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State v. Daboni

Court of Appeals of Ohio, Fourth District, Meigs

January 5, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
JACQUES GOERGES K. DABONI, Defendant-Appellant.

          Timothy Young, Ohio Public Defender, and Katherine R. Ross-Kinzie, Assistant State Public Defender, Columbus, Ohio, for Appellant.

          James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          Matthew W. McFarland, Judge.

         {¶1} Jacques Goerges K. Daboni appeals from the trial court's decision sentencing him to maximum and consecutive prison terms totaling thirty-two years after a jury found him guilty of six counts of trafficking in heroin in violation of R.C. 2925.03(A)(1), one count of trafficking in heroin in violation of R.C. 2925.03(A)(2), one count of possession of heroin in violation of RC. 2925.11(A) and (C)(6)(a), and two counts of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1). On appeal, Appellant contends, through counsel, that 1) the trial court erred in failing to merge for sentencing offenses that had a similar import, arose from the same conduct, and were not committed separately or with a separate animus; 2) the verdicts on the counts of engaging in a pattern of corrupt activity were not supported by sufficient evidence; 3) his right to a fair trial and due process of law was violated; and 4) the imposition of maximum possible sentences on all counts is not clearly and convincingly supported by the record. This Court permitted Appellant, despite failure to request leave to do so, to file four additional pro se assignments of error, which are set forth verbatim below

         {¶2} However, because we find that the order appealed from in underlying case number 14CR232 (16CA6), which has been consolidated with the appeals from companion cases 14CR173 (16CA7) and 15CR0023 (16CA5), does not constitute a final, appealable order, this Court lacks jurisdiction to consider the merits of the appeal. Accordingly, this case is dismissed for lack of jurisdiction.

         FACTS

         {¶3} The record reveals that Appellant, Jacques Goerges K. Daboni, was indicted on September 23, 2014, in case number 14CR173 in the Meigs County Court of Common Pleas on multiple felonies, which included three counts of trafficking in heroin, one count of possession of heroin, and one count of engaging in a pattern of corrupt activity. Another indictment was filed in the Meigs County Court of Common Pleas on December 18, 2014, case number 14CR232, charging Appellant with the commission of five additional felonies, which included five more counts of trafficking in heroin. Thereafter, an additional indictment was filed on March 17, 2015, case number 15CR023, charging Appellant with an additional count of engaging in a pattern of corrupt activity, a second degree felony.

         {¶4} A review of the record reveals that all three of these criminal cases were consolidated for purposes of trial below and that Appellant was convicted on all counts after a jury trial, with the exception of count number four in case number 14CR232. A review of the record reveals that the State made an oral motion to dismiss this count at the close of its case. The trial court noted the motion and that defense counsel did not object, however it never formally granted the motion. Further review of the record reveals that as a result of the State's motion to dismiss, the jury was not instructed on that count and did not render a verdict on that count. The trial court's trial notes characterize the count as dismissed, however, it never formally granted the motion, nor did it subsequently file a written order formally dismissing the count. As such, count four in case number 14CR232 (16CA6) appears to remain pending.

         ASSIGNMENTS OF ERROR

         "I. THE TRIAL COURT ERRED IN VIOLATION OF MR. DABONI'S RIGHT UNDER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTHE AMENDMENT TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, AND R.C. 2941.25, WHEN IT FAILED TO MERGE FOR SENTENCING OFFENSES THAT HAD A SIMILAR IMPORT, AROSE FROM THE SAME CONDUCT, AND WERE NOT COMMITTED SEPARATELY OR WITH A SEPARATE ANIMUS.

         II. JACQUES DABONI'S VERDICTS OF COUNT 5, CASE NO. 14CR173, ENGAGING IN A PATTERN OF CORRUPT ACTIVITY, AND COUNT I, CASE NO. 15CR023, ENGAGING IN A PATTERN OF CORRUPT ACTIVITY WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE. THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUPPORT ALL OF THE ESSENTIAL ELEMENTS OF THE CHARGES OF ENGAGING IN A PATTERN OF CORRUPT ACTIVITY IN VIOLATION OF R.C. 2923.32(A)(1) BEYOND A REASONABLE DOUBT, AND MR DABONI'S CONVICTION FOR ENGAGING IN A PATTERN OF CORRUPT ACTIVITY THEREFORE VIOLATES HIS RIGHTS TO DUE PROCESS.

         III. MR. DABONI'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW WAS VIOLATED.

         IV. MR. DABONI'S MAXIMUM POSSIBLE SENTENCE ON ALL COUNTS IS NOT CLEARLY AND CONVINCINGLY SUPPORTED BY THE RECORD." ADDITIONAL PRO SE ASSIGNMENTS OF ERROR

         "V. WHERE MY TRAIL COUNSEL'S INNEFECTIVE WHEN THEY DID NOT FINISH MY SUPPRESSION HEARING AND WHEN ...


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