[Cite as State v. Jones, 2017-Ohio-251.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2016-A-0017
        - vs -                                  :

BRANDON T. JONES,                               :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014
CR 00345.

Judgment: Affirmed in part; reversed in part and remanded.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Derek Cek, 2725 Abington Road, Suite #102, Fairlawn, OH 44333 (For Defendant-
Appellant).




THOMAS R. WRIGHT, J.

        {¶1}     Appellant, Brandon Jones, appeals his convictions for trafficking and

possession of heroin following a jury trial. For the following reasons, we affirm in part,

reverse in part, and remand for further proceedings.

        {¶2}     On May 30, 2014, Jones was a passenger in a vehicle operated by

Octavia Workman. The Ashtabula County Sheriff’s Department was investigating a
stolen dirt bike, and received a report that the bike had been seen at Workman’s

apartment. The police pulled over Workman’s vehicle after a security guard watched

Jones and Workman leave her apartment building and leave in her car. Both occupants

were seen making “furtive movements” indicating that they were attempting to hide

something.

       {¶3}   Deputy Evan Wolff described the passenger, Jones, as bending forward at

the waist. Wolff was unable to see Jones momentarily when walking toward Workman’s

car. Wolff observed Workman twisting sideways only, and he never lost sight of her

head and shoulders.      Whereas, Wolff described losing sight of Jones’ head and

shoulders for approximately five seconds.

       {¶4}   Workman had warrants for her arrest and was arrested. Deputy Matthew

Johns, also on the scene, removed Jones from the car and conducted a pat-down

believing something in Jones’ pocket may have been a weapon. Johns found a lighter,

a bag of marijuana, and a large amount of cash on Jones.

       {¶5}   The deputies then searched the vehicle and found a baggie containing

what appeared to be a “large chunk” of heroin hidden and lodged under the front

passenger’s seat. The deputies also found a store receipt for the purchase of two

boxes of baggies on the front seat passenger floor.

       {¶6}   The deputies explained that the baggie containing the heroin was not

fingerprinted as it is generally difficult to secure a good print from a plastic bag. Deputy

Wolff agreed on cross-examination that he could not determine how long the heroin had

been under the seat.




                                             2
       {¶7}   Workman testified that she did not see what Jones was doing just prior

and at the time of the stop since her attention was on the police, and she denied

attempting to hide anything when she was pulled over.

       {¶8}   The substance in the baggie later tested positive as heroin and weighed

1.08 grams.

       {¶9}   Workman subsequently authorized a search of her two-bedroom

apartment. One of the bedrooms was hers and the other bedroom was full of men’s

clothing and shoes. In Workman’s bedroom, the officers found drug paraphernalia,

including a hypodermic needle and spoon.

       {¶10} In the bedroom that was full of men’s shoes and clothing, the police found

a digital scale, a safe, and drug packaging materials including different types of baggies

and rubber gloves. They found another scale in the hallway. The state used the fact

that this bedroom contained men’s clothing in an attempt to prove the room was used

by Jones. There was no direct testimony that Jones had stayed in or used this second

bedroom as his own.

       {¶11} Workman told the police that Jones stayed with her occasionally and had

been staying with her before their stop for a few days. She testified at trial that she had

seen Jones “dealing drugs” while he was staying with her. However, she did not state

what type of drugs she had seen him “dealing” during this time, and she was never

asked to identify the “drugs” that he sold.

       {¶12} Workman also testified that the digital scales did not belong to her and

that the heroin found in her car did not belong to her.




                                              3
       {¶13} The police returned to Workman’s apartment approximately one week

later with a warrant to search the safe. Workman said the safe belonged to Justin

Stokely.     Stokely’s safe contained multiple firearms, ammunition, cash, drug

paraphernalia, and plastic baggies.     On the date of this second visit to Workman’s

apartment, the police found heroin and more drug paraphernalia. As a result, Stokely

was charged with possession of heroin. Jones was not present for this search.

       {¶14} Jones was initially charged with four counts: receiving stolen property,

trafficking in heroin with a forfeiture specification, possession of heroin with a forfeiture

specification, and possession of criminal tools. The state later dismissed the receiving

stolen property count, and the case went to trial on the remaining three counts.

       {¶15} Following the conclusion of the state’s evidence, Jones’ counsel moved

for acquittal on all counts under Crim.R. 29(A). The court directed a verdict of acquittal

on the possessing criminal tools charge, and Jones was convicted of trafficking heroin

in violation of R.C. 2925.03(A)(2), a fourth-degree felony, and possession of heroin in

violation of R.C. 2925.11(A)(C)(6)(b), a fourth-degree felony.

       {¶16} He was sentenced to two, eighteen-month sentences to be served

concurrently. The trial court also ordered forfeiture of the $1,287 cash found on Jones

at the time of his arrest.

       {¶17} Jones asserts seven assignments of error.           We address his first and

second assigned errors collectively, challenging the sufficiency and the manifest weight

of the evidence supporting his convictions. They assert:

       {¶18} “The trial court’s decision finding appellant guilty beyond a reasonable

doubt on each conviction is not supported by sufficient evidence.




                                             4
      {¶19} “The trial court erred in finding appellant guilty beyond a reasonable doubt

and each conviction is against the manifest weight of the evidence.”

      {¶20} The Ohio Supreme Court explained the criminal manifest-weight-of-the-

evidence standard of review in State v. Thompkins, 78 Ohio St.3d 380, 1997 Ohio 52,

678 N.E.2d 541 (1997), stating that the weight of the evidence addresses whether the

state's or the defendant's evidence is more persuasive. Id. at 386-387. “[A]lthough

there may be sufficient evidence to support a judgment, it could nevertheless be against

the manifest weight of the evidence. * * * ‘When a court of appeals reverses a judgment

of a trial court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a “thirteenth juror” and disagrees with the factfinder’s resolution

of the conflicting testimony.’” (Citations omitted.) State v. Wilson, 113 Ohio St.3d 382,

2007-Ohio-2202, 865 N.E.2d 1264, ¶25, citing Thompkins at 386-387. Further, “weight

of the evidence addresses the evidence’s effect of inducing belief.” Id.

      {¶21} A challenge based on insufficient evidence invokes a due process concern

and requires the assessment of whether the evidence is legally sufficient to support the

verdict as a matter of law. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900

N.E.2d 565, ¶113. “‘[T]he Due Process Clause protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary to constitute the

crime with which [the accused] is charged.’ (Emphasis added.)” State v. Nucklos, 121

Ohio St.3d 332, 2009-Ohio-792, 904 N.E.2d 512, ¶6, quoting In re Winship, 397 U.S.

358, 364, 90 S.Ct. 1068 (1970).

      {¶22} “The relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential




                                            5
elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       Possession of heroin

       {¶23} Jones was convicted of possession of heroin, a fourth-degree felony in

violation of R.C. 2925.11(A), which prohibits a person from knowingly obtaining,

possessing, or using a controlled substance or a controlled substance analog.

       {¶24} Jones takes issue with the circumstantial nature of the state’s case and

claims there was no evidence that he was aware of the baggie of heroin found hidden

under the passenger seat of the car or that he had exercised dominion or control over

the bag of heroin. Thus, he claims his possession of heroin conviction was based on

insufficient evidence. We disagree.

       {¶25} “Possession of drugs can be either actual or constructive.” State v. Fogle,

11th Dist. Portage No. 2008-P-0009, 2009-Ohio-1005, ¶28, citing State v. Rollins, 3d

Dist. No. 11-05-08, 2006-Ohio-1879, ¶22, quoting State v. Haynes, 25 Ohio St.2d 264,

267 N.E.2d 787 (1971). “Constructive possession exists when an individual is able to

exercise dominion or control of an item, even if the individual does not have the item

within his immediate physical possession.” (Quotation omitted.) State v. Kingsland,

177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶13 (4th Dist.).

       {¶26} When a person knowingly exercises control of a thing that is readily

available and in close proximity to him, sufficient evidence exists to support a finding of

constructive possession.    State v. Swalley, 11th Dist. Ashtabula No. 2010-A-0008,

2011-Ohio-2092, ¶54-55, citing State v. Lamb, 9th Dist. Summit No. 23418, 2007-Ohio-

5107, ¶12. Dominion and control can be proven via circumstantial evidence. Id.




                                            6
      {¶27} Here, the evidence establishes that Jones was the passenger in

Workman’s vehicle. Upon pulling over the vehicle, Deputy Wolff saw Jones bending

over in the car’s seat, and Wolff momentarily lost sight of Jones while he was walking

toward Workman’s vehicle. Moments later, Johns found the baggie of heroin hidden

underneath Jones’ seat. Workman denied it was hers.

      {¶28} The heroin did not have to be found directly on Jones’ person to establish

possession. Id. There was sufficient circumstantial evidence showing that Jones was

hiding the heroin under his seat while the officer approached the vehicle to support his

conviction. Further, upon weighing the evidence before the trial court, we disagree that

his possession conviction is against the manifest weight of the evidence.

      Trafficking heroin

      {¶29} Jones     was   convicted   of   trafficking   heroin   in   violation   of   R.C.

2925.03(A)(2), which prohibits a person from knowingly: “Prepare for shipment, ship,

transport, deliver, prepare for distribution, or distribute a controlled substance or a

controlled substance analog, when the offender knows or has reasonable cause to

believe that the controlled substance or a controlled substance analog is intended for

sale or resale by the offender or another person.”

      {¶30} The state operated under the theory that Jones was knowingly selling

heroin while he was staying with Workman. The state argues that it proved Jones was

preparing heroin for sale or was selling heroin based on the evidence that Jones had a

“large chunk” of heroin in his possession in Workman’s car along with a receipt

reflecting the purchase of baggies, which are used to package drugs for sale. The state

also points to the fact that Jones was staying with Workman and the bedroom




                                             7
containing men’s clothing also contained items associated with selling or distributing

illegal drugs, i.e., baggies, rubber gloves, and a digital scale. The state asserts that this

evidence coupled with Workman’s testimony that she had seen Jones “selling drugs”

while he lived with her was sufficient evidence establishing that he knowingly trafficked

a controlled substance.

       {¶31} Jones argues that his trafficking conviction was improper because the

state did not establish there was heroin in the apartment prepared or intended for sale,

and because it failed to connect the heroin found in the car to the “trafficking” items

found in Workman’s apartment.

       {¶32} In addition, there was no evidence as to whether the amount of heroin

found on Jones at the time of his arrest, i.e., 1.08 grams, was consistent with an amount

that would be divided and sold or whether this amount was consistent with an amount

typically maintained for personal use. There was likewise no testimony that this amount

was too large for personal consumption.

       {¶33} Furthermore, while there was testimony regarding baggies and a digital

scale in Jones’ purported bedroom, there was no corresponding explanation that these

items are used to weigh and apportion heroin for sale. “A police officer may testify as to

matters within their experience and observation which may assist the trier of fact[,]”

including “the amount of drugs and how they are packaged. ” (Citations omitted.) State

v. Bryant, 8th Dist. Cuyahoga No. 65614, 1994 Ohio App. LEXIS 2385, *6. Police may

testify about the amount and nature of drugs obtained and the relevance of these facts

that indicate that an individual is selling illegal drugs.      State v. Young, 8th Dist.

Cuyahoga No. 92744, 2010-Ohio-3402, ¶19. Although there was testimony that there




                                             8
was “residue” on the digital scale found in the male’s bedroom at Workman’s apartment,

there was no testimony describing the “residue” or indicating it was consistent with

heroin.

      {¶34} In spite of the direct testimony that Workman saw Jones “selling drugs,”

she never identified what type of “drugs” she saw him selling.        There was nothing

establishing what type of “drugs” he sold. Further, Workman never testified that her

second bedroom was being used by Jones.             Although the state proved that Jones

possessed heroin and marijuana and that the apartment where he had been staying a

few days contained plastic baggies, rubber gloves, and a digital scale, there was simply

no evidence that he prepared for sale, shipped, distributed, or sold heroin. Further, the

fact that Jones had both marijuana and heroin in his possession permits a reasonable

inference that he could have been selling either.

      {¶35} Accordingly, upon viewing the evidence in a light most favorable to the

prosecution, no rational trier of fact could have found that the state proved that Jones

was trafficking heroin beyond a reasonable doubt.

      {¶36} In State v. Smith, 8th Dist. Cuyahoga No. 96348, 2011-Ohio-6466, the

Eighth District Court of Appeals reversed Smith’s conviction for trafficking based on

insufficient evidence. Smith had three individual rocks of crack cocaine, and an officer

testified that based on his experience, this amount of crack coupled with the large

amount of cash found on Smith was consistent with an individual trafficking cocaine.

The officer also testified that Smith showed no signs of personal drug use and that he

did not have any paraphernalia on his person; thus, there was no evidence tending to

show that Smith intended to use this crack personally. Id. at ¶44. Notwithstanding, the




                                            9
court of appeals found the evidence insufficient to support the conviction, noting that the

crack rocks were not individually packaged for sale and there was no evidence that

Smith was located in a high drug area. Id. at ¶48.

        {¶37} As in Smith, we cannot uphold Jones’ trafficking conviction since the state

failed to meet its burden of production at trial. Although there was direct testimony that

Jones “sold drugs,” there was no evidence establishing that he sold heroin, which is an

essential element of the offense. Accordingly, his first assignment of error has merit in

part.

        {¶38} We do not address Jones’ manifest weight argument as it pertains to his

trafficking conviction in light of our decision finding insufficient evidence.

        {¶39} Jones’ third assigned error alleges, “The trial court committed plain error in

convicting appellant of allied offenses in violation of the Double Jeopardy Clause of the

Fifth Amendment to the U.S. Constitution and Section 10, Article I of the Ohio

Constitution.”

        {¶40} Jones argues that his trafficking and possession of heroin convictions are

allied offenses of similar import in violation of R.C. 2941.25 and the Double Jeopardy

Clause of the U.S. Constitution, and as such, the offenses should have merged for

sentencing pursuant to R.C. 2941.25(A). The state agrees with appellant that the trial

court failed to make this determination, and agrees that we must remand the case for

resentencing because the trial court failed to determine if Jones’ trafficking in heroin and

possession of heroin convictions were allied offenses of similar import.

        {¶41} Notwithstanding, this issue is moot in light of our conclusion that his

conviction for trafficking heroin is not supported by sufficient evidence.         State v.




                                              10
Pangburn, 12th Dist. Clermont No. CA2015-11-095, 2016-Ohio-3286, ¶35 (finding

appellants’ allied offense argument was moot based on a lack of sufficient evidence

supporting the underlying conviction). Thus, his third assignment of error is overruled.

      {¶42} Jones’ fourth assigned error asserts:        “The trial court’s sentence is

contrary to law by failing to comply with the applicable sentencing statutes R.C.

2929.11, 2929.12, and 2929.13.”

      {¶43} First, we note that Jones’ 18-month sentence for trafficking heroin must be

vacated in light of our decision that this conviction lacks sufficient evidence, and thus,

we only address arguments pertaining to his remaining 18-month sentence for

possession of heroin.

      {¶44} Jones was convicted of possession of heroin in violation of R.C.

2925.11(A), a felony of the fourth degree since the amount exceeds one gram, but was

less than five grams. R.C. 2929.14(A)(4) provides: “For a felony of the fourth degree,

the prison term shall be six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen,

fifteen, sixteen, seventeen, or eighteen months.”        Thus, the court imposed the

maximum, allowable sentence for his fourth-degree felony possession conviction.

      {¶45} R.C. 2925.11(C)(6)(b) states in part: “If the amount of the drug involved

* * * equals or exceeds one gram but is less than five grams, possession of heroin is a

felony of the fourth degree, and division (C) of section 2929.13 of the Revised Code

applies in determining whether to impose a prison term on the offender.”

      {¶46} R.C. 2929.13(C) states in part: “in determining whether to impose a prison

term as a sanction for a * * * felony drug offense that is a violation of a provision of

Chapter 2925 of the Revised Code and that is specified as being subject to this division




                                           11
for purposes of sentencing, the sentencing court shall comply with the purposes and

principles of sentencing under section 2929.11 of the Revised Code and with section

2929.12 of the Revised Code.”

       {¶47} Jones argues his sentence is contrary to law because the trial court

erroneously imposed the maximum prison term without considering the applicable

factors in R.C. 2929.11 and R.C. 2929.12 and because the trial court’s limited findings

are not supported by the record. Specifically, Jones challenges the trial court’s finding

that he previously served time in prison. He also disputes that his possession of heroin

conviction was more serious than the normal form of the offense. Finally, he argues the

trial court should have imposed community control sanctions under R.C. 2929.13(B)(1)

in light of its lack of findings that he previously spent time in prison.

       {¶48} R.C. 2953.08(G)(2) states: “The court hearing an appeal under division

(A), (B), or (C) of this section shall review the record, including the findings underlying

the sentence or modification given by the sentencing court.

       {¶49} “The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand

the matter to the sentencing court for resentencing. The appellate court’s standard for

review is not whether the sentencing court abused its discretion. The appellate court

may take any action authorized by this division if it clearly and convincingly finds either

of the following:

       {¶50} “(a) That the record does not support the sentencing court’s findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;




                                              12
       {¶51} “(b) That the sentence is otherwise contrary to law.”

       {¶52} Thus, R.C. 2953.08(G)(2) only allows an appellate court to modify a

sentence if it “clearly and convincingly finds that the sentence is (1) contrary to law or

(2) unsupported by the record.” State v. Brandenburg, 146 Ohio St.3d. 221, 2016-Ohio-

2970, ¶2, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002.

       {¶53} Jones avers that his sentence is clearly and convincingly not supported by

the record because there is nothing evidencing he has ever served time in prison. As

Jones contends, the trial court’s sentencing entry states in part that he “has previously

served time in a prison for a criminal offense.” This finding is not supported by the

record.   Instead, the state referenced and relied on Jones’ five, prior convictions,

including four prior drug trafficking convictions, at the sentencing hearing. Jones did not

object to the prosecutor’s summation of his prior offenses.          However, the state’s

reference to these prior offenses was very limited and did not address the

corresponding sentences for any. Further, the prosecutor never stated that Jones had

served time in prison. The court did not secure a presentence investigation report, and

the state did not submit any exhibits reflecting he spent time in prison.

       {¶54} In light of the lack of evidence that he served time in prison, Jones argues

the trial court was required to impose community control. R.C. 2929.13(B)(1)(a) states

that a trial court shall sentence a nonviolent fourth or fifth-degree felony offender to at

least one year of community control if:

       {¶55} “(1) the offender has not previously been convicted of or pleaded guilty to

a felony offense; (2) the most serious charge at the time of sentencing is a fourth- or

fifth-degree felony; (3) if, in a case where the court believes that no acceptable




                                            13
community-control sanctions are available, the court requests a community-control

option from the department of rehabilitation and correction, and the department

identifies a program of at least one year; and (4) the offender has not previously been

convicted of or pleaded guilty to a misdemeanor offense of violence committed during

the two years before the commission of the instant offense.” State v. Parrado, 11th Dist.

Trumbull No. 2015-T-0069, 2016-Ohio-1313, ¶10.

      {¶56} However, if one of any ten exceptions apply, the sentencing court has

discretion to impose prison. Id. at ¶11. One stated exception is the offender previously

served a prison term. R.C. 2929.13(B)(1)(b)(x). The record is devoid of any evidence

that Jones previously served a prison term.

      {¶57} Notwithstanding, this court has held that R.C. 2929.13(B)(1) is

inapplicable upon sentencing an offender for multiple fourth or fifth-degree felony

offenses, Parrado at ¶23, and thus, R.C. 2929.13(B)(1) was inapplicable at the time of

Jones’ sentencing because he was being sentenced for two, fourth-degree felonies. Id.

      {¶58} However, we have since found that his trafficking conviction was based on

insufficient evidence. Thus, our reversal of his trafficking offense in addition to the

unsupported finding that Jones previously served a prison term require reversal and

remand for resentencing. On remand, the trial court shall apply R.C. 2929.13(B)(1).

      {¶59} Finally, Jones argues the trial court failed to adequately balance and

consider the relevant sentencing factors under R.C. 2929.12, outlining the seriousness

and recidivism factors. A sentencing court does not have to use specific language and

render precise findings to satisfactorily “consider” the relevant seriousness and

recidivism factors. State v. Long, 11th Dist. Lake No. 2013-L-102, 2014-Ohio-4416,




                                           14
¶79. Instead, the defendant has the burden to affirmatively show that that the court did

not consider the applicable sentencing criteria or that the sentence imposed is “strikingly

inconsistent” with the applicable sentencing factors. Id.

       {¶60} Here, the trial court relied on the limited evidence of Jones’ prior

convictions presented by the state.      Neither Jones nor his counsel objected to or

disputed the reference to his five convictions in Cuyahoga County.            Furthermore,

defense counsel did not present any mitigating factors in favor of imposing a more

lenient sentence. Thus, we disagree that the trial court did not adequately consider the

applicable sentencing factors.

       {¶61} Notwithstanding, the state emphasized at sentencing that Jones was

being sentenced for two, fourth-degree felonies and that he has several drug trafficking

convictions.   Thus, in light of the insufficient evidence supporting Jones’ trafficking

conviction and the trial court’s unsupported finding that he has previously served time in

prison, we clearly and convincingly find that the record does not support the sentencing

court’s findings.   R.C. 2953.08(G)(2)(a).    Accordingly, we reverse Jones’ 18-month

sentence for possession of heroin and remand to the trial court for resentencing.

       {¶62} Jones’ fifth argument asserts, “The trial court committed plain error in

entering the forfeiture verdict.”

       {¶63} “‘Notice of plain error * * * is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.’ State

v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

Plain error does not exist unless it can be said that but for the error, ‘the outcome of the




                                             15
trial clearly would have been otherwise.’” State v. Washington, 6th Dist. Ottawa No.

OT-12-032, 2014-Ohio-1008, ¶47, quoting Long at 97.

       {¶64} R.C. 2981.04(B) states in part, “If a person pleads guilty to or is convicted

of an offense * * * and the complaint, indictment, or information charging the offense or

act contains a specification covering property subject to forfeiture under section 2981.02

of the Revised Code, the trier of fact shall determine whether the person’s property shall

be forfeited.” (Emphasis added.)

       {¶65} Although appellant was charged with the forfeiture specification, the jury

was not instructed to consider the issue, and it did not consider the issue.             Jones

likewise never moved the court to consider this issue. In spite of the error, the trial court

independently addressed the forfeiture specification and ordered Jones to forfeit the

$1,287.

       {¶66} A few courts, including this one, have addressed this issue and held a trial

court cannot consider and order forfeiture unless a defendant moves the trial court

judge to decide the issue. State v. Cave, 2015-Ohio-2233, 36 N.E.3d 732, ¶41 (4th

Dist.); State v. Taylor, 11th Dist. Portage No. 2011-P-0090, 2012-Ohio-3890, ¶60

(holding the trial court erred as a matter of law in issuing an order of forfeiture). The

legislature has allocated this issue to the jury, and the trial court is precluded from

deciding forfeiture without a specific motion by appellant requesting it to do so. Id.

       {¶67} Accordingly, Jones’ fifth assignment of error has merit. The trial court’s

forfeiture order constitutes plain error and is vacated.




                                             16
       {¶68} Jones’ sixth assignment of error asserts: “Appellant received ineffective

assistance of counsel in violation of his rights pursuant to the Sixth Amendment to the

United States Constitution and Section 10, Article I of the Ohio Constitution.”

       {¶69} Jones’ ineffective assistance of counsel argument is threefold. He claims

he was denied the effective assistance of trial counsel based on: (1) his attorney’s

failure to request merger of his trafficking and possession convictions; (2) his counsel’s

failure to object to the trial court’s written finding that he had previously served time in

prison; and (3) his attorney’s failure to object to the trial court’s decision to

independently decide the forfeiture issue.

       {¶70} To establish ineffective assistance of trial counsel, Jones must establish

first that his counsel was deficient, and second, that he was prejudiced as a result, i.e.,

that there is a reasonable probability that but for his attorney’s errors the outcome of his

trial would have been different. State v. DiNardo, 11th Dist. Lake No. 2013-L-108,

2015-Ohio-1061, ¶27, citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373

(1989). “Counsel's performance will not be deemed ineffective unless and until the

performance is proved to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel's performance.” State v.

Iacona, 93 Ohio St.3d 83, 105, 2001 Ohio 1292, 752 N.E.2d 937 (2001).

       {¶71} Reviewing courts must presume that an attorney’s performance usually

falls within the wide range of reasonable legal assistance. State v. Carter, 72 Ohio

St.3d 545, 558, 1995 Ohio 104, 651 N.E.2d 965 (1995). Debatable trial tactics and




                                             17
strategies do not constitute ineffective assistance of counsel. State v. Phillips, 74 Ohio

St. 3d 72, 85, 656 N.E.2d 643 (1995).

       {¶72} Jones first contends that his counsel erred in failing to request merger of

his offenses at sentencing. The state argues that regardless of this likely error, Jones

suffered no resulting prejudice since his sentences were ordered to run concurrently.

However, having two convictions instead of one is prejudicial. State v. Shaw, 4th Dist.

Scioto No. 07CA3190, 2008-Ohio-5910, ¶15-16 (finding prejudicial, plain error where

court imposes concurrent, multiple sentences that should have merged). Regardless,

this claim is moot in light of our determination that Jones’ trafficking conviction was

based on insufficient evidence.

       {¶73} Jones also argues prejudicial error based on his attorney’s failure to object

to the trial court’s written finding that he had previously served time in prison. This

argument is likewise moot in light of our decision to remand Jones’ possession of heroin

conviction for resentencing.

       {¶74} Next Jones argues that he suffered prejudice as a result of his counsel’s

failure to object to the trial court’s failure to instruct the jury on the forfeiture of the

$1,287. We will not generally find ineffective assistance of counsel based on the failure

to object, which is typically a strategic decision. State v. Tipton, 11th Dist. Portage No.

2012-P-0072, 2013-Ohio-3207, ¶32. Again, as outlined under his fifth assigned error,

we vacate the trial court’s decision independently ordering forfeiture of the $1,287, and

as such, this argument is also moot.

       {¶75} Accordingly, Jones’ sixth assigned error lacks merit.




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       {¶76} Jones’ seventh and final assigned error states: “The trial court erred in

improperly imposing post release control on Appellant.”

       {¶77} Jones argues the trial court erred in its post-release control notification for

two reasons. First, it did not inform him that he was facing post-release control for both

sentences to run concurrently. However, this argument is moot based on our finding a

lack of sufficient evidence supporting Jones’ trafficking in heroin conviction.

       {¶78} Second, he asserts the trial court’s written sentencing entry is deficient

because it states that he was facing three years post-release control, and not that he

was subject to up to three years post-release control. The state agrees and submits

resentencing is warranted on this issue.

       {¶79} R.C. 2929.19(B)(2)(d) requires the sentencing court to notify a defendant

being sentenced for a third, fourth, or fifth-degree felony that he or she may be

supervised under section 2967.28 of the Revised Code after the offender leaves prison.

       {¶80} R.C. 2967.28(C) states in part, “Any sentence to a prison term for a felony

of the third, fourth, or fifth degree that is not subject to division (B)(1) or (3) of this

section shall include a requirement that the offender be subject to a period of post-

release control of up to three years after the offender’s release from imprisonment, if the

parole board, in accordance with division (D) of this section, determines that a period of

post-release control is necessary for that offender.” (Emphasis added.)

       {¶81} The trial court at Jones’ sentencing stated: “[A]t the discretion of the adult

parole authority, you could be placed on post release control after you have finished the

sentence and that would mean reporting to a parole officer. That can last for three

years * * *.”




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       {¶82} The trial court states in part in its written judgment entry of sentence:

“Upon completion of the prison term, the offender may be subject to a period of post-

release control for three (3) years, as determined by the Parole Board pursuant to R.C.

§2967.28.”

       {¶83} The court was required to inform him that he was subject to up to three

years post-release control, not that it would last for three years. Although the court

appears to have correctly informed him at the hearing that post-release control can last

up to three years, he was erroneously informed that he was subject to the maximum

amount of post-release control via the court’s written judgment entry.

       {¶84} “[A] trial court must provide statutorily compliant notification to a defendant

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

defendant of the details of the postrelease control and the consequences of violating

postrelease control.” State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d

718, ¶18. And “a trial court must incorporate into the sentencing entry the postrelease-

control notice to reflect the notification that was given at the sentencing hearing.” Id. at

¶19.

       {¶85} Here, the trial court’s written notification to Jones informed him he was

subject to the maximum amount of post-release control that he was facing, and as such,

there was no prejudice. In State v. Johns, 11th Dist. Ashtabula No. 2011-A-0003, 2012-

Ohio-864, this court considered sentencing in which the trial court advised Johns that he

was subject to up to five years post-release control, but it should have advised him that

he was facing up to three years. Instead of remanding for resentencing, we modified

John’s sentence and remedied the notification error. Id. at ¶42.




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       {¶86} In light of the fact that we are remanding Jones’ possession of heroin

conviction for resentencing, the trial court on remand should also correct this error and

make it clear that Jones is subject to post-release control for up to three years.

       {¶87} In conclusion, the judgment of the Ashtabula County Court of Common

Pleas is affirmed as to Jones’ conviction for possession of heroin. His sentence for

possession is remanded for further proceedings consistent with this opinion. Jones’

drug trafficking conviction is reversed and vacated, and the trial court’s separate

forfeiture order ordering $1,287 forfeited is also vacated.



CYNTHIA WESTCOTT RICE, P.J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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