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State v. Nelson

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 22, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
GREGORY NELSON, JR., Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-609333-A

         JUDGMENT: AFFIRMED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey and Gregory Ochocki, Assistant Prosecuting Attorneys, for appellee.

          Ruth R. Fischbein-Cohen, for appellant.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, PRESIDING JUDGE.

         {¶ 1} Defendant-appellant, Gregory Nelson, Jr., appeals from his convictions and sentence following a guilty plea. He raises the following assignments of error for review:

1. Nelson did not make his plea knowingly and voluntarily.
2. Nelson was jeopardized by his ineffective counsel.
3. The trial court erred in sentencing Nelson separately for crimes pled to, in violation of the law of merger.
4. It was error to separately sentence Nelson for more convictions than are authorized by law.

         {¶ 2} After careful review of the record and relevant case law, we affirm Nelson's convictions and sentence.

         I. Procedural and Factual History

         {¶ 3} In September 2016, Nelson was named in a three-count indictment in Cuyahoga C.P. No. CR-16-609333-A, charging him with having weapons while under disability in violation of R.C. 2923.13(A)(2), a felony of the third degree, with a forfeiture specification; and two counts of aggravated menacing in violation of R.C. 2903.21(A), misdemeanors of the first degree.

         {¶ 4} On the day scheduled for trial, the state set forth a proposed plea agreement on the record, stating:

In regards to plea negotiations the agreement was for Mr. Nelson to plead to the indictment in 609333. That is a having weapons while under disability, felony of the third degree, low tier, so punishable by 9 to 36 months and/or a fine not to exceed $10, 000.
There's two counts of aggravated menacing, your Honor. Those are misdemeanors of the first degree, punishable by 0 to 180 days and/or a fine not to exceed $1, 000.
If Mr. Nelson took responsibility and took that agreement we would agree to dismiss case number 609591 in its entirety and put on the record that we would not reindict that case even though we would be asking for a dismissal without prejudice.

         {¶ 5} Initially, Nelson expressed his desire to reject the state's plea offer and proceed with trial. However, following a break in the proceedings, Nelson stated that he wished to accept the state's proposed plea agreement.

         {¶ 6} Following a Crim.R. 11 colloquy, Nelson pleaded guilty to an amended count of having weapons while under disability, with a forfeiture specification; and two counts of aggravated menacing as charged in the indictment. Pursuant to the terms of the plea, the state dismissed the charges pending against Nelson in Cuyahoga C.P. No. CR-16-609591-A. The trial court accepted Nelson's guilty plea and referred him to the county probation department for a presentence investigation report.

         {¶ 7} In September 2017, the trial court sentenced Nelson to 36 months in prison on the having-weapons-while-under-disability offense. The trial court further sentenced Nelson to "six months in the county jail on aggravated menacing," to be served concurrently with the 36-month prison term.

         {¶ 8} In October 2017, Nelson filed a direct appeal with this court. On appeal, this court recognized that the trial court's sentencing journal entry indicated that Count 3 of the indictment was nolled despite the trial court's acceptance of Nelson's guilty plea on that offense. Accordingly, this court dismissed the appeal for lack of a final, appealable order, stating:

The trial court judgment of conviction originally journalized on September 21, 2017, does not dispose of each count for which the defendant was found guilty. Specifically, the court did not impose sentence with respect to Count 3, although it accepted the defendant's guilty plea and subsequently found the defendant guilty on that count. Pursuant to State v. Lester,130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, the substantive requirements that must be included within journal entry of conviction to make it final ...

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