[Cite as State v. Dixon, 2022-Ohio-2807.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

HOCKING COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. 21CA8

v. :

MELODY DIXON, : DECISION AND JUDGMENT ENTRY 

Defendant-Appellant. :

_________________________________________________________________

APPEARANCES:

Alisa Turner, Glouster, Ohio, for appellant1. 

Andrea K. Boyd, Special Prosecuting Attorney, Assistant Attorney 

General, Columbus, Ohio, for appellee.

___________________________________________________________________

CRIMINAL APPEAL FROM COMMON PLEAS COURT

DATE JOURNALIZED:8-5-22

ABELE, J.

{¶1} This is an appeal from a Hocking County Common Pleas 

Court judgment of conviction and sentence. After Melody Dixon, 

defendant below and appellant herein, pleaded guilty to three 

counts of tampering with evidence and two counts of obstructing 

justice, the trial court sentenced her to serve a total of nine 

years in prison. 

1 Different counsel represented appellant during the trial 

court proceedings.
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{¶2} Appellant assigns four errors for review: 

FIRST ASSIGNMENT OF ERROR:

“APPELLANT’S COUNSEL RENDERED INEFFECTIVE 

ASSISTANCE OF COUNSEL FOLLOWING THE TRIAL COURT 

DECISION ON THE DEFENSE MOTION TO DISMISS FOR 

VIOLATION OF APPELLANT’S SPEEDY TRIAL RIGHTS 

AND CONTINUING THROUGH THE SENTENCING HEARING.”

SECOND ASSIGNMENT OF ERROR:

“THE TRAIL [SIC.] COURT FAILED TO PROPERLY 

CONSIDER THE SERIOUSNESS AND RECIDIVISM FACTORS 

OF O.R.C. 2929.12 AND THE PURPOSES OF FELONY 

SENTENCING IN R.C. 2929.11.”

THIRD ASSIGNMENT OF ERROR:

“PROSECUTORIAL MISCONDUCT IMPROPERLY INFLUENCED 

THE TRIAL COURT, PREJUDICING THE APPELLANT’S 

RIGHT TO A FAIR SENTENCING HEARING AND THE 

PROSECUTOR FAILED TO HONOR THE PLEA AGREEMENT.”

FOURTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY NOT DISMISSING THE 

INDICTMENT FOR VIOLATION OF APPELLANT’S RIGHT 

TO A SPEEDY TRIAL PURSUANT TO O.R.C. 

2945.73(A).” 

{¶3} On or about July 3, 2020, Michael Dixon, appellant’s 

father, shot and killed James Whitaker. The prosecution alleged 

that appellant (1) had been present when the homicide occurred, (2) 

assisted in the disposal of the victim’s body, and (3) lied to law 

enforcement about what occurred. 

{¶4} On July 28, 2020, law enforcement authorities arrested 

appellant for obstructing justice in violation of R.C. 
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2921.32(A)(5), a fifth-degree felony (Case Number 20CR0140). The 

complaint alleged that on July 27, 2020, appellant knowingly “made 

a false statement in which she later admitted to during the course 

of a felony investigation that was being conducted at 23605 

Chestnut Grove Road.” At appellant’s July 30, 2020 arraignment, 

the trial court set a $100,000 bond, but later modified bond to 

$300,000. 

{¶5} On September 25, 2020, a Hocking County Grand Jury 

returned an indictment that charged appellant with (1) obstructing 

justice in violation of R.C. 2921.32(A)(5)/(C)(4), a third-degree 

felony, and (2) obstructing justice in violation of R.C. 

2921.32(A)(5)/(C)(3), a fifth-degree felony. At appellant’s 

October 1, 2020 arraignment, the trial court modified appellant’s 

bond to $500,000 and set an October 21, 2020 trial date. Appellant 

also filed a motion for discovery. 

{¶6} On October 9, 2020, appellee filed a motion for a 

continuance due to the “complexity of the case, possible additional 

charges and to promote court efficiency * * * 198 days can be 

credited towards the 270 days required under R.C. 2945.71(C)(2). 

However, the state believes that time is currently tolled (since 

Oct. 1, 2020) while Defendant’s Request for Discovery is being 

fulfilled.” The trial court continued the jury trial in Case No. 
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20CR0140 to October 29, 2020. 

{¶7} On October 23, 2020, a Hocking County Grand Jury returned 

an indictment in Case No. 20CR0202 that charged appellant with (1) 

seven counts of tampering with evidence in violation of R.C. 

2921.12(A)(1)/(B), third-degree felonies, (2) one count of gross 

abuse of a corpse in violation of R.C. 2927.01(B)/(C), a fifthdegree felony, (3) one count of obstructing justice in violation of 

R.C. 2921.32(A)(5)/(C)(3), a fifth-degree felony, (4) one count of 

obstructing justice in violation of R.C. 2921.32(A)(5)/(C)(4), a 

third-degree felony, and (5) one count of engaging in a pattern of 

corrupt activity in violation of R.C. 2923.32(A)(1)/(B)(1), a 

first-degree felony. Five days later, the trial court dismissed 

Case No. 20CR0140 without prejudice due to the superseding 

indictment.

{¶8} At appellant’s October 29, 2020 arraignment, appellant 

entered not guilty pleas and the trial court scheduled a January 

20, 2021 jury trial. However, on November 20, 2020, the trial 

court sua sponte continued all jury trials due to the COVID-19 

pandemic. Appellant also filed a second discovery request on 

December 2, 2020, and the state responded on December 14, 2020. On 

January 11, 2021, the trial court again sua sponte continued 

appellant’s January 20, 2021 jury trial due to the COVID-19 
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pandemic and noted that, for purposes of speedy trial, the delay 

did not count against the state. The court then scheduled a jury 

trial on February 16 and 17, 2021. 

{¶9} On February 8, 2021, appellant requested a dismissal of 

charges and asserted that the state did not bring her to trial 

within the R.C. 2945.71 and 2945.72 speedy trial time requirements.

At the motion hearing, Hocking County Sheriff’s Lieutenant 

Detective Dustin Robison testified that he investigated James 

Whitaker’s death and, when asked “at what point in time would you 

consider your investigation complete,” Robison replied, “Right now 

I believe it’s still not complete. There’s still questions out 

there that we do not know, that we are still seeking the truth.” 

Robison testified that appellant’s initial obstruction charges 

related to her July 2020 false statements about the victim’s 

disappearance. Concerning the second indictment, Robison testified 

that appellant made false statements at least three times in one 

interview. On March 30, 2021, the trial court denied appellant’s 

motion on all counts, except counts nine and ten for which the 

court reserved judgment.

{¶10} At appellant’s May 18, 2021 change of plea hearing, the 

trial court first advised appellant of her constitutional rights. 

When the court asked “anything unusual about your present mental or 
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physical condition,” appellant indicated she had been treated for 

depression and post-traumatic stress disorder (PTSD) in the past, 

but her plea is knowing, intelligent, and voluntary. Appellant 

then pleaded guilty to Counts 4, 5, and 7 tampering with evidence, 

all third-degree felonies; Count 9 obstructing justice, a fifthdegree felony; and Count 10 obstructing justice, a third-degree 

felony. 

{¶11} At appellant’s June 17, 2021 sentencing hearing, the 

trial court indicated it had reviewed the sentencing memorandum and 

pre-sentence investigation report. Also, all four of the victim’s 

daughters and the victim’s neighbor spoke at sentencing. On 

appellant’s behalf, appellant’s counsel read appellant’s prepared 

statement. The trial court commented, “the defendant’s life as a 

child was far from ideal, and certainly I’m sure that had an 

influence on what occurred. However, it doesn’t excuse it.” 

{¶12} After the trial court heard the statements and reviewed 

the memorandum and the report, the court sentenced appellant to 

serve (1) three years in prison on each of Counts 4, 5, and 7, (2) 

twelve months in prison on Count 9, and (3) three years in prison 

on Count 10. The court further ordered (1) the sentences in Counts 

4, 5, and 7 to be served consecutively for a total of nine years, 

and (2) the sentences in Counts 9 and 10 to be served concurrently 
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with Counts 4, 5, and 7, for a nine-year total sentence. Finally, 

the court ordered appellant to serve a three-year post-release 

control term and dismissed Counts 1, 2, 3, 6, 8, and 11. This 

appeal followed.

I.

{¶13} In her first assignment of error, appellant asserts that 

her trial counsel failed to provide effective assistance of 

counsel. In particular, appellant claims that her counsel failed 

to (1) preserve the issue of appellant’s speedy trial rights by 

allowing her to enter a guilty plea, (2) object to the trial 

court’s decision that partially overruled her motion to dismiss 

based on speedy trial violations, (3) object to the prosecutor’s

improper sentencing statements, (4) object to the victim’s 

daughters’ sentencing statements, (5) explain the impact of 

appellant’s PTSD and childhood trauma, or obtain an expert to do 

so, and (6) direct the court to consider R.C. 2929.12 and 

2929.12(C)(1) at sentencing. 

{¶14} The Sixth Amendment to the United States Constitution,

and Article I, Section 10 of the Ohio Constitution, provides that

defendants in all criminal proceedings shall have the assistance of

counsel for their defense. To establish constitutionally 

ineffective assistance of counsel, a defendant must show that (1) 
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counsel's performance was deficient, and (2) the deficient 

performance prejudiced the defense and deprived the defendant of a

fair trial. Id. at 687. To establish deficient performance, a 

defendant must prove that counsel's performance fell below an 

objective level of reasonable representation. State v. Conway, 109 

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. 

Additionally, a court need not analyze both Strickland test prongs 

if it can resolve the claim under one prong. See State v. 

Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000); State v. 

Bowling, 4th Dist. Jackson No. 19CA2, 2020-Ohio-813, ¶ 12-13.

{¶15} When a court examines whether counsel's representation

amounts to deficient performance, “a court must indulge a strong

presumption that counsel's conduct falls within the wide range of

reasonable professional assistance.” Strickland at 689, 466 U.S.

668, 104 S.Ct. 2052. Moreover, because a properly licensed

attorney is presumed to execute all duties ethically and

competently, State v. Taylor, 4th Dist. Washington No. 07CA11,

2008-Ohio-482, ¶ 10, to establish ineffectiveness a defendant must

demonstrate that counsel's errors were “so serious” that counsel

failed to function “as the ‘counsel’ guaranteed * * * by the Sixth

Amendment.” Strickland at 687, 466 U.S. 668, 104 S.Ct. 2052.

A.
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{¶16} Initially, appellant asserts that her trial counsel 

failed to provide effective assistance when appellant’s no-contest 

plea failed to preserve various issues for appeal. Appellant 

points out that when she entered her guilty pleas, the trial court 

had not yet ruled on her Count 9 and 10 speedy trial claim, that 

she did not know the court would not rule on Counts 9 and 10, and 

she did not know her guilty pleas would waive all speedy trial 

issues. Appellant thus argues that her trial counsel failed to: 

(1) advise her to enter a no contest plea to preserve the speedy 

trial issue, and (2) request a final ruling for Counts 9 and 10, or 

specifically indicate on the record whether appellant knew that a 

guilty plea would waive the issue for appeal. Appellant further 

argues that she suffered prejudice because her speedy trial claims 

were likely to succeed on appeal. 

{¶17} Crim.R. 12(H) provides “[t]he plea of no contest does not 

preclude a defendant from asserting upon appeal that the trial 

court prejudicially erred in ruling on a pretrial motion * * *,” 

see also State v. Luna, 2 Ohio St.3d 57, 58, 442 N.E.2d 1284 

(1982). A guilty plea, however, waives a defendant’s right to 

challenge R.C. 2945.71 statutory speedy trial claims. State v. 

Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph one of 

the syllabus. 
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{¶18} Generally, when considering an ineffective assistance 

claim, a defendant must overcome a presumption that counsel’s 

challenged action might be considered sound trial strategy. State 

v. Hankison, 4th Dist. Scioto No. 09CA3326, 2010-Ohio-4617, at ¶ 

105. Relevant to this case, “the strategic decision of a trial 

attorney will not form the basis of a claim of ineffective 

assistance of counsel, even if there may have been a better 

strategy available.” State v. Jackson, 4th Dist. Pickaway No. 

11CA20, 2012-Ohio-6276, ¶ 56, quoting State v. Komora, 11th Dist. 

Geauga No. 96–G1994, 1997 WL 184758, *3 (Apr. 4, 1997), citing 

State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980). 

Further, judicial scrutiny of a lawyer’s performance is highly 

deferential. State v. Sallie, 81 Ohio St.3d 673, 693 N.E.2d 267; 

State v. Newton, 2017-Ohio-7068, 95 N.E.3d 789 (8th Dist.). 

{¶19} In the case sub judice, appellee argues that nothing in 

the record indicates that (1) the state would have agreed to 

resolve this case with no contest pleas to the five offenses to 

which appellant pleaded guilty and (2) the trial court would have 

been willing to accept no contest pleas. Importantly, as appellee 

observes, appellant did, in fact, receive a significant benefit in 

exchange for her guilty pleas. Pursuant to the parties’ plea 

agreement, the court dismissed six felony charges, including 
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engaging in a pattern of corrupt activity, a first-degree felony. 

Thus, appellee argues, although a no contest plea may have 

preserved appellant’s right to challenge the speedy trial issue,

appellant instead chose to plead guilty in exchange for the 

dismissal of six felony charges. 

{¶20} Our review of the record reveals that the trial court 

informed appellant that her guilty plea would result in a waiver of 

her speedy trial rights. When the court asked appellant if she 

understood that she would be “giving up [her] right to a speedy 

public jury trial?,” appellant indicated she understood. After the 

court thoroughly explained all other rights appellant would waive 

with her guilty plea, appellant chose to plead guilty to four 

third-degree felonies and one fifth-degree felony. Appellant also 

signed a “Petition to Enter Plea of Guilty,” which provides that 

her guilty plea waives “any and all constitutional, statutory, or 

factual defenses with respect to such crimes and this case.”

{¶21} In State v. McCann, 4th Dist. Lawrence No. 10CA12, 2011-

Ohio-3339, the defendant expressly waived his statutory speedy 

trial right and pled guilty. Id. at ¶ 16. This court wrote that 

when “an accused enters a plea of guilty he waives his right to 

raise the denial of his right to a speedy trial on appeal.” Id.

at ¶ 17, citing Montpelier v. Greeno, 25 Ohio St.3d 170, 495 N.E.2d 
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581 (1986). As we observed, “[a] plea of guilty constitutes a 

complete admission of guilt * * * and waives the right to claim 

that the accused was prejudiced by constitutionally ineffective 

counsel, except to the extent the defects complained of caused the 

plea to be less than knowing and voluntary.” State v. Floyd, 4th 

Dist. Scioto No. 92CA2102, 1993 WL 415287 (Oct.13, 1993), quoting 

State v. Barnett (1991), 73 Ohio App.3d 244, 248-249, 596 N.E.2d. 

{¶22} In the case sub judice, we find nothing in the record to 

indicate that appellant’s decision to enter a guilty plea was not a 

voluntary act and could have been sound trial strategy. See State 

v. Frankle, 2015-Ohio-1581, 31 N.E.3d 1290, ¶ 24 (2d Dist.)(in 

exchange for plea, state dismissed three other charges). Here, in 

exchange for appellant’s guilty pleas, the state dismissed six 

additional felony charges. In light of these benefits, counsel 

reasonably may have decided that the best course of action included 

entering the guilty pleas. Moreover, appellant had the 

opportunity, but did not express to the trial court, any desire to 

refuse to plead guilty and raise on appeal a speedy trial issue.

{¶23} Thus, after our review we do not believe that trial 

counsel failed to provide effective assistance of counsel when 

appellant entered guilty pleas and received the benefit of having 

six felony charges dismissed. Here, appellant also failed to 
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establish prejudice. Furthermore, the record reveals that trial 

court fully advised appellant of the consequences of her guilty 

pleas and that she entered her pleas knowingly, voluntarily and 

intelligently. 

B. 

{¶24} Appellant also contends that her trial counsel’s failure 

to object to the trial court’s decision that partially overruled 

her motion to dismiss constitutes ineffective assistance. 

Appellant argues that, because trial counsel demonstrated that the 

state did not bring appellant to trial within the relevant 

statutory period, the burden should have shifted to the state to 

establish that speedy trial time had not expired. State v. 

Butcher, 27 Ohio St.3d 28, 31, 500 N.E.2d 1368 (1986). Appellant 

claims that the state conceded that the first and second 

indictments are part of the same transaction, but that the trial 

court “abandoned the position of neutral fact finder tasked with 

construing ambiguity in the record in favor of the defendant and 

went about attempting to save the indictment for the State.” 

Further, appellant contends that trial counsel failed to object 

when the court declined to rule on counts nine and ten, but instead 

stated in its March 30, 2021 decision that it would “rule on these 

counts at trial.” Appellant now argues she would not have entered 
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guilty pleas to counts nine and ten if the trial court had 

dismissed those counts. 

{¶25} The decision of counsel whether to object, or not to 

object, ordinarily constitutes a question of trial strategy. State 

v. Whitehead, 4th Dist. Scioto No. 20CA3931, 2022-Ohio-479, ¶ 64, 

citing State v. Frierson, 8th Dist. Cuyahoga No. 105618, 2018-Ohio391, ¶ 25, citing State v. Johnson, 7th Dist. Jefferson No. 16 JE 

0002, 2016-Ohio-7937, ¶ 46. Thus, “the failure to make objections 

is not alone enough to sustain a claim of ineffective assistance of 

counsel.” Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, at ¶ 103. 

{¶26} Moreover, as we indicated above, in the case sub judice 

trial counsel negotiated a plea agreement that resulted in the 

dismissal of six felony counts. Consequently, appellant’s guilty 

pleas waived, not only her right to challenge the speedy trial 

issue, but also any claim of ineffective assistance of counsel 

based upon the waiver of those speedy trial issues. See State v. 

Miller, 8th Dist. Cuyahoga No. 94790, 2011-Ohio-928, ¶ 15-18. 

Thus, we do not find merit to the argument that trial counsel 

“[f]ailed to use objections, despite numerous and clear reasons for 

doing so.” State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 

858 N.E.2d 1133, ¶ 140. 
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{¶27} Accordingly, we do not believe that trial counsel’s 

decision not to enter an objection could be considered to 

constitute deficient performance. 

C. 

{¶28} Appellant also asserts that at sentencing, her trial 

counsel failed to object to the prosecutor’s improper statements. 

In particular, appellant argues that the prosecutor inappropriately 

urged the court to sentence appellant based on conduct that she did 

not personally engage in and to which she had not pleaded guilty.

{¶29} Appellant claims that her trial counsel should have 

objected when the prosecutor: (1) characterized appellant’s crimes 

as “the worst type of these offenses,” (2) mentioned the time 

between the victim’s death and the state’s discovery of appellant’s 

involvement, (3) made the statement that “[t]his was after they 

killed him *** after he was killed and put in the burn pit as you 

heard from the trial,” and (4) mentioned the impact appellant and 

her father’s actions have had on the victim’s family. Appellant 

argues that these statements (1) constitute prosecutorial 

misconduct and establish counsel’s ineffectiveness for the failure 

to challenge them, (2) led the trial court astray and encouraged 

the court to consider appellant’s father’s crimes when it sentenced 

appellant, and (3) constituted a breach of the parties’ plea 
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agreement. 

{¶30} “The test for prosecutorial misconduct is whether the 

conduct complained of deprived the defendant of a fair trial.” 

State v. Jackson, 92 Ohio St.3d 436, 441, 751 N.E.2d 946 (2001), 

citing State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394 

(1987). “Isolated comments by a prosecutor are not to be taken out 

of context and given their most damaging meaning.” State v. Hill, 

75 Ohio St.3d 195, 204, 661 N.E.2d 1068, (1996). Further, a 

defendant has the burden to show that a reasonable probability 

exists that, but for the prosecutor's misconduct, the result of the 

proceeding would have been different. State v. Loza, 71 Ohio St.3d 

61, 78-79, 641 N.E.2d 1082, (1994), overruled on other grounds.

{¶31} “Courts have consistently held that evidence of other 

crimes, including crimes that never result in criminal charges 

being pursued, or criminal charges that are dismissed as a result 

of a plea bargain, may be considered at sentencing.” State v. 

Starkey, 7th Dist. Mahoning No. 06 MA 110, 2007-Ohio-6702, ¶ 16, 

citing State v. Cooey, 46 Ohio St.3d 20, 35, 544 N.E.2d 895 (1989). 

See also State v. Scheer, 158 Ohio App.3d 432, 2004-Ohio-4792, 816 

N.E.2d 602, ¶ 17 (4th Dist.) (court free to consider dismissed 

charges when determining appropriate sentence); State v. Bowser, 
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186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 15 (2d 

Dist.)(court may consider information beyond that strictly related 

to the conviction offense, and evidence inadmissible at trial, like 

hearsay, and consider evidence entirely unrelated to the conviction 

offense); accord State v. Beaver, 4th Dist. Washington No. 07CA62, 

2008-Ohio-4513, ¶ 13, State v. Pitzer, 4th Dist. Highland No. 

19CA23, 2020-Ohio-4322, ¶ 16. 

{¶32} Consequently, in the case sub judice after our review of 

the sentencing hearing transcript, we find no impropriety. Here, 

it would have been very difficult to reference appellant’s actions 

in a vacuum without also alluding to appellant’s father’s 

interrelated crimes. Also, in the context of appellant’s 

sentencing hearing, the overwhelming majority of appellee’s 

statements directly related to appellant’s conduct. We do not 

believe that the prosecution made improper comments about 

appellant’s offenses or other matters. 

{¶33} Furthermore, even if we considered, for purposes of 

argument, that the prosecutor’s comments could be deemed to be 

improper, appellant did not establish prejudice. The transcript 

reveals that the trial court knew and understood the salient facts 

involved in this matter and stated, “the defendant did not kill, 

but she did hide what happened.” Finally, the prosecutor’s 
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comments did not constitute a breach of the plea agreement. As we 

noted above, prosecutorial statements that concern dismissed 

charges or uncharged crimes are permissible and may be useful to 

fully inform a sentencing judge about the totality of the 

particular situation.

{¶34} Accordingly, we do not believe appellant established that 

trial counsel’s failure to object to the prosecutor’s statements 

was so unreasonable as to constitute deficient performance. 

D.

{¶35} Appellant further asserts that her trial counsel’s 

failure to object to the statements from the victim’s daughters 

constitutes deficient performance. Appellant argues that, in light 

of the nature of the particular charges (obstruction of justice and 

tampering with evidence), the actual victim in this case is 

“justice,” not the decedent James Whitaker nor the murder victim’s 

family. Appellant thus claims that her trial counsel should have 

objected to the statements from the victim’s four daughters. 

{¶36} In the case at bar, however, we conclude that no error 

occurred with the trial court’s consideration of the victim impact 

testimony because it is “information relevant to the imposition of

sentence in the case,” pursuant to R.C. 2929.19(A). Here, no 

prejudice occurred and appellant failed to show that trial 
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counsel’s decision not to object constitutes a deficient 

performance.

E. 

{¶37} Appellant further asserts that trial counsel’s failure to 

fully explain to the court the impact of appellant’s post-traumatic 

stress disorder (PTSD) and childhood trauma, or to obtain a defense 

expert to do so, constitutes a deficient performance. 

{¶38} Our review of the record reveals that the pre-sentence 

investigation report (PSI) thoroughly detailed appellant’s very sad 

and traumatic childhood, in which multiple men allegedly victimized 

her. The PSI also outlined appellant’s mental health issues. 

Further, as appellee notes, the trial court had been fully aware of 

appellant’s PTSD diagnosis and stated that it “had an influence on 

what occurred,” but concluded that “it doesn’t excuse it.”

{¶39} Appellant also claims that PTSD and childhood trauma 

could have been a defense to the various charges if counsel had 

argued that her trauma negated the intent element of the crimes. 

However, as appellee observes, appellant (1) cites no authority for 

her contention that PTSD could have been a complete defense to the 

charges, and (2) failed to show prejudice.

{¶40} Therefore, after our review we believe that appellant did 

not establish that counsel’s actions were so unreasonable as to 
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constitute ineffective assistance.

F.

{¶41} Finally, appellant asserts that her trial counsel failed 

to (1) direct the trial court to consider the R.C. 2929.12 and R.C. 

2929.12(C)(1) sentencing factors, and (2) explain how the victim 

(“justice”) induced and facilitated these offenses. Appellant 

claims that, because she had been victimized in the past and had 

provided names to law enforcement, she believes the fact that law 

enforcement failed to take appropriate action taught her that “she 

is responsible for the crimes committed against her.” Therefore, 

appellant maintains, the justice system does not have clean hands 

and appellant will serve prison time for “killing [the victim] even 

though she was not responsible for his killing.” 

{¶42} Our review in the case sub judice reveals, however, that 

the trial court did not impose sentence for killing the victim. 

Rather, the court sentenced appellant for the failure to report a 

murder, then lying about it and assisting in the cover-up of the 

crime. Although this court is sympathetic to appellant’s traumatic 

childhood, as the trial court aptly stated, appellant is 

responsible for her criminal acts. 

{¶43} Thus, because appellant failed to establish ineffective 

assistance or prejudice, we overrule appellant’s first assignment 
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of error. 

II.

{¶44} In her second assignment of error, appellant asserts 

that, prior to imposing sentence, the trial court (1) failed to 

properly consider the R.C. 2929.11 purposes of felony sentencing 

and the R.C. 2929.12 seriousness and recidivism factors, and (2) 

improperly imposed maximum sentences. However, as appellee points 

out, appellant does not argue that her sentence is contrary to law, 

but instead argues that the record does not support the sentence. 

R.C. 2953.08(G)(2)(a) provides:

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:

(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;

(b) That the sentence is otherwise contrary to law.

{¶45} R.C. 2929.11 addresses the purposes of felony sentencing, 

while R.C. 2929.12 addresses factors a court should consider when 

it imposes a sentence under R.C. 2929.11. “[N]either R.C. 2929.11 

nor 2929.12 requires a trial court to make any specific factual 
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findings on the record.” State v. Jones, 163 Ohio St.3d 242, 2020-

Ohio-6729, 169 N.E.3d 649, ¶ 20; State v. Wilson, 129 Ohio St.3d 

214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. Thus, “a trial court is 

required only to ‘carefully consider’ the factors in R.C. 2929.11 

and R.C. 2929.12 when imposing sentence.” State v. Allen, 4th 

Dist. Pickaway No. 19CA31, 2021-Ohio-648, ¶ 13, citing State v. 

Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38; State 

v. Kulchar, 4th Dist. Athens No. 10CA6, 2015-Ohio-3703, ¶ 47; State 

v. Rothwell, 4th Dist. Adams No. 20CA1122, 2021-Ohio-1700, ¶ 9. In 

Jones at ¶ 28, the court wrote: 

R.C. 2953.08(G)(2)(a) permits an appellate court to modify 

or vacate a sentence if it clearly and convincingly finds 

that ‘the record does not support the sentencing court’s 

findings under’ certain specified statutory provisions. 

But R.C. 2929.11 and 2929.12 are not among the statutory 

provisions listed in R.C. 2953.08(G)(2)(a). Only R.C. 

2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4), and 

2929.20(I) are specified.

The Jones court further stated:

Nothing 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. In particular, R.C. 

2953.08(G)(2) does not permit an appellate court to conduct 

a freestanding inquiry like the independent sentence 

evaluation this court must conduct under R.C. 2929.05(A) 

when reviewing a death penalty-sentence. See State v. 

Hundley, 162 Ohio St.3d 509, 2020-Ohio-3775, 166 N.E.3d 

1066, ¶ 128 (recognizing that R.C. 2929.05(A) requires de 

novo review of findings and other issues within its scope).
HOCKING, 21CA8

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Id. at ¶ 4; State v. Arbogast, 4th Dist. Adams No. 20CA1119, 2021-

Ohio-484, ¶ 7; State v. Brodt, 4th Dist. Adams No. 21CA1140, 2022-

Ohio-1528, ¶ 10.

{¶46} In the case sub judice, the trial court sentenced 

appellant to serve a three-year prison term on each of Counts 4, 5, 

and 7 (tampering with evidence), a twelve-month prison term on 

Count 9 (obstructing justice), and a three-year prison term on 

Count 10 (obstructing justice), with the sentences in Counts 4, 5, 

and 7 to be served consecutively for a total of nine years, and the 

sentences in Counts 9 and 10 to be served concurrently with the 

sentences in Counts 4, 5, and 7. Additionally, the court ordered 

appellant to serve a three-year post-release control term and 

dismissed Counts 1, 2, 3, 6, 8, and 11. 

{¶47} Appellant argues that the R.C. 2929.12 factors do not 

support maximum sentences because none of the R.C. 2929.12(B) 

factors apply, while all of the R.C. 2929.12(C) and (D) factors do 

apply. Further, appellant argues that the R.C. 2929.12(E) factors

weight in appellant’s favor. Finally, appellant contends that the 

court did not carefully consider any R.C. 2929.12 factors, but 

rather conflated her actions with her father’s actions and, in 

effect, sentenced appellant for her father’s crimes. 

{¶48} Our review of the record reveals that, in the case at 
HOCKING, 21CA8

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bar, the trial court stated that it considered the record, oral 

statements, and the presentence investigation report. The 

sentencing hearing transcript also reflects that the court stated, 

“[t]he sentence is consistent with the principles of sentencing in 

the state of Ohio” pursuant to R.C. 2929.11. Further, the 

sentencing entry provides “[t]he Court has considered the record, 

oral statements and any victim impact statements, as well as the 

principles and purposes of sentencing under R.C. 2929.11, and the 

seriousness and recidivism factors under R.C. 2929.12.” 

{¶49} Here, appellant appears to request this appellate court 

to independently weigh evidence and substitute our judgment for 

that of the trial court to arrive at the sentence that best 

reflects compliance with R.C. 2929.11 and R.C. 2929.12. However, 

this court may not do so because Jones does not permit an appellate 

court to engage in this process. Brodt at ¶ 11; Whitehead at ¶ 

109; State v. Smith, 4th Dist. Scioto No. 20CA3934, 2022-Ohio-371, 

¶ 127. 

{¶50} Accordingly, based upon the foregoing reasons, we 

overrule appellant’s second assignment of error. 

III.

{¶51} In her third assignment of error, appellant asserts that 

prosecutorial misconduct improperly influenced the trial court, 
HOCKING, 21CA8

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prejudiced her right to a fair sentencing hearing, and resulted in 

the prosecutor’s failure to honor the parties’ plea agreement. 

{¶52} As we outlined above, “[t]he test for prosecutorial 

misconduct is whether the conduct complained of deprived the 

defendant of a fair trial.” State v. Jackson, 92 Ohio St.3d 436, 

441, 751 N.E.2d 946 (2001), citing Apanovitch, 33 Ohio St.3d at 24; 

State v. Keenan, 66 Ohio St.3d 402, 405, 613 N.E.2d 203 (1993); 

State v. Benge, 4th Dist. Adams No. 20CA1112, 2021-Ohio-152, ¶ 54. 

Therefore, “[t]he touchstone of the analysis ‘is the fairness of 

the trial, not the culpability of the prosecutor.’ ” State v. 

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 149, 

quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 

L.Ed.2d 78 (1982). “The Constitution does not guarantee an “error 

free, perfect trial.” State v. Landrum, 53 Ohio St.3d 107, 112, 

559 N.E.2d 710 (1990). Moreover, “a judge is presumed to be 

capable of separating what may be properly considered from what may 

not be considered.” In re Disqualification of Forsthoefel, 135 Ohio 

St.3d 1316, 2013-Ohio-2292, 989 N.E.2d 62, ¶ 9. Here, after our 

review, we conclude that appellant has not overcome the presumption 

that the trial court conducted a fair sentencing hearing and 

properly imposed appellant’s sentence. 

{¶53} Appellant claims that the prosecutor “improperly urged 
[Cite as State v. Dixon, 2022-Ohio-2807.]

the court to sentence [appellant] based upon conduct she did not 

engage in and to which she had not pleaded guilty.” Once again, 

however, we believe that the prosecutor’s references to the murder, 

when discussing appellant’s obstructing justice and tampering with 

evidence, provided important context for the court’s consideration. 

In general, at sentencing a prosecutor may comment on the crime as 

a whole, including, as we point out above, uncharged crimes and 

charges dismissed pursuant to plea agreements. See State v. 

Staggs, 4th Dist. Gallia No. 16CA19, 2017-Ohio-7368, ¶ 15, citing 

State v. Hansen, 7th Dist. Mahoning No. 11 MA 63, 2012-Ohio-4574, ¶ 

22, quoting State v. Starkey, 7th Dist. Mahoning No. 06 MA 110, 

2007-Ohio-6702, ¶ 17; Cooey, 46 Ohio St.3d at 35 (court can 

consider uncharged crimes as part of defendant's social history); 

State v. France, 5th Dist. Richland No. 15CA19, 2015-Ohio-4930, ¶ 

20 (uncharged crimes and charges dismissed pursuant to plea 

agreements may be considered as factors during sentencing). Here, 

appellant’s evidence was intertwined with her father’s actions, but 

the trial court could differentiate between the two defendants.

{¶54} Finally, appellant argues that the prosecutor’s comments 

breached the parties’ plea agreement. Appellant states that “it is 

clear by what charges were dismissed and what charges were pleaded 

to that the benefit [appellant] bargained for was to not take 
[Cite as State v. Dixon, 2022-Ohio-2807.]

responsibility for the conduct of Michael Dixon in killing and 

burning Mr. Whitaker.” 

{¶55} Our review of the plea agreement indicates that the 

parties agreed that, in exchange for appellant’s guilty plea to 

five felony counts, the state would dismiss six remaining felony 

counts. Here, we do not believe appellant established that 

appellee’s comments are either improper or prejudicial. Once 

again, it is apparent that the trial court had a firm grasp on the 

pertinent facts and the nature of appellant’s participation.

{¶56} Accordingly, based upon the foregoing reasons, we 

overrule appellant’s third assignment of error. 

IV.

{¶57} In her final assignment of error, appellant asserts that 

the trial court should have dismissed the indictment due to the

violation of her right to a speedy trial. However, we initially 

point out, and as we observed in our discussion of appellant’s 

first assignment of error, in the case sub judice appellant’s 

guilty plea waived her ability to challenge the trial court’s 

ruling on her speedy trial motion to dismiss. See Kelley, 57 Ohio 

St.3d 127, 566 N.E.2d 658 (1991). Moreover, we believe that even 

if appellant had properly preserved this issue for review, we would 
[Cite as State v. Dixon, 2022-Ohio-2807.]

find no merit to this issue.

{¶58} The Sixth Amendment to the United States Constitution and 

Section 10, Article I of the Ohio Constitution guarantee the right 

to a speedy trial. Ohio’s speedy trial statutes, R.C. 2945.71 to 

R.C. 2945.73, designate specific time requirements for the state to 

bring an accused to trial. State v. Baker, 78 Ohio St.3d 108, 110, 

676 N.E.2d 883 (1997). Under R.C. 2945.71(C)(2), the state must 

bring a person charged with a felony to trial within 270 days after 

arrest. Each day a defendant is held in jail in lieu of bail will 

count as three days in computing speedy trial time. R.C. 

2945.71(E). However, certain events may toll speedy trial time, 

including continuances granted as a result of defense motions and 

reasonable continuance granted other than upon the request of the 

accused. See R.C. 2945.72(E) and (H). State v. Taylor, 98 Ohio 

St.3d 27, 2002-Ohio-7017, 781 N.E.2d 72, ¶ 31. Furthermore, sua 

sponte continuances are continuances “granted other than on the 

accused’s own motion” and will toll the speedy-trial time if the 

record reflects that the period of the continuance is reasonable. 

State v. Ramey, 2d Dist. Clark No. 2010 CA 19, 2012-Ohio-6187, ¶ 

12. 

{¶59} The Supreme Court of Ohio has held that “[i]n issuing a 

subsequent indictment, the state is not subject to the speedy-trial 
[Cite as State v. Dixon, 2022-Ohio-2807.]

timetable of the initial indictment, when additional criminal 

charges arise from facts different from the original charges, or 

the state did not know of these facts at the time of the initial 

indictment.” Baker at syllabus. Thus, it should be determined 

whether a second indictment arose from facts different from the 

original charges, or whether the state did not know of the later 

facts at the time of the initial indictment. 

{¶60} On November 20, 2020, the trial court sua sponte issued 

its COVID-19 pandemic continuance for all jury trials. The trial 

court also observed that the central issue is whether the state 

received an additional 270 days due to the new indictment in Case 

No. 20CR0202 and, citing Baker, supra, noted that in issuing a 

second indictment the state is not subject to the initial 

indictment’s speedy trial timetable when additional criminal 

charges arise from facts different from the original charges, or 

facts unknown at the time of the initial indictment.

{¶61} The trial court concluded that, although appellant argued 

that a nexus exists between the two indictments, the connection is 

insufficient to overcome the guidance provided in Baker. The court 

analogized this case to cases in which, at the time of the initial 

indictment, law enforcement suspected that seized drugs are illegal 

drugs, but later obtain a second indictment after the substance is 
[Cite as State v. Dixon, 2022-Ohio-2807.]

analyzed and test results received. The court concluded that at 

the time of appellant’s arrest, appellee believed appellant had 

some involvement with the victim’s death, but was “unaware of 

exactly what the involvement was. It is obvious that further 

investigation was necessary to discover what Ms. Dixon allegedly 

did. If further investigation was necessary, then the State did 

not know the facts at the time of the original indictment.” 

{¶62} Once again, we believe that if this issue had been 

properly preserved for review, the trial court’s determination is 

nevertheless correct. Although appellant also argues that the 

state conceded that both indictments stemmed from the “same 

criminal transaction,” appellee points out that this means from the 

same ongoing investigation, not the same circumstances. As this 

court held in State v. Thomas, 4th Dist. Adams No. 06CA825, 2007-

Ohio-5340, at ¶ 14, “[t]he holding in Baker is disjunctive, i.e., 

the state need only establish one of the two scenarios, either 

different facts or lack of knowledge.” 

{¶63} At the motion hearing, Lt. Robison testified that, even 

at that point, the investigation was “still not complete.” The 

motion hearing transcript reveals that when the grand jury returned 

the indictment in Case No. 20CR0140, the state did not know of the 

facts that led to the charges for tampering with evidence, gross 
[Cite as State v. Dixon, 2022-Ohio-2807.]

abuse of a corpse, and the pattern of corrupt activity included in

Case No. 20CR0202.

{¶64} Furthermore, we point out that the COVID-19 pandemic 

tolling event also extended appellant’s speedy trial time. The 

Supreme Court of Ohio addressed this issue in State v. Lynum (In re 

Fleegle), 161 Ohio St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609. 

“[A]ll Ohio judges have been advised, trial judges have the 

authority to continue trials for defendants on a case-by-case basis 

without violating speedy-trial requirements.” Id. at ¶ 7. Thus, 

the trial court’s November 20, 2020 sua sponte order to continue 

all jury trials due to the COVID-19 pandemic tolled the speedy 

trial clock. The court’s December 17, 2020 and January 20, 2021 

sua sponte orders to continue all jury trials due to the COVID-19 

pandemic tolled the speedy-trial clock. 

{¶65} After the February 8, 2021 hearing to consider 

appellant’s speedy trial motion, the trial court decided that, at 

most, only 189 of appellant’s 270 speedy-trial days had elapsed. 

We agree. Even after the tolling period ended, “trial judges have 

the authority to continue trials for defendants on a case-by-case 

basis without violating speedy-trial requirements * * * courts may 

suspend jury trials to prevent the spread of the coronavirus and 

they may do so consistent with state and federal speedy-trial 
[Cite as State v. Dixon, 2022-Ohio-2807.]

obligations.” State v. Morant, 7th Dist. Belmont No. 20 BE 0020, 

2021-Ohio-3160 at ¶ 27, citing Fleegle, supra, 161 Ohio St.3d 1263, 

2020-Ohio-5636, 163 N.E.3d 609 at ¶ 7; 2020 Ohio Atty.Gen.Ops. No. 

2020-002; Ohio Supreme Court Coronavirus Resources. In State v.

Beal, 2021-Ohio-3812, 179 N.E.3d 754, (5th Dist.), the trial 

court’s COVID-19 sua sponte continuances, and the court’s 

subsequent continuances related to a crowded docket, were deemed to 

be reasonable in purpose and length and, consequently, tolled 

speedy trial time. Beal at ¶ 39; see also State v. Young, 5th 

Dist. Stark No. 2020CA00155, 2021-Ohio-1999, ¶ 19, citing State v. 

Lee, 48 Ohio St.2d 208, 357 N.E.2d 1095 (1976); State v. Shaffer, 

3d Dist. Paulding No. 11-21-05, 2022-Ohio-421, ¶ 22 (trial court’s

sua sponte continuance tolled speedy-trial time). 

{¶66} Thus, we conclude that the trial court’s sua sponte 

COVID-19-related continuances, inter alia, tolled appellant’s 

speedy trial time. And once again, appellant’s guilty plea waived 

her ability to raise speedy trial issues for consideration on 

appeal. Thus, we believe the trial court properly overruled 

appellant’s speedy trial motion to dismiss.

 

{¶67} Therefore, based upon the foregoing reasons, we overrule 

appellant’s fourth assignment of error and affirm the trial court’s 
[Cite as State v. Dixon, 2022-Ohio-2807.]

judgment. 

JUDGMENT AFFIRMED.
HOCKING, 21CA8

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JUDGMENT ENTRY

It is ordered that the judgment be affirmed and appellee 

recover of appellant the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court 

directing the Hocking County Common Pleas Court to carry this 

judgment into execution.

If a stay of execution of sentence and release upon bail has 

been previously granted by the trial court or this court, it is 

temporarily continued for a period not to exceed 60 days upon the 

bail previously posted. The purpose of a continued stay is to 

allow appellant to file with the Supreme Court of Ohio an 

application for a stay during the pendency of the proceedings in 

that court. If a stay is continued by this entry, it will 

terminate at the earlier of the expiration of the 60-day period, or 

the failure of the appellant to file a notice of appeal with the 

Supreme Court of Ohio in the 45-day appeal period pursuant to Rule 

II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. 

Additionally, if the Supreme Court of Ohio dismisses the appeal 

prior to expiration of 60 days, the stay will terminate as of the 

date of such dismissal. 

A certified copy of this entry shall constitute that mandate 

pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Hess, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________ 

 Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a 

final judgment entry and the time period for further appeal 
HOCKING, 21CA8

35

commences from the date of filing with the clerk.