State v. Stuckey , 2018 Ohio 4435 ( 2018 )

[Cite as State v. Stuckey, 2018-Ohio-4435.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170285
TRIAL NOS. B-1501501
Plaintiff-Appellee, : B-1604595(A)
vs. : O P I N I O N.
BRANDON STUCKEY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: November 2, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Roger W. Kirk, and Robinson & Brandt, PSC, and Jeffrey M. Brandt, for Defendant-
Appellant.
O HIO F IRST D ISTRICT C OURT OF A PPEALS
M OCK , Presiding Judge.
{¶1} In two assignments of error, defendant-appellant Brandon Stuckey
claims that the trial court improperly sentenced him in two separate cases. We
affirm the trial court’s judgments.
The Case Numbered B-1501501
{¶2} Stuckey was charged with one count of trafficking in cocaine, one
count of possession of cocaine, one count of aggravated trafficking in fentanyl, and
one count of aggravated possession of fentanyl. Pursuant to a plea agreement,
Stuckey pleaded guilty to possession of cocaine and aggravated possession of
fentanyl. The remaining two counts were dismissed. The state related the following
facts, to which Stuckey agreed:
[T]he officer saw the defendant engaged in numerous hand-to-hand
drug sales from his motor vehicle. In that motor vehicle, the
defendant was in the driver’s seat. Officers searched the car and found
a digital scale and marijuana in the driver’s-side door where the
defendant was seated. They also found a bag of powder cocaine,
[prepared] for distribution, above the sun visor on the driver’s side of
the car where he was seated in the driver’s seat. He also had U.S.
currency on his person. The weight of the cocaine was 1.641 grams. As
far as the fentanyl, the weight was 4.21 grams.
After the appropriate colloquy with the trial court, Stuckey entered guilty pleas to the
two counts, and the matter was then continued for sentencing. During the
sentencing hearing, new counsel for Stuckey raised the issue of whether the two
counts were allied offenses of similar import, and therefore, subject to merger. The
following exchange took place:
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DEFENSE COUNSEL: Your honor, I believe these two F5s are allied
offenses.
THE COURT: One is trafficking in cocaine. The other is possession
of fentanyl.
DEFENSE COUNSEL: I would argue it was probably - - he was
arrested at the same time for those. I wasn’t here for Mr. Stuckey to
take the plea. I haven’t had a chance to tell Mr. Stuckey this. I
understand the Court wants to proceed on the sentencing today for
that matter, which was already pled.
{¶3} At the conclusion of the sentencing hearing, the trial court sentenced
Stuckey to 12 months in prison on each count, with the sentences to be served
concurrently.
The Case Numbered B-1604595(A)
{¶4} Stuckey was indicted on two counts of trafficking in heroin, two
counts of possession of heroin, two counts of felonious assault on a police officer,
having a weapon while under a disability, aggravated trafficking in drugs, and
aggravated possession of drugs. Pursuant to a plea agreement, Stuckey pleaded
guilty to two counts of trafficking in heroin, one count of felonious assault, and
having a weapon while under a disability. The remaining counts were dismissed.
After finding Stuckey guilty of those counts, the trial court proceeded immediately to
sentencing.
{¶5} On the issue of sentencing, the state had previously indicated that “we
agreed to have the defendant plead to the counts he is and dismiss, in exchange for
those pleas, the remaining counts, and discuss with the officers a proposed sentence
of five years in the Ohio Department of Corrections.” Counsel for Stuckey asked the
trial court to “impose the five years that was discussed.” The trial court then said,
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“Mr. Stuckey, it took a while to get you here, but you are here now. And I think based
upon everything that’s before me, having considered the sentencing factors under
2929 of the Ohio Revised Code, I find, obviously, you are not amenable to
community control.” The trial court then sentenced Stuckey to 12 months in prison
on each count of trafficking in heroin, five years in prison for felonious assault, and
36 months for having a weapon while under a disability. Each term was ordered to
be served concurrently with the others and concurrently with the sentence in another
case, for a total of five years in prison.
{¶6} In two assignments of error, Stuckey claims that the trial court erred
when it sentenced him in these two cases. He first argues that the trial court erred
when it refused to merge his cocaine-trafficking and fentanyl-possession charges in
the case numbered B-1501501. He then argues that the trial court failed to consider
the appropriate sentencing factors when it sentenced him to an aggregate term of
five years in prison in the case numbered B-1604595(A).
Allied Offenses in B-1501501
{¶7} In his first assignment of error, Stuckey claims that the trial court
should have merged his convictions for trafficking in cocaine and possession of
fentanyl. The Double Jeopardy Clauses of the Fifth Amendment to the United States
Constitution, and the Ohio Constitution, Article I, Section 10, protect a defendant
against multiple punishments for the same offense. State v. Martello, 97 Ohio St. 3d
398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 7; North Carolina v. Pearce, 395 U.S. 711,
717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). This constitutional protection is codified
in R.C. 2941.25. See State v. Cabrales, 118 Ohio St. 3d 54, 2008-Ohio-1625, 886
N.E.2d 181, ¶ 23. 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
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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.
{¶8} The Ohio Supreme Court set forth the test to determine if two
offenses are allied offenses of similar import in State v. Ruff, 143 Ohio St. 3d 114,
2015-Ohio-995, 34 N.E.3d 892. It explained:
Rather than compare the elements of two offenses to
determine whether they are allied offenses of similar import, the
analysis must focus on the defendant's conduct to determine whether
one or more convictions may result because an offense may be
committed in a variety of ways and the offenses committed may have
different import. No bright-line rule can govern every situation.
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.
Id. at ¶ 30-31.
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{¶9} While the state has the burden of proof regarding the elements of an
offense, Stuckey bears the burden to demonstrate that he is entitled to the protection
of R.C. 2941.25. State v. Washington, 137 Ohio St. 3d 427, 2013-Ohio-4982, 999
N.E.2d 661, ¶ 18, citing State v. Mughni, 33 Ohio St. 3d 65, 67, 514 N.E.2d 870
(1987). Our review of an allied-offenses question is de novo. State v. Williams, 134
Ohio St. 3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12.
{¶10} On appeal, Stuckey argues that “it appears that the cocaine and
fentanyl were a mixture contained in a single bag.” But that is not a fair reading of
the record. The record does not indicate that the cocaine and fentanyl were mixed.
If anything, the fact that the two drugs were listed as having been weighed
separately, and that only the cocaine was described as having been prepared for
distribution, indicates that the two drugs were not combined. Stuckey failed to prove
that the two drugs had been combined into one substance.
{¶11} At trial, counsel’s only argument that the two charges were allied
offenses was that “he was arrested at the same time for those.” This court has not
addressed the question of whether separate charges relating to two different drugs
are allied offenses of similar import. But most appellate districts have affirmatively
held that they are not. As the Second Appellate District noted, where “each violation
of R.C. 2925.11 requires proof of the identity of a different drug that was possessed *
* * ‘the legislature intended the possession of the different drug groups to constitute
different offenses.’ ” State v. Huber, 2d Dist. Clark No.2010-CA-83, 2011-Ohio-6175,
¶ 7, quoting State v. Delfino, 22 Ohio St. 3d 270, 274, 490 N.E.2d 884 (1986). The
Fourth Appellate District concluded that the legislature clearly intended that
possession of different drug groups constitutes different offenses. See State v.
Deckard, 2017-Ohio-8469, 100 N.E.3d 53, ¶ 52 (4th Dist.). The Fifth Appellate
District has also held that counts of possession of different drug groups are not of
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similar import. See State v. Rice, 5th Dist. Licking No. 2016 CR 00085, 2017-Ohio-
1504, ¶ 12 (“It would thus defeat the legislature's intent to merge the drug possession
offenses for different drugs into a single offense for purposes of sentencing.”). The
Sixth Appellate District agrees. See State v. Ratliff, 6th Dist. Lucas No. L-16-1187,
2017-Ohio-2816, ¶ 10-11. The Eighth Appellate District has also found that such
counts do not merge. State v. Perry, 8th Dist. Cuyahoga No. 105501, 2018-Ohio-
487, ¶ 32-34. The Ninth Appellate District has also held so. See State v. Helmick,
9th Dist. Summit No. 27179, 2014-Ohio-4187, ¶ 27. The Twelfth Appellate District
has likewise concluded that “the simultaneous possession of two types of drugs
constitutes two separate offenses that do not merge as allied offenses of similar
import under R.C. 2925.11.” State v. Woodard, 12th Dist. Warren No. CA2016-09-
084, 2017-Ohio-6941, ¶ 34. The Woodard court further noted that the fact that “the
two controlled substances were found in the same baggie is of no consequence”
because “[e]ach possession offense required proof as to the specific drug involved
and could not be supported by possession of a different controlled substance.” Id. at
¶ 35. No appellate district has held that counts for simultaneous possession of two
different controlled substances are subject to merger.
{¶12} Having considered the analysis of our sister districts, we conclude
that convictions relating to two different controlled substances are not allied offenses
of similar import, and consequently, do not merge. We overrule Stuckey’s first
assignment of error.
Sentencing Factors in B-1604595(A)
{¶13} In his second assignment of error, Stuckey argues the court failed to
consider the principles and purposes of sentencing when it sentenced him to five
years in prison in the case numbered B-1604595(A), alleging that the trial court only
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made “a vague conclusory statement that it had considered the Ohio Revised Code
§2929 sentencing factors.”
{¶14} The trial court must consider the purposes and principles of
sentencing before imposing sentence, in accordance with the sentencing statutes,
including R.C. 2929.11 and 2929.12. State v. Arnett, 88 Ohio St. 3d 208, 215, 724
N.E.2d 793 (2000). While a trial court is required to consider the purposes and
principles of sentencing, it need not make specific findings. See State v. Hendrix, 1st
Dist. Hamilton Nos. C-150194 and C-150200, 2016-Ohio-2697, ¶ 51. We can
presume from a silent record that the trial court considered the appropriate factors
unless the defendant affirmatively shows that the court has failed to do so. Id.
Stuckey does not make a showing that the trial court failed to consider the statutory
factors, and the trial court expressly stated it had considered them. Absent a showing
to the contrary, we assume that the trial court considered the appropriate statutory
factors. We overrule his second assignment of error.
Conclusion
{¶15} Having considered each of Stuckey’s assignments of error and
overruled both, we affirm the judgments of the trial court.
Judgments affirmed.
ZAYAS and MYERS, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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