State v. Casto

S
[Cite as State v. Casto, 

2021-Ohio-2328

.]




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

 STATE OF OHIO                                   :
                                                 :
          Plaintiff-Appellee                     :   Appellate Case No. 2019-CA-28
                                                 :
 v.                                              :   Trial Court Case No. 2019-CR-235
                                                 :
 JASON MICHAEL CASTO                             :   (Criminal Appeal from
                                                 :   Common Pleas Court)
          Defendant-Appellant                    :
                                                 :

                                            ...........

                                            OPINION

                               Rendered on the 9th day of July, 2021.

                                            ...........

ELIZABETH HANNING SMITH, Atty. Reg. No. 0076701, Champaign County
Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409
     Attorney for Defendant-Appellant

                                            .............




TUCKER, P.J.
                                                                                       -2-


       {¶ 1} Defendant-appellant Jason Michael Casto appeals from his conviction,

following a guilty plea, for aggravated possession of drugs. Casto contends the trial

court improperly sentenced him when it failed to abide by the terms of the plea agreement.

He further contends that his defense counsel was ineffective for failing to object to the

sentence and for failing to file a motion to withdraw the plea.

       {¶ 2} We conclude the trial court was not bound by the terms of the plea agreement

and thus did not err in sentencing. We further conclude Casto has failed to demonstrate

that counsel’s representation was defective or that any claimed defect resulted in

prejudice. Accordingly, the judgment of the trial court is affirmed.



                             I.     Facts and Procedural History

       {¶ 3} On October 25, 2019, Casto was charged via a bill of information with one

count of aggravated possession of drugs in violation of R.C. 2925.11(A)(C)(1).

According to the record before us, at the time he committed the offense, Casto was on

community control for a 2018 offense.1 Further, the record shows that Casto had served

two prior prison sentences and that he was also on community control when he committed

the 2018 offense.

       {¶ 4} On October 30, 2019, Casto and the State entered into a plea agreement

whereby Casto would plead guilty and the parties would waive a presentence

investigation report. In addition, Casto agreed to pay costs and fees and to admit to

certain violations of his community control sanctions. The agreement was silent as to



1
  Casto has not appealed the 2018 case. Therefore, even though the trial court’s
judgment addresses both cases, our review is limited to the 2019 conviction.
                                                                                          -3-


sentencing. At the sentencing hearing, defense counsel asked that any sentence for the

two cases be run concurrently, but the State asked for a 14-month sentence, which

necessarily required consecutive sentences.

       {¶ 5} Following a proper Crim.R. 11 plea colloquy, the court found Casto guilty of

the 2019 charge as well as the community control violations related to the 2018 case.

The court revoked Casto’s community control in the 2018 case and ordered him to serve

the previously-imposed sentence of 12 months. The court also sentenced Casto to

serve a term of 12 months in the instant case. The court ordered the two sentences to

be served consecutively for an aggregate sentence of 24 months.

       {¶ 6} Casto appeals.



                                     II.    Plea Agreement

       {¶ 7} Casto’s first assignment of error states as follows:

       THE COURT VIOLATED THE TERMS OR THE IMPLIED TERMS OF THE

       PLEA AGREEMENT.

       {¶ 8} Casto’s argument is difficult to discern, however, he appears to claim that the

court violated the terms of the plea agreement by running the two sentences

consecutively rather than concurrently. In support, he makes reference to an affidavit,

which is not a part of this record, in which he averred that his trial counsel “promised that

his sentences would run concurrently with each other.” Casto also asserts a somewhat
                                                                                            -4-


incongruous claim that the State agreed he would receive only a 14-month sentence.2

       {¶ 9} We begin by noting that, because this is a direct appeal, we are limited to

considering only matters contained in the record. “A reviewing court cannot add matter

to the record before it, which was not a part of the trial court's proceedings, and then

decide the appeal on the basis of the new matter.” State v. Ishmail, 

54 Ohio St.2d 402

,

377 N.E.2d 500

 (1978), paragraph one of the syllabus. Thus, to the extent this argument

relies upon statements made in an affidavit that is not part of the record, it must fail.

       {¶ 10} We next note that “[p]lea agreements are generally made between the State

and a defendant. Unless the court involves itself in the plea negotiations or agrees to

the terms of the agreement, the trial court is not bound by the plea agreement, and the

court may determine the appropriate sentence for the charges to which the defendant has

pled guilty or no contest.” State v. Sage, 2d Dist. Montgomery No. 25453, 2013-Ohio-

3048, ¶ 23, citing State v. Underwood, 

124 Ohio St.3d 365

, 

2010-Ohio-1

, 

922 N.E.2d 923

,

¶ 28. There is nothing in this record to support a finding that the trial court was involved

in the plea negotiations in this case.

       {¶ 11} Other than Casto’s unsubstantiated claim that he was promised concurrent

sentences, there is nothing to indicate that the court, or for that matter, the State, agreed

to the imposition of concurrent sentences. Furthermore, while the State recommended

a 14-month sentence at sentencing, the plea agreement was silent as to sentencing.

       {¶ 12} More importantly, the record clearly demonstrates that Casto was informed



2
 We cannot determine how a 14-month sentence could be imposed without ordering the
two sentences to run consecutively, as the maximum sentence for each offense was 12
months. In other words, if the sentences were run concurrently, as Casto claims was
agreed, the total sentence could not have exceeded 12 months.
                                                                                       -5-


the trial court could impose consecutive sentences prior to entering his plea and that he

affirmed his understanding of that fact. Finally, we have reviewed the plea agreement,

plea hearing and sentencing hearing and find nothing amiss.

       {¶ 13} The record before us does not support Casto’s claims. Accordingly, the

first assignment of error is overruled.



                                  III.    Ineffective Assistance

       {¶ 14} Casto asserts the following as his second assignment of error:

       DEFENDANT-APPELLANT’S ATTORNEY DID NOT PROVIDE HIM WITH

       EFFECTIVE ASSISTANCE OF COUNSEL.

       {¶ 15} Casto asserts he was denied the effective assistance of trial counsel when

counsel failed to (1) object or (2) file a motion to withdraw his guilty plea after the

sentencing court breached the plea agreement by imposing the sentence that it did. In

support he cites to this court’s opinion in State v. Gilroy, 

195 Ohio App.3d 173

, 2011-

Ohio-4163, 

959 N.E.2d 19

 (2d Dist.).

       {¶ 16} To prevail on a claim of ineffective assistance of counsel, a defendant must

establish that his trial counsel's performance was deficient and that the deficient

performance prejudiced him. Strickland v. Washington, 

466 U.S. 668

, 

104 S.Ct. 2052

,

80 L.Ed.2d 674

 (1984), paragraph two of the syllabus; State v. Bradley, 

42 Ohio St.3d

136

, 

538 N.E.2d 373

 (1989), paragraph two of the syllabus.          In order to establish

deficient performance, a defendant must show that his trial counsel's performance fell

below an objective standard of reasonable representation. Strickland at 688; Bradley at

142.   Under the deficient-performance prong, the court should “indulge a strong
                                                                                          -6-


presumption that counsel's conduct falls within the wide range of reasonable professional

assistance.” Strickland at 689. Establishing prejudice requires a defendant to show

there is “a reasonable probability that, but for counsel's errors, the proceeding's result

would have been different.” (Citations omitted.) State v. Hale, 

119 Ohio St.3d 118

,

2008-Ohio-3426

, 

892 N.E.2d 864

, ¶ 204.

       {¶ 17} Importantly, by entering a guilty plea, a defendant “waives the right to allege

ineffective assistance of counsel, except to the extent that the errors caused the plea to

be less than knowing and voluntary.” State v. Hurtado, 2d Dist. Montgomery No. 26892,

2017-Ohio-1465

, ¶ 11, citing State v. Spates, 

64 Ohio St.3d 269

, 

595 N.E.2d 351

 (1992).

Thus, if a defendant has entered a plea of guilty, he cannot establish ineffective

assistance of counsel unless he demonstrates that counsel's advice was not within the

range of competence demanded of attorneys in criminal cases, and that, but for counsel's

errors, there is a reasonable probability the defendant would not have pleaded guilty.

State v. Olsen, 2d Dist. Montgomery No. 28011, 

2019-Ohio-568

, ¶ 10.

       {¶ 18} Casto claims this court, in Gilroy, 

195 Ohio App.3d 173

, 

2011-Ohio-4163

,

959 N.E.2d 19

, found counsel was ineffective under the same circumstances as

presented in his case. He is incorrect. In Gilroy, the trial court expressly stated during

the plea hearing that the defendant would be sentenced to community control sanctions.

Id. at ¶ 4

.   However, the court also stated that the agreement was subject to the

defendant timely appearing for sentencing and “stay[ing] out of trouble” in the interim. 

Id.

at ¶ 7

. When the defendant later appeared for sentencing, “[t]he court noted that since

her guilty plea on March 1, 2011, defendant had tested positive for cocaine and marijuana

use. The court also noted that this was defendant's 11th theft-related offense, that she
                                                                                       -7-


had been convicted of 29 misdemeanor offenses, and that her record contained

‘numerous pages’ reporting misdemeanor charges that had been dismissed. The court

noted that ‘[t]he last time [she was] on supervision from this Court [she was] an

absconder.’ ” 

Id. at ¶ 19

. Thereafter, the trial court sentenced the defendant to a prison

term rather than community control. 

Id.

      {¶ 19} On appeal, the defendant raised arguments asserting that the trial court had

breached the plea agreement and that defense counsel had been ineffective for failing to

object to the sentence or to seek to withdraw the guilty plea.       We found “[i]t was

defendant, not the trial court, who breached the plea agreement by failing to abide by the

court's specific condition that she stay out of trouble between the plea hearing and her

sentencing [and] Defendant's breach relieved the trial court of its duty to perform its

promise to impose community-control sanctions.” 

Id. at 28

. We further concluded that

the failure to establish that the trial court breached the plea agreement “compels a

conclusion that defendant was not prejudiced by her counsel's alleged failure, because

the court would have properly overruled as meritless the objection and/or motion

defendant complains her attorney failed to file.    Therefore, ineffective assistance of

counsel is not shown.” 

Id. at ¶ 39

.

      {¶ 20} Likewise, in this case, the record does not support a finding that the trial

court breached the terms of the plea agreement. Thus, the objection and motion urged

by Casto would have been without merit. Therefore, counsel cannot be said to have

been ineffective on these grounds.

      {¶ 21} We also note that Casto’s argument appears to suggest that the trial court

should have imposed community control sanctions rather than a prison term. However,
                                                                                        -8-


the record demonstrates that Casto entered his plea fully aware he would not be

sentenced to community control sanctions.

       Finally, it is well established that “[a] claim of ineffective assistance of counsel

cannot be asserted on direct appeal if it relies on matters outside the record.” State v.

Thomas, 2d Dist. Montgomery No. 26907, 

2017-Ohio-5501

, ¶ 28. Thus, to the extent

Casto’s argument relies on his claim that counsel informed him he would receive

concurrent sentences or community control or a 14-month sentence, it must be overruled,

as it is based upon matters not contained in this record. Thus, it is not capable of review

on direct appeal.

       {¶ 22} The second assignment of error is overruled.



                                       IV.    Conclusion

       {¶ 23} Both of Casto’s assignments of error being overruled, the judgment of the

trial court is affirmed.

                                     .............



WELBAUM, J. and EPLEY, J., concur.



Copies sent to:

Elizabeth Hanning Smith
Hilary Lerman
Hon. Nick A. Selvaggio

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