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State v. Pagan

Court of Appeals of Ohio, Tenth District

December 3, 2019

State of Ohio, Plaintiff-Appellee,
Christian J. Pagan, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16CR-7225

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.

          Jeremy Dodgion, for appellant.


          Seth L. Gilbert.

          Jeremy Dodgion.


          NELSON, J.

         {¶ 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 specifications.

         {¶ 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 ...

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