State v. Nguyen ( 2012 )


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  • [Cite as State v. Nguyen, 2012-Ohio-304.]
    STATE OF OHIO                     )                 IN THE COURT OF APPEALS
    )ss:              NINTH JUDICIAL DISTRICT
    COUNTY OF MEDINA                  )
    STATE OF OHIO                                       C.A. No.       11CA0047-M
    Appellee
    v.                                          APPEAL FROM JUDGMENT
    ENTERED IN THE
    HUONG T. NGUYEN                                     COURT OF COMMON PLEAS
    COUNTY OF MEDINA, OHIO
    Appellant                                   CASE No.   06-CR-0367
    DECISION AND JOURNAL ENTRY
    Dated: January 30, 2012
    WHITMORE, Presiding Judge.
    {¶1}     Defendant-Appellant, Huong Nguyen, appeals from her convictions in the Medina
    County Court of Common Pleas. This Court affirms.
    I
    {¶2}     A recitation of the facts underlying this matter is largely unnecessary to our
    review of this appeal. In essence, Nguyen was arrested for her involvement in a Medina drug
    ring conspiracy and charged with numerous offenses after the police confiscated over 23,000
    grams of marijuana. A jury trial ensued, and Nguyen was found guilty of the following offenses:
    (1) possessing marijuana, in violation of R.C. 2925.11(A)(C)(3)(f); (2) conspiracy to commit the
    crime of possessing marijuana, in violation of R.C. 2923.01(A)(1) and 2925.11(A)(C)(3)(f); (3)
    conspiracy to commit the crime of possessing marijuana, in violation of R.C. 2923.01(A)(2) and
    2925.11(A)(C)(3)(f); (4) complicity to commit the crime of possessing marijuana, in violation of
    R.C. 2923.03(A)(2) and 2925.11(A)(C)(3)(f); (5) illegal cultivation of marijuana, in violation of
    2
    R.C. 2925.04(A)(C)(5)(f); (6) conspiracy to commit the illegal cultivation of marijuana, in
    violation of R.C. 2923.01(A)(1) and 2925.04(A)(C)(5)(f); (7) conspiracy to commit the illegal
    cultivation of marijuana, in violation of R.C. 2923.01(A)(2) and 2925.04(A)(C)(5)(f); and (8)
    complicity to commit the illegal cultivation of marijuana, in violation of R.C. 2923.03(A)(2) and
    2925.04(A)(C)(5)(f). On September 7, 2007, the trial court issued a sentencing entry.
    {¶3}    Nguyen appealed from the trial court’s entry. This Court remanded the matter to
    the trial court, as the court’s sentencing entry contained a defective post-release control
    notification.   State v. Vu, 9th Dist. Nos. 07CA0094-M, 07CA0095-M, 07CA0096-M,
    07CA0107-M & 07CA0108-M, 2009-Ohio-2945. The trial court held a resentencing hearing
    upon remand and issued another sentencing entry on August 12, 2009. Once again, Nguyen
    appealed. This Court vacated the August 2009 entry by way of journal entry due to a post-
    release control error. State v. Nguyen, 9th Dist. 09CA0063-M (Nov. 17, 2009). We noted in our
    journal entry that, although we did not need to reach the issue due to the post-release control
    error, it also appeared that the August 2009 entry contained a Crim.R. 32(C) defect, as it failed to
    fully determine the forfeiture specifications. 
    Id. We remanded
    the matter for purposes of a new
    sentencing hearing. 
    Id. {¶4} The
    trial court held another sentencing hearing on December 21, 2009, and issued
    another sentencing entry on March 17, 2010. For a third time, Nguyen appealed. Because the
    sentencing entry did not fully determine the forfeiture specifications, however, this Court
    determined that it was not final under Crim.R. 32(C) and dismissed the third appeal by way of
    journal entry. State v. Nguyen, 9th Dist. No. 10CA0045-M (Mar. 9, 2011).
    3
    {¶5}    On March 11, 2011, the trial court issued a sentencing entry that disposed of all
    the forfeiture counts and sentenced Nguyen to eight years in prison. Nguyen now appeals from
    the trial court’s sentencing entry and raises one assignment of error for our review.
    II
    Assignment of Error
    “THE TRIAL COURT ERRED BY CONVICTING DEFENDANT OF ALL
    ALLIED OFFENSES WHICH MERGED INTO THE ONE OFFENSE OF
    COMPLICITY TO COMMIT ILLEGAL CULTIVATION OF MARIJUANA.”
    {¶6}    In her sole assignment of error, Nguyen argues that the trial court erred by
    convicting her of allied offenses. Specifically, she argues that the court should have dismissed
    her convictions on counts one through seven.
    {¶7}    “R.C. 2941.25(A) prohibits the imposition of multiple convictions for the same
    conduct.” State v. Drake, 9th Dist. No. 25528, 2011-Ohio-3042, ¶ 15. The Ohio Supreme Court
    has held, however, that “for purposes of R.C. 2941.25, a ‘conviction’ consists of a guilty verdict
    and the imposition of a sentence or penalty.” (Emphasis sic.) State v. Whitfield, 
    124 Ohio St. 3d 319
    , 2010-Ohio-2, ¶ 12. “Because R.C. 2941.25(A) protects a defendant only from being
    punished for allied offenses, the determination of the defendant’s guilt for committing allied
    offenses remains intact, both before and after the merger of allied offenses for sentencing.” 
    Id. at paragraph
    three of the syllabus.
    {¶8}    The State here elected to pursue sentencing on count eight, the count pertaining to
    complicity to commit illegal cultivation. See 
    id. at paragraph
    one of the syllabus (holding that
    the State has the right to elect which allied offense to pursue). The trial court only sentenced
    Nguyen on count eight and indicated that the remaining counts “shall merge into Count VIII for
    the purpose of sentencing.” Because the trial court only sentenced Nguyen on count eight, it did
    4
    not “convict” her on the remaining counts. See Whitfield, 
    124 Ohio St. 3d 319
    , 2010-Ohio-2, at ¶
    12. Rather, it convicted Nguyen on one count (count eight) and properly left the remaining
    guilty verdicts intact.   Drake, 2011-Ohio-3042, ¶ 15.        Nguyen’s argument that the court
    erroneously convicted her of allied offenses is meritless.      Her sole assignment of error is
    overruled.
    III
    {¶9}    Nguyen’s sole assignment of error is overruled. The judgment of the Medina
    County Court of Common Pleas is affirmed.
    Judgment affirmed.
    We order that a special mandate issue out of this Court, directing the Court of Common
    Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
    of this journal entry shall constitute the mandate, pursuant to App.R. 27.
    Immediately upon the filing hereof, this document shall constitute the journal entry of
    judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
    period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
    instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
    mailing in the docket, pursuant to App.R. 30.
    Costs taxed to Appellant.
    BETH WHITMORE
    FOR THE COURT
    5
    CARR, J.
    DICKINSON, J.
    CONCUR
    APPEARANCES:
    WESLEY A. JOHNSTON, Attorney at Law, for Appellant.
    DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
    Attorney, for Appellee.
    

Document Info

Docket Number: 11CA0047-M

Judges: Whitmore

Filed Date: 1/30/2012

Precedential Status: Precedential

Modified Date: 4/17/2021