State v. Gomez
| Decision Date | 05 December 2017 |
| Docket Number | No. 16AP–560,16AP–560 |
| Citation | 2017 Ohio 8832,100 N.E.3d 1038 |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Julio H. GOMEZ, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
On brief: Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, Columbus, for appellee. Argued: Barbara A. Farnbacher, Columbus.
On brief: Yeura R. Venters, Public Defender, and John W. Keeling, Columbus, for appellant. Argued: John W. Keeling, Columbus.
DECISION
{¶ 1} This is an appeal by defendant-appellant, Julio H. Gomez, from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following his entry of a guilty plea to nine counts of trafficking in heroin and one count of engaging in a pattern of corrupt activity.
{¶ 2} On August 14, 2015, appellant was indicted on one count of engaging in a pattern of corrupt activity, in violation of R.C. 2923.32 (), seven counts of trafficking in heroin, in violation of R.C. 2925.03 (), one count of trafficking in heroin, in violation of R.C. 2925.03 (), and one count of trafficking in heroin, in violation of R.C. 2925.03 (). The indictment also named four co-defendants.
{¶ 3} On May 16, 2016, appellant appeared before the trial court and entered a plea of guilty to all ten counts of the indictment. During the plea proceedings, the prosecutor gave the following recitation of the facts, beginning with Count 2 of the indictment. According to the prosecutor, the events giving rise to Count 2 occurred on June 30, 2015, after detectives with the Columbus Police Department identified "the group that was indicted in this case involving [appellant] and his co-defendants." On that date, co-defendant Manuel Montero, characterized by the prosecutor as a "runner" dispatched by appellant, "sold over 50 grams of heroin to * * * Richard Adams." Adams was detained by detectives "and found in possession of the heroin." (May 16, 2016 Tr. at 9.)
{¶ 4} The group remained under surveillance, and the events giving rise to Count 3 occurred "[t]wenty-one days later," when detectives "observed a similar narcotics trafficking incident with Joseph Martini," whereby "Martini would call [appellant] and Montero did the sale [for] over 250 grams of heroin." (May 16, 2016 Tr. at 9, 10.) With respect to Count 4, the prosecutor related that "Martini became an informant after his first arrest and made a controlled purchase from the same two individuals for over 50 grams of heroin on July 28, 2015." Count 5 involved "an additional sale to the informant of greater than 50 grams of heroin." (May 16, 2016 Tr. at 10.)
{¶ 5} The conduct giving rise to Counts 6, 7, 8, 9, and 10 of the indictment occurred on August 5, 2015, as "[s]earch warrants were executed at about six or seven locations identified as either the places in which the defendants were sleeping, where they were obtaining the drugs, cutting up the drugs or storing the drugs and money." Specifically, Count 6 involved "one of the locations [that] had numerous kilos of heroin that was used as a storage location by this group." With respect to Count 7, heroin was discovered in "the co-defendant's car with him" (i.e., specifically, co-defendant Omar Sanchez). (May 16, 2016 Tr. at 10.)
{¶ 6} The prosecutor represented that Count 8 was for "another of the locations and that was greater than 50 grams of heroin." (May 16, 2016 Tr. at 10.) Count 9 involved the discovery of heroin at "another storage location, greater than 250 grams." Finally, Count 10 involved the recovery of "greater than ten grams" of heroin at the home of co-defendant Sanchez. (May 16, 2016 Tr. at 11.)
{¶ 7} Regarding the facts giving rise to Count 1, the prosecutor related that appellant "would take calls from customers and dispatch Montero to facilitate the trafficking in heroin for this group on more than two occasions for the RICO offense." The prosecutor further related that the heroin "was being sold for about 900 to $1,100 an ounce," and that "each of these transactions was for about $9,000 or so." (May 16, 2016 Tr. at 11.)
{¶ 8} Following the recitation of facts, the trial court engaged in a colloquy with appellant regarding his plea. The trial court accepted appellant's guilty plea, ordered a presentence investigation report and scheduled a sentencing hearing date.
{¶ 9} The trial court conducted a sentencing hearing on June 23, 2016. During the hearing, the trial court noted that, at the time of the May 16, 2016 plea hearing, "the Court incorrectly advised the defendant regarding the maximum possible sentence in this case." (June 23, 2016 Tr. at 2.) Specifically, the court noted:
The flaw was related to Count Seven where it was originally pled as an F–1, requiring—or having the maximum of 11 years of mandatory prison time. However, Count Seven is actually an F–3 and on the previous guilty plea it was listed as both. And on the previous guilty plea * * * the Court previously advised Mr. Gomez that his maximum prison sentence that was possible was 110 years when in actuality, the maximum prison sentence that's possible for Mr. Gomez is less than 110 years and is actually 99 years.
{¶ 10} The trial court inquired of appellant whether he understood, and appellant responded affirmatively. Defense counsel represented to the court that he had explained this development to appellant "outside of the courtroom." Defense counsel further stated on the record: "We would waive any defect in the plea, proceed on the plea as originally entered, but with this amendment obviously to his benefit." (June 23, 2016 Tr. at 4.)
{¶ 11} The prosecutor, "out of [an] abundance of caution," noted that the trial court, at the time of the plea, "indicated there were no promises as to sentencing," and that defense counsel "had indicated an approximate range" of sentence "pursuant to off-the-record discussions." (June 23, 2016 Tr. at 5–6.) The prosecutor further noted that, based on subsequent events, "the Court has become aware more fully of the facts of this case, as well as the existence of a previously unknown significant record." The prosecutor then represented to the court: "In case the defendant is not sentenced in the range that was indicated by [defense counsel], we want you to make sure that the defendant has the opportunity, if he wishes, to withdraw his guilty plea." (June 23, 2016 Tr. at 6.)
{¶ 12} In response, defense counsel stated: "I have told my client today that because of the facts that came out during the presentence report and specifically this arrest and deportation that the Court wasn't aware of, that may not be the range." Defense counsel also represented that he told his client "he would be able to withdraw his plea, but that * * * plea negotiations would probably stop and this will be set for trial and go that route." (June 23, 2016 Tr. at 7.) Defense counsel stated that his client wanted to proceed "with the sentencing today with this amendment." (June 23, 2016 Tr. at 8.) The trial court then inquired of appellant whether he wished to proceed with sentencing, and appellant responded affirmatively.
{¶ 13} By decision and entry filed August 23, 2016, the trial court sentenced appellant to an aggregate term of 22 years imprisonment. The court's entry also indicated that appellant was subject to a mandatory five-year term of post-release control.
{¶ 14} On appeal, appellant sets forth the following two assignments of error for this court's review:
{¶ 15} Under the first assignment of error, appellant challenges Counts 6 through 10 of the indictment as multiplicitous, arguing that the counts involved the same type of drug (i.e., heroin), found on the same date at five different locations. Appellant argues that, based on plaintiff-appellee, the State of Ohio's, recitation of the facts, police officers executed search warrants on August 5, 2015 at seven apartments and one storage locker, and heroin was found at five of the locations, constituting grounds for Counts 6 through 10 of the indictment. Appellant maintains that the above facts give rise to the legal issue of whether the state can file separate charges for simultaneous possession of the same type of drug found at different locations, or whether the state was required to aggregate the drugs into a single offense.
{¶ 16} At the outset, we note the state raises the issue of whether appellant has waived his claim that the indictment was multiplicitous by failing to raise an objection to the indictment and by entering a guilty plea to the offenses at issue. In support, the state relies on State v. Conn, 12th Dist. No. CA2014-04-059, 2015-Ohio-1766, 2015 WL 2169273, ¶ 47, in which the court held the defendant waived any claim that his 50–count indictment was defective and multiplicitous by failing to raise alleged defects in the indictment prior to entering his guilty plea. The state also cites this court's decision in State v. Fortner, 10th Dist. No. 08AP-191, 2008-Ohio-5067, 2008 WL 4416533, ¶ 10 (). The state, however, acknowledges that appellant has also raised a merger...
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