State v. Gomez
100 N.E.3d 1038
| Ohio Ct. App. | 2017Background
- Julio H. Gomez was indicted on ten counts: one RICO (engaging in a pattern of corrupt activity) and nine trafficking-in-heroin counts arising from surveillance, controlled buys, and execution of search warrants in mid-2015.
- Counts 6–10 stemmed from execution of warrants on August 5, 2015; heroin was recovered at five separate locations in differing quantities.
- Gomez pleaded guilty to all counts on May 16, 2016 after the prosecutor recited the factual basis (controlled buys, runners, and recovered stashes).
- At sentencing the court corrected a prior misstatement about the maximum possible aggregate sentence (from 110 to 99 years); defense waived any defect and elected to proceed to sentencing.
- The court imposed an aggregate 22-year prison term and five years post-release control. Gomez appealed, raising (1) that Counts 6–10 were multiplicitous and should have been aggregated, affecting plea and sentencing advisals, and (2) that the Crim.R. 11 colloquy failed to inform him he could not be compelled to testify against himself.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Counts 6–10 were multiplicitous / allied offenses requiring merger | State: separate indictments proper where separate stashes at different locations and different quantities; R.C. 2941.25 permits charging multiple counts and merging at sentencing if appropriate | Gomez: simultaneous possession of same drug on same date should be aggregated into a single offense; failure to merge affected maximum-penalty advisal and voluntariness of plea | Held: No plain error; different locations and quantities show separate conduct/animus so convictions are not necessarily allied; merger not required on this record |
| Whether failure to merge affected Crim.R. 11 advisal about maximum penalty and voluntariness of plea | State: court corrected advisal at sentencing; defense waived defect and proceeded; no showing merger would likely change outcome | Gomez: inaccurate advisal as to maximum exposure (claimed 66 years if merged) undermined knowing/voluntary plea | Held: Rejected — because merger claim not shown as plain error, plea voluntariness not undermined |
| Whether plea colloquy complied with Crim.R. 11(C)(2)(c) as to privilege against self-incrimination | State: court’s colloquy (plus written plea form) adequately and reasonably intelligibly explained rights, including that silence could not be used against him | Gomez: court did not expressly say he could not be compelled to testify against himself (missing specific words) | Held: Strict compliance satisfied — asking if he could testify or “not have your silence used against you” and written plea form sufficed to inform him of privilege |
| Whether the failure to raise allied-offenses issue in trial court waived or forfeited review | State: felony plea waived defects in indictment; allied-offenses arguments not raised below are forfeited and reviewable only for plain error | Gomez: preserved merger argument on appeal | Held: Court treated the allied-offenses claim as forfeited (plain-error standard) and found no plain error on the record |
Key Cases Cited
- United States v. Stephens, 118 F.3d 479 (6th Cir.) (federal decisions holding same-day stashes may be aggregated in some contexts)
- United States v. Clay, 355 F.3d 1281 (11th Cir.) (same-day separate stashes analyzed for multiplicity)
- United States v. Woods, 568 F.2d 509 (6th Cir.) (same-day multiple stashes and multiplicity treatment)
- United States v. Maldonado, 849 F.2d 522 (11th Cir.) (separate stashes at different locations can support separate counts)