Court of Appeals of Ohio, Third District, Defiance
from Defiance County Common Pleas Court Trial Court Nos.
05CR09377 and 16CR12576
Alex Smith for Appellant.
Russell R. Herman for Appellee.
Defendant-appellant, Jaime O. Hernandez, Sr.
("Hernandez"), brings these appeals from the
November 28, 2016, judgments of the Defiance County Common
Pleas Court imposing the balance of Hernandez's prison
term in trial court case number 05-CR-09377 after Hernandez
violated his community control sanctions and ordering
Hernandez to serve a consecutive 10-month prison term in
trial court case number 16-CR-12576 after Hernandez pled no
contest to, and was found guilty of, Possession of Cocaine in
violation of R.C. 2925.11(A), a felony of the fifth
degree. On appeal, Hernandez argues that he
received ineffective assistance of counsel.
Facts and Procedural History
In trial court case number 05-CR-09377, Hernandez was
convicted of Trafficking in Cocaine in violation of R.C.
2925.03(A), a felony of the third degree. On April 6, 2006,
Hernandez was sentenced to 4 years of community control, with
a 4-year reserved prison term.
On January 8, 2010, the State filed a motion to revoke
Hernandez's community control for various alleged
violations. Hernandez admitted to violating his community
control, and the 4-year reserved prison term in case number
05-CR-09377 was imposed. The 4-year prison term was ordered
to be served consecutive to a separate 33-month prison term
from Defiance County Common Pleas Court case number
05-CR-09216, which involved three counts of Non Support of
Dependents, all felonies of the fifth degree. Hernandez was
thus ordered to serve an aggregate 81-month prison term at
On April 2, 2015, Hernandez was granted early release
pursuant to R.C. 2967.19, and he was placed on community
control. At that time, the trial court noted that
Hernandez had served the entirety of his 33-month prison term
in the separate 05-CR-09216 case for Non Support of
On April 12, 2016, the State filed a motion to revoke
Hernandez's community control, alleging that Hernandez
"tested positive for and admitted to using
cocaine." (05-CR-09377 Doc. No. 51).
Based on the same allegations made to revoke Hernandez's
community control in trial court case number 05-CR-09377,
Hernandez was indicted on May 5, 2016, in trial court case
number 16-CR-12576 for one count of Possession of Cocaine in
violation of R.C. 2925.11(A)/(C)(4)(a), a felony of the fifth
degree. The indictment alleged that on or about April 11,
2016, Hernandez "did knowingly obtain, possess, or use a
controlled substance * * * and the drug involved was cocaine
or a compound, mixture, preparation, or substance containing
cocaine in an amount of less than five grams." (Doc. No.
1). Hernandez originally pled not guilty to the charge in the
new indictment and he denied violating his community control
in the 05-CR-09377 case.
On June 13, 2016, a hearing was held wherein Hernandez
admitted to violating his community control in the
05-CR-09377 case and he pled no contest to the charge in the
16-CR-12576 indictment. The trial court engaged in a thorough
Criminal Rule 11 dialogue with Hernandez and determined that
Hernandez was acting knowingly, intelligently and
voluntarily. The trial court then found "that the May
5th indictment in fact states the offense of Possession of
Cocaine, as a Felony of the Fifth Degree, " and found
Hernandez guilty. (June 13, 2016, Tr. at 11).
Hernandez's disposition on his community control
violation from the 05-CR-09377 case and his sentencing from
the 16-CR-12576 case were delayed to see how Hernandez
performed under further supervision. When the trial court
delayed Hernandez's sentencing, Hernandez was warned that
if he had any further issues the trial court would order any
sentence in the 16-CR-12576 case to be ...