[Cite as State v. Hamilton, 2022-Ohio-967.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

WOOD COUNTY

State of Ohio Court of Appeals No. WD-20-089

Appellee Trial Court No. 2020CR0208

 

v.

Russell Hamilton DECISION AND JUDGMENT

Appellant Decided: March 25, 2022

* * * * *

Paul A. Dobson, Wood County Prosecuting Attorney, and

David T. Harold, Chief Assistant Prosecuting Attorney, for appellee

Jeffrey P. Nunnari, for appellant.

* * * * *

PIETRYKOWSKI, J.

{¶ 1} Appellant, Russell Hamilton, appeals the judgment of the Wood County 

Court of Common Pleas, convicting him, following a guilty plea, of one count of 

endangering children and one count of felonious assault, and sentencing him to an 

indefinite prison term of 16 to 20 years. For the reasons that follow, we affirm.
2.

I. Facts and Procedural Background

{¶ 2} On June 11, 2020, the Wood County Grand Jury returned a three-count 

indictment. In count one, appellant was charged with endangering children in violation 

of R.C. 2919.22(B)(1) and (E)(2)(d), a felony of the second degree. In count two, 

appellant was charged with endangering children in violation of R.C. 2919.22(A) and 

(E)(2)(c), a felony of the third degree. In count three, appellant was charged with

felonious assault in violation of R.C. 2903.11(A)(1) and (D)(1)(a), a felony of the second 

degree.

{¶ 3} On November 6, 2020, appellant withdrew his initial plea of not guilty, and 

entered a plea of guilty to counts one and three of the indictment. In exchange, the state 

agreed to dismiss count two—the third-degree felony charge of endangering children. 

Additionally, as part of the written plea agreement, appellant agreed that the offenses in 

count one and count three would not merge. This provision was repeated during the plea 

hearing, and appellant’s counsel agreed. Furthermore, appellant acknowledged that the 

two sentences could be ordered to be served consecutively for a total prison term of 16 to 

20 years.

{¶ 4} As part of the plea hearing, the state described the facts giving rise to the 

charges. On October 10, 2019, appellant was watching his two-year-old stepson, B.K., 

and his two-year-old daughter, K.H. While in appellant’s care, B.K. suffered serious 

injuries that required him to be hospitalized for almost three weeks. The injuries 

included a fractured skull, a brain bleed, damage to the brain tissue, and bilateral retinal 
3.

hemorrhaging. As a result, B.K. had to be sedated, put on a ventilator, and be tube-fed. 

B.K. also suffered a bacterial infection, and had seizures and respiratory failure. The 

state offered that the testimony would have shown that the injuries were akin to shaken 

baby syndrome, and because B.K. was two years old, the amount of force required to 

cause the injuries was significant. The state argued that the evidence would have further 

shown that the injuries were caused by an intentional act by appellant.

{¶ 5} Following a detailed Crim.R. 11 plea colloquy, the trial court accepted 

appellant’s plea and found him guilty.

{¶ 6} At the sentencing hearing on December 11, 2020, the trial court imposed 

maximum eight-year prison terms on each count to be served consecutively for a total 

indefinite prison term of 16 to 20 years.1 In determining that consecutive sentences were 

appropriate, the trial court found that consecutive sentences were necessary to protect the 

public and punish appellant, that the multiple offenses were committed as part of a course 

of conduct and the harm was so great or unusual that no single prison term adequately 

reflected the seriousness of appellant’s conduct, and that consecutive sentences were not 

disproportionate to appellant’s conduct and the danger that he posed to the public. In 

describing its reasoning for the sentences, the trial court commented that appellant, out of 

anger, harmed a two-year-old child that was entrusted to him, and that the child suffered 

physical and psychological harm that will impact him for the rest of his life.

1 The additional four-year “tail” under the Reagan Tokes law was attached to count one. 
4.

II. Assignments of Error

{¶ 7} Appellant has timely appealed his judgment of conviction, and now asserts 

four assignments of error for our review:

1. The trial [court] erred as a matter of law by not merging the 

offenses of child endangering and felonious assault, notwithstanding 

appellant’s plea agreement, as consecutive sentences are contrary to law 

under the facts of this case.

2. Appellant was denied due process and the effective assistance of 

counsel as guaranteed by the state and federal constitutions.

3. The trial court erred to the prejudice of appellant by sentencing 

him to two consecutive sentences on the basis of a course of conduct where 

the record fails to demonstrate that appellant engaged in two or more 

offenses as a course of conduct.

4. Count one of the indictment omits the material element of mens 

rea, thereby rendering it defective for failure to state an offense.

III. Analysis

A. Allied Offenses

{¶ 8} In his first assignment of error, appellant argues that his convictions for 

endangering children and felonious assault should have merged for purposes of 

sentencing.
5.

{¶ 9} In addition to other protections, the Double Jeopardy Clause of the Fifth 

Amendment to the United States Constitution, and Article I, Section 10 of the Ohio 

Constitution, protect against “multiple punishments for the same offense.” State v. Ruff, 

143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10, quoting North Carolina v. 

Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The General 

Assembly has codified this protection in R.C. 2941.25. Id. R.C. 2941.25 provides,

(A) Where the same conduct by defendant can be construed to 

constitute two or more allied offenses of similar import, the indictment or 

information may contain counts for all such offenses, but the defendant 

may be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more offenses 

of the same or similar kind committed separately or with a separate animus 

as to each, the indictment or information may contain counts for all such 

offenses, and the defendant may be convicted of all of them.

{¶ 10} Appellant contends that there is nothing in the record to suggest that the 

offenses were committed separately or with a separate animus, or that the two offenses 

caused separate, identifiable harms. Thus, appellant concludes that he should not have 

been convicted of both offenses.

{¶ 11} However, as argued by the state, “[i]t is possible for an accused to 

expressly waive the protection afforded by R.C. 2941.25, such as by ‘stipulating in the 
6.

plea agreement that the offenses were committed with separate animus.’” State v. 

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 20, quoting State v. 

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 29.

{¶ 12} Here, the record very clearly demonstrates that as part of the plea 

agreement, appellant agreed that the offenses of endangering children and felonious 

assault did not merge. Therefore, we hold that appellant has waived the issue of merger. 

See State v. Haser, 5th Dist. Muskingum No. CT2020-0029, 2021-Ohio-460, ¶ 24, 29 

(issue of allied offenses waived where the written plea agreement stated that “[t]he 

parties stipulate that the counts herein do not merge”); State v. Black, 2016-Ohio-383, 58 

N.E.3d 561, ¶ 17-18 (8th Dist.) (issue of allied offenses waived where the defendant 

agreed that the felonious assault and domestic violence counts “would not merge for 

purposes of sentencing”).

{¶ 13} Accordingly, appellant’s first assignment of error is not well-taken.

B. Ineffective Assistance

{¶ 14} In his second assignment of error, appellant argues that trial counsel 

rendered deficient performance by stipulating in the plea agreement that the counts of 

endangering children and felonious assault did not merge for purposes of sentencing.

{¶ 15} To prove a claim of ineffective assistance, appellant must demonstrate that 

counsel’s performance fell below an objective standard of reasonableness, and a 

reasonable probability exists that, but for counsel’s error, the result of the proceedings 
7.

would have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 

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

{¶ 16} In this case, appellant entered a guilty plea. We have recognized that

[A] guilty plea represents a break in the chain of events which has 

preceded it in the criminal process. When a criminal defendant has 

solemnly admitted in open court that he is in fact guilty of the offense with 

which he is charged, he may not thereafter raise independent claims relating 

to the deprivation of constitutional rights that occurred prior to the entry of 

the guilty plea. He may only attack the voluntary and intelligent character 

of the guilty plea.

State v. Rivera, 6th Dist. Wood Nos. WD-19-085, WD-19-086, 2021-Ohio-1343, ¶ 10, 

quoting State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992). “In other words, 

a defendant’s guilty plea waives the right to assert an ineffective-assistance-of-counsel 

claim unless the defendant argues that ‘counsel’s errors affected the knowing and 

voluntary character of the plea.’” Id., quoting State v. Green, 11th Dist. Trumbull No. 

2017-T-0073, 2018-Ohio-3536, ¶ 18-19; see also State v. Nguyen, 6th Dist. Lucas No. L05-1369, 2007-Ohio-2034, ¶ 18 (“[O]n appeal, a defendant who enters a guilty plea may 

only raise ineffective assistance of counsel in relationship to whether counsel caused the 

defendant’s plea to be less than knowing and voluntary.”); State v. Hayes, 6th Dist. Lucas 

No. L-14-1249, 2016-Ohio-330, ¶ 11; State v. Gegia, 157 Ohio App.3d 112, 2004-Ohio2124, 809 N.E.2d 673, ¶ 17-18 (9th Dist.).
8.

{¶ 17} Here, appellant does not argue that his plea was not knowingly or 

voluntarily entered. Moreover, even if we were to ascribe to appellant the argument that 

his plea was not knowing, intelligent, and voluntary due to counsel’s ineffectiveness, we 

find that the record before us does not demonstrate that counsel was ineffective.

{¶ 18} We start with the well-settled premise that “[a] properly licensed attorney is 

presumed effective in his or her representation of a defendant,” Rivera at ¶ 9, citing State 

v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Oftentimes, when discussing 

whether counsel’s performance fell below an objective standard of reasonableness, we 

focus on whether counsel’s specific conduct is reasonable. However, the issue in this 

case centers on the threshold question of what conduct we are evaluating. Stated another 

way, in order to determine if counsel’s conduct fell below an objective standard of 

reasonableness, we must know what counsel’s conduct was. Our view is that we presume 

that counsel’s conduct was whatever would be reasonable under the circumstances—in 

this case informing appellant of the legal arguments surrounding merger—and appellant 

must show otherwise.2

{¶ 19} The evidence contained in the record regarding counsel’s advice to 

appellant is comprised of counsel’s statements during the plea hearing that counsel 

understood the plea agreement as described by the state—which specified that the 

2 Although we do not decide the issue now, we have no cause to doubt that it would be 

unreasonable for trial counsel to fail to properly advise appellant on the issue of merger 

before entering into a plea agreement.
9.

offenses would not merge—that counsel reviewed the plea documents “[i]n some specific 

detail with my client previous to today and then again today before coming into court,” 

and that counsel believed that appellant was entering the plea knowingly and voluntarily. 

In addition, appellant stated during the plea colloquy that he read the document with his 

attorney present, that any questions he had were fully and completely answered, that he 

did not have any other questions about the document at that time, and that when he 

signed the document he was acknowledging that he “had read, understood, and most 

importantly * * * agreed with what was in the document.” Appellant further 

acknowledged that he was satisfied with the advice and counsel of his attorneys, and that 

everything the judge told him was consistent with what his attorneys said.

{¶ 20} Also relevant to the question of counsel’s advice to appellant is the 

following exchange from the sentencing hearing, wherein counsel expressed some 

uncertainty or confusion regarding the issue of merger in the plea agreement:

THE COURT: Thank you very much. And the state’s position is 

that according to 2929.14(C)(4) that the Court could impose consecutive 

sentences.

[THE STATE]: It is, Your Honor. We would note, I think, that was 

part of the plea agreement. There was an agreement that the offenses did 

not merge.

[DEFENSE COUNSEL]: I don’t know that was part of the plea 

agreement. In the event the Court were to impose consecutive sentences I 
10.

would want to write on that following sentencing, Your Honor. So I would 

ask some opportunity to file an objection.

* * *

THE COURT: Well, I guess I would say this, [defense counsel]. If 

the Court does impose a consecutive sentence, you can file a motion to 

reconsider the sentence pursuant to the possibility of merger. I would 

indicate, and you know this -- I want to say it on the record -- that does not 

toll the appeal time. So there’s where the question is. I am guessing that 

you’re probably going to appeal a consecutive sentence as being a merger. 

And the State is indicating that there was an agreement that they did not 

merge. * * *

* * *

THE COURT: I have the plea papers. I’ll just take a look. The 

parties agree that Count One and Count Three do not merge.

[DEFENSE COUNSEL]: Fair enough.

Notably counsel did not subsequently file any motions or objections on the issue of 

merger.

{¶ 21} The dissent concludes that counsel’s uncertainty or confusion at the 

sentencing hearing affirmatively demonstrates that counsel was ignorant of the terms of 

the plea agreement, and therefore could not have explained the non-merger stipulation to 

appellant. We disagree.
11.

{¶ 22} The dissent’s conclusion is one inference that can be drawn from counsel’s 

statements at the sentencing hearing. We are not oblivious to the record before us, and 

we agree that it is possible that counsel failed to fully explore the issue of merger with 

appellant. We also acknowledge that such a possibility is supported by the existence of a 

potentially strong argument for the merger of the offenses in this case.3 However, the 

dissent’s conclusion is in direct conflict with counsel’s statements at the plea hearing 

wherein he confirmed the terms of the plea agreement as articulated by the state—which 

specifically included the provision that the offenses would not merge—and asserted that 

he reviewed the terms of the plea agreement with appellant on at least two occasions. 

Furthermore, we find it significant that appellant has never claimed that counsel failed to 

inform him regarding the non-merger stipulation. Appellant did not make that claim 

during the plea hearing, at sentencing, in a postconviction filing, or even in his appellate 

brief.

{¶ 23} On the other hand, it is also possible that counsel in the moment simply 

forgot the terms of a plea agreement that was entered into over a month earlier. Counsel 

conceded the issue when the agreement was read by the trial court at sentencing, and did 

not file any additional motions or memoranda despite the trial court’s invitation to do so.

3 We are hesitant to opine on the issue of merger based upon the state’s recitation of facts 

at the plea hearing where the issue of merger was stipulated and was not in dispute, as we 

do not discount the possibility that additional evidence could have been adduced had 

merger been at issue. Indeed, we often state that parties may not litigate issues for the 

first time on appeal for the reason that the record may not have been fully developed.
12.

{¶ 24} The fact that we cannot say which scenario is true because the record does 

not disclose what advice counsel gave to appellant resolves the issue. Where the record 

is silent we presume the regularity of the proceedings, and we presume that counsel was 

competent. It remains that “the burden of proving ineffectiveness is on the defendant.” 

Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985); State v. Bradley, 42 Ohio St.3d 

136, 538 N.E.2d 373 (1989), paragraph two of the syllabus (“Counsel’s performance will 

not be deemed ineffective unless and until counsel’s performance is proved to have fallen 

below an objective standard of reasonable representation and, in addition, prejudice arises 

from counsel’s performance.”).

{¶ 25} Thus, as it stands, the record is silent on the specific advice given to 

appellant, and any conclusion that appellant was not informed on the issue of merger 

rests entirely on assumptions and speculation, which we do not think is sufficient to 

overcome the presumption that counsel was competent and counsel’s express statements 

that he understood the terms of the plea agreement and reviewed the plea documents “in 

some specific detail” with appellant. See State v. Short, 192 Ohio St.3d 360, 2011-Ohio3641, 952 N.E.2d 1121, ¶ 129 (ineffectiveness claim based on failure to investigate 

mitigation fails because “the record does not show the extent of counsel’s investigation,” 

and counsel advised the court that they had “made a thorough investigation of mitigating 

evidence * * * including inquiries of family members and other persons”); State v. Perez, 

124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 226 (ineffective assistance 

claim fails where psychiatric report shows some mitigating factors, but “the record does 
13.

not show that Perez’s counsel failed to investigate those factors. We cannot infer a 

defense failure to investigate from a silent record.”). Therefore, we hold that appellant’s 

claim of ineffective assistance must fail.4

{¶ 26} Accordingly, appellant’s second assignment of error is not well-taken.

C. Consecutive Sentences

{¶ 27} In his third assignment of error, appellant argues that the trial court erred 

when it imposed consecutive sentences because the record does not support a finding that 

appellant engaged in a course of conduct. Specifically, appellant argues that the record 

shows that there was only one act of aggression towards the victim. Appellant asserts 

that a single act cannot constitute a course of conduct.

{¶ 28} We review felony sentences under the standard set forth in R.C. 

2953.08(G)(2). State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 

16. R.C. 2953.08(G)(2) allows us to “increase, reduce, or otherwise modify a sentence,” 

or “vacate the sentence and remand the matter to the sentencing court for resentencing” if 

we clearly and convincingly find either “(a) That the record does not support the 

4 We also disagree with the dissent’s proposal to solicit additional briefing by the parties. 

This is not a new issue that we identified and the parties have not addressed. 

Consequently, there is little justification to exercise our discretion to “address errors not 

assigned or argued, with notice to the parties and an opportunity to brief additional 

issues.” Furthermore, it appears to us that what the dissent is truly seeking is additional 

facts regarding the advice that counsel gave to appellant before appellant entered into the 

plea agreement (“potentially egregious facts;” “[s]hould these facts prove true”). 

However, it is axiomatic that we cannot add facts to the record before us, and then decide 

the appeal based on those new facts. State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 

(1978), paragraph one of the syllabus.
14.

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,” or “(b) That the sentence is otherwise contrary to 

law.”

{¶ 29} Appellant’s argument challenges the trial court’s findings under R.C. 

2929.14(C)(4), which states, in relevant part,

If multiple prison terms are imposed on an offender for convictions 

of multiple offenses, the court may require the offender to serve the prison 

terms consecutively if the court finds that the consecutive service is 

necessary to protect the public from future crime or to punish the offender 

and that consecutive sentences are not disproportionate to the seriousness of 

the offender’s conduct and to the danger the offender poses to the public, 

and if the court also finds any of the following:

* * *

(b) At least two of the multiple offenses were committed as part of 

one or more courses of conduct, and the harm caused by two or more of the 

multiple offenses so committed was so great or unusual that no single 

prison term for any of the offenses committed as part of any of the courses 

of conduct adequately reflects the seriousness of the offender’s conduct.

{¶ 30} Upon review, we find that appellant’s argument rests upon a faulty 

premise. Appellant argues that the record shows only one act of aggression. However, 
15.

appellant stipulated in his plea agreement that the offenses of endangering children and 

felonious assault did not merge. Thus, despite his argument that there was only one act, 

appellant has admitted and pled guilty to committing two separate offenses. Furthermore, 

the offenses occurred on the same day and against the same victim. Therefore, we cannot 

clearly and convincingly find that the record does not support the trial court’s finding that 

“multiple offenses were committed as part of one or more courses of conduct.”

{¶ 31} Accordingly, appellant’s third assignment of error is not well-taken.

D. Defective Indictment

{¶ 32} Finally, in his fourth assignment of error, appellant argues that count one of 

the indictment is defective because it does not include the mens rea of “recklessly.”

{¶ 33} At the outset, we note that appellant did not object to the alleged defect in 

the indictment in the trial court, thus he has waived all but plain error. State v. Horner, 

126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, paragraph three of the syllabus. 

Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial rights may be 

noticed although they were not brought to the attention of the court.” “Plain error does 

not exist unless ‘but for the error, the outcome of the trial clearly would have been 

otherwise.’” State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, ¶ 11, 

quoting State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). “The plain-error 

rule is applied ‘under exceptional circumstances and only to prevent a manifest 

miscarriage of justice.’” Id., quoting Long at 97.
16.

{¶ 34} In count one, appellant was charged with endangering children in violation 

of R.C. 2919.22(B)(1) and (E)(2)(d), which provides,

(B) No person shall do any of the following to a child under eighteen 

years of age or a mentally or physically handicapped child under twentyone years of age:

(1) Abuse the child;

* * *

[(E)](2) If the offender violates division (A) or (B)(1) of this section, 

endangering children is one of the following * * *:

* * *

(d) If the violation is a violation of division (B)(1) of this section and 

results in serious physical harm to the child involved, a felony of the second 

degree.

{¶ 35} Appellant correctly identifies that the endangering children statute does not 

identify a specific mens rea for the offense. Thus, the Ohio Supreme Court has held that

the culpable mental state is recklessness, and that recklessness is an essential element of 

the crime of endangering children. State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 

(1980), paragraph one of the syllabus.

{¶ 36} Appellant argues that because count one of the indictment does not include 

the essential element of recklessness, it is defective. However, the Ohio Supreme Court 

has recognized that “[a]n indictment that charges an offense by tracking the language of 
17.

the criminal statute is not defective for failure to identify a culpable mental state when the 

statute itself fails to specify a mental state.” Horner at paragraph one of the syllabus.

{¶ 37} Here, the indictment states that the defendant, on or about October 10, 

2019, “did abuse B.K. DOB 09/14/2017, a mentally or physically handicapped child 

under twenty-one years of age 09/14/2017. Furthermore, the violation resulted in serious 

physical harm to B.K. DOB 09/14/2017.” We find that the language of the indictment 

tracks the language of the criminal statute in that it alleges that appellant abused a child, 

and that the violation resulted in serious physical harm to the child. Therefore, we hold 

that the indictment is not defective for failing to include the culpable mental state of 

recklessness because it tracks the language of R.C. 2919.22(B)(1) and (E)(2)(d), and the 

statute itself does not specify a culpable mental state.

{¶ 38} Accordingly, appellant’s fourth assignment of error is not well-taken.

IV. Conclusion

{¶ 39} For the foregoing reasons, we find that substantial justice has been done the 

party complaining, and the judgment of the Wood County Court of Common Pleas is 

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4.
18.

State v. Hamilton

C.A. No. WD-20-089

Mark L. Pietrykowski, J. _______________________________

JUDGE

Thomas J. Osowik, J. 

CONCUR. _______________________________

JUDGE

Gene A. Zmuda, J. 

DISSENTS AND WRITES 

SEPARATELY.

ZMUDA, J.

{¶ 40} Because I would address issues related to appellant’s second assignment of 

error, and consider whether appellant’s trial counsel was ineffective relative to the plea 

agreement, I dissent from the majority’s decision.

{¶ 41} In October, 2019, B.K., the two-year-old child of appellant’s girlfriend, 

was admitted to the hospital with a fractured skull, brain injury, and bilateral retinal 

hemorrhaging, conditions consistent with shaken baby syndrome. Appellant was charged 

with endangering children by abuse in violation of R.C. 2919.22(B)(1) and (E)(2)(d) in 

Count One, endangering children by violating a duty of care, protection, or support in 
19.

violation of R.C. 2919.22(A) and (E)(2)(c) in Count Two, and felonious assault in 

violation of R.C. 2903.11(A)(1) and (D)(1)(a) in Count Three. 

{¶ 42} On November 6, 2020, appellant entered a guilty plea to Counts One and 

Three of the indictment, with the state agreeing to dismiss Count Two. The prosecutor 

recited the terms of the plea into the record:

PROSECUTOR: * * * My understanding is the defendant will be 

pleading guilty to Counts One and Three of the indictment, Count Two will 

be dismissed at sentencing. Count One is endangering children, Ohio 

Revised Code Section 2919.22(B)(1) and (E)(2)(d), a felony of the second 

degree. Count Three is felonious assault, Ohio Revised Code Section 

2903.11(A)(1) and (D)(1)(a), also a felony of the second degree. The 

parties have agreed these two charges do not merge. And the State is free 

to recommend. Thank you.

Appellant’s trial counsel agreed that the terms, recited in the record, were accurate and 

had been discussed “in some specific detail” prior to hearing and again the day of hearing 

“before coming into court.” 

{¶ 43} The trial court then conducted the Crim.11 colloquy with appellant, and 

pertinent to this appeal, informed appellant that a maximum sentence of 8 years could be 

imposed as to each count, with an indefinite sentence imposed for one of the two counts 

under the Reagan Tokes law, for a potential tail of 4 years as to one 8-year prison term. 

The trial court then stated:
20.

THE COURT: Mr. Hamilton, I also want to explain to you this. 

If certain circumstances are available, under the Revised Code, specifically 

under 2929.14(C), the Court could impose a consecutive term, that means 

one sentence after another. So the Court could impose eight years followed 

by eight years with a tail of four years. Do you understand that?

[APPELLANT]: I do.

THE COURT: That means you can have imposed up to twenty 

years. Do you understand that?

[APPELLANT]: I do.

{¶ 44} At the trial court’s request, the prosecutor outlined the facts that would 

have been proven if the matter proceeded to trial. Significantly, the prosecutor noted that 

medical providers “all reported that the injury that [B.K.] sustained was abuse” and 

“[t]his injury is commonly referred to as shaken baby syndrome” and “[all] of this points 

to not an accident but instead an intentional act by the defendant.” The trial court 

accepted appellant’s guilty plea and found appellant guilty as to Counts One and Two, 

endangering children in violation of R.C. 2919.22(B)(1) and (E)(2)(d) and felonious 

assault in violation of R.C. 2903.11(A)(1) and (D)(1)(a), each a felony of the second 

degree. The trial court then continued the matter for sentencing on December 11, 2020, 

and ordered a presentence investigation report.

{¶ 45} There is nothing within the record demonstrating appellant was advised of 

his double jeopardy rights, relative to merger, or the possible, aggregate prison term that 
21.

could be imposed should he proceed to trial and be found guilty of all Counts as indicted. 

Had appellant received such an explanation, he would have learned that – if Counts One 

and Three merged as arising from the same conduct as potentially supported by the 

record on appeal – appellant could have been sentenced to a maximum term of 8 years as 

to either Counts One or Three, depending on the state’s election, and a maximum of 36 

months as to Count Two, pursuant to R.C. 2929.14(A)(3)(b). Therefore, appellant faced 

a total potential aggregate sentence of a minimum term of 11 years with a potential 4-

year tail under the Reagan Tokes law, prior to his plea. Thus, appellant’s maximum 

sentence would likely have been shorter had he entered a guilty plea to the charges as 

indicted and prevailed on his merger argument, without any plea agreement. Considering 

the record on appeal, his maximum exposure would have been a potential sentence of 15 

years as opposed to the maximum potential sentence of 20 years arising from the plea, 

which included a stipulation to no merger despite the facts presented. 

{¶ 46} On the date of sentencing, the trial court reiterated the possibility of 

consecutive sentences, and for the first time, appellant’s trial counsel took issue with 

imposition of consecutive sentences, seemingly unaware of the agreement that Counts 

One and Three did not merge. The prosecutor at that hearing was filling in for the lead 

prosecutor on the case, and did not have first-hand knowledge of plea negotiations.

THE COURT: * * * And the State’s position is that according 

to 2929.14(C)(4) that the Court could impose consecutive sentences.
22.

PROSECUTOR: It is, Your Honor. We would note, I think, that 

was part of the plea agreement. There was an agreement that the offenses 

did not merge.

TRIAL COUNSEL: I don’t know that was part of the plea 

agreement. In the event the Court were to impose consecutive sentences I 

would want to write on that following sentencing, Your Honor. So I would 

ask some opportunity to file an objection.

PROSECUTOR: And I’m just relating my e-mail from [the lead 

prosecutor] indicates in the plea papers the parties agreed that Count One 

and Count Three do not merge, for what that is worth.

THE COURT: Well, I guess I would say this, * * *. If the 

Court does impose a consecutive sentence, you can file a motion to 

reconsider the sentence pursuant to the possibility of merger. I would 

indicate, and you know this – I want to say it on the record – that does not 

toll the appeal time. So there’s where the question is. I am guessing that 

you’re probably going to appeal a consecutive sentence as being a merger. 

And the State is indicating that there was an agreement that they did not 

merge. [Prosecutor], is that a correct statement?

PROSECUTOR: I don’t have the plea paper in front of me. I’m 

just restating what was indicated.
23.

THE COURT: I have the plea papers. I’ll just take a look. 

[“]The parties agree that Count One and Count Three do not merge.[”].

TRIAL COUNSEL: Fair enough.

The record reveals an absence of any follow up after appellant’s trial counsel raised a 

misunderstanding of the agreement and objected to consecutive sentences. The trial 

court, moreover, did not inquire of trial counsel as to whether he needed time to confer 

with appellant about the scope of his misunderstanding, and the trial court never 

questioned whether the parties truly reached agreement regarding non-merger of two 

offenses which, by operation of law, might merge according to the facts placed in the 

record. 

{¶ 47} The state then read letters from B.K.’s grandmother and aunt, as the sole 

victim impact statements proffered on the record. To the extent these letters referenced 

injuries, the references addressed a single incident. Appellant’s presentence investigation 

report contained reports of prior incidents, but there is nothing in the record 

demonstrating appellant was charged for any incident beyond the head injury inflicted on 

B.K. on October 10, 2019. After hearing from appellant’s counsel and the state, the trial 

court determined the conduct fell within the worst and most serious conduct for the 

offenses, and imposed the maximum 8 year prison term as to each Count. The trial court 

then determined “that these are multiple offenses” for purposes of consecutive 

sentencing.
24.

{¶ 48} To demonstrate ineffective assistance of counsel, appellant must show that 

his trial counsel’s performance fell below an objective standard of reasonableness and 

that, but for his counsel’s error, there is a reasonable probability that the proceedings 

would have ended differently. See Strickland v. Washington, 466 U.S. 668, 687-688, 

694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In this case, the assigned error concerns 

trial counsel’s failure to pursue merger and his stipulation that the counts did not merge, 

with no argument relative to a voluntary, knowing, intelligent plea. Therefore, 

appellant’s guilty plea arguably waived the issues argued within the assignment of error, 

with the exception of a challenge to the knowing and voluntary nature of the plea itself 

based on these issues, as noted by the majority. (Citations omitted) State v. Rivera, 6th 

Dist. Wood No. WD-19-085, 2021-Ohio-1343, ¶ 10.

{¶ 49} The sole issue raised and argued concerns application of merger, and in this 

case, it appears an argument for merger might be supported. The facts recited into the 

record indicate appellant injured B.K., causing a condition consistent with shaken baby 

syndrome, as the conduct underlying both the child endangering/child abuse and 

felonious assault charges. In other words, the record does not appear to demonstrate a 

separate and identifiable injury as to each, separate charge.

{¶ 50} We address the appeal “on its merits on the assignments of error set forth in 

the briefs[.]” App.R.12(A). However, we may also – in our discretion – address errors 

not assigned or argued, with notice to the parties and an opportunity to brief additional 

issues. State v. Moore, 154 Ohio St.3d 94, 2018-Ohio-3237, 111 N.E.3d 1146, ¶ 17, 
25.

citing State v. 1981 Dodge Ram Van, 36 Ohio St.3d 168, 170, 522 N.E.2d (1988); C. 

Miller Chevrolet, Inc. v. Willoughby Hills, 38 Ohio St.2d 298, 301, 313 N.E.2d 400 

(1974), fn. 3. I disagree with the majority’s conclusion of waiver and the presumption of 

effective trial counsel, considering the information within the record on appeal. 

{¶ 51} The record on appeal demonstrates that appellant’s trial counsel lacked an 

understanding of the terms of the plea agreement. In essence, trial counsel advised 

acceptance of a plea agreement that negotiated away a lesser potential prison term for a 

longer term, by stipulating to non-merger of the offenses. Most significant, moreover, is 

that trial counsel indicated ignorance of the terms of the plea agreement to the trial court. 

It follows, therefore, that trial counsel could not have explained these terms of the plea 

agreement, implicating the knowing, voluntary, and intelligent nature of appellant’s plea. 

While the majority presumes the regularity of the proceedings, including proper 

advisement by trial counsel to appellant regarding the plea and merger, the record 

affirmatively demonstrates counsel lacked the knowledge to provide the proper 

advisement. Specifically, trial counsel’s ignorance and surprise over the terms of the plea 

agreement, acknowledged by the majority, appears irreconcilable with a presumption of 

proper, competent advisement of those unknown terms.5 I would consider this issue, and 

direct the parties to brief the issue in order to address all issues together on appeal. 

5 After the prosecutor stated “There was an agreement that the offenses did not merge[,]” 

appellant’s trial counsel responded, “I don’t know that was part of the plea agreement.”
26.

{¶ 52} I therefore disagree with the majority’s decision, and based on the 

potentially egregious facts regarding effective assistance of counsel relative to the plea, I 

would seek additional argument on the issue. Considering these facts, I also believe that 

this is a case where an appellate court might confidently speculate as to how appellant 

might have proceeded if the strengths and weaknesses of the legal arguments on the issue 

of merger had been explained to him. Appellant entered a plea that arguably carried 

more exposure than the potential sentence he faced had he entered a guilty plea to the 

indictment, required the trial court to consider applicability of merger, and preserved that 

issue for appellate review. Should these facts prove true, it is difficult to envision a more 

apt example of ineffective assistance of counsel, and exercise of discretion in addressing 

these facts is therefore necessary. 

{¶ 53} Accordingly, I would address appellant’s second assignment of error, and 

direct the parties to brief the issue of merger relative to a knowing and voluntary plea. As 

the issue of effective assistance of counsel regarding the plea is potentially dispositive in 

this case, I respectfully dissent.

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at:

http://www.supremecourt.ohio.gov/ROD/docs/.