State v. Bennett ( 2015 )

[Cite as State v. Bennett, 2015-Ohio-3560.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 14-COA-029
:
KIRK A. BENNETT :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court
of Common Pleas, Case No. 14-CRI-
075
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 27, 2015
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CHRISTOPHER R. TUNNELL CHRISTINA I. REIHELD
ASHLAND CO. PROSECUTOR P.O. Box 532
PAUL T. LANGE Danville, OH 43014
110 Cottage St., 3rd Floor
Ashland, OH 44805
Ashland County, Case No. 14-COA-029 2
Delaney, J.
{¶1} Appellant Kirk A. Bennett appeals from the October 1, 2014 Judgment
Entry - Sentencing of the Ashland County Court of Common Pleas. Appellee is the
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This appeal arises from a negotiated plea. The underlying facts are taken
from the pre-sentence investigation (P.S.I.), which has been made part of the record for
our review.
{¶3} A detective with the Ashland Police Department received reliable
information that appellant was selling marijuana from his father's residence at 802
Cottage Street, Ashland. The detective surveilled the residence and observed people
with "criminal histor[ies] for marijuana use or trafficking" coming and going from the
house for short periods of time.
{¶4} Investigators obtained a search warrant for the residence which was
executed on May 6, 2014. Marijuana was found in appellant's bedroom and appellant
told officers "Anything illegal you find in [the house] is mine." Officers found cash, digital
scales, baggies, and a paper ledger documenting sales. Regarding the quantity of
marijuana found, the P.S.I. contains the following statement by the detective:
* * * *.
I weighed the marijuana and it weighed 2.70 pounds, the
baggie that was laying outside of the bag weighed only .70 pounds.
This means there was a little over 1/4 pound missing. The other 2
baggies weighed exactly 1 pound. It's obvious [appellant] was
Ashland County, Case No. 14-COA-029 3
selling the marijuana, from the amount he had, the digital scales,
paper ledger, multiple baggies and the short term traffic I saw in
and out of his house.
* * * *.
(P.S.I., 6).
{¶5} Appellant was charged by indictment with one count of possession of
marijuana in violation of R.C. 2925.11(A), a felony of the third degree [Count I]; one
count of trafficking in marijuana in the vicinity of a school pursuant to R.C.
2925.03(A)(1), a felony of the fourth degree [Count II]; one count of trafficking in
marijuana pursuant to R.C. 2925.03(A)(2), a felony of the second degree [Count III]; and
one count of possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), a
misdemeanor of the fourth degree [Count IV]. Counts I, II, and III include a forfeiture
specification pursuant to R.C. sections 2981.04 and 2941.1417 related to $797 cash
and a Samsung cell phone.
{¶6} Count I of the indictment references an amount of marijuana in excess of
1000 grams but less than 5000 grams possessed by appellant on May 6, 2014. Count
II addresses trafficking marijuana in the vicinity of a school between May 1 and May 6,
2014. Count III applies to trafficking marijuana in an amount exceeding 1000 grams but
less than 5000 grams in the vicinity of a school between March 25, 2014 and May 6,
2014. Finally, Count IV references baggies, pipes, digital scales, and/or rolling papers
possessed by appellant on May 6, 2014.
Ashland County, Case No. 14-COA-029 4
{¶7} On August 6, 2014, appellant entered negotiated pleas of guilty to Counts
I and II and the accompanying forfeiture specifications. Appellee dismissed Counts III
and IV. The trial court set the matter for sentencing pending a P.S.I.
{¶8} On October 1, 2014, the trial court sentenced appellant to a prison term of
36 months on Count I to be served concurrently with a term of 15 months on Count II.
{¶9} Appellant now appeals from the judgment entries of his convictions and
sentences.
{¶10} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶11} "I. THE TRIAL COURT ERRED WHEN IT DID NOT MERGE THE
POSSESSION AND TRAFFICKING COUNTS FOR PURPOSES OF SENTENCING."
{¶12} "II. THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO THE
MAXIMUM SENTENCE IN PART BASED UPON THE REQUEST OF THE LOCAL
MUNICIPAL JUDGE TO MAKE AN EXAMPLE OF APPELLANT IN ORDER TO
PREVENT FUTURE OFFENDERS FROM COMMITTING MISDEMEANORS AFTER
FELONY SENTENCING, IN EFFECT ASKING THE TRIAL COURT TO SENTENCE
APPELLANT BASED UPON THE MUNICIPAL JUDGE'S BELIEF THAT HE COULD
NOT ADEQUATELY PUNISH THE APPELLANT FOR A MISDEMEANOR IN A
SEPARATE CASE."
Ashland County, Case No. 14-COA-029 5
ANALYSIS
I.
{¶13} In his first assignment of error, appellant argues the trial court should have
merged the possession offense of Count I and the trafficking offense of Count II for
sentencing purposes. We disagree.
{¶14} At the sentencing hearing, defense trial counsel argued Counts I and II
should merge but appellee objected, noting Count I related to marijuana found during
execution of the search warrant on May 6, 2014 and Count II related to sales of
marijuana in the vicinity of a school observed between May 1 and May 6, 2014.
{¶15} R.C. 2941.25 states as follows:
(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.
{¶16} Appellant entered guilty pleas to the following offenses:
Ashland County, Case No. 14-COA-029 6
I. Count I, possession of marijuana in an amount greater than
or equal to one thousand grams but less than five thousand
grams pursuant to R.C. 2925.11(A) and (C)(3)(d):
No person shall knowingly obtain, possess, or use a
controlled substance or a controlled substance analog.
If the drug involved in the violation is marihuana or a
compound, mixture, preparation, or substance containing
marihuana other than hashish, whoever violates division (A) of this
section is guilty of possession of marihuana. The penalty for the
offense shall be determined as follows:
If the amount of the drug involved equals or exceeds one
thousand grams but is less than five thousand grams, possession
of marihuana is a felony of the third degree, and division (C) of
section 2929.13 of the Revised Code applies in determining
whether to impose a prison term on the offender.
II. Count II, trafficking marijuana in the vicinity of a school
pursuant to R.C. 2925.03(A)(1) and (C)(3)(b):
No person shall knowingly * * * [s]ell or offer to sell a controlled
substance or a controlled substance analog[.]
If the drug involved in the violation is marihuana or a
compound, mixture, preparation, or substance containing
marihuana other than hashish, whoever violates division (A) of this
Ashland County, Case No. 14-COA-029 7
section is guilty of trafficking in marihuana. The penalty for the
offense shall be determined as follows:
Except as otherwise provided in division (C)(3)(c), (d), (e),
(f), (g), or (h) of this section, if the offense was committed in the
vicinity of a school or in the vicinity of a juvenile, trafficking in
marihuana is a felony of the fourth degree, and division (B) of
section 2929.13 of the Revised Code applies in determining
whether to impose a prison term on the offender.
{¶17} The question of whether offenses merge for sentencing depends upon the
subjective facts of the case in addition to the elements of the offenses charged. In a
plurality opinion, the Ohio Supreme Court modified the test for determining whether
offenses are allied offenses of similar import. State v. Johnson, 128 Ohio St. 3d 1405,
2010–Ohio–6314. The Court directed us to look at the elements of the offenses in
question and determine whether or not it is possible to commit one offense and commit
the other with the same conduct. If the answer to such question is in the affirmative, the
court must then determine whether or not the offenses were committed by the same
conduct. If the answer to the above two questions is yes, then the offenses are allied
offenses of similar import and will be merged. If, however, the court determines that
commission of one offense will never result in the commission of the other, or if there is
a separate animus for each offense, then the offenses will not merge according to
Johnson, supra.
{¶18} The Court has recently spoken again on merger issues and offers a
framework for our analysis:
Ashland County, Case No. 14-COA-029 8
As a practical matter, when determining whether offenses
are allied offenses of similar import within the meaning of R.C.
2941.25, courts must ask three questions when defendant's
conduct supports multiple offenses: (1) Were the offenses
dissimilar in import or significance? (2) Were they committed
separately? and (3) Were they committed with separate animus or
motivation? An affirmative answer to any of the above will permit
separate convictions. The conduct, the animus, and the import
must all be considered.
State v. Ruff, ---Ohio St.3d---, 2015-Ohio-995, ---N.E.3d---, ¶ 31.
{¶19} While objectively marijuana possession and marijuana trafficking may
sometimes be allied offenses of similar import, in the instant case they are not. The
offenses are dissimilar in import and significance: possession of marijuana at the
residence versus sale transactions performed in the vicinity of a school. The offenses
were committed separately: the search warrant resulting in the marijuana found [Count
I] was based upon the transactions observed in Count II. The offenses were committed
with a separate animus1 or motivation: the "managerial" necessities of marijuana
dealing including storing the product versus the actual selling thereof.
1
“R.C. 2941.25(B), by its use of the term ‘animus,’ requires [courts] to examine the
defendant's mental state in determining whether two or more offenses may be chiseled
from the same criminal conduct. In this sense, * * * the General Assembly intended the
term ‘animus' to mean purpose or, more properly, immediate motive. Like all mental
states, animus is often difficult to prove directly, but must be inferred from the
surrounding circumstances.” State v. Sydnor, 4th Dist. Scioto No. 10CA3359, 2011-
Ohio-3922, ¶ 39, citing State v. Logan, 60 Ohio St. 2d 126, 131, 397 N.E.2d 1345 (1979)
(citations omitted).
Ashland County, Case No. 14-COA-029 9
{¶20} We thus agree with appellee that the instant case shares many similarities
with State v. Williams, 5th Dist. Licking No. 2012-CA-34, 2012-Ohio-4708, in which the
counts of possession and trafficking related to separate and distinct occurrences: "This
is not a case where the trafficking and possession counts arose from delivery of the
same amount of drugs that was possessed by [appellant]. After [appellant] sold the five
unit doses to the undercover informant, he walked away. At that point, he continued to
possess an additional 28 unit doses of heroin." Id. at ¶ 23. See also, State v. Montoya,
12th Dist. Clermont No. 2012-02-015, 2013-Ohio-3312, ¶ 64, appeal allowed, 137 Ohio
St.3d 1410, 2013-Ohio-5096, 998 N.E.2d 510, and aff'd, 138 Ohio St. 3d 345, 2014-
Ohio-848, 6 N.E.3d 1172 [appellant sold only a portion of narcotics on each occasion
and possessed the remainder, "constituting a separate act with a different animus"]. IN
the case sub judice, as set forth in Counts I and II, the possession is separate from the
trafficking.
{¶21} We therefore conclude Counts I and II are not allied offenses of similar
import and the trial court properly did not merge the offenses for sentencing.
Appellant's first assignment of error is overruled.
II.
{¶22} In his second assignment of error, appellant argues the trial court should
not have relied upon an email from the municipal judge advising it of problems appellant
caused at the jail while awaiting felony sentencing. We disagree.
{¶23} First, we note the trial court "may consider any other factors that are
relevant to achieving those purposes and principles of sentencing" in addition to the
statutory factors it is required to consider. R.C. 2919.12(A). We thus disagree with
Ashland County, Case No. 14-COA-029 10
appellant's underlying premise that the trial court could not take the email from the
municipal court judge into account when fashioning appellant's sentence.
{¶24} More significantly in this case, however, we agree with appellee there is
no evidence in the record the trial court took the email into account at all. The record of
the sentencing hearing establishes only that the trial court "received and reviewed a
[P.S.I.] supplemented by some information from Judge Good of the Ashland Municipal
Court, and that material has been reviewed by the Court and made available for
Counsel and Counsel's review as well." (T. 3). In comparison, the trial court did
specifically note it took into account appellant's prior felonies. (T. 7). The P.S.I.
contains a lengthy criminal history including offenses of violence and multiple drug-
related offenses, including possession and trafficking of marijuana.
{¶25} We find no evidence the trial court took any impermissible factor in
account in fashioning appellant's sentence. Appellant's second assignment of error is
therefore overruled.
Ashland County, Case No. 14-COA-029 11
CONCLUSION
{¶26} Appellant's two assignments of error are overruled and the judgment of
the Ashland County Court of Common Pleas is affirmed.
By: Delaney, J. and
Gwin, P.J.
Wise, J., concur.