[Cite as State v. Otero, 2024-Ohio-952.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

Nos. 113069 and 113307

v. :

SAMUEL OTERO, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, VACATED IN PART, 

 AND REMANDED

RELEASED AND JOURNALIZED: March 14, 2024 

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case Nos. CR-21-661779-A, CR-21-666124-A, CR-22-668767-A, CR-22-671192-A, 

and CR-22-671241-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Alan Dowling, Assistant Prosecuting 

Attorney, for appellee. 

P. Andrew Baker, for appellant. 

MARY EILEEN KILBANE, P.J.:

In this consolidated appeal, defendant-appellant Samuel Otero 

(“Otero”) appeals from his sentences for failure to comply, attempted grand theft, 
and theft following a guilty plea. For the reasons that follow, we affirm in part, 

vacate in part, and remand.

Factual and Procedural History

This appeal stems from five separate criminal cases, all of which were 

resolved by guilty pleas.

In Cuyahoga C.P. No. CR-21-661779-A(“Case A”), on August 13, 2021, 

a Cuyahoga County Grand Jury charged Otero with one count of failure to comply 

in violation of R.C. 2921.331(B) with a furthermore specification, a third-degree 

felony; two counts of drug possession in violation of R.C. 2925.11(A), fifth-degree 

felonies; one count of driving while under the influence in violation of R.C. 

4511.19(A)(1)(a), a first-degree misdemeanor; and one count of driving while under 

the influence in violation of R.C. 4511.19(A)(1)(d), a first-degree misdemeanor.

In Cuyahoga C.P. No. CR-21-666124-A (“Case B”), on December 17, 

2021, a Cuyahoga County Grand Jury charged Otero with one count of grand theft 

in violation of R.C. 2913.02(A)(1), a fourth-degree felony; one count of theft in 

violation of R.C. 2913.02(A)(1), a fifth-degree felony; one count of theft in violation 

of R.C. 2913.02(A)(1), a first-degree misdemeanor; and one count of failure to stop 

after an accident in violation of R.C. 4549.02(A)(1), a first-degree misdemeanor.

In Cuyahoga C.P. No. 22-668767-A (“Case C”), on May 12, 2022, a 

Cuyahoga County Grand Jury charged Otero with one count of burglary in violation 
of R.C. 2911.12(B), a fourth-degree felony; and one count of drug possession in 

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

In Cuyahoga C.P. No. 22-671192-A (“Case D”), on June 13, 2022, a 

Cuyahoga County Grand Jury charged Otero with one count of domestic violence in 

violation of R.C. 2919.25(A), a third-degree felony, with a furthermore specification; 

and one count of abduction in violation of R.C. 2905.02(A)(2), a third-degree felony.

On July 14, 2022, a pretrial hearing was held in Cases A, B, C, and D. 

At the outset of this hearing, the state informed the court that the parties had 

reached a resolution on Cases A, B, and C; the parties were still negotiating with 

respect to Case D; and a fifth case, Cuyahoga C.P. No. 22-671241-A (“Case E”), was 

pending but Otero had not yet been indicted.

The proposed plea agreement in Case A was that Otero would plead 

guilty to failure to comply, one count of drug possession, and one count of driving 

while under the influence. The remaining two counts would be dismissed. In Case 

B, the proposed plea agreement was that Otero would plead guilty to one amended 

count of attempted grand theft, one count of theft, and one count of failure to stop 

after an accident. The remaining counts would be dismissed. In Case C, the 

proposed plea agreement was that Otero would plead guilty to an amended count of 

attempted burglary, a fifth-degree felony, and an amended count of drug possession, 

a fifth-degree felony.
Defense counsel confirmed that this was his understanding of the plea 

agreement. The court then engaged Otero in a Crim.R. 11 plea colloquy and accepted 

his guilty pleas to the charges outlined above.

On July 22, 2022, in Case E, a Cuyahoga County Grand Jury charged 

Otero with four counts of drug possession in violation of R.C. 2925.11(A), fifthdegree felonies.

On August 18, 2022, the court held a sentencing hearing in Cases A, 

B, and C. At the outset of this hearing, the state informed the court that the parties 

had reached an agreement as to a plea deal for Cases D and E. The court elected to 

proceed with the change-of-plea hearing in those cases and then proceeded to 

sentencing for all five cases.

The state outlined the terms of the plea agreement as follows: in Case 

D, Otero would plead guilty to an amended count of attempted domestic violence, 

and in Case E, Otero would plead guilty to two counts of drug possession. The 

remaining charges would be dismissed. Defense counsel confirmed that this was his 

understanding of the plea agreement. The court then engaged Otero in a Crim.R. 11 

plea colloquy and informed him that the sentences for Cases D and E could be run 

consecutively. With respect to the prison sentence that Otero faced if he violated the 

terms of his community control, the court stated with respect to Case A that “[a]ny 

violation of the Court’s order as to this case will result in the imposition of 36 months 

in prison.” The court did not further specify what sentences Otero faced in the other 

cases, nor did it mention that suspended prison sentences could be ordered to be 
served consecutively. The court then accepted Otero’s guilty pleas to the charges 

outlined above.

The court then proceeded with sentencing on all five cases. Defense 

counsel addressed the court and requested that Otero be sentenced to communitycontrol sanctions and be given the opportunity to complete an inpatient drug 

treatment program. Otero also addressed the court and spoke about his drug 

addiction. The assistant prosecuting attorney also addressed the court, as did the 

victim in Case B, who asked the court for restitution related to her car that was stolen 

by Otero.

The court ultimately sentenced Otero to five years of communitycontrol sanctions and suspended prison sentences in each case as follows: three 

years suspended in Case A; one year suspended in Case B; one year suspended in 

Case C; one year suspended in Case D; and one year suspended in Case E. The court 

also ordered Otero to complete inpatient treatment and imposed numerous 

conditions and requirements on Otero that are not relevant to the instant appeal.

On August 25, 2022, Otero was transported to a facility for inpatient 

treatment. On September 6, 2022, Otero was unsuccessfully discharged from that 

program. On September 22, 2022, the court held a probation-violation hearing. 

After hearing from the parties, the court found Otero to be in violation of his 

probation and placed him in a different inpatient facility.

Otero proceeded to repeatedly violate the terms of probation, and the 

court held subsequent violation hearings on November 28, 2022, February 22, 
2023, April 17, 2023, May 22, 2023, and August 2, 2023. The court was patient with 

Otero, giving him repeated chances to undergo inpatient treatment, and continued 

to reinstate Otero’s probation until the August 2, 2023 hearing. At that time, the 

court found Otero in violation of the terms of his probation. The court proceeded to 

impose all of the suspended prison time and ordered each sentence to be run 

consecutively for a total prison term of seven years.

Otero filed a notice of appeal and presents three assignments of error 

for our review:

I. The trial court erred in imposing consecutive sentences when 

defendant-appellant was not told this was a possibility.

II. The trial court erred by imposing prison as to all counts.

III. Defendant-appellant’s sentences must be reversed due to 

ineffective assistance of counsel.

Law and Analysis

I. Consecutive Sentences

In Otero’s first assignment of error, he argues that the trial court erred 

in imposing consecutive sentences where the trial court did not inform Otero of the 

potential of consecutive sentences. Specifically, Otero argues that a trial court may 

not impose a consecutive sentence on revocation if it did not previously notify the 

offender of the reserved prison term. 

The state concedes that the trial court was not permitted to “stack” 

Otero’s sentences following his probation violations because it did not previously 

notify him of this possibility.
The Ohio Supreme Court resolved this issue in State v. Jones, 171 

Ohio St.3d 496, 2022-Ohio-4485, 218 N.E.3d 867. There, the court concluded that

[w]hen a court revokes community control, it may require that the 

reserved prison term be served consecutively to any other sentence 

then existing or then being imposed but only if at the time it imposed 

community control, it notified the offender that a consecutive sentence 

on revocation of community control was a possibility. This does not 

mean that a trial court must notify an offender of the possibility of 

consecutive sentences in every instance but that in any case in which it 

does not provide such notice, imposing a consecutive sentence is not 

available to that court if community control is later revoked.

Jones at ¶ 2.

Upon review of the record, we agree with the parties that the trial 

court did not notify Otero that, in the case that his community control was revoked 

and his suspended sentences were imposed, the court could order those sentences 

to run consecutively. While the trial court admonished Otero at various points 

throughout the extensive proceedings in this case that he would be facing “a lot of 

prison,” the only mention of consecutive sentences came when the court reiterated 

that one of the terms of the plea agreement in Cases D and E was that the offenses 

to which he was pleading guilty were not allied offenses of similar import, meaning 

that they could be sentenced consecutively. Further, the trial court explicitly told 

Otero that a probation violation would result in a 36-month prison sentence. These 

statements do not satisfy the rule laid out in Jones.

Because the trial court did not properly notify Otero that his 

suspended sentences could be imposed consecutively, we sustain Otero’s first 
assignment of error. Otero’s sentence is vacated, and the case is remanded for the 

trial court to impose a sentence in accordance with this opinion and Jones.

II. Imposition of Prison

In Otero’s second assignment of error, he argues that the trial court 

erred by imposing prison on all counts. Specifically, Otero asserts that because the 

trial court did not properly advise him of the specific sentence that would be 

imposed upon revocation pursuant to R.C. 2929.19(B)(4), the imposition of his 

prison sentences was error.

R.C. 2929.19(B)(4) states:

If the sentencing court determines at the sentencing hearing that a 

community control sanction should be imposed and the court is not 

prohibited from imposing a community control sanction, the court 

shall impose a community control sanction. The court shall notify the 

offender that, if the conditions of the sanction are violated * * * the 

court may impose a longer time under the same sanction, may impose 

a more restrictive sanction, or may impose a prison term on the 

offender and shall indicate the range from which the prison term may 

be imposed as a sanction for the violation, which shall be the range of 

prison terms for the offense that is specified pursuant to section 

2929.14 of the Revised Code and as described in section 2929.15 of the 

Revised Code.

Otero cites this court’s decision in State v. Lenhart, in which this 

court found that the trial court erred where it originally suspended a three-year 

sentence and, following a community-control violation, imposed a three-year prison 

term. State v. Lenhart, 8th Dist. Cuyahoga No. 108938, 2020-Ohio-2727. While 

the trial court had previously notified the defendant that if he violated the terms of 

his probation, he could be sentenced to prison, at no point did the trial court notify 
the defendant of what that potential prison term would be. Therefore, this court 

vacated the sentence.

Unlike Lenhart, the trial court here notified Otero of the specific 

prison sentence he would face if he violated the terms of his community control. 

With respect to the three-year suspended sentence in Case A, the trial court stated

that it was suspending a three-year sentence and stated unequivocally that “[a]ny 

violation of the Court’s order as to this case will result in the imposition of 36 months 

in prison.” With respect to each of the one-year suspended sentences for the other 

four cases, the court stated that it was imposing community control with the same 

conditions imposed in Case A and stated that it was suspending a one-year prison 

term. To the extent that the trial court did not explicitly inform Otero that he faced 

imposition of the suspended one-year prison terms in the event that he violated the 

terms of his community control, we find any error harmless. Pursuant to our 

disposition of Otero’s first assignment of error, the trial court’s imposition of 

consecutive sentences was contrary to law, and therefore the proper sentence for 

Otero on remand is three years. Thus, the fact that the trial court did not explicitly 

specify the prison term Otero would face in each case for a violation does not amount 

to an error warranting reversal on appeal. Therefore, Otero’s second assignment of 

error is overruled.

III. Ineffective Assistance of Counsel

In his third assignment of error, Otero argues that his sentences must 

be reversed due to ineffective assistance of counsel. Specifically, Otero argues that 
because the imposition of consecutive sentences was error as articulated in his first 

assignment of error, his counsel’s failure to object to the imposition of consecutive 

sentences constituted ineffective assistance of counsel.

Article I, Section 10 of the Ohio Constitution and the Sixth 

Amendment to the United States Constitution provide that defendants in all 

criminal proceedings shall have the assistance of counsel for their defense. The 

United States Supreme Court has recognized that “the right to counsel is the right to 

effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984).

To establish ineffective assistance of counsel, Otero must 

demonstrate that (1) counsel’s performance was deficient; and (2) the deficient 

performance prejudiced him so as to deprive him of a fair trial. State v. Trimble, 

122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing Strickland at 687. 

The failure to prove either prong of this two-part test makes it unnecessary for a 

court to consider the other prong. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 

N.E.2d 52 (2000), citing Strickland at 697. In evaluating a claim of ineffective 

assistance of counsel, a court must be mindful that there are countless ways for an 

attorney to provide effective assistance in a given case and it must give great 

deference to counsel’s performance. Id. at 689.

With respect to the first prong, we note initially that “‘[t]he failure to 

object to error, alone, is not enough to sustain a claim of ineffective assistance of 

counsel.’” State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d 136 (1999), quoting 
State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988). Here, Otero 

argues that his counsel should have objected to the imposition of consecutive 

sentences based on a case decided by the Ohio Supreme Court eight months prior to 

his sentencing. We cannot find the failure to object in this circumstance amounts to 

constitutionally deficient representation. Further, even if this court were to hold 

that the failure to object to consecutive sentences was deficient, in light of our 

disposition of his first assignment of error vacating his consecutive sentences, Otero 

is unable to satisfy the second prong of Strickland. Therefore, his third assignment 

of error is overruled.

Judgment affirmed in part, vacated in part, and remanded for 

resentencing consistent with this opinion.

It is ordered that appellant recover from appellee 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 

common pleas court to carry this judgment into execution. Case remanded to the 

trial court for resentencing pursuant to this opinion and Jones.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, PRESIDING JUDGE

EMANUELLA D. GROVES, J., and

MICHAEL JOHN RYAN, J., CONCUR