State v. Dalton , 2023 Ohio 892 ( 2023 )

[Cite as State v. Dalton, 2023-Ohio-892.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
GARRICK A. DALTON,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 22 BE 0028
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 20 CR 116
BEFORE:
David A. D’Apolito, Carol Ann Robb, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Jacob A. Manning,
Assistant Prosecuting Attorney, 52160 National Road, St. Clairsville, Ohio 43950, for
Plaintiff-Appellee and
Atty. Brian A. Smith, Brian A. Smith Law Firm, LLC, 123 South Miller Road, Suite 250,
Fairlawn, Ohio 44333, for Defendant-Appellant.
Dated: March 13, 2023
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D’Apolito, P.J.
{¶1} Appellant, Garrick A. Dalton, appeals his conviction and maximum sentence
following his entry of a guilty plea in the Belmont County Court of Common Pleas to a
single amended charge of trafficking in drugs in violation of R.C. 2925.03(A)(2), (C)(9)(f),
a felony of the first degree. In his first, second, and fourth assignments of error, Appellant
contends his plea was not knowingly, voluntarily, and intelligently made; his trial counsel
was ineffective; and his sentence is contrary to law because the state warranted that the
original drug trafficking charge carried a mandatory maximum sentence. In his third
assignment of error, Appellant argues that his sentence is contrary to law because the
state asserted at sentencing that Appellant avoided the application of the major drug
offender specification based on the amendment of the trafficking charge.
{¶2} Contrary to Appellant’s argument on appeal, we find that his potential
conviction for the original drug trafficking charge would have resulted in a mandatory-
maximum sentence. On the other hand, Appellant correctly argues that the state erred
at the sentencing hearing when it argued his conviction for the original charge would have
resulted in his classification as a “major drug offender,” as that term is statutorily defined.
However, the record reflects that the trial court’s decision to impose the maximum
sentence was predicated in its entirety on Appellant’s lengthy criminal record, his failure
to respond to lesser sanctions in the past, and his lack of good-faith effort during
numerous prior diversion programs. As a consequence, we find that Appellant suffered
no prejudice as a result of the state’s error. For the foregoing reasons, Appellant’s
conviction and sentence are affirmed.
FACTS AND PROCEDURAL HISTORY
{¶3} On June 4, 2020, Appellant was indicted for two counts of drug trafficking
and four counts of possession of drugs. Each of the counts was predicated upon a
fentanyl-related compound on the following days and in the following amounts:
1. March 6, 2020 – trafficking in drugs in an amount equal to or exceeding
fifty grams but less than 100 grams, in violation of R.C. 2925.03(A)(2),
(C)(9)(g), a felony of the first degree;
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2. March 6, 2020 – possession of drugs in an amount equal to or exceeding
fifty grams but less than 100 grams, in violation of R.C. 2925.11(A),
(C)(11)(f), a felony of the first degree;
3. November 22, 2019 – possession of drugs in an amount equal to or
exceeding ten grams but less than twenty grams, in violation of R.C.
2925.11(A), (C)(11)(d), a felony of the second degree;
4. November 22, 2019 – trafficking in drugs in an amount equal to or
exceeding ten grams but less than twenty grams, in violation of R.C.
2925.03(A)(2), (C)(9)(e), a felony of the second degree;
5. October 19, 2019 – trafficking in drugs in an amount equal to or
exceeding one gram but less than five grams, in violation of R.C.
2925.03(A)(1), (C)(9)(c), a felony of the fourth degree; and
6. October 29, 2019 – trafficking in drugs in an amount equal to or
exceeding one gram but less than five grams, in violation of R.C.
2925.03(A)(1), (C)(9)(c), a felony of the fourth degree.
{¶4} According to the pre-sentence report, the police investigation that ultimately
led to Appellant’s conviction commenced on October 21, 2019 and October 27, 2019,
with two controlled drug buys of heroin in the amount of $300.00 each by a confidential
informant. As a result of laboratory testing of the drugs purchased on those dates, officers
executed a search warrant at 1208B Indiana Street, Martins Ferry, Ohio, where Appellant
was detained inside the residence with another individual. The search yielded plastic
bags of an unknown white substance. The PSI contains no explanation of the original
and amended counts one and two, which are alleged to have occurred on March 6, 2020.
{¶5} On April 27, 2022, Appellant entered a guilty plea to the trafficking charge
in count one, as amended by the plea agreement. In exchange for Appellant’s guilty plea,
the state agreed to reduce the amount of drugs charged in count one, from an amount
equal to or exceeding 50 grams but less than 100 grams in violation of R.C.
2925.03(A)(2), (C)(9)(g), to an amount equal to or exceeding 25 grams but less than 50
grams in violation of R.C. 2925.03(A)(2), (C)(9)(f). Although both crimes are first-degree
Case No. 22 BE 0028
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felonies, the subsection (g) charge carries a mandatory maximum prison sentence,
whereas the amended subsection (f) charge carries a mandatory sentence ranging from
three years to eleven years. At the plea hearing, the state moved to dismiss all of the
remaining counts.
{¶6} The written plea agreement provides the negotiated agreement between
the parties and reads, in relevant part:
1) Amend count 1 to reflect a violation of 2925.03(A)(2), (C)(9)(f) which is
still a felony of the first degree. The maximum penalty is still 11 years
and there is still a mandatory prison sentence. However, because of the
amendment, the charge does not carry a mandatory maximum
sentence.
2) Dismiss Counts II, III, IV, V, and VI.
3) Parties can make any argument for any sentence, including the
maximum sentence, that they believe to be appropriate. The State can
argue that the dismissal of charges should be considered a reason for a
higher sentence.
(4/27/22 Plea Agreement, p. 5.)
{¶7} The record clearly reflects that Appellant entered his plea to the amended
charge based on the trial court’s discretion in sentencing on the subsection (f) crime:
THE DEFENDANT: So [I am] saying he about [sic] to give me 11, you say?
MR. LIPPERT: No. [We are] arguing sentencing in a couple of weeks.
THE DEFENDANT: What [I am] saying, right now at this point, what – you
know, he [cannot] give me no choice but 11 years [you are] saying.
MR. LIPPERT: No. He can give you anywhere from 3 to 11.
THE DEFENDANT: Okay. All right. I understand. [That is] what we talked
about. I thought you said he had to give me 11.
Case No. 22 BE 0028
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(4/27/22 Plea Hrg., p. 4.)
{¶8} At the sentencing hearing on May 16, 2022, the state advanced the
following argument in favor of the imposition of the maximum sentence:
First of all, if the Court takes note of the Defendant’s criminal history,
including prior drug offenses; No. 2, the Court cannot loose [sic] sight of the
fact that the defendant was trafficking in fentanyl. Despite the fact that we
see or watch [television] and we find all these overdoses, “over” is actually
misleading to some extent, because most of the overdose findings that we
have had is because of the drug being mixed with fentanyl.
Furthermore, the defendant – his quantity of fentanyl required an 11-year
sentence; however, in order to facilitate a Plea Agreement, the State of Ohio
and the Defendant agreed that the weight would be under the necessary
level for a major drug offender specification. Nonetheless, the State has
reserved the right in the sentence – or excuse me, in the Plea Agreement
form, to argue not only relative to the dismissal of the other charges, but
also to argue for the weight that the Defendant had. Again, that weight was
a major quantity.
And finally, it cannot be lost on the fact – or lost on this Court that the
Defendant absconded while under this Court’s jurisdiction, even under a
bond, in 2020, and was just recently cap – recaptured, excuse me.
(5/16/22 Sentencing Hrg., p. 2-3.)
{¶9} Defense counsel argued in favor of the minimum sentence of three years.
He reasoned that Appellant would be close to the age of sixty upon his release. Defense
counsel further asserted that Appellant’s advanced age (56) and his absence from the
drug trade for three years would render him an unlikely candidate to resume the sale of
drugs after his release from prison. During his allocution, Appellant requested leniency
due to the fact that roughly fifteen years had elapsed since his last drug conviction.
{¶10} The trial court imposed the maximum sentence for a first-degree felony,
Case No. 22 BE 0028
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eleven to sixteen-and-a-half years. The trial court predicated the sentence on the
following findings pursuant to R.C. 2929.12(B) and (D) in the judgment of conviction:
(1) The Defendant has a history of criminal adult convictions, including two
(2) counts of Drunk & Disorderly; failure to Disclose Personal
Information; Battery of a Police Officer; two (2) counts OVI; Driving While
License Revoked; Possession of Marijuana; two (2) Resisting Arrest; six
(6) counts Disorderly Conduct; Robbery; Having Weapons While on
Disability; Felonious Assault; Possession of Drugs with Firearm
Specification; Fleeing; Preparation of Drugs for Sale; Possession of
Drugs; Assault w/ Police Officer Spec.; Drug Abuse; Failure to Comply
with Order, Signal of Police Officer; Carrying a Concealed Weapon;
Attempt Drug Abuse;
(2) Defendant has not responded to sanctions previously imposed; and
(3) Defendant has demonstrated a pattern of criminal activity without a
“good faith” attempt at treatment or change of lifestyles, as evidence by
a history of unsuccessful participation in multiple diversion programs in
multiple jurisdictional courts and his criminal conviction record.
(Emphasis in original)(5/17/22 J.E., p. 2.)
{¶11} This timely appeal followed. The assignments of error are grouped together
and taken out of order for clarity of analysis.
ASSIGNMENT OF ERROR NO. 1
APPELLANT’S GUILTY PLEA WAS NOT KNOWINGLY, VOLUNTARILY,
AND INTELLIGENTLY MADE, BECAUSE APPELLANT WAS
ERRONEOUSLY INFORMED THAT COUNT ONE OF THE ORIGINAL
INDICTMENT, A VIOLATION OF R.C. 2925.03(A)(2), (C)(9)(G), CARRIED
A MANDATORY MAXIMUM SENTENCE, PRIOR TO APPELLANT
ENTERING HIS GUILTY PLEA THE AMOUNT OF THE CONTROLLED
SUBSTANCE WITH WHICH APPELLANT WAS CHARGED IN THE
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ORIGINAL INDICTMENT WOULD HAVE CARRIED A MANDATORY
MAXIMUM SENTENCE WHEN IT DID NOT, IN VIOLATION OF
APPELLANT’S RIGHT TO DUE PROCESS UNDER THE FIFTH AND
FOURTEENTH AMENDEMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.
ASSIGNMENT OF ERROR NO. 2
THE FAILURE OF APPELLANT’S TRIAL COUNSEL TO INFORM
APPELLANT THAT COUNT ONE OF THE ORIGINAL INDICTMENT, A
VIOLATION OF R.C. 2925.03(A)(2), (C)(9)(G), DID NOT CARRY A
MANDATORY MAXIMUM SENTENCE, PRIOR TO APPELLANT
ENTERING HIS GUILTY PLEA, CONSTITUTED INEFFECTIVE
ASSISTANCE OF COUNSEL, IN VIOLATION OF APPELLANT’S RIGHT
TO COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION
10 OF THE OHIO CONSTITUTION.
ASSIGNMENT OF ERROR NO. 4
APPELLANT’S SENTENCE WAS CONTRARY TO LAW BECAUSE THE
TRIAL COURT IMPROPERLY CONSIDERED THE STATE’S
ERRONEOUS STATEMENT OF LAW INDICATING THAT THE AMOUNT
OF THE CONTROLLED SUBSTANCE WITH WHICH APPELLANT WAS
CHARGED, IN THE ORIGINAL INDICTMENT, WOULD HAVE CARRIED
A MANDATORY MAXIMUM SENTENCE.
{¶12} Appellant’s first, second, and fourth assignments of error are predicated
upon an argument of law, that is, a conviction under R.C. 2925.03(A)(2), (C)(9)(g) does
not require the imposition of a mandatory sentence of eleven to sixteen-and-a-half years.
Appellant’s argument is based upon his interpretation of R.C. 2929.14, captioned “Prison
terms.” Subsection (B)(2)(b) reads in its entirety:
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The court shall impose on an offender the longest prison term authorized or
required for the offense or, for offenses for which division (A)(1)(a) or (2)(a)
of this section applies, the longest minimum prison term authorized or
required for the offense, and shall impose on the offender an additional
definite prison term of one, two, three, four, five, six, seven, eight, nine, or
ten years if all of the following criteria are met:
(i) The offender is convicted of or pleads guilty to a specification of the type
described in section 2941.149 of the Revised Code that the offender is a
repeat violent offender.
(ii) The offender within the preceding twenty years has been convicted of or
pleaded guilty to three or more offenses described in division (CC)(1) of
section 2929.01 of the Revised Code, including all offenses described in
that division of which the offender is convicted or to which the offender
pleads guilty in the current prosecution and all offenses described in that
division of which the offender previously has been convicted or to which the
offender previously pleaded guilty, whether prosecuted together or
separately.
(iii) The offense or offenses of which the offender currently is convicted or
to which the offender currently pleads guilty is aggravated murder and the
court does not impose a sentence of death or life imprisonment without
parole, murder, terrorism and the court does not impose a sentence of life
imprisonment without parole, any felony of the first degree that is an offense
of violence and the court does not impose a sentence of life imprisonment
without parole, or any felony of the second degree that is an offense of
violence and the trier of fact finds that the offense involved an attempt to
cause or a threat to cause serious physical harm to a person or resulted in
serious physical harm to a person.
Appellant argues that neither the original charge nor the amended charge in count one
meets the foregoing criteria.
Case No. 22 BE 0028
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{¶13} However, R.C. 2925.03, captioned “Trafficking offenses,” reads in relevant
part:
(C) Whoever violates division (A) of this section is guilty of one of the
following:
***
(9) If the drug involved in the violation is a fentanyl-related compound or a
compound, mixture, preparation, or substance containing a fentanyl-related
compound and division (C)(10)(a) of this section does not apply to the drug
involved, whoever violates division (A) of this section is guilty of trafficking
in a fentanyl-related compound. The penalty for the offense shall be
determined as follows:
***
(f) If the amount of the drug involved equals or exceeds two hundred unit
doses but is less than five hundred unit doses or equals or exceeds twenty
grams but is less than fifty grams and regardless of whether the offense
was committed in the vicinity of a school, in the vicinity of a juvenile, or in
the vicinity of a substance addiction services provider or a recovering addict,
trafficking in a fentanyl-related compound is a felony of the first degree, and
the court shall impose as a mandatory prison term one of the prison terms
prescribed for a felony of the first degree.
(g) If the amount of the drug involved equals or exceeds five hundred unit
doses but is less than one thousand unit doses or equals or exceeds fifty
grams but is less than one hundred grams and regardless of whether the
offense was committed in the vicinity of a school, in the vicinity of a juvenile,
or in the vicinity of a substance addiction services provider or a recovering
addict, trafficking in a fentanyl-related compound is a felony of the first
degree, and the court shall impose as a mandatory prison term the
maximum prison term prescribed for a felony of the first degree.
Case No. 22 BE 0028
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(h) If the amount of the drug involved equals or exceeds one thousand unit
doses or equals or exceeds one hundred grams and regardless of whether
the offense was committed in the vicinity of a school, in the vicinity of a
juvenile, or in the vicinity of a substance addiction services provider or a
recovering addict, trafficking in a fentanyl-related compound is a felony of
the first degree, the offender is a major drug offender, and the court shall
impose as a mandatory prison term the maximum prison term prescribed
for a felony of the first degree.
(Emphasis added.)
{¶14} Pursuant to R.C.2929.14(A)(1)(b), “[f]or a felony of the first degree
committed prior to the effective date of this amendment, the prison term shall be a definite
prison term of three, four, five, six, seven, eight, nine, ten, or eleven years.”
{¶15} A plain reading of R.C. 2925.03(C)(9) establishes that a conviction for
trafficking fentanyl in an amount equal to or greater than 50 grams but less than 100
grams results in the imposition of a mandatory prison term of the maximum prison term
prescribed for a felony of the first degree, that is, eleven to sixteen-and-a-half years.
{¶16} Appellant was originally charged with trafficking fentanyl in an amount equal
to or greater than 50 grams but less than 100 grams. Therefore, the state did not err in
informing Appellant that a conviction under the original charge would require the
imposition of a mandatory-maximum prison term prescribed for a felony of the first
degree. As a consequence, Appellant’s first, second, and fourth assignments of error are
meritless.
ASSIGNMENT OF ERROR NO. 3
APPELLANT’S SENTENCE WAS CONTRARY TO LAW BECAUSE THE
TRIAL COURT IMPROPERLY CONSIDERED THE STATE’S
ERRONEOUS STATEMENT OF LAW INDICATING THAT THE AMOUNT
OF THE CONTROLLED SUBSTANCE WITH WHICH APPELLANT WAS
CHARGED, IN THE ORIGINAL INDICTMENT, CARRIED A MAJOR
DRUG OFFENDER SPECIFICATION UPON CONVICTION.
Case No. 22 BE 0028
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{¶17} “[A]n appellate court may vacate or modify a felony sentence on appeal only
if it determines by clear and convincing evidence that the record does not support the trial
court's findings under relevant statutes or that the sentence is otherwise contrary to law.”
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.
{¶18} The state advanced the following argument based on the original charge in
count one at the sentencing hearing:
Furthermore, the defendant – his quantity of fentanyl required an 11-year
sentence; however, in order to facilitate a Plea Agreement, the State of Ohio
and the Defendant agreed that the weight would be under the necessary
level for a major drug offender specification. Nonetheless, the State has
reserved the right in the sentence – or excuse me, in the Plea Agreement
form, to argue not only relative to the dismissal of the other charges, but
also to argue for the weight that the Defendant had. Again, that weight was
a major quantity.
{¶19} R.C. 2925.03(C)(2)(h), reads, in its entirety:
If the amount of the drug involved equals or exceeds one thousand unit
doses or equals or exceeds one hundred grams and regardless of whether
the offense was committed in the vicinity of a school, in the vicinity of a
juvenile, or in the vicinity of a substance addiction services provider or a
recovering addict, trafficking in a fentanyl-related compound is a felony of
the first degree, the offender is a major drug offender, and the court shall
impose as a mandatory prison term the maximum prison term prescribed
for a felony of the first degree.
(Emphasis added.)
{¶20} “It is well established that sentencing courts may consider arrests and even
prior allegations that did not result in conviction before imposing sentence.” State v. Craig,
7th Dist. Belmont No. 18 BE 0001, 2019-Ohio-1092, ¶ 9, citing State v. Martin, 7th Dist.
Mahoning No. 16 MA 0160, 2018-Ohio-862, ¶ 7; State v. Hutton, 53 Ohio St.3d 36, 43,
559 N.E.2d 432 (1990). However, the state mischaracterized the original charge in count
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one, which alleged trafficking in fentanyl in an amount equal to or exceeding 50 grams
but less than 100 grams. Therefore, even if Appellant was convicted of the original charge
in count one, the major drug offender specification would not apply. Further, if Appellant
was convicted on every count in the Indictment, it is not clear from the record whether the
major drug offender specification would apply.
{¶21} On appeal, the state concedes its error at the sentencing hearing, but
correctly argues that Appellant suffered no prejudice based on the trial court’s stated
rationale for imposing the maximum sentence in the judgment of conviction. The trial
court cited Appellant’s lengthy criminal history, his failure to respond to previously-
imposed sanctions, and his unsuccessful participation in countless diversion programs,
but made no mention of his criminal activity in this particular case.
{¶22} Insofar as there is no evidence in the record that the trial court predicated
the maximum sentence imposed in this case on the state’s error at the sentencing
hearing, we find that Appellant’s third assignment of error has no merit.
CONCLUSION
{¶23} In summary, we find that the state did not err during plea negotiations when
it represented that the original charge in count one carried a mandatory-maximum
sentence upon conviction. We further find that the state’s error at the sentencing hearing
regarding the applicability of the major drug offender specification to the original charge
in count one did not prejudice Appellant as the trial court relied on other factors in
imposing the maximum sentence. Accordingly, Appellant’s conviction and sentence are
affirmed.
Robb, J., concurs.
Hanni, J., concurs.
Case No. 22 BE 0028
[Cite as State v. Dalton, 2023-Ohio-892.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.