State v. Painter , 2014 Ohio 5011 ( 2014 )

[Cite as State v. Painter, 2014-Ohio-5011.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2014-03-022
: OPINION
- vs - 11/10/2014
:
AARON PAINTER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 08 CR 00855
D. Vincent Faris, Clermont County Prosecuting Attorney, Nick Horton, 76 South Riverside
Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
Repper, Pagan, Cook, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio
45044, for defendant-appellant
PIPER, J.
{¶ 1} Defendant-appellant, Aaron Painter, appeals his convictions and sentence in
the Clermont County Court of Common Pleas on multiple counts of drug trafficking and
possession.
{¶ 2} Painter was arrested after he sold narcotics to undercover agents on multiple
occasions and was later found in possession of various narcotics through a search of his
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home and car. Painter was indicted on 15 separate counts related to his trafficking and
possession charges. Most of the counts also included a specification that Painter's criminal
activity occurred within the vicinity of a juvenile.
{¶ 3} Counts 1 through 5 charged Painter with aggravated trafficking for two
instances where Painter sold Oxycontin or Tylox to undercover agents on February 5, 2008.1
Count 1 alleged that Painter sold eight Oxycontin tablets, which were 80mg each. Count 2
alleged that Painter sold six Oxycontin tablets, which were 40mg each. Painter sold the eight
80mg tablets and the six 40mg tablets to the same narcotics agent in a single transaction for
$400. Count 3 alleged that Painter sold seven Oxycontin tablets, which were 20mg each for
$100. Count 4 alleged that Painter sold one Tylox tablet for $15 and gave one Tylox tablet to
the agent as a sample. Counts 3 and 4 occurred on the same day as Counts 1 and 2, but
were later in the day and were conducted in a different location than where Painter sold the
Oxycontin tablets earlier in the day for $400. Count 5 alleged that Painter agreed to sell 100
Oxycontin tablets, each 40mg, for $3,000.
{¶ 4} Counts 6 through 8 charged Painter with aggravated trafficking for sales of
Oxycontin and Percocet to undercover agents on February 7, 2008. Count 6 alleged that
Painter sold three Oxycontin tables, which were 80mg each. Count 7 alleged that Painter
sold six Oxycontin pills, which were 40mg each. The tablets Painter sold to a "narcotic
agent" as charged in Counts 6 and 7 were sold in a single transaction for $400. Count 8
alleged that Painter sold five Percocet, each weighing 30mg, for $100 to an "undercover
agent" on the same day that he sold the Oxycontin in Counts 6 and 7.
{¶ 5} Counts 9 through 12 charged Painter with aggravated possession of Oxycontin
1. The record interchangeably uses Oxycontin and Oxycodone to refer to the tablets Painter sold. We will, for
consistency sake, use Oxycontin to refer to the controlled substance that Painter sold. Also, Tylox is essentially
the same as Oxycontin, but we will refer to Painter selling Tylox when the record specifies as such.
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and codeine, with such possession occurring on February 16, 2008. Count 9 alleged that
Painter's home contained 17 Oxycontin tablets, each weighing 20mg. Counts 10-12 were
each specific to police also finding seven 40mg tablets (Count 10), one 80mg tablet (Count
11), and eight codeine tablets (Count 12).
{¶ 6} Counts 13-15 charged Painter with aggravated possession of Oxycontin on
February 19, 2008, where police pulled Painter over and discovered various Oxycontin
tablets in his car. Count 13 alleged that Painter had twelve 20mg tablets, Count 14 alleged
that Painter had five 40mg tablets, and Count 15 alleged that Painter had three 80mg tablets
in his possession.
{¶ 7} After negotiations, the state agreed to dismiss Counts 5, 10, 11, 12, 14, and 15,
and also dismissed the juvenile specification in return for Painter pleading guilty to Counts 1
through 4, 6 through 9, and count 13. The trial court accepted Painter's guilty plea, and
ordered a presentence investigation. After the investigation was complete, the trial court
sentenced Painter to an aggregate 109-month sentence, but reserved the sentence and
placed Painter on community control. Painter did not appeal his convictions or the trial
court's sentence.
{¶ 8} Painter later violated the terms of his community control, and the trial court held
a hearing at which Painter's community control was revoked. The trial court reinstated the
109-month sentence as a result of Painter's violations, but failed to advise Painter of his
appellate rights. Painter later filed a motion for a delayed appeal from the trial court's
revocation of his community control, and argued that he was never given his appellate rights.
This court granted Painter's motion for a delayed appeal specific to the trial court's entry
revoking community control. However, on appeal, Painter argued that his convictions and
sentence were void because the trial court should have merged some of the counts as allied
offenses. This court determined that Painter could not collaterally attack his convictions and
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sentence because his delayed appeal was limited only to a challenge of the trial court's
revocation of community control. State v. Painter, 12th Dist. Clermont No. CA2012-04-031,
2013-Ohio-529. We affirmed the trial court's revocation of community control and its
imposition of the reserved sentence.
{¶ 9} Painter subsequently filed another motion for delayed appeal, asking this court
to consider an appeal challenging his original convictions and sentence. We granted
Painter's motion for a second delayed appeal, and will now consider Painter's challenge to
his convictions and sentence as raised by the following assignments of error. Because the
assignments of error are interrelated, we will address them together.
{¶ 10} Assignment of Error No. 1:
{¶ 11} PAINTER'S INDICTMENT FAILED TO STATE AN OFFENSE.
{¶ 12} Assignment of Error No. 2:
{¶ 13} THE TRAFFICKING COUNTS WERE ALLIED OFFENSES UNDER R.C.
2921.45 AND DOUBLE JEOPARDY.
{¶ 14} Painter argues in his first assignment of error that his indictment did not list
valid offenses because such indictment charged each crime differently based upon the
strength of each tablet sold, and in his second, that his convictions should have merged
because they are allied offenses.
{¶ 15} At the onset, we recognize that the state has conceded that Counts 1 and 2
should be merged together, Counts 3 and 4 should be merged together, and that Counts 6
and 7 should merge together. The state asserts that Counts 1/2, 3/4, 6/7, as well as Count 8,
should not merge any further, as each transaction or possession occurred with a separate
animus. The state also asserts that the charges were valid as indicted, and that such valid
charges do not lose their validity simply because they turn out to be allied offenses of similar
import.
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{¶ 16} Ohio's allied offenses statute, R.C. 2941.25, very clearly provides that "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." R.C. 2941.25(A). (Emphasis added.) The fact
that the indictment ineffectually parceled out the various offenses based upon the strength of
the tablets did not render the individual charges legally-invalid or "non-existent," as asserted
by Painter.
{¶ 17} Even if we were to view the indictment as being multiplicitous, as suggested in
Painter's reply brief, the remedy for a multiplicitous indictment is to analyze the charges
according to the allied offenses statute, R.C. 2941.25. State v. Childs, 88 Ohio St. 3d 558,
561 (2000). See also State v. Lewis, 11th Dist. Lake No. 2012-L-074, 2013-Ohio-3974, ¶
138 (noting that "even if counts are multiplicitous * * * merging them for purposes of
sentencing, pursuant to R.C. 2941.25, will cure any threat of double jeopardy"). Here, the
trial court was obligated to merge certain counts contained in the plea, as the state construed
Painters' same conduct as constituting two or more allied offenses on more than one
occasion.
{¶ 18} The Ohio Supreme Court has set forth a test to determine whether offenses are
allied offenses of similar import pursuant to R.C. 2941.25. State v. Johnson, 128 Ohio St. 3d
153, 2010-Ohio-6314. Pursuant to the Johnson test, courts must first determine "whether it
is possible to commit one offense and commit the other with the same conduct." Id. at ¶ 48.
(Emphasis sic.) It is not necessary that the commission of one offense will always result in
the commission of the other, only that it is possible for both offenses to be committed by the
same conduct. Id.
{¶ 19} If it is possible to commit both offenses with the same conduct, courts must
next determine whether the offenses were in fact committed by the same conduct, or a single
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act performed with a single state of mind. Id. at ¶ 49. If the answer to both prongs of the test
is yes, then the offenses are allied offenses of similar import and must be merged. Id. at ¶
50. Conversely, if the offenses are committed separately or with a separate animus, the
offenses will not merge. Id. at ¶ 51.
{¶ 20} An appellate court applies a de novo standard of review in reviewing a trial
court's R.C. 2941.25 merger determination. State v. Williams, 134 Ohio St. 3d 482, 2012-
Ohio-5699, ¶ 28. "The defendant bears the burden of establishing his entitlement to the
protection provided by R.C. 2941.25 against multiple punishments for a single criminal act."
State v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-885, ¶ 14.
{¶ 21} After reviewing the record, we agree with the state's contention that Counts 1
and 2 should be merged together, Counts 3 and 4 should be merged together, and that
Counts 6 and 7 should merge together. Despite Painter's argument that Counts 1, 2, 3, and
4 should all merge, the facts indicate that Painter acted with a separate animus when he
committed the crimes that constituted Counts 1 and 2 as opposed to Counts 3 and 4.
{¶ 22} The record indicates that Painter committed Counts 1 and 2 by selling
Oxycontin tablets to an agent on February 5, 2008. Because Painter sold these tablets in a
single transaction, regardless of their milligram strength, with the same animus and conduct,
the charges are allied offenses. Painter committed Counts 3 and 4 by selling Oxycontin and
Tylox, which is essentially the same as Oxycontin, to a different agent later in the day on
February 5, 2008. Again, because Painter sold these tablets in a single transaction,
regardless of their milligram strength, with the same animus and conduct, the charges are
allied offenses. However, once Counts 1 and 2 are merged and Counts 3 and 4 are merged,
the surviving counts will not merge into each other, as Painter had a separate animus and
committed the crimes by separate conduct by selling to two different agents and at different
times during the day.
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{¶ 23} Regarding Counts 6 and 7, we find that those two charges are allied offenses
as well. Painter committed Counts 6 and 7 on February 7, 2008 by selling Oxycontin to a
narcotics agent. While Painter argues that Count 8 should also be merged with Counts 6
and 7, he has failed to demonstrate that he acted with the same conduct or the same animus
when he sold Percocet to a different officer. The record indicates that Count 8 is specific to
Painter selling Percocet to a different "undercover" agent after he had subsequently sold the
Oxycontin in Counts 6 and 7 to the narcotics agent.
{¶ 24} During the plea hearing, the state presented the facts supporting the charges,
and stated that Counts 6 and 7 were specific to Painter selling different strengths of
Oxycontin tablets to a "narcotics agent working with the Clermont County Narcotics Unit."
The state went on to provide the facts supporting Count 8, and stated that Painter sold "five
30 milligram Percocet tablets for $100 to an undercover agent working for the Clermont
County Narcotics Department." These facts indicate that Painter sold one agent Oxycontin
and then sold the Percocet tablets to a different agent.
{¶ 25} The trial court permitted Painter the opportunity to clarify the facts or to object to
them, and Painter clarified other portions of the state's reading of the facts. However, Painter
did not challenge the state's facts in regard to there being two separate officers involved in
Counts 6/7 and 8. Additionally, Painter has not pointed to any indication in the record that
Counts 6 through 8 occurred at the same moment, involved the same agent, or were one
single transaction. Therefore, we find that Painter committed Counts 6/7 with a separate
animus and different conduct than he did with Count 8.
{¶ 26} While Painter does not challenge the other offenses as being allied, we
nonetheless note for purposes of resentencing that the remaining charges are not allied
offenses. Count 9 was specific to Painter's possession of Oxycontin at his house, and was
committed on February 16, 2008. Count 13 was also a possession charge, but that charge
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was specific to Painter possessing Oxycontin in his car, and was committed on February 19,
2008. Therefore, the possession charges were committed with separate conduct and a
different animus and consequently do not merge.
{¶ 27} The state's decision to charge Painter for selling a multitude of controlled
substances did not result in the "non-existence" of charges prohibited by the Ohio Revised
Code. As such, we overrule Painter's first assignment of error. However, we sustain
Painter's second assignment of error, having found that several of Painter's charges were
allied offenses of similar import. Upon remand, the state will choose which charges to
proceed upon, and the trial court will resentence Painter accordingly and consistent with this
2
opinion.
{¶ 28} Judgment reversed, and the cause is remanded for further proceedings.
HENDRICKSON, P.J., and M. POWELL, J., concur.
2. "The General Assembly has made clear that it is the state that chooses which of the allied offenses to pursue
at sentencing, and it may choose any of the allied offenses." State v. Whitfield, 124 Ohio St. 3d 319, 324, 2010-
Ohio-2, ¶ 20.
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