State v. Cruz ( 2012 )


Menu:
  • [Cite as State v. Cruz, 
    2012-Ohio-1943
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 96999
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    LETICIA CRUZ
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED IN PART; VACATED IN PART AND REMANDED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-543686
    BEFORE: Kilbane, J., Sweeney, P.J., and Rocco, J.
    RELEASED AND JOURNALIZED:                     May 3, 2012
    ATTORNEYS FOR APPELLANT
    Robert L. Tobik
    Chief Public Defender
    Erika B. Cunliffe
    Assistant Public Defender
    310 Lakeside Avenue
    Suite 200
    Cleveland, Ohio 44113
    ATTORNEYS FOR APPELLEE
    William D. Mason
    Cuyahoga County Prosecutor
    Carl Sullivan
    Daniel South
    Assistant County Prosecutors
    The Justice Center - 8th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    MARY EILEEN KILBANE, J.:
    {¶1} Defendant-appellant, Leticia Cruz (“Cruz”), appeals her sentence. Finding
    merit to the appeal, we vacate her sentence in part and remand for a resentencing hearing.
    {¶2} In November 2010, Cruz was charged in a 19-count indictment. Counts 1-6
    charged her with drug trafficking.     Counts 7-12 charged her with drug possession.
    Counts 13-18 charged her with deception to obtain a dangerous drug. Count 19 charged
    her with possessing criminal tools.1
    {¶3} The charges arise from six prescription slips for oxycotin filled between
    September 2009 and November 2009. Cruz worked as a medical assistant at Westshore
    Family Practice, where she fraudulently wrote and filled these prescription slips each for
    120 pills of 80 milligram oxycotin. In May 2011, the matter proceeded to a bench trial,
    at which Cruz was found guilty of all charges.
    {¶4} In June 2011, the trial court held a sentencing hearing. For purposes of
    sentencing, the trial court merged Count 7 into Count 1, Count 8 into Count 2, Count 9
    into Count 3, Count 10 into Count 4, Count 11 into Count 5 and Count 12 into Count 6.
    The trial court then sentenced Cruz to a mandatory three years in prison on each of
    Counts 1, 2, 3, 4, 5, and 6 to be served concurrently with each other, and a mandatory
    1Each     count carried a forfeiture of a cell phone and a forfeiture of money
    specification.
    three years in prison on each of Counts 13, 14, 15, 16, 17, and 18 to be served
    concurrently with each other, but consecutive to Counts 1-6.           The trial court also
    sentenced Cruz to six months in prison on Count 19, to be served concurrently with the
    other counts, for a total of a mandatory six years in prison.
    {¶5} Cruz now appeals, raising the following three assignments of error for
    review.
    ASSIGNMENT OF ERROR ONE
    The trial court violated [Cruz’s] right to due process by imposing a
    mandatory prison term where prison is only presumptive under R.C.
    2925.22.
    ASSIGNMENT OF ERROR TWO
    The trial court erred at sentencing by failing to merge the counts under R.C.
    2925.22 in the trafficking counts.
    ASSIGNMENT OF ERROR THREE
    Trial counsel was ineffective for failing to raise the allied offenses issue or
    challenge the mandatory sentence imposed on the R.C. 2925.22 counts.
    Standard of Review
    {¶6} The Ohio Supreme Court, in a split decision, has set forth the applicable
    standard of appellate review of a felony sentence in State v. Kalish, 
    120 Ohio St.3d 23
    ,
    
    2008-Ohio-4912
    , 
    896 N.E.2d 124
    , ¶ 4:
    In applying [State v. Foster, 
    109 Ohio St.3d 1
    , 
    2006-Ohio-856
    , 
    845 N.E.2d 470
    ,] to the existing statutes, appellate courts must apply a two-step
    approach. First, they must examine the sentencing court’s compliance with
    all applicable rules and statutes in imposing the sentence to determine
    whether the sentence is clearly and convincingly contrary to law. If this
    first prong is satisfied, the trial court’s decision shall be reviewed under an
    abuse-of-discretion standard.
    Presumption of Prison Term
    {¶7} In the first assignment of error, Cruz argues that her sentence for the
    deception to obtain dangerous drugs counts is contrary to law. The State, on the other
    hand, claims that “[t]here may have been an error of law by the court with respect to
    mandatory versus a presumptive prison sentence but there is nothing in the record to
    suggest that the trial court’s decision was unreasonable, arbitrary, or unconscionable.”
    We find Cruz’s argument more persuasive.
    {¶8} At the sentencing hearing, the State advised the trial court that mandatory
    prison time was required for any sentence imposed on the deception counts. The court
    then stated, “[s]o sentencing Ms. Cruz today means she has to be sentenced to 12
    different counts in Counts 1 through 6 and 13 through 18, to a second degree felony
    mandatory prison sentence — [.]” The State replied, “[c]orrect.” The corresponding
    sentencing journal entry states a “mandatory 3 years on each of Counts 13, 14, 15, 16, 17,
    and 18. * * * Net mandatory 6 year sentence.” (Emphasis added.)
    {¶9} R.C. 2925.22(B)(2)(c), however, provides that:
    If the amount of the drug involved equals or exceeds five times the bulk
    amount but is less than fifty times the bulk amount, or if the amount of the
    drug involved that could be obtained pursuant to the prescription would
    equal or exceed five times the bulk amount but would be less than fifty
    times the bulk amount, it is a felony of the second degree, and there is a
    presumption for a prison term for the offense.     (Emphasis added.)
    {¶10} With a presumption, the trial court is not required to impose a mandated
    prison term.    The trial court retains discretion to sentence the offender as it deems
    warranted in accordance with the applicable law. On the other hand, with a mandatory
    prison term, the trial court is required to sentence the offender as the applicable law
    mandates. While Cruz’s sentence was within the applicable statutory range, the trial
    court erred when it sentenced Cruz specifically to a mandatory three years in prison on
    the deceptions counts. A mandatory sentence carries additional ramifications regarding
    an offender’s prison time. With a mandatory sentence, the offender is not eligible for
    community control sanctions or judicial release.       As a result, Cruz’s sentence with
    respect to the deception counts is contrary to law.
    {¶11} Therefore, Cruz’s sentence on Counts 13, 14, 15, 16, 17, and 18 is vacated,
    and the matter is remanded for a resentencing hearing on these counts.
    {¶12} Accordingly, the first assignment of error is sustained.
    Merger of Allied Offenses
    {¶13} In the second assignment of error, Cruz argues the trial court erred by failing
    to merge the deception counts (Counts 13, 14, 15, 16, 17, and 18 ) with the drug
    trafficking counts (Counts 1, 2, 3, 4, 5, and 6).
    {¶14} In State v. Johnson, 
    128 Ohio St.3d 153
    , 
    2010-Ohio-6314
    , 
    942 N.E.2d 1061
    ,
    the Ohio Supreme Court redefined the test for determining whether two offenses are
    allied offenses of similar import subject to merger under R.C. 2941.25.2 The Johnson
    court expressly overruled State v. Rance, 
    85 Ohio St.3d 632
    , 
    710 N.E.2d 699
     (1999),
    which required a “comparison of the statutory elements in the abstract” to determine
    whether the statutory elements of the crimes correspond to such a degree that the
    commission of one crime will result in the commission of the other.
    {¶15} The Johnson court held that rather than compare the elements of the crimes
    in the abstract, courts must consider the defendant’s conduct. 
    Id.
     at syllabus. The court
    found:
    In determining whether offenses are allied offenses of similar import under
    R.C. 2941.25(A), the question is whether it is possible to commit one
    offense and commit the other with the same conduct, not whether it is
    possible to commit one without committing the other. * * *
    If multiple offenses can be committed by the same conduct, then the court
    must determine whether the offenses were committed by the same conduct,
    i.e., “a single act, committed with a single state of mind.” [State v.] Brown,
    2R.C.   2941.25 governs allied offenses and provides:
    (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.
    
    119 Ohio St.3d 447
    , 
    2008-Ohio-4569
    , 
    895 N.E.2d 149
    , at ¶ 50, (Lanzinger,
    J., dissenting).
    If the answer to both questions is yes, then the offenses are allied offenses
    of similar import and will be merged.
    Conversely, if the court determines that the commission of one offense will
    never result in the commission of the other, or if the offenses are committed
    separately, or if the defendant has separate animus for each offense, then,
    according to R.C. 2941.25(B), the offenses will not merge. Id. at ¶ 48-50.
    {¶16} While the trial court in the instant case merged the drug possession counts
    into the drug trafficking counts, a review of the record reveals that there was no
    discussion regarding the merger of the deception counts with the drug trafficking counts
    at the sentencing hearing. We note the Ohio Supreme Court has found that the failure to
    merge allied offenses of similar import constitutes plain error. State v. Underwood, 
    124 Ohio St.3d 365
    , 
    2010-Ohio-1
    , 
    922 N.E.2d 923
    , ¶ 31, citing State v. Yarbrough, 
    104 Ohio St.3d 1
    , 
    2004-Ohio-6087
    , 
    817 N.E.2d 845
    . Under Crim.R. 52(B), “[p]lain errors or
    defects affecting substantial rights may be noticed although they were not brought to the
    attention of the court.”
    {¶17} Drug trafficking is defined in R.C. 2925.03(A)(2) as follows:
    No person shall knowingly * * * [p]repare for shipment, ship,
    transport, deliver, prepare for distribution, or distribute a controlled
    substance, when the offender knows or has reasonable cause to believe that
    the controlled substance is intended for sale or resale by the offender or
    another person.
    {¶18} Deception to obtain a dangerous drug is defined in R.C. 2925.22(A) as
    follows:
    [n]o person, by deception, shall procure the administration of, a prescription
    for, or the dispensing of, a dangerous drug or shall possess an uncompleted
    preprinted prescription blank used for writing a prescription for a dangerous
    drug.
    {¶19} In analyzing these two offenses under Johnson, we find that they cannot be
    committed by the same conduct.         The deception convictions resulted from Cruz’s
    conduct of completing unauthorized prescriptions for oxycotin and filling them at a
    pharmacy. Whereas, the trafficking convictions resulted from Cruz’s conduct of then
    selling the oxycotin pills to others or giving them to her boyfriend.
    {¶20} Thus, the second assignment of error is overruled.
    Ineffective Assistance of Counsel
    {¶21} In the third assignment of error, Cruz argues that defense counsel was
    ineffective for failing to request that the deception and trafficking counts be merged and
    for failing to challenge the mandatory sentence imposed by the trial court.
    {¶22} However, in light of our resolution of the first and second assignments of
    error, we need not address Cruz’s third assignment of error. See App.R. 12(A)(1)(c).
    {¶23} Accordingly, judgment is affirmed in part and vacated in part. Cruz’s
    sentence on Counts 13, 14, 15, 16, 17, and 18 is vacated, and the matter is remanded for a
    sentencing hearing.
    It is ordered that appellant recover from appellee costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the common
    pleas court to carry this judgment into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    MARY EILEEN KILBANE, JUDGE
    JAMES J. SWEENEY, P.J., and
    KENNETH A. ROCCO, J., CONCUR
    

Document Info

Docket Number: 96999

Judges: Kilbane

Filed Date: 5/3/2012

Precedential Status: Precedential

Modified Date: 2/19/2016