State v. Delgadillo-Banuelos


[Cite as State v. Delgadillo-Banuelos, 2019-Ohio-4174.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 18AP-729 v. : (C.P.C. No. 18CR-58) Ovier Delgadillo-Banuelos, : (REGULAR CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on October 10, 2019 On brief: Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee. Argued: Barbara A. Farnbacher. On brief: Timothy Young, Ohio Public Defender, and Allen Vender, for appellant. Argued: Allen Vender. APPEAL from the Franklin County Court of Common Pleas KLATT, P.J. {¶ 1} Defendant-appellant, Ovier Delgadillo-Banuelos, appeals from the judgment of the Franklin County Court of Common Pleas sentencing him to 16 years of imprisonment and ordering him to pay a fine of $35,000 following his entry of guilty pleas to 2 counts of trafficking in heroin. For the reasons outlined below, we affirm. {¶ 2} On January 5, 2018, appellant, an undocumented immigrant from Mexico, was indicted on 2 counts of trafficking in heroin arising from events occurring on December 27, 2017. Pursuant to R.C. 2925.03(A)(2) and (C)(6)(g), Count 1 of the indictment alleged a first-degree felony in that the amount of heroin involved equaled or No. 18AP-729 2 exceeded 100 grams. Pursuant to R.C. 2925.03(A)(2) and (C)(6)(e), Count 2 alleged a second-degree felony in that the amount of heroin involved equaled or exceeded 10 grams but less than 50 grams. {¶ 3} On July 23, 2018, appellant entered guilty pleas on each count of the indictment. The trial court accepted appellant's guilty pleas after a Crim.R. 11 colloquy.1 The trial court ordered a pre-sentence investigation ("PSI") pursuant to the joint recommendation of the prosecutor and defense counsel and deferred the matter for sentencing. {¶ 4} On August 23, 2018, the trial court conducted a sentencing hearing at which the court imposed a sentence of 11 years imprisonment on Count 1 and 5 years imprisonment on Count 2, with the sentences to be served consecutively. In addition, the court imposed maximum fines of $20,000 on Count 1 and $15,000 on Count 2, for a total fine of $35,000. The court memorialized its judgment in an entry filed August 27, 2018 and filed a corrected judgment entry on September 28, 2018. {¶ 5} Appellant filed a timely notice of appeal from the trial court's initial judgment entry and sets forth the following three assignments of error for our consideration: [I]. Ovier Delgadillo-Banuelos received ineffective assistance of counsel when counsel failed to file an affidavit of indigency on Mr. Delgadillo-Banuelos' behalf, or otherwise advocate against financial sanctions, and Mr. Delgadello-Banuelos was in fact indigent. [II]. Ovier Delgadillo-Banuelos received ineffective assistance of counsel when his attorney failed to argue that the two counts of trafficking heroin were allied offenses. [III]. The trial court committed plain error when it imposed multiple sentences on the two counts of trafficking heroin, which were allied offenses. {¶ 6} For ease of analysis, we address appellant's assignments of error out of order. In his third assignment of ...

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