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State v. Johnston

Court of Appeals of Ohio, Second District, Montgomery

August 25, 2017

STATE OF OHIO Plaintiff-Appellee
v.
JODIE JOHNSTON Defendant-Appellant

         T.C. NOS. 16-CR-1806; 15-CR-3370/1

          HEATHER N. JANS Attorney for Plaintiff-Appellee

          MARK J. BAMBERGER Attorney for Defendant-Appellant

          OPINION

          DONOVAN, J.

         {¶ 1} This matter is before the Court on the November 8, 2016 consolidated Notices of Appeal of Jodie Johnston. In Case No. 2016 CR 1806, Johnston was convicted, following a guilty plea, on one count of aggravated possession of drugs (methamphetamine) (5 times bulk but < 50 times bulk), in violation of R.C. 2925.11(A), a felony of the second degree. He received a sentence of 2 years. In Case No. 2015 CR 3370/1, Johnston was convicted, following guilty pleas, on one count of having weapons while under disability (prior drug conviction), in violation of R.C. 2923.13(A)(3), a felony of the third degree, and one count of aggravated possession of drugs (methamphetamine) (bulk but < 5 times bulk), in violation of R.C. 2925.11(A), a felony of the third degree, with an attendant one-year firearm specification.[1] He was sentenced to 24 months on each offense, to be served concurrently with each other and consecutively to the sentence imposed in Case No. 2016 CR 1806, along with an additional one year for the firearm specification, to be served consecutively to and prior to the definite term of imprisonment for an aggregate term of five years. Herein, Johnston asserts that he received ineffective assistance of counsel. We hereby affirm the judgment of the trial court.

         {¶ 2} Johnston's plea hearing was held on September 21, 2016, where the following exchange occurred:

MS. HENNE: Your Honor, in this case it's the State's understanding that in Case 15-CR-3370 the Defendant will be entering guilty pleas to Count II, which is having weapons under disability, and Count VII, which is aggravated possession of drugs * * * with the attached one year firearms specification to Count VII in that case * * *
THE COURT: And is - - Count VII, that's a felony of the third degree?
MS. HENNE: That is correct, Your Honor.
** *
MS. HENNE: And in Case 16-CR-1806, it's the State's understanding that the Defendant will enter a guilty plea to aggravated possession of drugs, felony in the second degree. In exchange for that, there will be a dismissal of the possession of heroin, felony of the fifth degree.
From the State's point of view there is no agreement regarding sentencing, but it's also the State's understanding that the Court has agreed to - - that the Defendant will receive a five year prison sentence for the totality of these cases.
THE COURT: That is a correct statement.
Mr. Johnston, I'll structure this so that in both cases you receive a prison sentence of five years.Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And this is a mandatory prison term. Do you understand that as well?
THE DEFENDANT: Yes.

** *

THE COURT: All right. So with that all said, is this what you want to do today?
THE DEFENDANT: Yes, sir.

         {¶ 3} The court then determined that Johnston was 44 years old, that he graduated from high school, that he can read and write, that he was not under the influence of drugs or alcohol, that he did not have a mental or physical problem affecting his ability to understand the proceedings, and that his plea was voluntary and not based upon any threats or coercion. The following exchange then occurred:

THE COURT: Other than the promise regarding the dismissal of certain counts, and then my promise regarding what your sentence is going to be; certainly all important promises, but other than those promises, have any other ...

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