State v. Delgadillo-Banuelos
2019 Ohio 4174
Ohio Ct. App.2019Background
- Indictment (Jan. 2018): Ovier Delgadillo-Banuelos charged with two counts of heroin trafficking — Count 1 (first-degree, ≥100 g) and Count 2 (second-degree, ≥10 g <50 g).\
- Plea and PSI: Defendant pled guilty to both counts (July 23, 2018); court ordered a pre-sentence investigation.\
- Facts underlying plea: Police surveillance on Dec. 27, 2017 recovered ~49 g of heroin from defendant’s person/vehicle (traffic stop) and ~159.1 g from a motel room (search warrant); additional drugs found at a suspected stash house.\
- Sentence: Court imposed 11 years (Count 1) + 5 years (Count 2) to run consecutively and maximum fines totaling $35,000.\
- Procedural posture on appeal: Defendant raised three assignments of error — (1) ineffective assistance for not filing an affidavit of indigency re: mandatory fines, (2) ineffective assistance for not arguing allied-offense merger, and (3) plain error for imposing multiple sentences for allied offenses. Defendant did not raise allied-offense merger at sentencing (forfeited issue).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court committed plain error by imposing separate sentences for two trafficking counts as allied offenses | State: Offenses did not merge — recovered at different times/locations and quantities; convictions may stand separately | Delgadillo-Banuelos: Two counts are allied (same day, same drug, same motive), so only one sentence should be imposed | No plain error; counts are not allied due to separate locations/times/quantities; sentences may be imposed separately |
| Whether defense counsel was ineffective for failing to file an R.C. 2929.18(B)(1) affidavit of indigency to avoid mandatory fines | State: Trial court considered PSI and defendant’s present/future ability to pay; no showing affidavit would have changed outcome | Defendant: Counsel should have filed the affidavit and court would have waived mandatory fines | No ineffective assistance; record shows PSI considered and court expressly considered present/future ability to pay and declined to find defendant unable to pay |
| Whether counsel was ineffective for not arguing merger of the two trafficking counts | State: Merger argument would fail because offenses dissimilar in import/committed separately/with separate animus | Defendant: Counsel’s omission prejudiced him because counts should have merged | No ineffective assistance; merger argument would not have succeeded under allied-offense test, so failure to raise it was not prejudicial |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
- State v. Ruff, 143 Ohio St.3d 114 (Ohio 2015) (three-part allied-offense test: conduct, animus, import)
- State v. Whitfield, 124 Ohio St.3d 319 (Ohio 2010) (R.C. 2941.25 protects against multiple sentences rather than convictions)
- State v. Rogers, 143 Ohio St.3d 385 (Ohio 2015) (plain-error standard for forfeited allied-offense claims)
- United States v. Stephens, 118 F.3d 479 (6th Cir. 1997) (federal discussion on single-day multiple stashes and multiplicity)
- United States v. Maldonado, 849 F.2d 522 (11th Cir. 1988) (different stashes in different locations on same date can support separate offenses)