State v. Henderson

2024 Ohio 4854

Opinion

[Cite as State v. Henderson, 2024-Ohio-4854.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

DA'QWANN R'AMON HENDERSON AKA DAQUAN RAMON HENDERSON,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 23 MA 0122

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2023 CR 00190

BEFORE: Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT: Convictions Affirmed. Sentence Partially Vacated. Reversed and Remanded.

Atty. Gina DeGenova, Mahoning County Prosecutor and Atty. Edward A. Czopur, Assistant Prosecutor, for Plaintiff-Appellee

Atty. Christopher Bazeley, for Defendant-Appellant

Dated: September 18, 2024 –2–

WAITE, J.

{¶1} Appellant Da’Qwann R’amon Henderson, also known as Daquan Ramon

Henderson, appeals an October 20, 2023 judgment entry of the Mahoning County Court

of Common Pleas. On appeal, he raises a question as to the trial court’s acceptance of

his plea and several arguments pertaining to his sentence. While Appellant’s plea was

properly accepted by the trial court, Appellant’s arguments related to the court’s

imposition of a misdemeanor sentence to run consecutively to his felony sentence, and

the incomplete postrelease control notification, have merit. The judgment of the trial court

is reversed and remanded only as to these sentencing issues. His convictions are

affirmed in full. The matter is remanded to the trial court for resentencing pursuant to law

and this Court’s Opinion.

Factual and Procedural History

{¶2} Appellant’s single indictment includes four counts that stem from two

separate and unrelated incidents. The trial court case was bifurcated in the sense that

while Appellant pleaded guilty to all three counts related to one incident that occurred on

March 2, 2023, Appellant proceeded to a jury trial on the remaining count stemming from

the earlier incident, that occurred on June 18, 2022.

{¶3} The June 18, 2022 (earlier) incident involved a motor vehicle chase of

Appellant by the police. Appellant was operating a vehicle when he failed to comply with

an ordinary traffic stop and fled through residential neighborhoods at high speeds.

Appellant finally fled the vehicle itself, leaving behind four passengers – a man, a woman,

Case No. 23 MA 0122 –3–

and their two children (aged three and four), who were able to identify Appellant. Officers

failed to apprehend Appellant during this chase.

{¶4} An incident report attached to the complaint regarding the March 2, 2023

incident reflects that police attempted to initiate a traffic stop on a Mercedes Benz

automobile, however, the vehicle continued to operate for some time before finally coming

to a complete stop to allow a rear passenger, identified as Appellant, to flee the vehicle.

While pursuing Appellant on foot, one officer noticed Appellant was carrying a plastic bag

in his hand. When officers finally apprehended him, a search of his person yielded one

plastic bag containing 7.51 grams of crack cocaine and $641 in cash. Later, officers

discovered an additional plastic bag containing 1.22 grams of fentanyl on his person

during booking. The remaining occupants of the vehicle were also in possession of

contraband but were separately charged and are not relevant to the instant appeal.

{¶5} As a result of these two separate incidents, Appellant was charged in a

single indictment for the following offenses: failure to comply with a signal or order of a

police officer, a felony of the third degree in violation of R.C. 2921.331(B)(C)(5)(a)(ii) (this

for the earlier incident); possession of cocaine, a felony of the fourth degree in violation

of R.C. 2925.11(A)(C)(4)(b) with a specification for seizure of money ($641) in a drug

case, in violation of R.C. 2941.1417(A); possession of fentanyl related compound, a

felony of the fifth degree in violation of R.C. 2925.11(C)(11)(a) with a specification for

seizure of money ($641) in a drug case in violation of R.C. 2941.1417(A); and obstructing

official business, a misdemeanor of the second degree in violation of R.C. 2921.31(A)(B),

due to the second incident.

Case No. 23 MA 0122 –4–

{¶6} On August 28, 2023, Appellant pleaded guilty to all counts involved in the

later, March 2, 2023, incident. As to the charge for the earlier incident from 2022,

Appellant was afforded a trial where a jury ultimately convicted Appellant on the sole

remaining charge.

{¶7} On October 18, 2023, the trial court held a sentencing hearing. In the written

plea agreement the state was to seek a term of incarceration of thirty months (two and

one-half years) for the offenses covered in the agreement. Again, these were the charges

that resulted from Appellant’s later offense. At sentencing, however, the state sought the

maximum sentence, as by then the sentencing covered not only the offenses on which

Appellant entered his guilty plea, but also the offense on which he was convicted following

trial. The court accepted the state’s recommendation and sentenced Appellant to the

maximum sentence, which is an aggregate term of five and one-half years of

incarceration, with an additional suspended thirty-day jail term. Appellant timely appeals

from this entry.

{¶8} Because all of Appellant’s arguments are actually based on his alleged

sentencing errors, Appellant’s assignments of error are taken out of order for ease of

understanding.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT FAILED TO PROPERLY IMPOSE POST RELEASE

CONTROL (PRC).

{¶9} While Appellant concedes the court generally advised him of his

postrelease control term, he contends that it failed to notify him of two important aspects:

Case No. 23 MA 0122 –5–

that he would be supervised by the Adult Parole Authority, and that a violation could result

in more severe penalties. The state concedes error in this assignment.

{¶10} “A trial court must provide proper advice to a defendant regarding

postrelease control at the time of sentencing, including notifying the defendant of the

details of the postrelease control and the consequences of violation.” State v. Baird,

2016-Ohio-8211, ¶ 9 (7th Dist.), citing State v. Qualls, 2012-Ohio-1111, ¶ 18. Further,

the trial court “must include the postrelease control advice in the sentencing entry to

reflect the notification it gave at the sentencing hearing.” Baird at ¶ 9, citing Qualls at

¶ 19.

{¶11} The Ohio Supreme Court has held:

[T]o validly impose postrelease control when the court provides all

the required advisements at the sentencing hearing, the sentencing entry

must include:

(1) whether postrelease control is discretionary or mandatory, (2) the

duration of the postrelease-control period, and (3) a statement to the effect

that the [APA] will administer the postrelease control pursuant to R.C.

2967.28 and that any violation by the offender of the conditions of

postrelease control will subject the offender to the consequences set forth

in that statute.

State v. Bates, 2022-Ohio-475, ¶ 12, citing State v. Grimes, 2017-Ohio-2927, overruled

on other grounds by State v. Harper, 2020-Ohio-2913, ¶ 1.

Case No. 23 MA 0122 –6–

{¶12} While the trial court correctly noted that Appellant’s postrelease control term

was to consist of a discretionary two-year period, and that a violation could result in one-

half of the original prison sentence, it did not advise him that he would be monitored by

the APA or that a violation could also result in more severe punishments. Hence,

Appellant’s second assignment of error has merit and the matter is remanded to address

this issue.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED BY IMPOSING A SUSPENDED SENTENCE

FOR OBSTRUCTION.

{¶13} Appellant argues that the court’s imposition of a suspended sentence for

his misdemeanor offense is contrary to law, which provides that misdemeanor sentences

must run concurrently to felony sentences. The state again concedes error in this regard.

{¶14} At the sentencing hearing, the court announced its intent to impose a

maximum sentence as to Appellant’s felony convictions and a suspended sentence for

the misdemeanor, which was to run consecutively to the felony sentence. The record

reflects the court’s apparent, but erroneous, belief that it was required by law to order that

the suspended sentence run consecutively to the felony sentence.

{¶15} At the plea hearing, the court stated: “[b]y law, by statute upon any

imposition of a prison sentence on [the felony charges], the jail sentence on [the

misdemeanor charge] would be suspended.” (Plea Hrg., p. 15.) Consistent with these

statements, in the court’s entry, it provided “[r]egarding Count Four, the Defendant is

sentenced to a thirty (30) day jail sentence, which is suspended.” (10/20/23 J.E.)

Case No. 23 MA 0122 –7–

{¶16} In Ohio the only mechanism to run sentences one after another is through

the imposition of consecutive sentences. However, we have held, “subject only to the

exceptions stated in R.C. 2929.41(B)(3), a trial court must impose concurrent sentences

for felony and misdemeanor convictions.” State v. Wells, 2021-Ohio-2343, ¶ 14 (7th

Dist.). R.C. 2929.41(B)(3) provides that:

A jail term or sentence of imprisonment imposed for a misdemeanor

violation of section 4510.11, 4510.14, 4510.16, 4510.21, or 4511.19 of the

Revised Code shall be served consecutively to a prison term that is imposed

for a felony violation of section 2903.06, 2903.07, 2903.08, or 4511.19 of

the Revised Code or a felony violation of section 2903.04 of the Revised

Code involving the operation of a motor vehicle by the offender and that is

served in a state correctional institution when the trial court specifies that it

is to be served consecutively.

{¶17} The misdemeanors enumerated within the statute allowing sentencing

consecutively to a felony sentence are as follows: R.C. 4510.11, titled “Driving under

suspension or in violation of license restriction,” R.C. 4510.14, titled “Driving under OVI

suspension,” R.C. 4510.16, titled “Driving under financial responsibility law suspension or

cancellation,” R.C. 4510.21, titled “Failure to reinstate a license,” and R.C. 4511.10, titled

“Driving while under the influence of alcohol or drugs.” The misdemeanor conviction at

issue, here, is obstruction of justice. While the offense may stem from a motor vehicle-

related infraction, it is not among those listed in R.C. 2929.41(B)(3). By law, then, the

Case No. 23 MA 0122 –8–

trial court was required to run the misdemeanor sentence concurrently with the felony

sentence.

{¶18} While the state urges that we undertake to correct this error, the state has

already confessed judgment to the postrelease control sentencing error, which requires

a remand. Accordingly, Appellant’s fourth assignment of error has merit and the matter

remanded on this issue.

ASSIGNMENT OF ERROR NO. 1

[APPELLANT’S] PLEA WAS NOT KNOWINGLY, INTELLIGENTLY, OR

VOLUNTARILY GIVEN.

{¶19} Appellant argues that the trial court’s erroneous advisement at his plea

hearing, that he would be subject to an additional thirty-day suspended sentence after

completion of his felony sentence, caused his plea to be entered unknowingly,

unintelligently, and involuntarily.

{¶20} The state responds that, even conceding error as to this advisement,

Appellant ended up with a better deal than was contained in his plea. Appellant received

a benefit, as he will not be subject to the suspended sentence as he originally thought at

the time he entered his plea. Thus, the state contends he is unable to demonstrate

prejudice.

{¶21} Before a trial court may accept a defendant's guilty plea, the court must

inform the defendant of five constitutional rights. State v. Rowbotham, 2007-Ohio-6227,

¶ 7 (7th Dist.), citing State v. Ballard, 66 Ohio St.2d 473 (1981), paragraph one of the

syllabus. These constitutional rights are outlined within Crim.R. 11(C)(2)(c):

Case No. 23 MA 0122 –9–

Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial,

to confront witnesses against him or her, to have compulsory process for

obtaining witnesses in the defendant's favor, and to require the state to

prove the defendant's guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself.

{¶22} The trial court must also notify the defendant of his nonconstitutional rights.

The court's dialogue regarding nonconstitutional rights is reviewed for substantial

compliance. Rowbotham, supra, at ¶ 18. The nonconstitutional rights are described

within Crim.R. 11(C)(2):

(a) Determining that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty

involved, and if applicable, that the defendant is not eligible for probation or

for the imposition of community control sanctions at the sentencing hearing.

(b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the court,

upon acceptance of the plea, may proceed with judgment and sentence.

{¶23} “Under the substantial-compliance standard, we review the totality of

circumstances surrounding [the defendant's] plea and determine whether he subjectively

understood [the effect of his plea].” State v. Sarkozy, 2008-Ohio-509, ¶ 20. If the trial

court completely neglects to advise a defendant of a nonconstitutional right, the plea is

Case No. 23 MA 0122 – 10 –

vacated without a prejudice analysis. State v. Cruz-Ramos, 2019-Ohio-779 (7th Dist.),

citing Sarkozy at ¶ 22, 25. However, if the trial court partially complies with the rule, the

plea will be vacated only if prejudice is shown. Id. citing State v. Clark, 2008-Ohio-3748,

¶ 32. In order to establish prejudice, the defendant must show that the plea would not

have been otherwise entered. State v. Cologie, 2017-Ohio-9217, ¶ 11 (7th Dist.), citing

State v. Veney, 2008-Ohio-5200, ¶ 15; State v. Nero, 56 Ohio St.3d 106, 108 (1990).

{¶24} As the sentencing issue at the heart of Appellant’s argument does not

involve a defendant’s constitutional rights, it would fall within the rule regarding a

nonconstitutional right. Appellant, therefore, must establish prejudice. As explained by

the state, Appellant actually received a more favorable sentence than he believed at the

time he entered his plea, as he is not subject at any point to additional time in the form of

a suspended sentence for obstruction of justice. Appellant’s first assignment of error is

without merit and is overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT FAILED TO MERGE [APPELLANT’S] CONVICTIONS

FOR SENTENCING.

{¶25} Appellant contends the court erroneously failed to merge his conviction for

possession of cocaine and possession of fentanyl for purposes of sentencing.

Additionally, he believes his convictions for obstruction of justice and failure to comply

should also have merged for sentencing purposes.

{¶26} In response, the state cites to caselaw arising out of this district holding that

where two drugs are classified and penalized differently based on the type and quantity

Case No. 23 MA 0122 – 11 –

involved in the offense, they are not subject to merger. See State v. Hunt, 2018-Ohio-

815 (7th Dist.). The state also distinguishes the failure to comply and obstruction of justice

convictions, as the incidents from which those convictions arose occurred almost a year

apart. See State v. Wayne, 2003-Ohio-927 (7th Dist.).

{¶27} R.C. 2941.25 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.

{¶28} As to Appellant’s drug possession convictions, the state is correct. In Hunt,

we explained that the possession charges at issue (possession of cocaine and

possession of heroin) were classified and penalized differently. Id. at ¶ 17. In addition,

we explained “[t]he simultaneous possession of different types of controlled substances

can constitute multiple offenses under R.C. 2925.11.” Id., citing State v. Delfino, 22 Ohio

St.3d 270 (1986), syllabus. With these principles in mind, we concluded that “[i]t would

thus defeat the legislature's intent to merge the drug possession offenses into a single

Case No. 23 MA 0122 – 12 –

offense for purposes of sentencing.” Id., citing State v. Hughes, 2016-Ohio-880, ¶ 24 (5th

Dist.).

{¶29} There were two substances involved in Appellant’s charges: crack cocaine

and fentanyl. Possession of cocaine is a felony of the fourth degree, whereas possession

of fentanyl is a felony of the fifth degree. Thus, the separate substances are classified

and penalized differently, and are not subject to merger.

{¶30} As to Appellant’s failure to comply and obstruction of justice convictions,

these offenses were committed on separate dates, nearly one year apart. We have

previously held that “[t]he indictment reflects that each of the offenses occurred on

separate dates. Therefore, the crimes were committed separately and with a separate

animus and cannot be considered allied offenses of similar import.” State v. Wayne,

2003-Ohio-927, ¶ 31 (7th Dist.), citing State v. Blankenship, 38 Ohio St.3d 116 (1988).

While Wayne is pre-State v. Ruff, 2015-Ohio-995, the Eighth District reaffirmed the

holding in a post-Ruff case, State v. Wilk, 2022-Ohio-1840, ¶ 68 (8th Dist.).

{¶31} Accordingly, Appellant’s third assignment of error is without merit and is

overruled.

Conclusion

{¶32} Appellant’s convictions in this matter are affirmed in full, as Appellant

knowingly entered his plea. Appellant’s contentions regarding merger of certain of his

sentences is meritless, as these were not subject to merger. However, Appellant’s

arguments related to the court’s erroneous imposition of a misdemeanor sentence

ordered to run consecutively to a felony sentence, and incomplete postrelease control

Case No. 23 MA 0122 – 13 –

notification, have merit. The judgment of the trial court is reversed and remanded for

resentencing as to only these aspects of Appellant’s sentence.

Robb, P.J. concurs.

Hanni, J. concurs.

Case No. 23 MA 0122 [Cite as State v. Henderson, 2024-Ohio-4854.]

For the reasons stated in the Opinion rendered herein, Appellant’s first and third

assignments of error are overruled and his second and fourth are sustained. It is the final

judgment and order of this Court that the judgment of the Court of Common Pleas of

Mahoning County, Ohio, is affirmed in full as to Appellant’s convictions. However,

Appellant’s sentence is partially vacated for resentencing for both postrelease control and

for correction of Appellant’s misdemeanor sentence. This matter is remanded to the trial

court for further proceedings according to law and consistent with this Court’s Opinion.

Costs to be taxed against the Appellee.

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.