State v. Gray , 2022 Ohio 2940 ( 2022 )

[Cite as State v. Gray, 2022-Ohio-2940.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
State of Ohio, : Case No. 21CA6
:
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
Irwin A. Gray, :
: RELEASED: 08/19/2022
Defendant-Appellant. :
APPEARANCES:
Eric J. Allen, Columbus, Ohio, Attorney for Appellant.
Nicole T. Coil, Prosecuting Attorney for Washington County Ohio, for Appellee.
Wilkin, J.
{¶1} Appellant, Irwin A. Gray (“Gray”), appeals the Washington County
Court of Common Pleas judgment entry that imposed an agreed sentence of a
minimum of nine years to a maximum of ten and one-half years in prison. Gray
asserts that his trial counsel was ineffective in negotiating the plea, and more
specifically the agreed sentence. After reviewing the parties’ arguments, the
record, and the applicable law, we overrule Gray’s assignment of error and affirm
the trial court’s sentencing entry.
BACKGROUND
{¶2} On July 22, 2020, the state indicted Gray on five criminal counts
including in pertinent part: (1) aggravated trafficking in drugs in violation of R.C.
2925.03(A)(2) and R.C. 2925.03(C)(1)(f), a first degree felony, with a major drug
offender specification under R.C. 2941.1410(A), a one-year firearm specification
Washington App. No. 21CA6 2
under R.C. 2941.141(A), and a three-year firearm specification under R.C.
2941.145(A); (2) trafficking in a fentanyl-related compound in violation of R.C.
2925.03(A)(2) and 2925.03(C)(9)(f), a first degree felony; (3) possession of a
fentanyl-related compound in violation of R.C. 2925.11(A) and 2925.11(C)(11)(e),
a first degree felony; (4) aggravated possession of drugs in violation of R.C.
2925.11(A) and 2925.11(C)(1)(e), a first degree felony; and (5) having weapons
while under disability in violation of R.C. 2923.13(A)(1) and (B), a third degree
felony, with a specification for forfeiture of a weapon under R.C. 2941.1417(A).
Gray pleaded not guilty to all charges.
{¶3} On March 5, 2020, at Gray’s final pretrial, the state communicated to
the court that it had offered Gray a plea that would include a nine-year prison
sentence for the case herein that would be served concurrent to another
Guernsey County case and that no charges would be pursued in a West Virginia
case. The state touted that it was a favorable sentence for a major drug
offender.
{¶4} Counsel for the defendant claimed that such a plea could actually
have a maximum sentence of 13 ½ years because of the Reagan Tokes Law.
Gray refused the state’s offer.
{¶5} Nevertheless, the state clarified that the plea offer to Gray would be
to “structure a deal so there’d only be a year-and-a-half added on Reagan
Tokes[.]” The state explained such a deal was possible because “if you did an
F1 and then two other charges, and you had three, three, and three, ran them
Washington App. No. 21CA6 3
consecutive to each other, and then the only F1, it would make it a year-and-a-
half on top of it[.]”
{¶6} On March 26, 2021, the court held a change-of-plea hearing. During
the hearing, the court discussed the maximum possible penalties for aggravated
trafficking, the firearm specification, and having a weapon under a disability, but
further explained: “that’s not what’s going to happen[.]” Gray pleaded guilty to
aggravated trafficking which was enhanced by a three-year firearm specification,
and having a weapon under a disability. In return, the state dismissed the
remaining charges.
{¶7} On April 28, 2021, the court held a sentencing hearing. The court
imposed a minimum three-year to maximum of four- and one-half-year prison
term for aggravated trafficking in drugs with a three-year sentence enhancement
for the firearm specification, and a three-year sentence for having a weapon
while under a disability. All three sentences are to be served consecutively.
Therefore, the court imposed a minimum of nine to a maximum of ten and one-
half years in prison, consistent with the sentence structure described by the state
during the March 5th hearing and the parties’ agreed sentence.
{¶8} It is this sentencing entry that Gray appeals.
ASSIGNMENT OF ERROR
TRIAL COUNSEL WAS INEFFECTIVE PURSUANT TO THE TENENTS
OF STRICKLAND V. WASHNGTON, 466 U.S. 668 AND ITS PROGENY,
AS WELL AS THE FIFTH AND SIXTH AMENDMENTS TO THE
FEDERAL CONSTITUTION FOR ENTERING INTO A JOINT
AGREEMENT WHERE TWO OF THE CONVICTIONS WOULD NOT
MERGE UNDER R.C. 2941.25
Washington App. No. 21CA6 4
{¶9} Gray maintains that his counsel was ineffective for failing to argue
that his sentence for the three-year firearm specification and his sentence for
having a weapon under a disability should have merged under R.C. 2941.25.
Gray claims his counsel should have relied on State v. Williamson, 6th Dist.
Wood Nos. WD-20-023, WD-20-024, 2020-Ohio-5369 and presented an
argument for merger.
{¶10} In response, the state argues that Gray waived his right to appeal
his sentence because the parties reached an agreed sentence. The state
maintains that R.C. 2953.08(D)(1) precludes an appeal of an agreed sentence if
it is “authorized by law.” The state quoting State v. Porterfield, 106 Ohio St.3d 5,
2005-Ohio-3095, 829 N.E.2d 690 at ¶ 25, reiterates: “Once a defendant
stipulates that a particular sentence is justified, the sentencing judge no longer
needs to independently justify the sentence.” Relying on Porterfield, the state
maintains that because Gray agreed to the sentence herein, which was
structured in his favor regarding the Reagan Tokes law, it was an agreed
sentence authorized under the law, and therefore not subject to appeal under
R.C. 2953.08(D)(1).
{¶11} The state also argues that Gray’s counsel should not be found to be
ineffective for negotiating a sentence that is favorable regarding the Reagan
Tokes law. The state maintains that Gray’s counsel’s actions in negotiating
Gray’s sentence was neither deficient nor did it cause Gray prejudice, two
requirements necessary to find ineffective assistance of counsel.
Washington App. No. 21CA6 5
A. Standard of Review
{¶12} “To establish constitutionally ineffective assistance of counsel, a
defendant must show (1) that his counsel’s performance was deficient and (2)
that the deficient performance prejudiced the defense and deprived him of a fair
trial.” State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 15,
citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d
865, ¶ 85. “Failure to establish either element is fatal to the claim.” State v.
Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14.
{¶13} “ ‘In order to show deficient performance, the defendant must prove
that counsel’s performance fell below an objective level of reasonable
representation.’ ” State v. Adams, 2016-Ohio-7772, 84 N.E.3d 155 ¶ 89 (4th
Dist.), quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848
N.E.2d 810, ¶ 95. When considering counsel’s performance, “ ‘a court must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.’ ” State v. Walters, 4th Dist. Washington
Nos. 13CA33, 13CA36, 2014-Ohio-4966, ¶ 23, quoting Strickland, 466 U.S. at
689. “Thus, ‘the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.’
” State v. Jarrell, 2017-Ohio-520, 85 N.E.3d 175, ¶ 49 (4th Dist.), quoting
Strickland, 466 U.S. at 689.
{¶14} “ ‘To show prejudice, the defendant must show a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have
Washington App. No. 21CA6 6
been different.’ ” Adams at ¶ 89, quoting Conway, 109 Ohio St.3d 412, at ¶ 95.
“A plea of guilty constitutes a complete admission of guilt * * * and waives the
right to claim that the accused was prejudiced by constitutionally ineffective
counsel, except to the extent the defects complained of caused the plea to be
less than knowing and voluntary.” State v. McCann, 4th Dist. Lawrence No.
10CA12, 2011-Ohio-3339, ¶ 18, citing State v. Floyd, 4th Dist. No.
92CA2102, 2011-Ohio-3339, citing State v. Barnett, 73 Ohio App.3d 244, 248–
249, 596 N.E.2d 1101 (2d Dist.1991).
B. Analysis
{¶15} Gray’s argument mixes two different legal concepts, merger of allied
offenses under R.C. 2941.25, and the application of R.C. 2929.14(B)(1)(e) as
found in Williamson. For purposes of simplicity, we will address each
individually.
1. R.C. 2941.25
{¶16} R.C. 2941.25 provides that allied offenses of similar import must
merge for purposes of sentencing. See State v. Ruff, 143 Ohio St.3d 114, 2015-
Ohio-995, 34 N.E.3d 892. However, the Supreme Court has also recognized that
a firearm specification, like in R.C. 2941.145(D), “is merely a sentence
enhancement, not a separate criminal offense.” State v. Ford, 128 Ohio St. 3d
398, 2011-Ohio-765, 945 N.E.2d 498, ¶ 17. Consequently, because “R.C.
2941.25 requires the merger of two or more allied offenses of similar import,” it
does not operate to merge a sentence enhancement for a firearm specification
with any underlying felony offense. Id. Therefore, Gray’s argument that his
Washington App. No. 21CA6 7
three-year sentence for the gun specification should have merged with one of his
underlying felony sentences lacks merit because a sentence enhancement is not
a criminal offense.
2. R.C. 2929.14(B)(1)(e)
{¶17} Gray also maintains that his trial counsel should have relied on
Williamson and “created an argument for merger.” However, as we noted infra,
Williamson addresses R.C. 2929.14(B)(1)(e), not merger.
{¶18} Pursuant to a bench trial, the court in Williamson found the
defendant guilty of multiple felonies and in pertinent part sentenced him to 18
months for having a weapon under a disability, which was enhanced with a one-
year sentence for a firearm specification. State v. Williamson, 6th Dist. Wood
Nos. WD-18-049, WD-18-051, 2019-Ohio-4380, ¶ 40 (Williamson I). The court of
appeals vacated appellant’s sentence and remanded the case for re-sentencing.
Williamson I at ¶ 72.
{¶19} On remand the trial court again sentenced appellant for having a
weapon while under a disability with a one-year sentence enhancement for a
firearm specification. State v. Williamson, 6th Dist. Wood Nos. WD-20-023, WD-
20-024, 2020-Ohio-5369, ¶ 2 (Williamson II). On appeal, the appellant asserted:
“The trial court erred as a matter of law by sentencing appellant to a firearm
specification attendant to a weapons under a disability charge.” Williamson II at
¶ 2. More specifically he claimed that the trial court erred by imposing “a one-
year prison term for a firearm specification attendant to the one count of having
weapons-under-disability” because “the factors under R.C. 2929.14(B)(1)(e)(i)
Washington App. No. 21CA6 8
and (ii) do not apply to appellant[.]” Id. The court of appeals agreed that the trial
court erred in this regard, but held the error was harmless because the trial court
ordered the sentences to be served concurrently. Id. However, our case is
distinguishable from Williamson II for the reasons discussed below.
{¶20} To more fully understand what types of offenses are, as well as
those that are not, subject to sentence enhancement by a firearm specification,
we look to R.C. 2929.14(B)(1)(e), which states:
The court shall not impose any of the prison terms described in
division (B)(1)(a) of this section [for using a firearm specification
during a criminal offense] * * * upon an offender for a violation of
section 2923.12 [carrying concealed weapons] or 2923.123
[conveying or possessing a deadly weapon in a courthouse] of the
Revised Code. The court shall not impose any of the prison terms
described in division (B)(1)(a) or (b) of this section upon an
offender for a violation of section 2923.122 [conveying or
possessing a deadly weapon in a school safety zone] that involves
a deadly weapon that is a firearm other than a dangerous
ordnance, section 2923.16 [improperly handling a firearm in a
motor vehicle], or section 2923.121 of the Revised Code
[possessing a firearm in a liquor permit premises]. The court shall
not impose any of the prison terms described in division (B)(1)(a)
of this section or any of the additional prison terms described in
division (B)(1)(c) of this section upon an offender for a violation of
section 2923.13 [having a weapon under a disability] of the
Revised Code unless all of the following apply:
(i) The offender previously has been convicted of aggravated
murder, murder, or any felony of the first or second degree.
(ii) Less than five years have passed since the offender was
released from prison or post-release control, whichever is later,
for the prior offense.
{¶21} “ ‘The object of judicial investigation in the construction of a
statute is to ascertain and give effect to the intent of the law-making body which
enacted it.’ ” State v. Hairston, 101 Ohio St. 3d 308, 2004-Ohio-969, 804 N.E.2d
471, ¶ 11, quoting Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902),
Washington App. No. 21CA6 9
paragraph one of the syllabus. “A court that is ascertaining the meaning of
a statute first must ‘consider the “plain meaning of the statutory language.” ’
” State v. Simmons, 2018-Ohio-2018, 112 N.E.3d 327, ¶ 28 (4th Dist.), quoting
State v. D.B., 150 Ohio St.3d 452, 2017-Ohio-6952, 82 N.E.3d 1162, ¶ 10,
quoting Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-
954, 846 N.E.2d 478, ¶ 52.
{¶22} Courts have found that R.C. 2929.14(B)(1)(e) reflects that “the
legislature expressly excluded certain firearm offenses from enhancement via
specification.” (Emphasis added.) State v. Santos, 2d Dist. Montgomery No.
28445, 2020-Ohio-1043, ¶ 41, see also State v. Ellis, 6th Dist. Wood Nos. WD-
17-035, WD-17-036, 2019-Ohio-427, ¶ 13-14, State v. Wright, 10th Dist. Franklin
No. 09AP-207, 2009-Ohio-6773, discretionary appeal not allowed, 125 Ohio
St.3d 1415, 2010-Ohio-1893, 925 N.E.2d 1003. More specifically, the offenses
of “carrying concealed weapons, illegal conveyance of deadly weapon or
dangerous ordnance into courthouse, improperly handling firearms in a motor
vehicle, illegal possession of firearm in a liquor permit premises — are not
enhanceable [by a sentence from a firearm specification].” (Emphasis added.)
State v. Jones, 8th Dist. Cuyahoga No. 108050, 2019-Ohio-5237, ¶ 54.
{¶23} R.C. 2929.14(B)(1)(e) additionally provides that the offense of
having a weapon while under a disability is not enhanceable with a sentence
from a firearm specification “unless the offender previously has been convicted of
aggravated murder, murder, or any first or second degree felony, and less than
five years have passed since the offender was released from prison or post-
Washington App. No. 21CA6 10
release control, whichever is later, for the prior offense.” Ellis, 6th Dist. Wood
Nos. WD-17-035, WD-17-036, 2019-Ohio-427, ¶ 14, State v. Stewart, 10th Dist.
Franklin No. 18AP-496, 2020-Ohio-1245, ¶ 6.
{¶24} Sentencing enhancement prohibitions are limited to only the
offenses enumerated in the statute. In other words, only the firearm offenses
expressly enumerated in R.C. 2929.14(B)(1)(e) are prohibited from being
enhanced by a sentence from a firearm specification, or in the case of the
offense of having a weapon while under a disability, must comply with R.C.
2929.14(B)(1)(e)(i) and (ii) to be subject to enhancement. See e.g. Santos, 2d
Dist. Montgomery No. 28445, 2020-Ohio-1043, ¶ 41-42 (While “the legislature
expressly excluded certain firearm offenses from enhancement via specification
[under] R.C. 2929.14(B)(1)(e)[,] * * * [it] does not similarly exempt tampering with
evidence from such enhancement.”), Jones, 8th Dist. Cuyahoga No. 108050,
2019-Ohio-5237, ¶ 54 (“Without an express prohibition by [R.C.
2929.14(B)(1)(e)], [appellant] can be sentenced on both the tampering count and
the accompanying one-year gun specification.”), State v. Elersic, 11th Dist. Lake
No. 2000-L-145, 2002-Ohio-2945, ¶ 43, 50 (Addressing former R.C.
2929.14(D)(1)(e), now R.C. 2929.14(B)(1)(e), the court of appeals determined
that provision “disallows enhancements” with regard to offenses of carrying a
concealed weapon, illegal conveyance of a deadly weapon or dangerous
ordnance in a courthouse, and having a weapon while under disability. However,
R.C. 2929.14(D)(1)(e) did not mention appellant’s offense receiving stolen
property. Therefore, the court concluded had the General Assembly intended to
Washington App. No. 21CA6 11
exclude receiving stolen property from R.C. 2929.14(D)(1)(e), it would have
expressly done so.).
{¶25} In the instant case, the state charged Gray in pertinent part with: (1)
aggravated trafficking in drugs with two sentence-enhancing firearm
specifications (R.C. 2941.141 and R.C. 2929.145) and (2) having a weapon while
under a disability with a firearm forfeiture specification. Gray ultimately pleaded
guilty to (1) aggravated trafficking in drugs with a three-year sentence-
enhancement for facilitating the trafficking offense by using a firearm under R.C.
2941.145, and (2) having a weapon while under a disability with the firearm
forfeiture specification. Because it was Gray’s aggravated trafficking offense that
was enhanced with the three-year firearm specification for his use of a firearm to
facilitate that offense, not the weapon-under-a-disability charge, R.C.
2929.14(B)(1)(e) did not apply to preclude the sentence enhancement.
{¶26} Even assuming for argument sake that the firearm specification had
enhanced Gray’s sentence for having a weapon while under a disability charge, it
appears from the record that Gray was previously convicted of a felony of the
second degree and was released from that offense less than five years prior to
this offense. Under those particular facts, the three-year firearm enhancement of
Gray’s sentence for having a weapon under a disability would have been
permissible under R.C. 2929.14(B)(1)(e).
{¶27} Consequently, we find that Gray’s trial counsel’s failure to argue
merger, or to rely on Williamson to argue his three-year sentence for the firearm
specification was not authorized by law under R.C. 2929.14(B)(1)(e), was not
Washington App. No. 21CA6 12
deficient representation. Rather, counsel negotiated an agreed minimum
sentence of nine to a maximum of ten and one-half years in prison authorized by
law, which was significantly less than the sentence he could have received had
he gone to trial and been found guilty. Because we find no evidence that
counsel’s representation of Gray was deficient, or that his conduct caused Gray
prejudice, we overrule Gray’s assignment of error.
CONCLUSION
{¶28} Having overruled Gray’s sole assignment of error, we affirm the trial
court’s sentencing entry.
JUDGMENT AFFIRMED.
Washington App. No. 21CA6 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay
the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Washington 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 60 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 60-day period, or the failure of the Appellant to
file a notice of appeal with the Supreme Court of Ohio in the 45-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 60 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. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, 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.