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State v. Hernandez

Court of Appeals of Ohio, Third District, Defiance

May 15, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JAIME O. HERNANDEZ, SR., DEFENDANT-APPELLANT. STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JAIME O. HERNANDEZ, SR., DEFENDANT-APPELLANT.

         Appeals from Defiance County Common Pleas Court Trial Court Nos. 05CR09377 and 16CR12576

         Judgments Affirmed.

          W. Alex Smith for Appellant.

          Russell R. Herman for Appellee.

          OPINION

          SHAW, J.

         {¶1} 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.[1] On appeal, Hernandez argues that he received ineffective assistance of counsel.

         Relevant Facts and Procedural History

         {¶2} 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.

         {¶3} 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 that time.

         {¶4} On April 2, 2015, Hernandez was granted early release pursuant to R.C. 2967.19, and he was placed on community control.[2] 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 Dependents.[3]

         {¶5} 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).

         {¶6} 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.

         {¶7} 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).

         {¶8} 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 ...


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