State v. Horton ( 2016 )

[Cite as State v. Horton, 2016-Ohio-8181.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
ROBERT D. HORTON, JR. Case No. CT2015-0054
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2015-0183
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 12, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX RICHARD L. CROSBY III
PROSECUTING ATTORNEY 20 South Third Street
GERALD V. ANDERSON II Suite 210
ASSISTANT PROSECUTOR Columbus, Ohio 43215
27 North Fifth Street, P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2015-0054 2
Wise, J.
{¶1} Appellant Robert D. Horton, Jr. appeals his conviction and sentence entered
in the Muskingum County Court of Common Pleas on two counts of trafficking in cocaine
following a plea of no contest.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} This case carne about from an investigation by the Central Ohio Drug
Enforcement (''CODE") Task Force using a confidential informant (''CI"). The intended
target was Appellant, but due to the nature of the drug enterprise, the CI could not directly
approach Appellant. The CI was friends with Appellant’s father, Robert Horton, Sr., and
approached him to introduce the CI to Appellant. While unintended, Horton, Sr. agreed to
facilitate a drug buy between Appellant and the CI. Two separate drug buys were made,
each for approximately 28 grams of cocaine.
{¶4} Appellant conducted the first controlled buy through his father, Horton, Sr.
During the second controlled buy, Horton, Sr. put the CI in direct contact with Appellant.
The proceeds from both of these illegal transactions went to Appellant.
{¶5} On June 3, 2015, Appellant, Robert Horton, Jr. was indicted on two counts
of Trafficking in Cocaine, one with a Forfeiture specification, and both were first degree
felonies.
{¶6} On August 19, 2015, Appellant pled no contest to one count of Trafficking
in Cocaine, amended to a third degree felony, and one count of Trafficking in Cocaine, a
felony of the first degree.
Muskingum County, Case No. CT2015-0054 3
{¶7} On October 5, 2015, the trial court sentenced Appellant to a mandatory term
of ten (10) years on the first degree felony and two (2) years on the third degree felony,
to be served concurrently, for an aggregate sentence of ten (10) years.
{¶8} Appellant now appeals, setting forth the following assignments of error:
ASSIGNMENTS OF ERROR
{¶9} “I. THE SENTENCE IS DISPROPORTIONATE/INCONSITENT [SIC]
CONTRARY TO R.C. 2929.11(B).
{¶10} “II. THE STATE ERRED IN OVERRULING DEFENDANT’S MOTION TO
DISMISS AS THIS COCAINE OFFENSE INVOLVING MIXED SUBSTANCES UNDER
R.C. 2925.11(C)(4)(A) THROUGH (I) AS THEY FAILED TO ESTABLISH THE WEIGHT
OF COCAINE MEETS THE STATUTORY THRESHOLD, EXCLUDING THE WEIGHT
OF ANY FILLER MATERIALS USED IN THE MIXTURE.”
I.
{¶11} In his First Assignment of Error, Appellant argues his sentence is
inconsistent with the sentence imposed on his co-defendant in this matter and therefore
is in violation of the purposes and principles of R.C. 2929.11. We disagree.
{¶12} Revised Code §2929.11 states:
(A) A court that sentences an offender for a felony shall be guided by
the overriding purposes of felony sentencing. The overriding purposes of
felony sentencing are to protect the public from future crime by the offender
and others and to punish the offender. To achieve those purposes, the
sentencing court shall consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating the
Muskingum County, Case No. CT2015-0054 4
offender, and making restitution to the victim of the offense, the public, or
both.
(B) A sentence imposed for a felony shall be reasonably calculated
to achieve the two overriding purposes of felony sentencing set forth in
division (A) of this section, commensurate with and not demeaning to the
seriousness of the offender's conduct and its impact upon the victim, and
consistent with sentences imposed for similar crimes committed by similar
offenders.
{¶13} Initially, we note, the maximum prison term appellant could have received
was eleven (11) years on the first-degree felony and 36 months on the third degree felony.
Also, there was a presumption in favor of a prison term.
{¶14} In sentencing Appellant, the trial court had before it the sentencing
memoranda filed by the State and Appellant, a pre-sentence investigation report,
statements made by Appellant, and arguments made at the sentencing hearing. The trial
court also considered Appellant’s criminal history which included that his first adult
conviction occurred while he was on parole from a juvenile facility and an attempted
escape conviction. The State’s sentencing memorandum contained the following
account:
His contact with the criminal justice system dates back far into his
youth, with six separate convictions during the three years of contact he
had in the juvenile justice system before he joined a small group of
Muskingum County youthful offenders who was sentenced to
imprisonment with the Ohio Department of Youth Services. It was during
Muskingum County, Case No. CT2015-0054 5
this time of youthful felonious conduct, including felony offenses of assault
and narcotics violations, that the Defendant honed his profession of
narcotics distribution. Since obtaining the age of majority the Defendant
has been charged with serious offenses involving felonious assault with a
firearm, and convicted and sent to prison for possessing a weapon under
disability and trafficking in narcotics. These cases pre-date the extremely
serious charges in this case." (State's Sentencing Memorandum filed
August 19, 2015, p. 4).
{¶15} We further disagree with Appellant's argument as to the disparity between
his sentence and the sentence received by his co-defendant father. This Court addressed
this issue in Hickman, stating:
Consistency, however, does not necessarily mean uniformity.
Instead, consistency aims at similar sentences. Accordingly, consistency
accepts divergence within a range of sentences and takes into
consideration a trial court's discretion to weigh relevant statutory factors.
The task of an appellate court is to examine the available data, not to
determine if the trial court has imposed a sentence that is in lockstep with
others, but to determine whether the sentence is so unusual as to be outside
the mainstream of local judicial practice. Although offenses may be similar,
distinguishing factors may justify dissimilar sentences.
***
Simply pointing out an individual or series of cases with different
results will not necessarily establish a record of inconsistency. State v.
Muskingum County, Case No. CT2015-0054 6
Gorgakopoulos, supra. The Ninth District Court of Appeals has stated: ‘[i]t
is not the trial court's responsibility to research prior sentences from
undefined, and largely unavailable, databases before reaching its
sentencing decision. The legislature did not intend to place such a burden
on the trial court when it enacted 2929.11(B). The legislature's purpose for
inserting the consistency language contained in R.C. 2929.11(B) is to make
consistency rather than uniformity the aim of the sentencing structure. See
Griffin and Katz, Ohio Felony Sentencing Law (2001), 59.’ Uniformity is
produced by a sentencing grid, where all persons convicted of the same
offense with the same number of prior convictions receive identical
sentences. Id. Consistency, on the other hand, requires a trial court to weigh
the same factors for each defendant, which will ultimately result in an
outcome that is rational and predictable. Under this meaning of
‘consistency,’ two defendants convicted of the same offense with a similar
or identical history of recidivism could properly be sentenced to different
terms of imprisonment. Consequently, Appellant cannot establish, either at
trial or on appeal, that his sentence is contrary to law because of
inconsistency by providing the appropriate court with evidence of other
cases that show similarly situated offenders have received different
sentences than did he. Thus, the only way for Appellant to demonstrate that
his sentence was ‘inconsistent,’ that is, contrary to law within the meaning
of R.C. 2929.11(B), is if he establishes that the trial court failed to properly
consider the factors and guidelines contained in R.C. 2929.12, R.C.
Muskingum County, Case No. CT2015-0054 7
2929.13 and R.C. 2929.14. These sections, along with R.C. 2929.11, create
consistency in sentencing.
{¶16} In State v. Hill (1994), 70 Ohio St.3d 23, the defendant was convicted of
complicity to trafficking in marijuana, and sentenced to one year in prison and further
ordered to forfeit his apartment complex. His co-defendant received probation instead of
a prison sentence. Id. at 29. On appeal, he argued that the trial court abused its discretion
by giving him a harsher sentence than was given his co-defendant. Id. The Ohio Supreme
Court observed: “[t]here is no question that on its face the sentence received by appellant,
when compared to Newbauer's punishment, is disproportionate. Given the fact that
Newbauer received probation, appellant's one-year prison sentence does appear to be
harsh. However, as a general rule, an appellate court will not review a trial court's exercise
of discretion in sentencing when the sentence is authorized by statute and is within the
statutory limits.
{¶17} In the case sub judice, as in Hickman, the trial court followed the sentencing
scheme set forth in the statutory guidelines, and the sentence was within the statutory
limits.
{¶18} Appellant's co-defendant’s prior criminal record included domestic violence,
menacing, criminal trespass and robbery convictions which occurred in the 1990’s.
Additionally, he had a number of traffic violations. He had no prior drug offenses, unlike
Appellant. Further, as stated above, Appellant was the intended target of the CODE
investigation.
Muskingum County, Case No. CT2015-0054 8
{¶19} Upon review, we find Appellant's sentence was within the statutory
guidelines and the trial court made the requisite findings. We do not find the trial court
abused its discretion in sentencing Appellant, nor was its sentence contrary to law.
{¶20} Appellant’s First Assignment of Error is overruled.
II.
{¶21} In Appellant's Second Assignment of Error he argues that the trial court
erred in convicting and sentencing him for enhanced-degree felonies. We disagree.
{¶22} More specifically, Appellant herein asserts the State failed to present any
evidence regarding the purity of the cocaine-containing substance at issue, and therefore
there was no evidence of the weight of the actual cocaine. Appellant argues that he could
therefore be convicted of, at most, fifth-degree felony trafficking in cocaine.
{¶23} Appellant cites the case of State of Ohio v. Gonzales, in support of his
argument that the absence of quantitative testing regarding the purity of the substances
sold or offered to be sold by a defendant requires that he be convicted of and sentenced
to the lowest degree of the offense.
{¶24} The issue of whether the state, in prosecuting cocaine offenses involving
mixed substances under R.C. § 2925.11(C)(4)(a) through (f), must prove that the weight
of the cocaine meets the statutory threshold, excluding the weight of any filler materials
used in the mixture, is currently before the Ohio Supreme Court on a certified conflict
between the decision of the Sixth District in State v. Gonzales, 6th Dist. Wood No. WD–
13–086, 2015–Ohio–461, and the decision of the Second District in State v. Smith, 2nd
Dist. Greene No.2010–CA–36, 2011–Ohio–2658.
Muskingum County, Case No. CT2015-0054 9
{¶25} This Court has previously ruled that in order to sustain a conviction for
trafficking in cocaine, with the offense elevated from offer to sell a controlled substance
based on the offered substance being cocaine and with a major drug offender
specification based on weight of the drug compound, the State is required to prove the
identity and a detectable amount of a controlled substance. We find that the legislature
intended to prohibit the possession of any amount of a controlled substance, whether the
substance occurs in its purest state or when mixed with or contained in another form.
Therefore, the entire amount is included to determine the quantity involved and the
penalty to be imposed. State v. Chandler, 5th Dist. Stark No. 2003–CA–00342, 157 Ohio
App.3d 672, 2004–Ohio–3436, 813 N.E.2d 65, aff'd, 109 Ohio St.3d 223, 2006–Ohio–
2285, 846 N.E.2d 1234; State v. Reese, 5th Dist. Muskingum No. CT2015–0046, 2016–
Ohio–1591; State v. Newman, 5th Dist. Muskingum No. CT2016-0002, 2016-Ohio-7498;
State v. James, 5th Dist. Muskingum No. CT2015-0059, 2016-Ohio-7660.
{¶26} For the foregoing reasons, the judgment of the Court of Common Pleas of
Muskingum County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.
JWW/d 1130