[Cite as State v. Ramey, 2020-Ohio-1058.]


STATE OF OHIO                    )                       IN THE COURT OF APPEALS
                                 )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

STATE OF OHIO                                            C.A. No.   18CA011331

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
DARIUS RAMEY                                             COURT OF COMMON PLEAS
                                                         COUNTY OF LORAIN, OHIO
        Appellant                                        CASE No.   16CR094746

                                 DECISION AND JOURNAL ENTRY

Dated: March 23, 2020



        TEODOSIO, Presiding Judge.

        {¶1}    Defendant-Appellant, Darius Ramey, appeals from his convictions in the Lorain

County Court of Common Pleas. This Court affirms in part and reverses in part.

                                                 I.

        {¶2}    Mr. Ramey was just 16 years old when he fired a gun at a house, struck a man in

the head, and killed him. A complaint was filed against Mr. Ramey in juvenile court, but that court

later determined that he was not amenable to rehabilitation in the juvenile justice system.

Consequently, Mr. Ramey was bound over to the common pleas court and indicted. He was

charged with murder, felony murder, and two counts of felonious assault. Additionally, each of

his counts carried a three-year firearm specification.

        {¶3}    Mr. Ramey ultimately agreed to plead guilty to reduced charges. He and the

prosecutor signed both a written plea agreement and an extensive sentencing agreement

encompassing the terms of his plea and agreed upon sentence. The parties agreed that Mr. Ramey
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would plead guilty to the amended charges of involuntary manslaughter with a three-year firearm

specification, improperly discharging a firearm at a habitation with a three-year firearm

specification, tampering with evidence with a one-year firearm specification, and felonious assault

with a three-year firearm specification. The parties agreed that only the counts for involuntary

manslaughter and felonious assault would merge as allied offenses of similar import. On his

remaining counts and specifications, Mr. Ramey would be sentenced to an aggregate prison term

of 21 years with “credit for all time served as required by law.” In exchange for the benefits he

received, Mr. Ramey agreed not to pursue any direct appeals, “subject only to the ethical

limitations regarding prosecutorial misconduct or ineffectiveness of counsel * * *.”

       {¶4}       Consistent with the parties’ agreement, the trial court sentenced Mr. Ramey to 21

years in prison. Mr. Ramey then filed a notice of appeal. The State moved to dismiss the appeal

due to Mr. Ramey having waived his appellate rights as part of his plea agreement, and Mr. Ramey

responded in opposition. Because this Court was unable to resolve the State’s motion without first

reviewing the record, we deferred our ruling until final disposition. See State v. Ramey, 9th Dist.

Lorain No. 18CA011331 (July 15, 2019).

       {¶5}       Mr. Ramey’s appeal is now before this Court and raises four assignments of error

for our review.

                                                   II.

       {¶6}       Initially, we consider the State’s contention that this appeal ought to be dismissed

due to Mr. Ramey having waived his appellate rights as a condition of his plea agreement. “[A]

plea agreement is viewed as a contract between the State and a criminal defendant and is, therefore,

governed by principles of contract law.” State v. West, 9th Dist. Lorain No. 04CA008554, 2005-

Ohio-990, ¶ 29. “The intent of the parties to a [plea agreement] resides in the ordinary meaning
                                                3


of the language and terms employed in the agreement.” State v. Lezatte, 9th Dist. Lorain No.

02CA008131, 2003-Ohio-1472, ¶ 8. “[E]ffect must be given to the intention of the [S]tate and the

defendant in their plea bargain, and courts should enforce what they perceive to be the terms of

the original plea agreement.” State v. Dye, 127 Ohio St.3d 357, 2010-Ohio-5728, ¶ 22.

       {¶7}    It is undisputed that Mr. Ramey signed a sentencing agreement as part of his

negotiated plea. It is also undisputed that the agreement contained a provision wherein Mr. Ramey

agreed to waive his appellate rights. Yet, by the plain language of the agreement, that waiver was

not absolute. See Lezatte at ¶ 8. The agreement provided that his waiver was “subject [] to the

ethical limitations regarding * * * ineffectiveness of counsel * * *.” It further provided that Mr.

Ramey would waive his rights “[i]f [he] receive[d] the benefit of [the] Sentence Agreement * *

*.” (Emphasis added.) Thus, his waiver contained an exception for claims of ineffective assistance

of counsel and was otherwise conditioned upon him receiving the benefit of his bargain under the

sentencing agreement.

       {¶8}    One of Mr. Ramey’s arguments on appeal is that he did not receive the full benefit

of his bargain under the sentencing agreement. Another one of his arguments is that he received

ineffective assistance of counsel. Because the waiver he executed was not absolute and the

foregoing arguments are reviewable under the plain language of the sentencing agreement,1 we

must conclude that the State’s motion to dismiss lacks merit. See id. Compare State v. Butts, 112

Ohio App.3d 683 (8th Dist.1996) (appeal dismissed where defendant waived his appellate rights




1
 To the extent Mr. Ramey has raised arguments that are not properly before us, we address those
arguments in our discussion of his individual assignments of error.
                                                  4


in post-trial agreement, received the benefit of his bargain, and attempted to appeal an alleged trial

error). As such, the motion to dismiss is denied.

                                ASSIGNMENT OF ERROR ONE

         THE TRIAL COURT FAILED TO MERGE ALLIED OFFENSES OF SIMILAR
         IMPORT AND THUS IMPOSED MORE PRISON TERMS THAN
         AUTHORIZED BY LAW. STATE V. RUFF, 143 OHIO ST.3D 114, 2015-OHIO-
         995; R.C. 2941.25.

         {¶9}   Mr. Ramey has first assigned as error that the trial court committed plain error when

it failed to merge several of his offenses as allied offenses of similar import. At oral argument,

however, his counsel conceded that his allied offense argument is not properly before us. Mr.

Ramey agreed as part of his negotiated plea that two of his counts were allied offenses and the

remainder were separate offenses with separate penalties. As such, he affirmatively waived his

merger argument in his negotiated plea agreement. See State v. Rogers, 143 Ohio St.3d 385, 2015-

Ohio-2459, ¶ 20; State v. May, 9th Dist. Lorain No. 17CA011204, 2018-Ohio-2996, ¶ 8. His first

assignment of error is overruled on that basis.

                                ASSIGNMENT OF ERROR TWO

         THE LORAIN COUNTY COURT OF COMMON PLEAS ERRED WHEN IT
         FAILED TO CREDIT DARIUS RAMEY WITH TIME SERVED IN
         CONNECTION WITH HIS OFFENSE PURSUANT TO R.C. 2929.19 AND R.C.
         2967.191 IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
         FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND
         ARTICLE I, SECTION 2 OF THE OHIO CONSTITUTION.

         {¶10} In his second assignment of error, Mr. Ramey argues that the trial court erred when

it failed to calculate his jail-time credit and include that calculation in its sentencing entry. We

agree.

         {¶11} When sentencing an offender, a trial court must

         [d]etermine, notify the offender of, and include in the sentencing entry the number
         of days that the offender has been confined for any reason arising out of the offense
                                                  5


       for which the offender is being sentenced and by which the department of
       rehabilitation and correction must reduce the stated prison term under [R.C.
       2967.191].

R.C. 2929.19(B)(2)(g)(i). “An offender may challenge a trial court’s jail-time credit calculation

either on direct appeal or through a post-sentence motion.” State v. Yeager, 9th Dist. Summit Nos.

28604 & 28617, 2018-Ohio-574, ¶ 22.

       {¶12} The parties herein agreed that, in exchange for his plea, Mr. Ramey would receive

a sentence of 21 years in prison with “credit for all time served as required by law.” Yet, the trial

court did not calculate Mr. Ramey’s jail-time credit when it issued his sentencing entry. The

sentencing entry merely granted Mr. Ramey “[c]redit for ALL days * * * as of this date along with

future custody days * * *.” (Emphasis sic.) Mr. Ramey argues that the court erred when it failed

to calculate and include in its entry the actual number of days he was confined.

       {¶13} At oral argument, the State conceded that the trial court failed to calculate Mr.

Ramey’s jail-time credit, but nonetheless maintained that he was without a remedy on appeal due

to his having waived his appellate rights. As previously noted, however, Mr. Ramey only agreed

to waive his right to appeal if he received the benefit of his bargain under the sentencing agreement.

A part of the bargain he struck was that he would receive “credit for all time served as required by

law.” Because the court failed to comply with R.C. 2929.19(B)(2)(g)(i), Mr. Ramey has not yet

received the full benefit of his bargain. It would be “both unreasonable and unconscionable” to

require him to serve time that he has already served. State v. Guiser, 9th Dist. Summit No. 29456,

2019-Ohio-5421, ¶ 13. Moreover, as the State has emphasized in relying on State v. Butts, “‘a deal

is a deal.’” Appellee’s Brief at 8, quoting Butts, 112 Ohio App.3d at 688. See also Dye, 127 Ohio

St.3d 357, 2010-Ohio-5728, at ¶ 22. Because Mr. Ramey is entitled to his jail-time credit under

the terms of his negotiated plea and as a matter of law, his second assignment of error is sustained.
                                                 6


                             ASSIGNMENT OF ERROR THREE

       THE LORAIN COUNTY COURT OF COMMON PLEAS ERRED WHEN IT
       ORDERED DARIUS RAMEY TO PAY COURT-APPOINTED COUNSEL FEES
       WITHOUT NOTIFYING HIM THAT HE WOULD BE REQUIRED TO PAY
       COURT-APPOINTED COUNSEL FEES OR MAKING AN ABILITY TO PAY
       DETERMINATION PURSUANT TO R.C. 2941.51(D).

       {¶14} In his third assignment of error, Mr. Ramey argues that the trial court erred when it

ordered him to pay his court-appointed counsel fees in the absence of an opportunity to be heard

on that issue. Upon review, we must conclude that his argument is not properly before us.

       {¶15} As noted, “effect must be given to the intention of the [S]tate and the defendant in

their plea bargain, and courts should enforce what they perceive to be the terms of the original plea

agreement.” Dye at ¶ 22. Mr. Ramey agreed to plead guilty in exchange for waiving his appellate

rights. His negotiated plea did not address the payment of his court-appointed counsel fees. Thus,

the imposition of those fees cannot be said to have deprived him of the benefit he was promised in

exchange for his plea. Compare Discussion, supra. Because Mr. Ramey agreed to relinquish his

right to appeal in exchange for his plea, his argument is not properly before us. See Butts at 687-

688. As such, his third assignment of error is overruled.

                              ASSIGNMENT OF ERROR FOUR

       DARIUS RAMEY WAS DENIED THE EFFECTIVE ASSISTANCE OF
       COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH
       AMENDMENTS TO THE U.S. CONSTITUTION; AND ARTICLE I, SECTION
       10, OHIO CONSTITUTION.

       {¶16} In his fourth assignment of error, Mr. Ramey argues that he received ineffective

assistance of counsel because his attorney did not object when the court (1) sentenced him on allied

offenses, (2) failed to calculate his jail-time credit, and (3) ordered him to pay his appointed

counsel fees in the absence of an opportunity to be heard on that issue. Because Mr. Ramey has
                                                   7


abandoned his allied offense argument on appeal and we have already resolved the matter of his

jail-time credit calculation, we limit our analysis to his third issue. See App.R. 12(A)(1)(c).

        {¶17} “R.C. 2941.51(D) allows a trial court to order a defendant to pay some or all of his

court-appointed attorney fees, but only after finding that [he] is financially capable of doing so.”

State v. El-Jones, 9th Dist. Summit No. 26136, 2012-Ohio-4134, ¶ 37. Mr. Ramey argues that his

counsel was ineffective because he failed to ensure that the court complied with R.C. 2941.51(D)

before imposing his court-appointed attorney fees. Because his argument sounds in ineffective

assistance of counsel, he must establish both that: (1) his counsel’s performance was deficient, and

(2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). To demonstrate prejudice, he must prove that there exists “a reasonable probability that

the trial court would have waived the imposition of [his court-appointed attorney fees] * * * if his

counsel [had] asked the court to do so.” State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, ¶

233, citing State v. Smith, 12th Dist. Warren No. CA2010-06-057, 2011-Ohio-1188, rev’d on other

grounds, 131 Ohio St.3d 297, 2012-Ohio-781, ¶ 11.

        {¶18} The record reflects that the trial court ordered Mr. Ramey to pay his court-appointed

counsel fees without first addressing them at his sentencing hearing. The court’s failure to notify

Mr. Ramey of those fees and give him the opportunity to claim indigency was error. See El-Jones

at ¶ 38. Even so, Mr. Ramey has not shown that there exists a reasonable probability that the court

would have waived those fees if his counsel had asked it to do so. See Dean at ¶ 233. As Mr.

Ramey notes, he waived a pre-sentence investigation report, so the record contains scant

information about his background. He was quite young at the time of sentencing, however, and

the court did verify that he did not suffer from any disabilities that might affect his ability to work.

Mr. Ramey has not shown that, but for the actions of his counsel, the court would have disregarded
                                                 8


those facts and granted the waiver. See id. at ¶ 233. Accordingly, we must conclude that he has

not proven his claim of ineffective assistance of counsel. See Strickland at 687. Mr. Ramey’s

fourth assignment of error is overruled.

                                                III.

       {¶19} Mr. Ramey’s second assignment of error is sustained. His remaining assignments

of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed in

part, reversed in part, and the cause is remanded for further proceedings consistent with the

foregoing opinion.

                                                                          Judgment affirmed in part,
                                                                                   reversed in part,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.
                                             9


      Costs taxed equally to both parties.




                                                 THOMAS A. TEODOSIO
                                                 FOR THE COURT



HENSAL, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

VICTORIA BADER, Assistant State Public Defender, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting
Attorney, for Appellee.
