[Cite as State v. Pugh, 2022-Ohio-3437.]

Atty. J. Kevin Flanagan, Belmont County Prosecutor and Atty. Daniel P. Fry, Assistant 

Prosecutor, Belmont County Prosecutor’s Office, 52160 National Road, St. Clairsville, 

Ohio 43950, for Plaintiff-Appellee and

Atty. Sterling E. Gill, II, 1544 E. Broad Street, Suite 201, Columbus, Ohio 43203, for 

Defendant-Appellant.

Dated: 

September 29, 2022

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

BELMONT COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

DONNIE DWAYNE PUGH,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 21 BE 0041

Criminal Appeal from the

Court of Common Pleas of Belmont County, Ohio

Case No. 21-CR-0056

BEFORE:

Gene Donofrio, Cheryl L. Waite, David A. D’Apolito, Judges.

JUDGMENT:

Affirmed.
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Case No. 21 BE 0041

Donofrio, P. J.

{¶1} Defendant-Appellant, Donnie Pugh, appeals from a Belmont County 

Common Pleas Court judgment convicting him of felony possession of cocaine following 

his guilty plea. 

{¶2} Appellant and plaintiff-appellee, the State of Ohio, both set out the facts 

as noted in the Ohio Uniform Incident Report in this case. According to that report, on 

November 10, 2020, the Belmont County Sheriff’s Office received information from the El 

Paso, Texas Police Department that a suspected package containing drugs had been 

shipped from El Paso, Texas to an address in Martins Ferry, Ohio via the United Parcel 

Service (UPS). Consequently, deputies obtained an anticipatory search warrant for the 

package and for the address it was being shipped to. 

{¶3} The package arrived at a UPS office in Belmont County on November 12, 

2020. After confirming that the package did in fact contain 77 grams of cocaine, deputies 

delivered it to the address indicated, rang the doorbell, and watched as appellant opened 

the door and brought the package inside. Deputies then executed the warrant for the 

residence and found that appellant had attempted to flush the cocaine down the toilet. 

{¶4} On March 4, 2021, a Belmont County Grand Jury indicted appellant on 

one count of trafficking in cocaine, a first-degree felony in violation of R.C. 

2925.03(A)(2)(C)(4)(f); one count of possession of cocaine, a first-degree felony in 

violation of R.C. 2925.11(A)(C)(4)(e); one count of tampering with evidence, a thirddegree felony in violation of R.C. 2921.12(A)(1)(B); and one count of having weapons 

under a disability, a third-degree felony in violation of R.C. 2923.13(A)(3)(B). Appellant 

initially entered a not guilty plea. 

{¶5} After negotiations with the state, on September 16, 2021, appellant 

entered a guilty plea to the felony one possession of cocaine charge. In exchange, the 

state agreed to dismiss the other three charges and stand silent at sentencing. The trial 

court accepted appellant’s plea and set the matter for a sentencing hearing. 

{¶6} At the September 27, 2021 sentencing hearing, the trial court sentenced 

appellant to 10 to 15 years in prison and a five-year driver’s license suspension. 
– 3 –

Case No. 21 BE 0041

{¶7} Appellant filed a timely notice of appeal on October 19, 2021. He now 

raises three assignments of error. 

{¶8} Appellant’s first assignment of error states:

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED 

PREJUDICIAL ERROR BY SENTENCING APPELLANT TO ALMOST A 

MAXIMUM TERM OF IMPRISONMENT RELYING ON SPECULATION 

RATHER THAN FACTS WHEN THERE WAS NO DIRECT EVIDENCE 

LINKING APPELLANT TO ANY CRIMES BEYOND MERELY HANDLING 

SUBJECT DRUGS, AND FURTHER ABUSED ITS DISCRETION BY 

TELLING APPELLANT THAT FOR GOOD BEHAVIOR THE 

DEPARTMENT OF REHABILITATION AND CORRECTION CAN REDUCE 

APPELLANT’S SENTENCE BY TEN YEARS, GUILTY PLEA 

NOTWITHSTANDING.

{¶9} Appellant asserts the trial court abused its discretion in sentencing him. 

He contends the court was speculating when it stated it believed appellant “was acting as 

part of an organized plan” and that he had “an intent to traffic.” (Tr. 17). Appellant also 

contends the trial court erred when it told him the Department of Corrections could reduce 

his sentence by ten years. (Tr. 20). 

{¶10} First, an abuse of discretion standard of review does not apply here as 

appellant asserts. When reviewing a felony sentence, an appellate court must uphold the 

sentence unless the evidence clearly and convincingly does not support the trial court's 

findings under the applicable sentencing statutes or the sentence is otherwise contrary to 

law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. This 

court recently discussed the Ohio Supreme Court's most recent comments on felony 

sentencing review and Marcum:

The Ohio Supreme Court recently addressed review of felony sentences in 

State v. Jones, ––– Ohio St.3d ––––, 2020-Ohio-6729, ––– N.E.3d ––––. 

The Jones Court clarified the standard of review for felony sentences that 

was previously announced in Marcum. Marcum held “that R.C. 

2953.08(G)(2)(a) compels appellate courts to modify or vacate sentences if 
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Case No. 21 BE 0041

they find by clear and convincing evidence that the record does not support 

any relevant 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.’ ” Marcum, supra, ¶ 22. The Jones Court did not overrule 

Marcum but clarified dicta to reflect that “[n]othing in R.C. 2953.08(G)(2) 

permits an appellate court to independently weigh the evidence in the 

record and substitute its judgment for that of the trial court concerning the 

sentence that best reflects compliance with R.C. 2929.11 and 2929.12.” 

Jones, supra, at ¶ 42.

State v. McGarry, 7th Dist. Belmont No. 19 BE 0049, 2021-Ohio-1281, ¶ 18.

{¶11} Appellant’s sentence is within the applicable range set out by R.C. 

2929.14(A)(1)(a) for a first-degree felony. 

{¶12} As to the court’s comment regarding intent to traffic, it stated that it “could 

only assume with that quantity [77grams] that there was an intent to traffic” and that it was 

“highly unlikely that was for his personal use only.” (Tr. 17). It also stated, “I’m not finding 

he was guilty of trafficking. I’m just pointing that out.” (Tr. 17). It also commented that it 

believed appellant was acting as part of an organized activity because he received a 

shipment of 77 grams of cocaine. (Tr. 17). There were very few actual facts of record in 

this case due to the fact that appellant entered a guilty plea. But appellant pleaded guilty 

to possessing 77 grams of cocaine. This was the one fact the court cited to. 

{¶13} Additionally, the state is correct that appellant misinterpreted what the trial 

court told him regarding the Department of Corrections being able to reduce his prison 

term. The court’s statements to appellant on this subject were:

First of all, in the event of good behavior, the Department of 

Corrections can reduce your minimum term by - - ten years - - by between 

five and 15 percent. If they decide that they want to do that, they have to 

notify this Court. This Court has to schedule a hearing and can rebut their 

finding if that’s the case. 

Now, if you - - if that is granted, fine, then you would be released 

between five and 15 percent early. If this Court finds that that’s not 
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Case No. 21 BE 0041

appropriate, then you are eligible for release after you serve your minimum 

term. However, as we discussed previously, you are also eligible to receive 

a bad behavior finding. In other words, if you misbehave while you are in 

prison, if you continue to be a threat to society, if your security classification 

is not reduced, if you commit a crime while you’re in prison, if you use drugs 

of abuse while you’re in prison - - and you will be subject to random testing 

while you are there - - then the corrections department can choose to keep 

you in prison for up to - - as often as they wish, but the most they can ever 

extend your minimum term is by five years up to the maximum term. 

(Tr. 20-21). 

{¶14} The trial court stated that the department of corrections could reduce 

appellant’s minimum term, which was ten years, “by between five and 15 percent.” (Tr. 

20). Appellant misinterprets the court’s words here. 

{¶15} There is no indication that the evidence clearly and convincingly does not 

support the trial court's findings under the applicable sentencing statutes or that 

appellant’s sentence is otherwise contrary to law.

{¶16} Accordingly, appellant’s first assignment of error is without merit and is 

overruled.

{¶17} Appellant’s second assignment of error states:

APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH 

AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES.

{¶18} Here appellant contends his trial counsel was ineffective for failing to 

present the defense of entrapment. He claims that law enforcement in this case had no 

idea that he would answer the door at his girlfriend’s house when the drugs were 

delivered. He asserts that by dropping off the package of drugs and banging on the door, 

law enforcement entrapped any person who would have answered the door. 

{¶19} A voluntarily entered guilty plea waives ineffective assistance of counsel 

claims except claims that counsel’s performance caused the waiver of a defendant’s trial 
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Case No. 21 BE 0041

rights and the entry of his plea to be less than knowing and voluntary. State v. Lett, 7th 

Dist. Mahoning No. 15 MA 0128, 2016-Ohio-4811, ¶ 52, citing State v. Fatula, 7th Dist. 

Belmont No. 07 BE 24, 2008-Ohio-1544 at ¶ 9 (quoting State v. Kidd, 2d Dist. No. 

03CA43, 2004-Ohio-6784, ¶ 16). In this case, appellant does not argue that he entered 

his guilty plea unknowingly or involuntarily. Thus, appellant has waived the issue of his 

counsel’s effectiveness.

{¶20} Accordingly, appellant’s second assignment of error is without merit and

is overruled. 

{¶21} Appellant’s third assignment of error states:

THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN A 

CONVICTION FOR FELONY 1 DRUG POSSESSION. 

{¶22} In his final assignment of error, appellant argues there was insufficient 

evidence to support his conviction for felony drug possession. He asserts the only 

evidence against him was that he picked up a package at his girlfriend’s house, saw there 

were drugs inside, panicked, and tried to flush the drugs down the toilet. 

{¶23} Sufficiency of the evidence is the legal standard applied to determine 

whether the case may go to the jury or whether the evidence is legally sufficient as a 

matter of law to support the verdict. State v. Dickson, 7th Dist. Columbiana No. 12 CO 

50, 2013-Ohio-5293, ¶ 10 citing State v. Thompkins, 80 Ohio St.3d 89, 113, 684 N.E.2d 

668 (1997). 

{¶24} But as discussed above, appellant pleaded guilty in this case. There was 

no trial and no presentation of evidence. In other words, there is nothing for us to review. 

A guilty plea waives any right to appeal any trial court error, except for errors in the plea 

itself. State v. Truax, 7th Dist. Belmont No. 06 BE 66, 2007-Ohio-4993, ¶ 8, citing State 

v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two of the syllabus. 

{¶25} Accordingly, appellant’s third assignment of error is without merit and is 

overruled.

{¶26} For the reasons stated above, the trial court’s judgment is hereby affirmed. 

Waite, J., concurs.

D’Apolito, J., concurs.
[Cite as State v. Pugh, 2022-Ohio-3437.]

For the reasons stated in the Opinion rendered herein, the assignments of error 

are overruled and it is the final judgment and order of this Court that the judgment of the 

Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be taxed against 

the Appellant.

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.