from the Franklin County Court of Common Pleas C.P.C. No.
O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
Dodgion, for appellant.
1} Christian J. Pagan, represented by counsel,
entered into a plea agreement to resolve two criminal cases
against him. The trial court accepted his guilty pleas and
sentenced him to prison terms totaling within the range that
the state and Mr. Pagan had defined through their agreement.
Mr. Pagan now appeals, but he provides scant basis on which
to overturn either his convictions or his sentence. We will
affirm the judgment of the trial court.
2} Mr. Pagan, who the state alleged was not allowed
to possess a gun because of earlier convictions for
aggravated assault and robbery, was indicted in one case
(16CR-7203) for having a weapon under disability and for
felonious assault and kidnapping with gun specifications.
Prosecutors were having difficulties reaching the purported
victim in that case, whom Mr. Pagan allegedly had
pistol-whipped. See January 28, 2019 Transcript of
Plea Proceedings ("Plea Tr.") at 3, 19.
3} Mr. Pagan was indicted in the other case
(16CR-7225) for two first-degree felony counts of trafficking
in cocaine in an amount exceeding 100 grams, two parallel
cocaine possession counts, and again with having a weapon
under disability. The drug charges carried gun
4} Under the plea agreements, the state dropped the
felonious assault and kidnapping charges in the first case,
and dropped the weapons charge and the possession counts and
gun specifications in the second case, while also reducing
the amount of cocaine charged on the trafficking counts from
the previously specified Major Drug Offender
("MDO") levels to 27-100 grams. Mr. Pagan and the
state noted on the plea forms in each case that, for the two
cases combined, the parties "agree to argue for a
sentence between 10 and 18 years." Mr. Pagan and the
state also agreed and stipulated in the plea form for the
drug case that the trafficking "counts do not
merge" and that the potential sentence there was "3
to 11 years mandatory on each count."
5} The trial court reviewed the plea agreements with
Mr. Pagan, his counsel, and the prosecutor during the plea
colloquy. After the prosecutor explained the potential
advantage to the defendant in removing the MDO amounts from
the trafficking counts (which as charged carried a mandatory
maximum prison sentence, "plus the one-year gun
spec"), the prosecutor added that with his plea,
"Mr. Pagan is looking at a minimum of three years and up
to twenty-two years [for that case] * * * because those two
offenses do not merge." Plea Tr. at 5. He continued:
"the recommendation that we've gotten to [of]
between 10 and 18 years [for the two cases combined] is a
negotiated plea * * *." Had the drug case gone to trial,
the prosecutor said, defense counsel would argue at any
sentencing hearing "that those two [trafficking counts]
would merge because of the facts of the case."
Id. But, said the prosecutor, "while he would
preserve that for trial, for plea we're agreeing that
they don't merge." "Essentially, there's
one large quantity of cocaine, and separated from that is
another large but smaller quantity of cocaine in the same
room seized at the same time. There might be a merger
argument; but because of our joint recommendation," that
argument had been forestalled. Instead, the prosecutor
continued, defense counsel "[is] going to ask for
concurrent sentences * * *, because he's going to argue
at the lower end of this range." Id. at 6.
6} When the prosecutor had described some additional
details of the arrangement, the trial court turned to defense
counsel and asked: "All right * * * * [I]s that your
understanding?" Id. at 7. Defense counsel
responded "Yeah." From his standpoint, the case was
not winnable, he said. Id. Given the facts,
"[t]he sole question presented to us was whether or not,
in a single incident where we have in one room two separate
bags of cocaine, would they merge or would they not. Was it a
single incident or not?" Id. Tempted to say the
trafficking counts merged, he corrected himself: "I will
still argue that, for purposes of sentencing, as it is
essentially one incident, one animus, that the right thing to
do is to merge them at sentencing to get to the -- not merge,
but run them concurrent, excuse me, to run them concurrent at
sentencing and then to wind up in the range as agreed."
Id. at 8. "Because, again, truthfully, Your
Honor," defense counsel elaborated, "the State ...