Court of Appeals of Ohio, Fourth District, Scioto
F. Kochanowski, Cincinnati, Ohio, for Appellant.
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
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.
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
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
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
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.
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.
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.
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.
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