State v. Davis , 2012 Ohio 4922 ( 2012 )

[Cite as State v. Davis, 2012-Ohio-4922.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P.J.
: William B. Hoffman, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. CT2011-0033
:
:
LISA A. DAVIS : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Muskingum
County Court of Common Pleas Case
No. CR2011-0024
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 17, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX ELIZABETH N. GABA
Muskingum County Prosecutor 1231 East Broad Street
Muskingum County, Ohio Columbus, Ohio 43205
BY: RON WELCH
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street
Zanesville, Ohio 43701
[Cite as State v. Davis, 2012-Ohio-4922.]
Edwards, J.
{¶1} Defendant-appellant, Lisa Davis, appeals her sentence from the
Muskingum County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 26, 2011, the Muskingum County Grand Jury indicted
appellant on one count (Count Two) of trafficking in drugs (crack cocaine) in violation of
R.C. 2925.03(A)(1), a felony of the fourth degree, two counts (Counts Three and Four )
of trafficking in drugs (crack cocaine) in violation of R.C. 2925.03(A)(1), felonies of the
third degree, one count ( Count Five) of possession of drugs (cocaine) in violation of
R.C. 2925.11(A), a felony of the fifth degree, and one count (Count Six) of engaging in
a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), a felony of the first
degree. At her arraignment on February 2, 2011, appellant entered a plea of not guilty
to the charges.
{¶3} Subsequently, on April 25, 2011, appellant withdrew her former not guilty
plea and pleaded guilty to Counts Two, Three (as amended to a felony of the fourth
degree), and Five. The remaining counts were dismissed. Pursuant to an Entry filed on
June 30, 2011, appellant was sentenced to eighteen (18) months on Count Two, to
eighteen (18) months on Count Three and to twelve (12) months of Count Five. The trial
court, in its Entry, ordered that the sentences be served consecutively for an aggregate
prison sentence of four (4) years.
{¶4} Appellant now raises the following assignments of error on appeal:
Muskingum County App. Case No. CT2011-0033 3
{¶5} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
AND ABUSED ITS DISCRETION BY NOT FOLLOWING THE MANDATES OF CRIM.
R. 32(B) IN SENTENCING; AS SUCH THE SENTENCING IS VOID AB INITIO.
{¶6} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
AND ABUSED ITS DISCRETION WHEN IT IMPOSED SEPARATE CONVICTIONS
AND SEPARATE MAXIMUM CONSECUTIVE SENTENCES ON COUNT TWO AND
COUNT THREE, AND FAILED TO MERGE COUNT TWO AND COUNT THREE AS
ALLIED OFFENSES OF SIMILAR IMPORT IN VIOLATION OF THE DOUBLE
JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES
CONSTITUTION, ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION, R.C.
2941.25, AND STATE V. JOHNSON 2010-OHIO-6314.
{¶7} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
AND ABUSED ITS DISCRETION WHEN IT FAILED TO CONDUCT INQUIRY INTO
WHETHER THERE SHOULD BE A MERGER OF COUNT TWO AND COUNT THREE
AS ALLIED OFFENSES OF SIMILAR IMPORT IN VIOLATION OF THE DOUBLE
JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES
CONSTITUTION, ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION, R.C.
2941.25, AND STATE V. JOHNSON 2010-OHIO-6314.
{¶8} “IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
AND ABUSED ITS DISCRETION WHEN IT SENTENCED APPELLANT TO MAXIMUM
CONSECUTIVE SENTENCES. THE SENTENCE WAS UNREASONABLE AND NOT
PROPORTIONAL TO THE OFFENSE, WAS IN VIOLATION OF APPELLANT’S
EIGHTH AMENDMENT RIGHTS, AND WAS IN VIOLATION OF HB 86.”
Muskingum County App. Case No. CT2011-0033 4
{¶9} “V. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
AND ABUSED ITS DISCRETION WHEN IT MAXED APPELLANT ON AN F5
POSSESSION-USE OF POWDER COCAINE. A SENTENCE OF ONE YEAR BASED
ON APPELLANT’S STATEMENT AT THE TIME OF ARREST THAT SHE HAD JUST
‘USED’ WAS UNREASONABLE AND NOT PROPORTIONAL TO THE OFFENSE,
WAS IN VIOLATION OF APPELLANT’S EIGHTH AMENDMENT RIGHTS, AND IN
VIOLATION OF HB 86.”
I
{¶10} Appellant, in her first assignment of error, argues that the trial court erred
by not following the mandates of Crim.R. 32(B) in sentencing appellant and that her
sentence is, therefore, void ab initio.
{¶11} Appellant specifically argues the trial court erred in not informing
appellant, pursuant to Crim. R. 32(B), of her right to appeal, her right to appeal without
payment, that counsel would be appointed and documents provided at no cost and that
she had a right to have a Notice of Appeal timely filed on her behalf.
{¶12} Crim.R. 32 states in relevant part, as follows: “(B) Notification of right to
appeal
{¶13} “(2) After imposing sentence in a serious offense, the court shall advise
the defendant of the defendant's right, where applicable, to appeal or to seek leave to
appeal the sentence imposed.
{¶14} “(3) If a right to appeal or a right to seek leave to appeal applies under
division (B)(1) or (B)(2) of this rule, the court also shall advise the defendant of all of the
following:
Muskingum County App. Case No. CT2011-0033 5
{¶15} “(a) That if the defendant is unable to pay the cost of an appeal, the
defendant has the right to appeal without payment;
{¶16} “(b) That if the defendant is unable to obtain counsel for an appeal,
counsel will be appointed without cost;
{¶17} “(c) That if the defendant is unable to pay the costs of documents
necessary to an appeal, the documents will be provided without cost;
{¶18} “(d) That the defendant has a right to have a notice of appeal timely filed
on his or her behalf.”
{¶19} The record shows that the trial court did not inform appellant of her right to
appeal under Crim.R. 32(B) after sentencing appellant.1 Assuming, arguendo, that the
trial court erred, we find that appellant has failed to show prejudice. Appellant filed an
appeal in this matter and is represented by counsel. Accordingly, we find no reversible
error. See State v. Middleton, 12th Dist. No. CA2004–01–003, 2005–Ohio–681, ¶ 25;
State v. Whetstone, 5th Dist. No. 2010 CA 00132, 2011-Ohio-1957 and State v. Finch,
5th Dist. No. 11 CA 6, 2011-Ohio-4273.
{¶20} Appellant’s first assignment of error is, therefore, overruled.
II, III
{¶21} Appellant, in her second assignment of error, argues that the trial court
erred when it imposed separate convictions and separate maximum consecutive
sentences on Counts Two and Three because the offenses contained in such counts
were allied offenses of similar import and should have merged. Appellant, in her third
1
The trial court did advise appellant, at the time of her plea, that she had a right to appeal within thirty
(30) days of her sentence.
Muskingum County App. Case No. CT2011-0033 6
assignment of error, argues that the trial court erred in failing to inquire into whether
such counts should be merged.
{¶22} As an initial matter, we note that the State maintains that appellant waived
her right to challenge whether the crimes were allied offenses by pleading guilty.
However, the Ohio Supreme Court considered this issue recently in State v.
Underwood, 124 Ohio St.3d 365, 2010–Ohio–1, 922 N.E.2d 923, and concluded that a
defendant's plea to multiple counts does not affect the trial court's duty to merge allied
offenses at sentencing nor bar appellate review of the sentence. Id. at ¶ 26–29. In
Underwood, the Ohio Supreme Court held that a defendant can appeal a sentence after
a plea and jointly-recommended sentence where the trial court fails to merge allied
offenses because such a decision is not authorized by law, despite it being agreed to.
{¶23} R.C. 2941.25 reads as follows:
{¶24} “(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.
{¶25} “(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.”
{¶26} In State v. Rance, 85 Ohio St.3d 632, 636, 1999–Ohio–291, 710 N.E.2d
699, the Ohio Supreme Court held that offenses are of similar import if the offenses
“correspond to such a degree that the commission of one crime will result in the
Muskingum County App. Case No. CT2011-0033 7
commission of the other.” Id. The Rance court further held that courts should compare
the statutory elements in the abstract. Id.{¶27} In 2008, the Ohio Supreme Court instructed as follows in State v.
Cabrales, 118 Ohio St.3d 54, 2008–Ohio–1625, 886 N.E.2d 181, paragraph one of the
syllabus:
{¶28} “In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), courts are required to compare the elements of offenses in the
abstract without considering the evidence in the case, but are not required to find an
exact alignment of the elements. Instead, if, in comparing the elements of the offenses
in the abstract, the offenses are so similar that the commission of one offense will
necessarily result in the commission of the other, then the offenses are allied offenses
of similar import.”
{¶29} According to Cabrales, if the sentencing court has initially determined that
two crimes are allied offenses of similar import, the court then proceeds to the second
part of the two-tiered test and determines whether the two crimes were committed
separately or with a separate animus. Id. at 57, citing State v. Blankenship, 38 Ohio
St.3d 116, 117, 526 N.E.2d 816 (1988).
{¶30} However, on December 29, 2010, the Ohio Supreme Court decided State
v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, 942 N.E.2d 1061, which specifically
overruled the 1999 Rance decision. The Court held: “When determining whether two
offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the
conduct of the accused must be considered.” Id., at the syllabus.
Muskingum County App. Case No. CT2011-0033 8
{¶31} In Counts Two and Three, appellant was charged and convicted of
trafficking in drugs (crack cocaine) in violation of R.C. 2925.03(A)(1). Such section
states, in relevant part, as follows: “(A) No person shall knowingly do any of the
following: (1) Sell or offer to sell a controlled substance;…” In the case sub judice, the
record reveals that, on May 19, 2010, appellant offered to sell crack cocaine while on
June 16, 2010, nearly a month later, appellant actually sold crack cocaine. Thus, there
were two distinct violations of R.C. 2925.03(A)(1) committed on two different dates.
{¶32} Based on the foregoing, we find that the offenses were not allied offenses
of similar import and that the trial court did not err in failing to merge the offenses
contained in Counts Two and Three.
{¶33} Appellant’s second and third assignments of error are, therefore,
overruled.
IV
{¶34} Appellant, in her fourth assignment of error, argues that the trial court
abused its discretion in sentencing her to maximum consecutive sentences.2 Appellant
argues that the sentence was not reasonable and was not proportionate to the offenses.
{¶35} “It is well-established that a sentence that is agreed upon as part of a
negotiated plea, and that does not exceed the statutory maximum sentence applicable
to the crime, is not subject to appellate review pursuant to R.C. § 2953.08(D).” State v.
Yeager, 7th Dist. No. 03CA786, 2004–Ohio–3640, ¶ 21 (additional citations omitted). In
the case sub judice, in exchange for appellant’s guilty plea, the State recommended a
four year prison sentence. Appellant was sentenced to an aggregate prison sentence of
2
We note that appellant does not allege that the trial court did not consider the factors in R.C. 2929.11
and 2929.12 in sentencing her.
Muskingum County App. Case No. CT2011-0033 9
four years. Appellant has thus waived her right to appeal her maximum consecutive
sentences.
{¶36} Moreover, upon our review of the record, we cannot say that the trial court
abused its discretion in sentencing appellant. An abuse of discretion is “more than an
error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶37} The trial court, in sentencing appellant, noted that appellant had been to
prison before for distribution of drugs, that appellant had been terminated from
community control on or about December 23, 2009 and that “these events occurred less
than – some of these occurred less than six months after you returned from your federal
community control;…” Transcript of June 27, 2011, hearing at 7. The trial court’s
decision to sentence appellant to maximum consecutive sentences was not arbitrary,
unconscionable or unreasonable. Finally, while appellant, both in this assignment of
error and the following assignment of error contends that her sentence violated H.B 86,
we note that H.B. 86 went into effect on September 30, 2011. Appellant was sentenced
prior to the effective date. H.B. 86 is not retroactive. See State v. Fields, 5th Dist. No.
CT11-0037, 2011-Ohio-6044, ¶10.
{¶38} Appellant’s fourth assignment of error is, therefore, overruled.
V
{¶39} Appellant, in her fifth assignment of error, argues that the trial court
abused its discretion in sentencing her to the maximum on the charge of possession of
drugs (cocaine), a fifth degree felony.
Muskingum County App. Case No. CT2011-0033 10
{¶40} As is stated above, appellant has waived her right to appeal her sentence.
The sentence that appellant received was in accordance with the negotiated plea that
appellant would receive a four year sentence. Moreover, based on appellant’s criminal
history, we cannot say that the trial court abused its discretion in sentencing appellant.
The trial court’s decision was not arbitrary, unconscionable or unreasonable.
{¶41} Accordingly, the judgment of the Muskingum County Court of Common
Pleas is affirmed.
By: Edwards, J.
Gwin, P.J. and
Hoffman, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d0813
[Cite as State v. Davis, 2012-Ohio-4922.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
LISA A. DAVIS :
:
Defendant-Appellant : CASE NO. CT2011-0033
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Muskingum County Court of Common Pleas is affirmed. Costs
assessed to appellant.
_________________________________
_________________________________
_________________________________
JUDGES