Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-16-609333-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Mary M. Frey and Gregory Ochocki, Assistant
Prosecuting Attorneys, for appellee.
R. Fischbein-Cohen, for appellant.
JOURNAL ENTRY AND OPINION
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.
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