[Cite as State v. Gray, 2022-Ohio-2940.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT 

WASHINGTON COUNTY 

State of Ohio, : Case No. 21CA6 

: 

Plaintiff-Appellee, : 

: 

 v. : DECISION AND JUDGMENT 

: ENTRY 

Irwin A. Gray, : 

: RELEASED: 08/19/2022

Defendant-Appellant. :

APPEARANCES:

Eric J. Allen, Columbus, Ohio, Attorney for Appellant.

Nicole T. Coil, Prosecuting Attorney for Washington County Ohio, for Appellee.

 

Wilkin, J.

{¶1} Appellant, Irwin A. Gray (“Gray”), appeals the Washington County 

Court of Common Pleas judgment entry that imposed an agreed sentence of a 

minimum of nine years to a maximum of ten and one-half years in prison. Gray 

asserts that his trial counsel was ineffective in negotiating the plea, and more 

specifically the agreed sentence. After reviewing the parties’ arguments, the 

record, and the applicable law, we overrule Gray’s assignment of error and affirm 

the trial court’s sentencing entry. 

BACKGROUND

{¶2} On July 22, 2020, the state indicted Gray on five criminal counts 

including in pertinent part: (1) aggravated trafficking in drugs in violation of R.C. 

2925.03(A)(2) and R.C. 2925.03(C)(1)(f), a first degree felony, with a major drug 

offender specification under R.C. 2941.1410(A), a one-year firearm specification
Washington App. No. 21CA6 2

under R.C. 2941.141(A), and a three-year firearm specification under R.C. 

2941.145(A); (2) trafficking in a fentanyl-related compound in violation of R.C. 

2925.03(A)(2) and 2925.03(C)(9)(f), a first degree felony; (3) possession of a 

fentanyl-related compound in violation of R.C. 2925.11(A) and 2925.11(C)(11)(e),

a first degree felony; (4) aggravated possession of drugs in violation of R.C. 

2925.11(A) and 2925.11(C)(1)(e), a first degree felony; and (5) having weapons 

while under disability in violation of R.C. 2923.13(A)(1) and (B), a third degree 

felony, with a specification for forfeiture of a weapon under R.C. 2941.1417(A).

Gray pleaded not guilty to all charges. 

{¶3} On March 5, 2020, at Gray’s final pretrial, the state communicated to 

the court that it had offered Gray a plea that would include a nine-year prison 

sentence for the case herein that would be served concurrent to another 

Guernsey County case and that no charges would be pursued in a West Virginia 

case. The state touted that it was a favorable sentence for a major drug 

offender. 

{¶4} Counsel for the defendant claimed that such a plea could actually 

have a maximum sentence of 13 1⁄2 years because of the Reagan Tokes Law. 

Gray refused the state’s offer. 

{¶5} Nevertheless, the state clarified that the plea offer to Gray would be 

to “structure a deal so there’d only be a year-and-a-half added on Reagan 

Tokes[.]” The state explained such a deal was possible because “if you did an 

F1 and then two other charges, and you had three, three, and three, ran them 
Washington App. No. 21CA6 3

consecutive to each other, and then the only F1, it would make it a year-and-ahalf on top of it[.]”

{¶6} On March 26, 2021, the court held a change-of-plea hearing. During 

the hearing, the court discussed the maximum possible penalties for aggravated 

trafficking, the firearm specification, and having a weapon under a disability, but 

further explained: “that’s not what’s going to happen[.]” Gray pleaded guilty to 

aggravated trafficking which was enhanced by a three-year firearm specification, 

and having a weapon under a disability. In return, the state dismissed the 

remaining charges. 

{¶7} On April 28, 2021, the court held a sentencing hearing. The court 

imposed a minimum three-year to maximum of four- and one-half-year prison 

term for aggravated trafficking in drugs with a three-year sentence enhancement 

for the firearm specification, and a three-year sentence for having a weapon 

while under a disability. All three sentences are to be served consecutively. 

Therefore, the court imposed a minimum of nine to a maximum of ten and onehalf years in prison, consistent with the sentence structure described by the state 

during the March 5th hearing and the parties’ agreed sentence.

 {¶8} It is this sentencing entry that Gray appeals. 

ASSIGNMENT OF ERROR

TRIAL COUNSEL WAS INEFFECTIVE PURSUANT TO THE TENENTS 

OF STRICKLAND V. WASHNGTON, 466 U.S. 668 AND ITS PROGENY, 

AS WELL AS THE FIFTH AND SIXTH AMENDMENTS TO THE 

FEDERAL CONSTITUTION FOR ENTERING INTO A JOINT 

AGREEMENT WHERE TWO OF THE CONVICTIONS WOULD NOT 

MERGE UNDER R.C. 2941.25 
Washington App. No. 21CA6 4

{¶9} Gray maintains that his counsel was ineffective for failing to argue 

that his sentence for the three-year firearm specification and his sentence for 

having a weapon under a disability should have merged under R.C. 2941.25. 

Gray claims his counsel should have relied on State v. Williamson, 6th Dist. 

Wood Nos. WD-20-023, WD-20-024, 2020-Ohio-5369 and presented an 

argument for merger. 

{¶10} In response, the state argues that Gray waived his right to appeal

his sentence because the parties reached an agreed sentence. The state 

maintains that R.C. 2953.08(D)(1) precludes an appeal of an agreed sentence if 

it is “authorized by law.” The state quoting State v. Porterfield, 106 Ohio St.3d 5, 

2005-Ohio-3095, 829 N.E.2d 690 at ¶ 25, reiterates: “Once a defendant 

stipulates that a particular sentence is justified, the sentencing judge no longer 

needs to independently justify the sentence.” Relying on Porterfield, the state 

maintains that because Gray agreed to the sentence herein, which was 

structured in his favor regarding the Reagan Tokes law, it was an agreed 

sentence authorized under the law, and therefore not subject to appeal under 

R.C. 2953.08(D)(1).

{¶11} The state also argues that Gray’s counsel should not be found to be 

ineffective for negotiating a sentence that is favorable regarding the Reagan 

Tokes law. The state maintains that Gray’s counsel’s actions in negotiating 

Gray’s sentence was neither deficient nor did it cause Gray prejudice, two 

requirements necessary to find ineffective assistance of counsel. 
Washington App. No. 21CA6 5

A. Standard of Review

{¶12} “To establish constitutionally ineffective assistance of counsel, a 

defendant must show (1) that his counsel’s performance was deficient and (2) 

that the deficient performance prejudiced the defense and deprived him of a fair 

trial.” State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 15, 

citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 

674 (1984); State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 

865, ¶ 85. “Failure to establish either element is fatal to the claim.” State v.

Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14. 

{¶13} “ ‘In order to show deficient performance, the defendant must prove 

that counsel’s performance fell below an objective level of reasonable 

representation.’ ” State v. Adams, 2016-Ohio-7772, 84 N.E.3d 155 ¶ 89 (4th 

Dist.), quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 

N.E.2d 810, ¶ 95. When considering counsel’s performance, “ ‘a court must 

indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.’ ” State v. Walters, 4th Dist. Washington 

Nos. 13CA33, 13CA36, 2014-Ohio-4966, ¶ 23, quoting Strickland, 466 U.S. at 

689. “Thus, ‘the defendant must overcome the presumption that, under the 

circumstances, the challenged action might be considered sound trial strategy.’ 

” State v. Jarrell, 2017-Ohio-520, 85 N.E.3d 175, ¶ 49 (4th Dist.), quoting 

Strickland, 466 U.S. at 689.

{¶14} “ ‘To show prejudice, the defendant must show a reasonable 

probability that, but for counsel’s errors, the result of the proceeding would have 
Washington App. No. 21CA6 6

been different.’ ” Adams at ¶ 89, quoting Conway, 109 Ohio St.3d 412, at ¶ 95. 

“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. McCann, 4th Dist. Lawrence No. 

10CA12, 2011-Ohio-3339, ¶ 18, citing State v. Floyd, 4th Dist. No. 

92CA2102, 2011-Ohio-3339, citing State v. Barnett, 73 Ohio App.3d 244, 248–

249, 596 N.E.2d 1101 (2d Dist.1991).

B. Analysis

{¶15} Gray’s argument mixes two different legal concepts, merger of allied 

offenses under R.C. 2941.25, and the application of R.C. 2929.14(B)(1)(e) as 

found in Williamson. For purposes of simplicity, we will address each 

individually. 

1. R.C. 2941.25

{¶16} R.C. 2941.25 provides that allied offenses of similar import must 

merge for purposes of sentencing. See State v. Ruff, 143 Ohio St.3d 114, 2015-

Ohio-995, 34 N.E.3d 892. However, the Supreme Court has also recognized that 

a firearm specification, like in R.C. 2941.145(D), “is merely a sentence 

enhancement, not a separate criminal offense.” State v. Ford, 128 Ohio St. 3d 

398, 2011-Ohio-765, 945 N.E.2d 498, ¶ 17. Consequently, because “R.C. 

2941.25 requires the merger of two or more allied offenses of similar import,” it 

does not operate to merge a sentence enhancement for a firearm specification 

with any underlying felony offense. Id. Therefore, Gray’s argument that his
Washington App. No. 21CA6 7

three-year sentence for the gun specification should have merged with one of his 

underlying felony sentences lacks merit because a sentence enhancement is not 

a criminal offense. 

2. R.C. 2929.14(B)(1)(e)

{¶17} Gray also maintains that his trial counsel should have relied on 

Williamson and “created an argument for merger.” However, as we noted infra, 

Williamson addresses R.C. 2929.14(B)(1)(e), not merger. 

{¶18} Pursuant to a bench trial, the court in Williamson found the 

defendant guilty of multiple felonies and in pertinent part sentenced him to 18 

months for having a weapon under a disability, which was enhanced with a oneyear sentence for a firearm specification. State v. Williamson, 6th Dist. Wood 

Nos. WD-18-049, WD-18-051, 2019-Ohio-4380, ¶ 40 (Williamson I). The court of 

appeals vacated appellant’s sentence and remanded the case for re-sentencing. 

Williamson I at ¶ 72.

{¶19} On remand the trial court again sentenced appellant for having a 

weapon while under a disability with a one-year sentence enhancement for a 

firearm specification. State v. Williamson, 6th Dist. Wood Nos. WD-20-023, WD20-024, 2020-Ohio-5369, ¶ 2 (Williamson II). On appeal, the appellant asserted: 

“The trial court erred as a matter of law by sentencing appellant to a firearm 

specification attendant to a weapons under a disability charge.” Williamson II at 

¶ 2. More specifically he claimed that the trial court erred by imposing “a oneyear prison term for a firearm specification attendant to the one count of having 

weapons-under-disability” because “the factors under R.C. 2929.14(B)(1)(e)(i) 
Washington App. No. 21CA6 8

and (ii) do not apply to appellant[.]” Id. The court of appeals agreed that the trial 

court erred in this regard, but held the error was harmless because the trial court 

ordered the sentences to be served concurrently. Id. However, our case is 

distinguishable from Williamson II for the reasons discussed below. 

{¶20} To more fully understand what types of offenses are, as well as 

those that are not, subject to sentence enhancement by a firearm specification, 

we look to R.C. 2929.14(B)(1)(e), which states: 

The court shall not impose any of the prison terms described in 

division (B)(1)(a) of this section [for using a firearm specification 

during a criminal offense] * * * upon an offender for a violation of 

section 2923.12 [carrying concealed weapons] or 2923.123 

[conveying or possessing a deadly weapon in a courthouse] of the 

Revised Code. The court shall not impose any of the prison terms 

described in division (B)(1)(a) or (b) of this section upon an 

offender for a violation of section 2923.122 [conveying or 

possessing a deadly weapon in a school safety zone] that involves 

a deadly weapon that is a firearm other than a dangerous 

ordnance, section 2923.16 [improperly handling a firearm in a 

motor vehicle], or section 2923.121 of the Revised Code

[possessing a firearm in a liquor permit premises]. The court shall 

not impose any of the prison terms described in division (B)(1)(a) 

of this section or any of the additional prison terms described in 

division (B)(1)(c) of this section upon an offender for a violation of 

section 2923.13 [having a weapon under a disability] of the 

Revised Code unless all of the following apply:

(i) The offender previously has been convicted of aggravated 

murder, murder, or any felony of the first or second degree.

(ii) Less than five years have passed since the offender was 

released from prison or post-release control, whichever is later, 

for the prior offense.

{¶21} “ ‘The object of judicial investigation in the construction of a 

statute is to ascertain and give effect to the intent of the law-making body which 

enacted it.’ ” State v. Hairston, 101 Ohio St. 3d 308, 2004-Ohio-969, 804 N.E.2d 

471, ¶ 11, quoting Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902),
Washington App. No. 21CA6 9

paragraph one of the syllabus. “A court that is ascertaining the meaning of 

a statute first must ‘consider the “plain meaning of the statutory language.” ’ 

” State v. Simmons, 2018-Ohio-2018, 112 N.E.3d 327, ¶ 28 (4th Dist.), quoting 

State v. D.B., 150 Ohio St.3d 452, 2017-Ohio-6952, 82 N.E.3d 1162, ¶ 10, 

quoting Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio954, 846 N.E.2d 478, ¶ 52.

{¶22} Courts have found that R.C. 2929.14(B)(1)(e) reflects that “the 

legislature expressly excluded certain firearm offenses from enhancement via 

specification.” (Emphasis added.) State v. Santos, 2d Dist. Montgomery No. 

28445, 2020-Ohio-1043, ¶ 41, see also State v. Ellis, 6th Dist. Wood Nos. WD17-035, WD-17-036, 2019-Ohio-427, ¶ 13-14, State v. Wright, 10th Dist. Franklin 

No. 09AP-207, 2009-Ohio-6773, discretionary appeal not allowed, 125 Ohio 

St.3d 1415, 2010-Ohio-1893, 925 N.E.2d 1003. More specifically, the offenses 

of “carrying concealed weapons, illegal conveyance of deadly weapon or 

dangerous ordnance into courthouse, improperly handling firearms in a motor 

vehicle, illegal possession of firearm in a liquor permit premises — are not

enhanceable [by a sentence from a firearm specification].” (Emphasis added.) 

State v. Jones, 8th Dist. Cuyahoga No. 108050, 2019-Ohio-5237, ¶ 54. 

{¶23} R.C. 2929.14(B)(1)(e) additionally provides that the offense of 

having a weapon while under a disability is not enhanceable with a sentence 

from a firearm specification “unless the offender previously has been convicted of 

aggravated murder, murder, or any first or second degree felony, and less than 

five years have passed since the offender was released from prison or post-
Washington App. No. 21CA6 10

release control, whichever is later, for the prior offense.” Ellis, 6th Dist. Wood 

Nos. WD-17-035, WD-17-036, 2019-Ohio-427, ¶ 14, State v. Stewart, 10th Dist. 

Franklin No. 18AP-496, 2020-Ohio-1245, ¶ 6. 

{¶24} Sentencing enhancement prohibitions are limited to only the 

offenses enumerated in the statute. In other words, only the firearm offenses

expressly enumerated in R.C. 2929.14(B)(1)(e) are prohibited from being 

enhanced by a sentence from a firearm specification, or in the case of the 

offense of having a weapon while under a disability, must comply with R.C. 

2929.14(B)(1)(e)(i) and (ii) to be subject to enhancement. See e.g. Santos, 2d 

Dist. Montgomery No. 28445, 2020-Ohio-1043, ¶ 41-42 (While “the legislature 

expressly excluded certain firearm offenses from enhancement via specification

[under] R.C. 2929.14(B)(1)(e)[,] * * * [it] does not similarly exempt tampering with 

evidence from such enhancement.”), Jones, 8th Dist. Cuyahoga No. 108050, 

2019-Ohio-5237, ¶ 54 (“Without an express prohibition by [R.C. 

2929.14(B)(1)(e)], [appellant] can be sentenced on both the tampering count and 

the accompanying one-year gun specification.”), State v. Elersic, 11th Dist. Lake 

No. 2000-L-145, 2002-Ohio-2945, ¶ 43, 50 (Addressing former R.C. 

2929.14(D)(1)(e), now R.C. 2929.14(B)(1)(e), the court of appeals determined

that provision “disallows enhancements” with regard to offenses of carrying a 

concealed weapon, illegal conveyance of a deadly weapon or dangerous 

ordnance in a courthouse, and having a weapon while under disability. However,

R.C. 2929.14(D)(1)(e) did not mention appellant’s offense receiving stolen

property. Therefore, the court concluded had the General Assembly intended to 
Washington App. No. 21CA6 11

exclude receiving stolen property from R.C. 2929.14(D)(1)(e), it would have 

expressly done so.).

{¶25} In the instant case, the state charged Gray in pertinent part with: (1) 

aggravated trafficking in drugs with two sentence-enhancing firearm 

specifications (R.C. 2941.141 and R.C. 2929.145) and (2) having a weapon while 

under a disability with a firearm forfeiture specification. Gray ultimately pleaded 

guilty to (1) aggravated trafficking in drugs with a three-year sentenceenhancement for facilitating the trafficking offense by using a firearm under R.C. 

2941.145, and (2) having a weapon while under a disability with the firearm

forfeiture specification. Because it was Gray’s aggravated trafficking offense that 

was enhanced with the three-year firearm specification for his use of a firearm to 

facilitate that offense, not the weapon-under-a-disability charge, R.C. 

2929.14(B)(1)(e) did not apply to preclude the sentence enhancement. 

{¶26} Even assuming for argument sake that the firearm specification had 

enhanced Gray’s sentence for having a weapon while under a disability charge, it 

appears from the record that Gray was previously convicted of a felony of the 

second degree and was released from that offense less than five years prior to 

this offense. Under those particular facts, the three-year firearm enhancement of 

Gray’s sentence for having a weapon under a disability would have been 

permissible under R.C. 2929.14(B)(1)(e). 

{¶27} Consequently, we find that Gray’s trial counsel’s failure to argue 

merger, or to rely on Williamson to argue his three-year sentence for the firearm 

specification was not authorized by law under R.C. 2929.14(B)(1)(e), was not 
Washington App. No. 21CA6 12

deficient representation. Rather, counsel negotiated an agreed minimum 

sentence of nine to a maximum of ten and one-half years in prison authorized by 

law, which was significantly less than the sentence he could have received had 

he gone to trial and been found guilty. Because we find no evidence that 

counsel’s representation of Gray was deficient, or that his conduct caused Gray 

prejudice, we overrule Gray’s assignment of error. 

CONCLUSION

{¶28} Having overruled Gray’s sole assignment of error, we affirm the trial 

court’s sentencing entry. 

JUDGMENT AFFIRMED.
Washington App. No. 21CA6 13

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay 

the costs.

The Court finds there were reasonable grounds for this appeal.

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

Washington 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 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 the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure. 

Abele, J. and Hess, J.: Concur in Judgment and Opinion.

For the Court,

BY: ____________________________

 Kristy S. Wilkin, Judge

NOTICE TO COUNSEL

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

judgment entry and the time period for further appeal commences from the 

date of filing with the clerk.