[Cite as State v. Pagan, 2019-Ohio-4954.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                   No. 19AP-216
v.                                                :            (C.P.C. No. 16CR-7225)

Christian J. Pagan,                               :           (REGULAR CALENDAR)

                 Defendant-Appellant.             :



                                            D E C I S I O N

                                    Rendered on December 3, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
                 Gilbert, for appellee. Argued: Seth L. Gilbert.

                 On brief: Jeremy Dodgion, for appellant. Argued: Jeremy
                 Dodgion.

                   APPEAL from the Franklin County Court of Common Pleas

NELSON, J.
        {¶ 1} Christian J. Pagan, represented by counsel, entered into a plea agreement to
resolve two criminal cases against him. The trial court accepted his guilty pleas and
sentenced him to prison terms totaling within the range that the state and Mr. Pagan had
defined through their agreement. Mr. Pagan now appeals, but he provides scant basis on
which to overturn either his convictions or his sentence. We will affirm the judgment of the
trial court.
        {¶ 2} Mr. Pagan, who the state alleged was not allowed to possess a gun because of
earlier convictions for aggravated assault and robbery, was indicted in one case (16CR-
7203) for having a weapon under disability and for felonious assault and kidnapping with
gun specifications. Prosecutors were having difficulties reaching the purported victim in
No. 19AP-216                                                                                2

that case, whom Mr. Pagan allegedly had pistol-whipped. See January 28, 2019 Transcript
of Plea Proceedings ("Plea Tr.") at 3, 19.
       {¶ 3} Mr. Pagan was indicted in the other case (16CR-7225) for two first-degree
felony counts of trafficking in cocaine in an amount exceeding 100 grams, two parallel
cocaine possession counts, and again with having a weapon under disability. The drug
charges carried gun specifications.
       {¶ 4} Under the plea agreements, the state dropped the felonious assault and
kidnapping charges in the first case, and dropped the weapons charge and the possession
counts and gun specifications in the second case, while also reducing the amount of cocaine
charged on the trafficking counts from the previously specified Major Drug Offender
("MDO") levels to 27-100 grams. Mr. Pagan and the state noted on the plea forms in each
case that, for the two cases combined, the parties "agree to argue for a sentence between 10
and 18 years." Mr. Pagan and the state also agreed and stipulated in the plea form for the
drug case that the trafficking "counts do not merge" and that the potential sentence there
was "3 to 11 years mandatory on each count."
       {¶ 5} The trial court reviewed the plea agreements with Mr. Pagan, his counsel, and
the prosecutor during the plea colloquy. After the prosecutor explained the potential
advantage to the defendant in removing the MDO amounts from the trafficking counts
(which as charged carried a mandatory maximum prison sentence, "plus the one-year gun
spec"), the prosecutor added that with his plea, "Mr. Pagan is looking at a minimum of three
years and up to twenty-two years [for that case] * * * because those two offenses do not
merge." Plea Tr. at 5. He continued: "the recommendation that we've gotten to [of]
between 10 and 18 years [for the two cases combined] is a negotiated plea * * *." Had the
drug case gone to trial, the prosecutor said, defense counsel would argue at any sentencing
hearing "that those two [trafficking counts] would merge because of the facts of the case."
Id. But, said the prosecutor, "while he would preserve that for trial, for plea we're agreeing
that they don't merge." "Essentially, there's one large quantity of cocaine, and separated
from that is another large but smaller quantity of cocaine in the same room seized at the
same time. There might be a merger argument; but because of our joint recommendation,"
that argument had been forestalled. Instead, the prosecutor continued, defense counsel
No. 19AP-216                                                                                3

"[is] going to ask for concurrent sentences * * *, because he's going to argue at the lower
end of this range." Id. at 6.
       {¶ 6} When the prosecutor had described some additional details of the
arrangement, the trial court turned to defense counsel and asked: "All right * * * * [I]s that
your understanding?" Id. at 7. Defense counsel responded "Yeah." From his standpoint,
the case was not winnable, he said. Id. Given the facts, "[t]he sole question presented to us
was whether or not, in a single incident where we have in one room two separate bags of
cocaine, would they merge or would they not. Was it a single incident or not?" Id. Tempted
to say the trafficking counts merged, he corrected himself: "I will still argue that, for
purposes of sentencing, as it is essentially one incident, one animus, that the right thing to
do is to merge them at sentencing to get to the -- not merge, but run them concurrent,
excuse me, to run them concurrent at sentencing and then to wind up in the range as
agreed." Id. at 8. "Because, again, truthfully, Your Honor," defense counsel elaborated,
"the State had Mr. Pagan, without question, guilty of at least the * * * possession of cocaine
MDO with the fire[arm] specification, which would have got them to 12 years [in that case
alone] without even trying." Id.
       {¶ 7} The judge ascertained that Mr. Pagan was satisfied with his lawyer's
representation, id. at 10, and had reviewed the plea forms with him, id. at 11. The judge
also reviewed the potential three-year sentence that could result from (what had become)
the weapon case, id. at 12, and while noting "some debate" as to whether the trafficking
counts should merge, advised Mr. Pagan that "[i]f they don't merge, you could be looking
at a maximum 22 years in prison" for that case, id. at 13. The judge also noted that "there
is a joint recommendation in this [trafficking] case that we order a presentence
investigation and that the parties will argue for a sentence between 10 to 18 years on this
case * * * as well as the weapons under disability case." Id. at 16. Mr. Pagan acknowledged
that the trial court was not bound by this recommendation. Id. Mr. Pagan waived his right
to trial, a waiver that his lawyer, too, characterized as made "knowingly, voluntarily, and
intelligently." Id. at 18-19.
       {¶ 8} Asked for further facts, the prosecutor stated that "upon interviewing the
[alleged] victim" in the kidnapping/felonious assault/gun case, the police had obtained "a
warrant for Mr. Pagan's arrest; and two days later found him, after pinging his phone at a
No. 19AP-216                                                                                 4

hotel * * * * [T]aken out of the hotel room in two duffel bags were two separate quantities
of cocaine. * * * * He also had a firearm * * * ." Id. at 20. The defense did not dispute those
particular facts. Id. at 20-21. The trial court again confirmed that Mr. Pagan's pleas were
made knowingly and voluntarily, accepted them, and found Mr. Pagan guilty of the three
designated counts. Id. at 22-23.
       {¶ 9} The parties returned to court roughly six weeks later for sentencing. The
prosecutor reiterated that "[t]he parties have agreed [that the two trafficking in cocaine
counts] do not merge, but they can run concurrent, which is how we got to 10 to 18 as our
negotiated range that we're going to argue." March 13, 2019 Sentencing Tr. at 3 (saying,
too, that time on the weapons case could run concurrently). The state argued for the higher
end of the agreed range given the amounts of cocaine involved and because Mr. Pagan had
gone to prison for having "shot somebody during a carjacking" and then committed these
offenses within approximately 10 months of his release. Id. at 3-4.
       {¶ 10} Defense counsel noted that Mr. Pagan had "provided a rather detailed
confession," and had been doing the bidding of others. Id. at 6-7. "[B]y agreement,"
defense counsel continued, "we are not asking for anything under 10 years. The reason for
that being is that what Christian admitted to was an MDO offense, and the minimum term
that he could have received was 11 years on the case." But "[t]he two counts are not separate
from one another. And by that, I mean everything that we're talking about was in one bag.
It's just one large duffel bag separated into two smaller amounts. * * * * We do not have a
separate animus there. Therefore, I do respectfully suggest that, based upon that, that
concurrent sentencing on the two [trafficking counts, with the concurrent weapon under
disability time] is the appropriate sentence." Id. at 7-8.
       {¶ 11} For a variety of reasons as fully recited on the record, including that "the
offender was under post-release control for a violent offense when this offense was
committed," the trial court determined consecutive sentences to be necessary and
appropriate. Id. at 12-13. The trial court sentenced Mr. Pagan to eight years in prison on
each of the drug trafficking counts, with those sentences to run consecutively to each other
but concurrently with prison time on the weapons case for a total sentence of 16 years in
prison covering the two cases. Id. at 13-14; see also March 13, 2019 Judgment Entry.
Referring to plea discussions with the state from two years earlier, defense counsel then
No. 19AP-216                                                                                 5

inquired: "initially we talked either this sentence or 15 on this case. Would the court be
willing to go 15 on this instead of 16?" After brief discussion, the trial court confirmed that
"given the maximum possibility that he was facing, I think this is a fair resolution." Id. at
15-16.
         {¶ 12} Appealing his convictions and sentences in the drug case, Mr. Pagan mounts
four assignments of error:
                [I.] Appellant's counsel amounted to ineffective assistance in
                violation of Appellant's Fourth, Fifth, and Sixth Amendment
                rights.

                [II.] The trial court erred when it failed to merge Appellant's
                allied offenses of similar import.

                [III.] Appellant was deprived of effective assistance when
                counsel failed to properly argue for merger of his convictions.

                [IV.] Appellant's plea was not knowing, voluntary, or
                intelligent.

Appellant's Brief at 9, 19, 26, 28 (capitalizations adjusted).
         {¶ 13} Mr. Pagan's first assignment of error amounts to an argument that although
he was arrested pursuant to a warrant (stemming from the charges in the
kidnapping/felonious assault/gun case), he was found after police "pinged" his cell phone,
and that his counsel therefore should have endeavored to suppress any evidence that
derived from the circumstances of his arrest, based on a decision issued by the United States
Supreme Court roughly a year and a half after that arrest (albeit seven months or so before
his plea). See Appellant's Brief at 14-19, citing Carpenter v. U.S., 138 S.Ct. 2206 (June 22,
2018); id. at 5-6 (Pagan's arrest was December 19, 2016). "But for this incompetence" in
not pursuing a suppression motion under Carpenter, he assures us, "the entirety of the [gun
and drug] evidence against Mr. Pagan * * * would have been suppressed," so this is said to
be that relatively rare case in which constitutionally violative ineffectiveness of counsel can
be established on direct appeal. Id. at 18 (also asserting without record citation that "Mr.
Pagan was advised to take a plea deal"), 13-14 (acknowledging differences between direct
and collateral review).
         {¶ 14} We need not elaborate all the reasons this argument fails, but we briefly note
some. First, as the state observes, this argument is (loosely) hinged on facts or suppositions
No. 19AP-216                                                                                  6

that are not sufficiently developed in the record. For example, we know from the plea
hearing that Mr. Pagan's then-counsel thought the deal a good one under the
circumstances, but we are not much apprised of the plea conversations between Mr. Pagan
and his lawyer. And while Mr. Pagan's Carpenter argument is predicated on an assumption
that the "pinging" of his cell phone to ascertain his whereabouts was done under pre-
Carpenter protocols and without a warrant supported by probable cause, Mr. Pagan does
not point us to any material in the record reflecting that or the nature of or basis provided
for any order for pin-point location information.
       {¶ 15} Perhaps more fundamentally still, Carpenter didn't involve suppression of
evidence arising from an arrest at all, but dealt instead with a series of historical cell phone
records providing "a comprehensive chronicle of the user's past movements." 138 S.Ct. at
2211 (emphasis added). While deeming a government order for such records to be a search,
the decision explicitly noted that "exigencies includ[ing] the need to pursue a fleeing
suspect, [or to] protect individuals who are threatened with imminent harm * * * * will
likely justify the warrantless collection of" cell location data. Id. at 2223. In short,
Carpenter, which announced a new interpretation that was not the prevailing
understanding at the time of the arrest here, has very little to do with this case involving an
arrest made pursuant to a warrant.
       {¶ 16} At least as recited—without record citation—in Mr. Pagan's brief, "a warrant
[had been] issued for Mr. Pagan's arrest" in the aftermath of the events alleged in the gun
case. Appellant's Brief at 5. After they "pinged" his cell phone, police located Mr. Pagan at
a hotel; "[w]hen Mr. Pagan opened the door, officers immediately arrested him" and
observed a handgun in the room. Id. at 6. According to Mr. Pagan, the police secured the
gun and "asked Mr. Pagan what he wanted to do with the property still in the room," which
included a couple bags and a phone. Mr. Pagan, by his own account, "indicated he did not
want it. Management then requested that the property be removed. [An] Officer * * *
conducted a search of the bags and found what he believed to be packaged cocaine." Id. at
6-7. Suffice it to say that we do not read Carpenter even potentially to invalidate the results
of the search into this arguably abandoned and subsequently inventoried property.
       {¶ 17} In sum, while we are not made privy to conversations in this area between
Mr. Pagan and his then-lawyer, defense counsel could not reasonably have advised Mr.
No. 19AP-216                                                                             7

Pagan that a motion to suppress as based on Carpenter would assure success on the drug
case. And Mr. Pagan's brief does not even attempt to argue that such a motion would have
resulted in dismissal of the kidnapping/felonious assault/weapon under disability case that
also was part of the plea package. See Appellant's Brief at 17 (asserting that a Carpenter-
based motion "would have been granted" so that "the State would have been unable to move
forward with their prosecution in Case Number 2016 CR 7225"). Mr. Pagan's then-counsel
had filed a motion to suppress (not including the Carpenter theory) that was obviated by
Mr. Pagan's plea of guilty. See May 15, 2018 Motion to Suppress in 16CR-7225. Although
we do not rule on hypothetical motions not made and considered below, we find no reason
to believe that inclusion of an argument built on Carpenter and a theory that police
somehow should have averted their eyes from Mr. Pagan's presence rather than executing
the arrest warrant once he was located would have altered the calculus that led to his
convictions by plea.
       {¶ 18} Mr. Pagan thus fails to satisfy either prong of his ineffective assistance of
counsel claim on this score. He does not show that his then-counsel in abjuring a
Carpenter-based argument somehow breached prevailing professional norms and thereby
provided him unreasonable representation, and he does not establish that but for such
claimed deficiency the result of the proceeding would have been different. "To establish
ineffective assistance of counsel, an accused must demonstrate that counsel's performance
was deficient and that the deficient performance prejudiced the accused. The failure to
make either showing is fatal to the claim. To demonstrate deficient performance, an
accused must prove that counsel's performance fell below an objective level of reasonable
representation. The accused must overcome the strong presumption that trial counsel's
conduct falls within the wide range of reasonable professional assistance. To establish
prejudice, an accused must demonstrate that a reasonable probability exists that but for
counsel's unprofessional errors, the result of the proceeding would have been different."
State v. Delgadillo-Banuelos, 10th Dist. No. 18AP-729, 2019-Ohio-4174, ¶ 23-24, variously
citing State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 133 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)), State v. Bradley, 42 Ohio St.3d 136, 143 (1989)
(quoting Strickland at 697), and State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 204
No. 19AP-216                                                                                    8

(citing Strickland at 687-88). In sum, Mr. Pagan does not show that his plea resulted from
the ineffective assistance of counsel regarding suppression issues.
       {¶ 19} Because Mr. Pagan does not establish ineffective assistance of counsel as
premised on a Carpenter theory, we overrule his first assignment of error.
       {¶ 20} Mr. Pagan's second, third, and fourth assignments of error are built around
his view that the court was required to merge the drug trafficking counts for sentencing,
despite the parties' agreement to the contrary. He argues that it was "plain error" for the
court not to do so, see Appellant's Brief at 19-26, that it was ineffective assistance of counsel
for his lawyer not to argue for such merger "at sentencing," id. at 27, and that the trial
court's statement to Mr. Pagan during the plea colloquy that he could "be looking at a
maximum 2[2] years in prison" were the counts not to merge was "demonstrably false" and
thereby rendered Mr. Pagan's plea not intelligently made because merger was required, id.
at 28-29. Again, these arguments do not allow Mr. Pagan to overcome the plea agreement
he entered into and that informed his sentence.
       {¶ 21} Mr. Pagan's new argument here that the two trafficking counts had to
merge—an argument he explicitly disclaimed at the trial court—has been waived. Thus we
need not explore whether it also has been forfeited because he did not raise it with the trial
court, thereby forfeiting all but plain error on what was a relatively undeveloped factual
record. Compare, e.g., State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 19-23
(citations omitted) (discussing "Waiver vs. Forfeiture" distinction; noting that "by failing to
seek the merger of his convictions as allied offenses of similar import in the trial court,
Rogers forfeited his allied offenses claim for appellate review" apart from discretion to
correct for plain error; again " 'admonish[ing] courts to notice plain error "with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice" ' "; and observing, too, that "[w]e have never [to that point] recognized * * * forfeited
error that is presumptively prejudicial and is reversible error per se," but compare State v.
Williams, 148 Ohio St.3d 403, 2016-Ohio-7658).
       {¶ 22} The Supreme Court of Ohio has made clear that "[i]t is possible for an accused
to expressly waive the protection afforded by R.C. 2941.25 [the merger statute, describing
when multiple punishments may be imposed for two or more offenses], such as by
'stipulating in the plea agreement that the offenses were committed with separate
No. 19AP-216                                                                                9

animus.' " Rogers, 2015-Ohio-2459 at ¶ 20, quoting State v. Underwood, 124 Ohio St.3d
365, 2010-Ohio-1, ¶ 29. And this is not a case like Williams, where the trial court
affirmatively concluded that the crimes at issue were allied offenses of similar import
subject to merger but nonetheless then imposed multiple sentences. 2016-Ohio-7658 at
¶ 19.
        {¶ 23} Here, Mr. Pagan waived any merger argument by stipulating in his plea
agreement for the trafficking case that the "counts do not merge." That stipulation was
emphasized during the plea proceedings. The prosecutor said, "we're agreeing that they
don't merge," and defense counsel confirmed that understanding. Plea Tr. at 6-7; see also
id. at 8 (explicitly noting that he would argue at sentencing not that the trafficking counts
would merge, but that the sentences should run concurrently). Even at sentencing, Mr.
Pagan's argument was not for merger, which had been waived through the plea, but for
"concurrent sentencing." Sentencing Tr. at 8. And the import of the parties' agreement
that the "counts do not merge" was underscored further by the agreed sentencing range
within which they argued: the plea agreements in each of the two cases recited that the
parties "agree to argue for a sentence between 10 and 18 years"—and given the reduction in
counts achieved by the agreement, the upper end of that range would not have been possible
to contemplate or impose were the trafficking counts to merge: the agreed range was
workable only on the agreed view that the two trafficking counts would not merge.
        {¶ 24} "[W]here the transcript demonstrates that the state and defense counsel
agreed that offenses were not allied, the issue of allied offenses is waived." State v. Black,
8th Dist. No. 102586, 2016-Ohio-383, ¶ 18. Here, that agreement came not only through
counsel, but also was incorporated into the actual plea agreement that Mr. Pagan himself
signed, along with his counsel, in the drug trafficking case. And the transcript of the plea
colloquy reflects that Mr. Pagan made his plea knowingly, voluntarily, and intelligently, and
that he understood that the sentence as imposed by the court could exceed even the 18-year
upper end of the sentencing range from which it was agreed that his counsel would argue.
See, e.g., Plea Tr. at 13.
        {¶ 25} Mr. Pagan's sentence is authorized by law. Because analysis pursuant to R.C.
2953.08 here concludes with that assessment, the state's argument that further review
under that section would be precluded by R.C. 2953.08(D)(1) is moot and there is no cause
No. 19AP-216                                                                              10

for us to determine the applicability of that subsection to the circumstances of this case.
Compare Appellee's Brief at 17-24.
       {¶ 26} Next, contrary to Mr. Pagan's argument here, see Appellant's Brief at 28-29,
the trial court was not required to apprise him during the plea colloquy of what the
maximum prison term would be under the plea if (contrary to the terms of the plea
agreement) the trafficking counts were to merge: not only was the plea predicated on the
agreement that the "counts do not merge," but the trial court did not need to contemplate
merger at the time of plea in any event. See Rogers, 2015-Ohio-2459 at ¶ 19 ("the merger
of allied offenses occurs at sentencing, a subsequent stage of the proceedings"); State v.
Reed, 8th Dist. No. 105862, 2018-Ohio-3040, ¶ 26 ("there is no requirement in Crim.R. 11
that the trial court must ensure a defendant understands the merger of offenses for
purposes of sentencing before accepting his plea. Indeed, there is ' " no obligation under
Crim.R. 11(C)(2) for the trial court to determine, at a plea hearing, whether the offenses at
issue are allied offenses of similar import and to notify the defendant of the cumulative
maximum penalty after merger." ' State v. Carnahan, 3d Dist. No. 4-15-18, 2016-Ohio-
3213, ¶ 23, quoting State v. Jefferson, 2d Dist. No. 26022, 2014-Ohio-2555, ¶ 21").
       {¶ 27} Finally, Mr. Pagan's argument that "[i]n the process of plea negotiations,
nothing could [have been] more important" than the merger issue, and that therefore "this
Court should find that defense counsel was prejudicially ineffective at sentencing," see
Appellant's Brief at 27, again flounders on his inability to show either that his counsel was
deficient or that absent such claimed deficiency, there was a reasonable probability that the
outcome would have been different.
       {¶ 28} In his three paragraph argument on this score, Mr. Pagan does not show that
whatever counsel he received from his lawyer failed to constitute presumptively reasonable
representation. Id. at 26-27. In addition to eliminating the MDO aspects and gun
specifications of the drug charges and the weapons count in the drug case (which could have
netted him between 12 to 15 years in that case alone, even assuming merger of all drug
counts, see Plea Tr. at 8 acknowledging charges "would have got them to 12 years without
even trying"), the plea agreement also ensured that he would not risk prosecution for the
kidnapping/felonious assault charges in the other case (in which, at least at that particular
juncture, the state was having trouble finding its complaining witness). In any event, Mr.
No. 19AP-216                                                                             11

Pagan does not overcome the strong presumption that his lawyer's conduct fell within the
wide range of reasonable professional assistance, just as he does not shed further light on
the plea calculus.
       {¶ 29} We overrule Mr. Pagan's second, third, and forth assignments of error.
       {¶ 30} Having overruled all of the assignments of error, we affirm the judgment of
the Franklin County Court of Common Pleas.
                                                                      Judgment affirmed.

                     KLATT, P.J. and LUPER SCUSTER, J., concur.
                               _________________
