State v. Gray
2017 Ohio 7271
| Ohio Ct. App. | 2017Background
- Dwight Gray was originally sentenced in 2012 in Erie C.P. No. 11-CR-327 to an aggregate 51-month prison term but was placed on five years community control with a warning that the 51-month term would be imposed if he violated conditions.
- In 2015 (15-CR-308) Gray pled guilty to non-support and received a consecutive 10-month sentence, again suspended in favor of five years community control with the same warning.
- Gray later was found to have violated community control; at a revocation hearing he admitted the violations after being advised of consequences.
- The trial court revoked community control and imposed the previously-stated aggregate 61-month prison term (51 + 10). Gray addressed the court in mitigation before sentencing.
- Gray appealed, raising three assignments: (1) ineffective assistance for permitting admissions to violations not in the special conditions, (2) denial of allocution / failure to advise of appeal rights under Crim.R. 32, and (3) failure to merge violations for sentencing when the same conduct violated conditions in both cases.
- The Sixth District affirmed: counsel not ineffective, allocution occurred and failure to advise of appellate rights was harmless, and merger did not apply because the prison terms are attributable to the original convictions rather than the violation conduct.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Gray) | Held |
|---|---|---|---|
| Ineffective assistance for admitting to violations in both cases | Counsel’s conduct was reasonable; Gray admitted violating standard conditions imposed in both cases | Counsel should not have allowed admissions to violations not listed in 15-CR-308’s special conditions | Not ineffective — Gray admitted violations of standard conditions that were imposed in both cases, so no deficient or prejudicial performance (Strickland test) |
| Crim.R. 32 allocution and advisement of appeal rights | Trial court afforded allocution; failure to advise of appeal rights was harmless because Gray timely appealed | Court failed to advise Gray of appellate rights and denied allocution prior to sentencing | Allocution right satisfied (Gray spoke in mitigation). Failure to advise of appeal rights was error but harmless because Gray filed a timely appeal |
| Merger of probation violation sentences across two cases | Sentences should merge because the same conduct violated conditions in both cases | Sentences originate from separate underlying convictions; revocation penalties attribute to original convictions | No merger — revocation sentences are tied to original convictions, not the single act of violation, so merger inapplicable |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective-assistance test: deficient performance and prejudice)
- State v. Green, 90 Ohio St.3d 352 (2000) (Crim.R. 32 grants absolute right of allocution)
- State v. Martello, 97 Ohio St.3d 398 (2002) (term imposed for post-release/post-control violation is attributable to the original conviction)
- State v. Rogers, 143 Ohio St.3d 385 (2015) (failure to raise an issue in trial court waives all but plain error on appeal)