STATE OF OHIO, Plaintiff-Appellee, vs. DOMINICK C. GRAY, Defendant-Appellant.
Case No. 18CA3857
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
Released: 12/23/19
2019-Ohio-5317
McFarland, J.
DECISION AND JUDGMENT ENTRY
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.
McFarland, J.
{¶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 оriginal 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
{¶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 seсond assignment of error is overruled because, as we also discuss with respect to his first assignment of error, Appellant waived the protection of
{¶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
{¶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 cоurt 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.
{¶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 Aрpellant’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.”
ASSIGNMENT OF ERROR I
{¶9} Appellant contends that he received ineffective assistance of counsel because his attorney at the revocation hearing did not object to the imposition of separate, consecutively served sentences for his trafficking and possession convictions. Appellant specifically argues that his counsel should have argued for the merger of his convictions under
{¶10} The Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution provide that defendants in all criminal proceedings shall have the assistance of counsel for their defense.
{¶11} To establish constitutionally ineffective assistance of counsel, a criminal appellant must show that (1) his сounsel’s performance was deficient and (2) the deficient performance prejudiced his defense. E.g., Strickland, 466 U.S. at 687; State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 183; State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 85. An attorney’s performance is deficient if it falls below an objective standard of reasonable representation. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113. An attorney’s deficient performance is prejudicial where there is a reasonable probability that, but for the attorney’s errors, the result of the proceeding would have been different. Id.
{¶12} In Ohio, a properly licensed attorney is presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. Thus, in reviewing a claim of ineffective assistance of counsel, we indulge
{¶13} Failure to establish either deficient performance or prejudice is fatal to a claim of ineffective assistance. State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14. Therefore, if one element is dispositive, a court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).
{¶14} Appellant’s first аrgument is based on the contention that his trafficking and possession charges should have been merged at sentencing under
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶15} For purposes of
{¶16} In this case, the parties entered into a plea agreement pursuant to which Appellant pleaded guilty to both the trafficking and possession charges, as amended to third-degree felonies. As their counsel also informed the court, the parties further agreed that each of the two offenses was committed with a separate animus. In State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, the Supreme Court of Ohio held that “[i]t is possible for an accused to expressly waive the protection afforded by
{¶17} Since Appellant had already waived the protection of
{¶18} Appellant’s second argument is that his counsel should have objected to the imposition of consecutive sentences.
{¶19} “Under the tripartite procedure set forth in
{¶20} Before sentencing Appellant at the revocation hearing, the trial court made the following findings, among others, on the record:
The Court will also find that consecutive sentences are necessary to protect the public from future crime and to punish the offender, and not disproportionate to the seriousness of the offender’s conduct. The Court will find that at lеast two of the multiple offenses was committed in part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of the
course of conduct accurately reflects the seriousness of the offеnder’s conduct.
These are the findings required under
{¶21} Because the record is clear that the court made the required findings, Appellant’s only possible ground for objection would have been that the evidence failed to support the court’s findings. See Bonnell at 29 (“[A]s long as the reviewing court can discern that the trial court engаged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld.”). In this case, the court’s findings are supported by the record.
{¶22} The court surmised from Appellant’s testimony that he did not demonstrate a genuine interest in reforming his conduct and complying with the terms of his community control—it appeared that Appellant “had other things to do” and was “busy.” In addition, Appellant testified that he was smoking marijuana during the time that he was supposed to have been registering for community control. (Appellant disputed that he was using marijuana in May 2018, but then admitted to its use in June 2018 when he still had not reported to the Probation Department.) These facts support the finding that Appellant presented a danger to the public and consecutive sentences were therefore necessary to protect the public from future crime.
{¶24} There is also evidence supporting the trial court’s finding regarding the seriousness of Appellant’s conduct. Again, Appellant pleaded guilty to trafficking and possession of cocaine, two third-degree felonies, yet admitted to using another illegal substance when he was supposed to be enrolled in community control. Appellant never reрorted to his probation
{¶25} Additionally, Appellant also cites the provision of
{¶26} In sum, Appellant’s counsel did not have a meritorious basis for objecting to the trial court’s imposition of separate sentences under
ASSIGNMENT OF ERROR II
{¶27} Appellant contends in his second assignment of error that the trial court erred because it did not merge the counts against him and sentence him to the statutory minimum prison term. In evaluаting Appellant’s first assignment of error, we determined that Appellant waived the protection afforded by
CONCLUSION
{¶28} As discussed above, we overrule Appellant’s first assignment of error because his counsel’s perfоrmance was not deficient. His second assignment of error is overruled because the trial court did not err in imposing separate sentences on the counts against him, to be served
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED. Court costs are assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Aрpellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appеal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. & Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.