[Cite as State v. Gray,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, : : Case No. 18CA3857 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY DOMINICK C. GRAY, : : Defendant-Appellant. : Released: 12/23/19 _____________________________________________________________ APPEARANCES:

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

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 Scioto App. No. 18CA3857 2

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.

{¶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 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 trial court. Scioto App. No. 18CA3857 3

BACKGROUND

{¶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 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 counts.

{¶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 court 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. Scioto App. No. 18CA3857 4

{¶7} 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.

{¶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 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.

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.” Scioto App. No. 18CA3857 5

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 FOURTEENTH AMENDMENT RIGHTS UNDER THE OHIO AND UNITED STATES CONSTITUTIONS.”

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 R.C. 2941.25(A)

and that the imposition of consecutive sentences violated R.C.

2929.14(B)(1)(b). The State counters that Appellant waived the right to

merger of his convictions when he entered into his plea agreement. The

State further argues that the court made the findings required for the

imposition of consecutive sentences under R.C. 2929.14(C)(4). Lastly, the

State contends Appellant has not shown that his counsel’s allegedly deficient

performance prejudiced his defense.

{¶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. Scioto App. No. 18CA3857 6

The United States Supreme Court has generally interpreted this provision to

mean a criminal defendant is entitled to the “reasonably effective assistance”

of counsel. Strickland v. Washington,

,

,

(1984); accord Hinton v. Alabama,

,

,

(2014) (“defendants are entitled to be represented

by an attorney who meets at least a minimal standard of competence”).

{¶11} To establish constitutionally ineffective assistance of counsel, a

criminal appellant must show that (1) his counsel’s performance was

deficient and (2) the deficient performance prejudiced his defense. E.g.,

Strickland,

; State v. Myers,

, 2018-Ohio-

1903,

; State v. Powell,

, 2012-

Ohio-2577,

, ¶ 85. An attorney’s performance is deficient if

it falls below an objective standard of reasonable representation. State v.

Short,

,

,

. 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.

{¶12} In Ohio, a properly licensed attorney is presumed competent.

State v. Gondor,

,

,

.

Thus, in reviewing a claim of ineffective assistance of counsel, we indulge Scioto App. No. 18CA3857 7

in “a strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged action ‘might

be considered sound trial strategy.’ ”

, quoting Michael v.

Louisiana,

,

,

(1956).

{¶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,

. Therefore, if one element is dispositive, a

court need not analyze both. State v. Madrigal,

,

(2000).

{¶14} Appellant’s first argument is based on the contention that his

trafficking and possession charges should have been merged at sentencing

under R.C. 2941.25. That statute provides:

(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. Scioto App. No. 18CA3857 8

R.C. 2941.25. The Supreme Court of Ohio has explained that, “[a]bsent a

more specific legislative statement, R.C. 2941.25 is the primary indication of

the General Assembly’s intent to prohibit or allow multiple punishments for

two or more offenses resulting from the same conduct.”

{¶15} For purposes of R.C. 2941.25(A), “a conviction is a

determination of guilt and the ensuing sentence.” State v. Whitfield,

,

,

, ¶ 13. Accordingly, “R.C.

2941.25(A)’s mandate that a defendant may be ‘convicted’ of only one

allied offense is a protection against multiple sentences rather than multiple

convictions.” Id. at ¶ 18. A court therefore determines whether to merge

two or more offenses under R.C. 2941.25 at sentencing. Id.

{¶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,

,

,

, the Supreme Court of Ohio held that “[i]t

is possible for an accused to expressly waive the protection afforded by R.C.

2941.25, such as by ‘stipulating in the plea agreement that the offenses were

committed with separate animus.’ ” Rogers at ¶ 20, quoting State v. Scioto App. No. 18CA3857 9

Underwood,

,

,

, ¶ 29. This

is precisely what occurred in this case. Appellant expressly waived the

protection afforded by R.C. 2941.25 in his plea agreement.

{¶17} Since Appellant had already waived the protection of R.C.

2941.25, his counsel acted reasonably when she chose not to argue for

merger of the two offenses. Consequently, Appellant’s argument that he

received ineffective assistance for that reason fails. As the waiver is

dispositive, we need not consider the State’s other responses regarding

application of R.C. 2941.25.

{¶18} Appellant’s second argument is that his counsel should have

objected to the imposition of consecutive sentences. R.C. 2929.41(A)

establishes a statutory presumption in favor of concurrent sentences. “In

order to impose consecutive terms of imprisonment, a trial court must make

the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate its findings into its sentencing entry, but the court has no

obligation to state reasons to support its findings.” Blair at ¶ 52, citing State

v. Bonnell,

,

,

, syllabus.

{¶19} “Under the tripartite procedure set forth in R.C. 2929.14(C)(4),

prior to imposing consecutive sentences the trial court had to find that: (1)

consecutive sentences are necessary to protect the public from future crime Scioto App. No. 18CA3857 10

or to punish the offender, (2) consecutive sentences are not disproportionate

to the seriousness of the offender’s conduct and to the danger the offender

poses to the public, and (3) * * * the harm caused by two or more multiple

offenses was so great or unusual that no single prison term for any of the

offenses committed adequately reflects the seriousness of the offender’s

conduct.” State v. Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-

5601, ¶ 58. “Although it is not necessary for a trial court to use talismanic

words in each step of its analysis to comply with R.C. 2929.14(C)(4), it must

be clear from the record that the trial court actually made the required

findings.” Blair at ¶ 53, citing State v. Baker, 4th Dist. Athens No. 13CA18,

, citing State v. Clay, 4th Dist. Lawrence No. 11CA23,

. Under R.C. 2929.15(B), “the prison term imposed

after violation of a community-control sanction must comply with the

requirements of R.C. 2929.14.” State v. Love,

, ¶ 24.

{¶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 least 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 Scioto App. No. 18CA3857 11

course of conduct accurately reflects the seriousness of the offender’s conduct.

These are the findings required under R.C. 2929.14(C)(4). As mentioned,

the court had no obligation to state reasons to support its findings.

{¶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

(“[A]s long as the reviewing court can discern that the trial court engaged 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. Scioto App. No. 18CA3857 12

{¶23} The record also supports the court’s finding that consecutive

sentences were not disproportionate to the seriousness of Appellant’s

conduct. Appellant pleaded guilty to two third-degree felonies, each of

which carries a prison term of up to 36 months. R.C. 2929.14(A)(3)(b). At

the original sentencing hearing and in its Judgment Entry of Sentence, the

trial court informed Appellant that violation of his community control would

result in a prison term of 72 months. The 48-month prison term that

Appellant received is therefore 24 months shorter than the prison term that

the court could have imposed for violation of his community control. See

R.C. 2929.19(B)(4) (upon imposition of community control, the court “shall

indicate the specific prison term that may be imposed as a sanction for [its]

violation”) and State v. Brooks,

,

,

(court has discretion to impose prison term upon violation of

community control up to the length of the specific term identified pursuant

to R.C. 2929.19(B)(4)).

{¶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 reported to his probation Scioto App. No. 18CA3857 13

officer. Moreover, he had to be arrested pursuant to a warrant in order to

secure his appearance at the revocation hearing. The imposition of

consecutive sentences, which combined for a total of 48 months in prison,

was commensurate with the seriousness of Appellant’s conduct.

{¶25} Additionally, Appellant also cites the provision of R.C.

2929.14(B)(1)(b) that states: “Except as provided in division (B)(1)(g) of

this section, a court shall not impose more than one prison term on an

offender under division (B)(1)(a) of this section for felonies committed as

part of the same act or transaction.” R.C. 2929.14(B)(1)(6). R.C.

2929.14(B)(1)(a) provides that certain prison terms shall be imposed on an

offender who is convicted of or pleads guilty to a felony who is also

convicted of or pleads guilty to a specification involving the possession or

use of a firearm. Appellant did not plead guilty to a firearm specification

and was not sentenced to a prison term under R.C. 2929.14(B)(1)(a).

Appellant was mistaken in his reliance on R.C. 2929.14(B)(1)(b).

{¶26} In sum, Appellant’s counsel did not have a meritorious basis for

objecting to the trial court’s imposition of separate sentences under R.C.

2941.25 or consecutive sentences under R.C. 2919.14. Her decision not to

object on those grounds was reasonable and Appellant has not shown that Scioto App. No. 18CA3857 14

her performance was otherwise deficient. Appellant’s first assignment of

error is overruled.

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 evaluating Appellant’s first

assignment of error, we determined that Appellant waived the protection

afforded by R.C. 2941.25, which dictates when offenses shall be merged, by

stipulating that each count was committed with a separate animus in his plea

agreement. Appellant’s argument regarding the length of his prison term is

that the court failed to make the findings required under R.C. 2929.14(C)(4)

to impose consecutive sentences. We also have already found, however, that

the trial court complied with that statute when it sentenced Appellant. These

two holdings are dispositive of Appellant’s second assignment of error,

which is therefore overruled.

CONCLUSION

{¶28} As discussed above, we overrule Appellant’s first assignment of

error because his counsel’s performance 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 Scioto App. No. 18CA3857 15

consecutively, for a total 48-month prison term. Accordingly, we affirm the

lawful sentence imposed by the trial court.

JUDGMENT AFFIRMED. Scioto App. No. 18CA3857 16

JUDGMENT ENTRY

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 Appellant 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 appeal 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.