State v. Goodson , 2011 Ohio 5820 ( 2011 )

[Cite as State v. Goodson, 2011-Ohio-5820.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94954
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT GOODSON
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-527436
BEFORE: Kilbane, A.J., Boyle, J., and Rocco, J.
RELEASED AND JOURNALIZED: November 10, 2011
ATTORNEY FOR APPELLANT
Susan J. Moran
55 Public Square
Suite 1616
Cleveland, Ohio 44113-1901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
John P. Colan
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} This appeal is before this court on remand from the Ohio Supreme Court
Ohio Supreme Court for application of State v. Johnson, 128 Ohio St.3d 153,
2010–Ohio–6314, 942 N.E.2d 1061.
{¶ 2} In his direct appeal, this court affirmed Robert Goodson’s convictions for
possession of less than one gram of crack cocaine, in violation of R.C. 2925.11(A);
trafficking in less than one gram of cocaine, in violation of R.C. 2925.03(A)(1) (sell or
offer to sell); and trafficking in less than one gram of cocaine, in violation of R.C.
2925.03(A)(2) (prepare for distribution). See State v. Goodson, 192 Ohio App.3d 246,
2011-Ohio-722, 948 N.E.2d 988 (“Goodson I”). Applying State v. Cabrales, 118 Ohio
St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, this court determined that defendant’s
convictions for trafficking in a controlled substance under R.C. 2925.03(A)(2) and
possession of that same controlled substance under R.C. 2925.11(A) are allied offenses of
similar import but rejected the contention that all of the offenses were allied and must be
merged into a single conviction. Following application of the decision in Johnson,
however, we conclude that the three offenses are allied and must be merged into a single
conviction.
{¶ 3} On August 20, 2009, Goodson and codefendant, Dale Whitsett, were
indicted for possession of less than one gram of crack cocaine, in violation of
R.C. 2925.11(A); trafficking in less than one gram of cocaine, in violation of
R.C. 2925.03(A)(1) (sell or offer to sell); trafficking in less than one gram of cocaine, in
violation of R.C. 2925.03(A)(2) (prepare for distribution); and possession of criminal
tools, in violation of R.C. 2923.24, all with forfeiture specifications for the recovery of
$147.
{¶ 4} The State’s evidence indicated that on August 9, 2005, Cleveland Police
arranged a drug sale “buy-bust” with a confidential informant in the area of East 131st
Street and Crennell Avenue. We noted:
“The informant was searched and determined to be free of contraband.
He was given $20 in marked currency and taken to the area at around
12:15 a.m. Detectives Hall and Rasberry watched from the corner
and waited for the informant to signal that a drug buy had been
completed. Lieutenant Holmes, Detective Woyma, and Detective
McKay waited a few blocks away in ‘takedown vehicles.’
According to Detective Rasberry, the informant spoke with a man,
later identified as Whitsett, who was standing at the corner of East
131st Street and Crennell Avenue. They had ‘a short, brief
conversation, in which a hand-to-hand exchange was made between
our [informant] and * * * Whitsett.’ Whitsett then walked
approximately four houses eastward on Crennell Avenue to a location
where the officers had made prior drug arrests and spoke with the
defendant who was standing outside. Whitsett ‘made a hand-to-hand
exchange with [defendant], came back and made another exchange
with our [informant], in which our [informant] then gave the
completed sale signal.’
***
After the informant signaled that he had made a drug buy, Lieutenant
Holmes, Detective Woyma, and Detective McKay drove to the scene
and arrested the defendant and Whitsett. The marked currency was
subsequently recovered from Whitsett. Two rocks of crack cocaine,
weighing .08 grams and .06 grams respectively, were also recovered —
one from Whitsett and one from the informant. Currency in the
amount of $147 was recovered from the defendant.” Goodson I.
{¶ 5} Defendant was convicted of drug possession and both charges of drug
trafficking, but acquitted of the charge of possession of criminal tools. He was
sentenced to a total of 12 months of imprisonment.
{¶ 6} On appeal, this court affirmed defendant’s convictions for all three
offenses. See Goodson I. This court determined, however, that pursuant to Cabrales,
defendant’s convictions for “[t]rafficking in a controlled substance under
R.C. 2925.03(A)(2) and possession of that same controlled substance under
R.C. 2925.11(A) are allied offenses of similar import because commission of the first
offense necessarily results in commission of the second,” but the convictions for
trafficking in a controlled substance under R.C. 2925.03(A)(1) and trafficking in a
controlled substance under R.C. 2925.03(A)(2) are not allied offenses of similar import.
This court therefore vacated the sentence and remanded the case to the trial court for
resentencing only as to the charges of trafficking in violation of R.C. 2925.03(A)(2) and
possession of that same controlled substance under R.C. 2925.11(A). Goodson I.
{¶ 7} Defendant subsequently appealed to the Ohio Supreme Court, which
granted a discretionary appeal and remanded the matter for application of Johnson. See
State v. Goodson, Slip Opinion No. 2011-Ohio-4729.
{¶ 8} Defendant’s third assignment of error states:
“The trial court erred in merging appellant’s sentences for possessing,
transporting, and selling a single quantity of crack cocaine in violation
of the provisions within R.C. 2941.25, the protections of the double
jeopardy clause of the Fifth Amendment to the Constitution of the
United States, and Section 10, Article I of the Ohio Constitution.”
{¶ 9} Herein, defendant asserts that his convictions for possession of crack
cocaine in violation of R.C. 2925.11(A) in Count 1 are allied offenses of similar import in
relation to both the conviction for trafficking in less than one gram of cocaine, in
violation of R.C. 2925.03(A)(1) (sell or offer to sell) in Count 2 and trafficking in less
than one gram of cocaine, in violation of R.C. 2925.03(A)(2) (prepare for distribution) in
Count 3.
{¶ 10} In Johnson, the Ohio Supreme Court established a new two-part test to
determine whether offenses are allied offenses of similar import under R.C. 2941.25. Id.
at ¶46-52. Under this new test, the first inquiry focuses on “whether it is possible to
commit one offense and commit the other with the same conduct.” Id. at ¶48. In
making such a determination, it is not necessary that the commission of one offense
would always result in the commission of the other, but instead, the question is whether it
is possible for both offenses to be committed with the same conduct. Id.; State v. Roy,
Butler App. No. CA2009-11-290, 2011-Ohio-1992. If the offenses correspond to such a
degree that the conduct of the defendant constituting commission of one offense
constitutes commission of the other, then the offenses are of similar import. Johnson.
{¶ 11} Next, if the 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.” If the answer to both questions is
yes, then the offenses are allied offenses of similar import and will be merged.
{¶ 12} As we noted in Goodson I, defendant was charged with possession of less
than one gram of crack cocaine, in violation of R.C. 2925.11(A); trafficking in less than
one gram of cocaine, in violation of R.C. 2925.03(A)(1) (sell or offer to sell); and
trafficking in less than one gram of cocaine, in violation of R.C. 2925.03(A)(2) (prepare
for distribution). These charges correspond to such a degree that they can be committed
by the same conduct. See Roy (drug trafficking in violation of R.C. 2925.03(A)(1), and
drug possession in violation of R.C. 2925.11(A)); State v. Dammons, Cuyahoga App.
Nos. 94878 and 94879, 2011-Ohio-2908 (drug trafficking in violation of R.C.
2925.03(A)(2) and drug possession (R.C. 2925.11(A)).
{¶ 13} As to whether they were committed with the same conduct, we note that
the charges in this matter arose in connection with defendant’s August 9, 2005 arrest
following the buy-bust. All three charges and convictions arose from the same
transaction, involved the same amount of contraband, and were committed by a single
state of mind. Therefore, we conclude that the three offenses are allied offenses that
must be merged into a single conviction. Johnson at ¶56; Roy. We find the third
assignment of error to be well taken, and Goodson I is modified accordingly.
{¶ 14} The judgment of the trial court is reversed as to sentencing only, and this
matter is remanded for further proceedings according to law and consistent with this
opinion. Upon remand, the State will elect which of the allied offenses it wishes to
pursue at sentencing for which the defendant should be punished. See State v. Whitfield,
124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182.
It is ordered that appellant recover from appellee the 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, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and
KENNETH A. ROCCO, J., CONCUR