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State v. Gray

Court of Appeals of Ohio, Fourth District, Scioto

December 23, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
DOMINICK C. GRAY, Defendant-Appellant.

          Alex F. Kochanowski, Cincinnati, Ohio, for Appellant.

          Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Assistant Scioto County Prosecuting Attorney, Portsmouth, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          Matthew W. McFarland, Judge

         {¶1} This is an appeal from the Scioto County Court of Common Pleas' imposition of a 48-month prison term of Appellant Dominick C. Gray, after he failed to enroll in community control as required under his original sentence. Pursuant to a plea agreement, Appellant pleaded guilty to one count of trafficking in cocaine, a third-degree felony, and one count of possession of cocaine, a third-degree felony, and the parties agreed to jointly recommend a sentence of community control. The trial court accepted the parties' sentencing recommendation, but Appellant never reported to the Probation Department. After three months passed, Appellant's assigned probation officer applied for revocation of his community control. The court held a revocation hearing, at which Appellant had counsel and testified on his own behalf. The court then sentenced Appellant to a 36-month prison term on the trafficking count and a 12-month prison term on the possession count, to run consecutively for a total of 48 months of imprisonment.

         {¶2} On appeal, Appellant contends that (1) he received ineffective assistance of counsel at the revocation hearing because his counsel did not object to the imposition of separate and consecutive sentences, and (2) he was denied due process because the trial court did not merge the counts against him and sentence him to the statutory minimum prison term.

         {¶3} We overrule Appellant's first assignment of error because his counsel's performance was not deficient. Appellant's second assignment of error is overruled because, as we also discuss with respect to his first assignment of error, Appellant waived the protection of R.C. 2941.25, which governs when offenses should be merged, in his plea agreement. Having overruled both of Appellant's assignments of error, we affirm the sentence imposed by the trial court.

         BACKGROUND

         {¶4} On June 26, 2017, Appellant was indicted in the Scioto County Court of Common Pleas with one count of Trafficking in Cocaine, in violation of R.C. 2925.03(A)(2)/(C)(4)(F), a first-degree felony, and one count of Possession of Cocaine, in violation of R.C. 2925.03(A)/(C)(4)(E), a first-degree felony. Appellant entered a plea of not guilty to both counts.

         {¶5} On May 9, 2018, the prosecuting attorney and Appellant notified the court that they had reached a plea agreement. Under the agreement, Appellant would plead guilty to one count of trafficking in cocaine, reduced to a third-degree felony, and one count of possession of cocaine, also reduced to a third-degree felony. The parties also agreed to jointly recommend a sentence of community control. The court accepted the parties' agreement and sentenced Appellant to five years of community control.

         {¶6} After sentencing, Appellant was required to report to the Scioto County Common Pleas Probation Department to enroll in the community control program. He never did. On November 15, 2018, upon the application of the Probation Department, the court held a hearing to determine whether to revoke Appellant's community control.

         {¶7} At the hearing, Probation Officer Kyle Porter testified that Appellant had failed to report as required under his community control sentence. Appellant testified regarding the reasons why he failed to report. The court heard argument from parties' counsel and permitted Appellant to speak on his own behalf. The court then found that Appellant violated the terms of his community control and, with Appellant's consent, proceeded to disposition.

         {¶8} Prior to disposition, the parties' counsel and Appellant were given an additional opportunity to address the court, which they did. The court then revoked Appellant's community control, entered its findings relevant to sentencing, and sentenced Appellant to 36 months of imprisonment for trafficking in cocaine and 12 months of imprisonment for possession of cocaine, to be served consecutively, for a total of 48 months in prison. On November 21, 2018, Appellant timely filed a notice of appeal of the court's decision. He asserts two assignments of error on appeal.

         ASSIGNMENTS OF ERROR

I. "MR. GRAY RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE OHIO AND UNITED STATES CONSTITUTIONS, RESULTING IN AN UNKNOWING AND INVOLUNTARY PLEA, WHEN COUNSEL AGREED FAILED [SIC] TO PROPERLY OBJECT TO THE IMPOSITION OF CONSECUTIVE SENTENCES AND EXCESSIVE SENTENCES DURING MR. GRAY'S PROBATION REVOCATION HEARING."
II. "MR. GRAY WAS DENIED DUE PROCESS AND FAIR TRIAL DURING SENTENCING WHEN THE TRIAL COURT FAILED TO MERGE MR. GRAY'S CHARGES AND SENTENCE MR. GRAY TO THE STATUTORY MINIMUM BASED ON HIS PERSONAL FACTORS IN MITIGATION, WHICH COUNSEL FAILED TO PRESENT, IN VIOLATION OF HIS FIFTH AND FOURTEENTH ...

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