the plea form and acknowledged each paragraph with his initials. Paragraph E of the plea form specifically reads, in pertinent part, “I understand I waive my right to have the Prosecutor prove my guilt beyond a r easonable doubt by a trial before the judge or by a jury of my peers.”7. {¶ 15} Because the trial court orally informed appellant of his right to have the prosecution carry the burden of proving his guilt in a manner t hat was reasonably intelligible to appellant, and in view of the fact that the wri tten plea form clarified any potential ambiguity in the trial court’s oral colloquy that the burden of proof is beyond a reasonable doubt, we find that the trial court strictly complie d with Crim.R. 11 in this

case. See State v. Mayfield , 6th Dist. Erie No. E-17-028, 2018-Ohio-4626, ¶ 22-23. {¶ 16} After a review of the record of evidence in this case, we find appellant’s first assignment of error not well-taken and denied. {¶ 17} Appellant’s second assignment of error asserts that the trial c ourt committed reversible error by failing to either order specific performance of the plea agreement or to allow appellant to withdraw his guilty plea whe n the state recommended that appellant be sentenced to seven years in prison. {¶ 18} Plea agreements are contractual in nature and are governed by c ontract law principles and standards. State v. Butts , 112 Ohio App.3d 683, 685-686, 679 N.E.2d 1170 (8th Dist.1996). Appellant and the state agreed that if a ppellant pled guilty to Count 1 of the indictment, burglary, in violation of R.C. 2911. 12(A)(2) and (D), a felony of the second degree, the state would dismiss the notice of pri or conviction specification of the indictment and further recommend community control sanct ions with placement in the SEARCH program at sentencing. {¶ 19} The trial court set bond at own recognizance and appellant exec uted the bond conditions on January 25, 2018. Contained within the wri tten bond conditions that8. was signed by appellant is the pertinent language: “Defendant shall not be charged with nor commit any serious traffic or criminal offenses.” {¶ 20} The case was continued for sentencing on March 2, 2018. Howeve r, between the time of the plea hearing and the date set for sente ncing, appellant was charged with trafficking in drugs, theft from the elderly and f leeing, each charge being a felony. The state filed a motion to revoke bond as a result of these new charges. Unable to serve appellant, a warrant was issued for his apprehension. Ultimately, appellant was apprehended and sentencing occurred on March 2, 2018. {¶ 21} At sentencing, the state’s position was that, as a result of ap pellant’s new charges, the state was no longer bound by its initial recommend ation for community control. The state recommended a seven-year sentence. {¶ 22} Appellant was sentenced to six years in prison by the trial cou rt. {¶ 23} We have consistently held that it is within the trial court’s d iscretion to find that bond conditions were violated and whether the plea agreeme nt has been breached as

a result. State v. Willis , 6th Dist. Erie No. E-05-026, 2005-Ohio-7002. {¶ 24} Upon review of the record of this case, we can find no abuse of discretion on the part of the trial court in its determination that the ap pellant breached the terms of the plea agreement when he violated the conditions of his bond. {¶ 25} We find appellant’s second assignment of error to be not well-t aken. {¶ 26} Appellant presents a final assignment of error: Appellant rece ived ineffective assistance of counsel as guaranteed by the Sixth an d Fourteenth Amendments9. to the United States Constitution and comparable provisions of the Ohio Constitution. In support of this assignment of error, he reiterates his argument s from the foregoing assignments of error, arguing that his counsel was ineffective for (a) failing to ensure that appellant’s plea was knowingly, voluntarily and intelligently m ade and (b) failing to object to the state’s breach of the plea agreement. {¶ 27} To establish ineffective assistance of counsel, appellant must demonstrate that counsel’s performance at trial was seriously flawed and de ficient and fell below an objective standard of reasonableness and that there is a reason able probability that, but for counsel’s unprofessional errors, the result of the trial wo uld have been different. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id. at 687-688. {¶ 28} Because we found no error regarding any of counsel’s allegedly deficient conduct, we cannot conclude that appellant’s counsel was defici ent. Therefore, he has failed to establish the first prong of the Strickland test, and his claim for ineffective assistance of counsel necessarily fails. Appellant’s third ass ignment of error is overruled

Conclusion {¶ 29} Appellant’s first, second and third assignments of error are fo und not welltaken and denied. The judgment of the trial court is affirmed. Costs are assessed to appellant pursuant to App.R. 24. Judgment affirmed.10. State v . Garza C .A. No. WD-18-024

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _________________

______________ JUDGE Thomas J. Osowik, J.

_______________________________ Christine E. Mayle, J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.