State v. Folk , 2020 Ohio 4373 ( 2020 )

[Cite as State v. Folk, 2020-Ohio-4373.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 19CA93
:
KAYLA FOLK :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court
of Common Pleas, Case No.
2018CR1046
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 8, 2020
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
GARY BISHOP DARIN AVERY
RICHLAND CO. PROSECTOR 105 Sturges Avenue
JOSEPH C. SNYDER Mansfield, OH 44903
38 South Park St.
Mansfield, OH 44902
Richland County, Case No. 19CA93 2
Delaney, J.
{¶1} Appellant Kayla Folk appeals from the September 16, 2019 Sentencing
Entry of the Richland County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A detailed statement of the facts underlying appellant’s criminal convictions
is not in the record before us. At the change-of-plea hearing on July 3, 2019, the trial
court stated the charges arose when appellant was dropped off at Ohio Health and
overdosed. She admitted using heroin, and a spoon and syringe were found in her purse.
The spoon contained traces of heroin and fentanyl.
{¶3} Appellant was charged by indictment with one count of aggravated drug
possession (fentanyl, in an amount less than bulk) pursuant to R.C. 2925.11(A) and
(C)(1)(a), a felony of the fifth degree [Count I] and one count of possession of heroin in
an amount less that one gram pursuant to R.C. 2925.11(A) and (C)(6)(a), a felony of the
fifth degree [Count II].
{¶4} On July 5, 2019, appellant changed her previously-entered pleas of not
guilty to ones of guilty and the trial court ordered a pre-sentence investigation (P.S.I.).
{¶5} Appellant appeared before the trial court for sentencing on September 11,
2019. The trial court imposed prison terms of 12 months each upon Counts I and II, to
be served consecutively, for a total aggregate sentence of 24 months.
{¶6} On the record at the sentencing hearing and in the judgment entry, the trial
court made the requisite findings in imposing consecutive sentences. During the
sentencing hearing, the trial court asked appellant whether she would be clean if given a
drug test, and appellant replied in the affirmative. The hearing recessed for a drug test.
Richland County, Case No. 19CA93 3
When the parties returned on the record, the trial court noted appellant had several active
warrants for her arrest, including for misuse of credit cards, failing to comply with pretrial
supervision, and failure to comply with municipal drug court. Further, rather than submit
to the court-ordered drug test during the recess, appellant tried to leave but was
apprehended and returned to the courtroom in handcuffs.
{¶7} The trial court also noted appellant was subject to a three-year discretionary
term of post release control. The trial court found Counts I and II are not allied offenses
of similar import because appellant was charged for two different substances. T. 16.
{¶8} Appellant now appeals from the trial court’s Sentencing Entry of September
16, 2019.
{¶9} Appellant raises four assignments of error:
ASSIGNMENTS OF ERROR
{¶10} “I. THE TRIAL COURT VIOLATED MS. FOLK’S RIGHT TO BE FREE
FROM DOUBLE JEOPARDY BY CONVICTING HER TWICE OF THE SAME
OFFENSE.”
{¶11} “II. THE TRIAL COURT ERRED BY FAILING TO MERGE ALLIED
OFFENSES OF SIMILAR IMPORT CONTRARY TO R.C. 2941.25(A).”
{¶12} “III. THE TRIAL COURT ERRED IN FAILING TO TREAT FENTANYL AS
FILLED IN A ‘MIXTURE * * * CONTAINING HEROIN[.]”
{¶13} “IV. THE TRIAL COURT ERRED IN FAILING TO TREAT THE
COMBINATION OF HEROIN AND FENTANYL AS A ‘COMBINATION OF A FENTANYL-
RELATED COMPOUND AND ANY OTHER CONTROLLED SUBSTANCE’ UNDER R.C.
2925.11(C)(11).”
Richland County, Case No. 19CA93 4
ANALYSIS
I., II., III., IV.
{¶14} Appellant’s assignments of error are related and will be addressed together.
Appellant argues she was wrongly convicted upon two separate offenses for possession
of heroin and fentanyl because the fentanyl was a “filler” in the heroin mixture. Appellant
argues she was improperly convicted of and sentenced upon allied offenses and
subjected to double jeopardy. We disagree.
{¶15} First, we note appellant is alleged to have committed these offenses on
August 15, 2018. At that time, Ohio’s stricter penalties for fentanyl-related drug offenses
were not yet in place. The version of R.C. 2925.11, drug possession, in effect on August
15, 2018, stated in pertinent part:
(A) No person shall knowingly obtain, possess, or use a
controlled substance or a controlled substance analog.
* * * *.
(C) Whoever violates division (A) of this section is guilty of one
of the following:
(1) If the drug involved in the violation is a compound, mixture,
preparation, or substance included in schedule I or II, with the
exception of marihuana, cocaine, L.S.D., heroin, hashish, and
controlled substance analogs, whoever violates division (A) of this
section is guilty of aggravated possession of drugs. The penalty for
the offense shall be determined as follows:
Richland County, Case No. 19CA93 5
(a) Except as otherwise provided in division (C)(1)(b), (c), (d),
or (e) of this section, aggravated possession of drugs is a felony of
the fifth degree, and division (B) of section 2929.13 of the Revised
Code applies in determining whether to impose a prison term on the
offender.
* * * *.
(6) If the drug involved in the violation is heroin or a
compound, mixture, preparation, or substance containing heroin,
whoever violates division (A) of this section is guilty of possession of
heroin. The penalty for the offense shall be determined as follows:
(a) Except as otherwise provided in division (C)(6)(b), (c), (d),
(e), or (f) of this section, possession of heroin is a felony of the fifth
degree, and division (B) of section 2929.13 of the Revised Code
applies in determining whether to impose a prison term on the
offender.
{¶16} We therefore dispense with appellant’s argument in her fourth assignment
of error, because the specific fentanyl violation appellant references [R.C.
2925.11(C)(11)], and argues she should have been charged with, was not yet in effect.
{¶17} Next, we note this case was resolved with pleas of guilty to a violation of
R.C. 2925.11(A)(C)(1)(a), possession of fentanyl [Count I] and R.C. 2925.11(A)(C)(6)(a),
possession of heroin [Count II]. Resolution by guilty plea means the facts underlying the
offenses were not developed in the appellate record. We have only the following
comment by the trial court:
Richland County, Case No. 19CA93 6
* * * *. They say back on August 15, 2018, you were dropped
off at OhioHealth by Devin Bush. You overdosed and admitted to
using heroin, and they found a spoon and syringe in your purse.
They say the spoon had some heroin and fentanyl, a little bit left on
it.
T. Change of Plea, 7.
{¶18} The absence of developed facts is significant because appellant’s
arguments are premised upon an assumption that appellant was charged and convicted
based upon her possession of a single mixture containing both heroin and fentanyl. The
drug analysis results are not before us and we have no factual basis to conclude that
appellant was convicted upon her possession of a single aggregate compound.
{¶19} We therefore find no support in the record for appellant’s third assignment
of error that the fentanyl should have been treated as “filler” in a compound or mixture
containing heroin. A “filler” is described as an “adulterant,” an inherent part of the usable
controlled substance itself. See, State v. Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777,
81 N.E.3d 419, ¶ 12. For example, in the case of powder cocaine, potential “fillers” are
identified as sugars, local anesthetics (e.g., benzocaine), other drugs, or other inert
substances. Id. at ¶ 11.
{¶20} Appellant argues, pursuant to Gonzales, supra, that the fentanyl should
have been treated as a filler of the heroin. In State v. Pendleton, the Second District
Court of Appeals addressed the difficulties of treating fentanyl as a “filler” of heroin,
observing that the Gonzales holding “seems to apply only to cases involving a single
controlled substance mixed with inert filler material” and not to a substance as deadly as
Richland County, Case No. 19CA93 7
fentanyl. State v. Pendleton, 2nd Dist. Clark No. 2017-CA-17, 2018-Ohio-3199, ¶ 58,
appeal allowed, 154 Ohio St.3d 1443, 2018-Ohio-4962, 113 N.E.3d 551, ¶ 58, citing
Gonzales, supra, 2017-Ohio-777 at ¶ 3. In Pendleton, the heroin and fentanyl were mixed
together in a single bag; we do not have similar facts in the instant case from which to
evaluate whether the fentanyl could reasonably be described as “filler.”
{¶21} Moreover, a plea of guilty constitutes a complete admission of guilt. Crim.
R. 11 (B) (1). “By entering a plea of guilty, the accused is not simply stating that he did
the discreet acts described in the indictment; he is admitting guilt of a substantive crime.”
State v. Laury, 5th Dist. Stark No. 2017CA00138, 2018-Ohio-2944, ¶ 19, citing United v.
Broce, 488 U.S. 563, 570, 109 S.Ct. 757 (1989). Thus, when a defendant enters a plea
of guilty as a part of a plea bargain he waives all appealable errors, unless such errors
are shown to have precluded the defendant from entering a knowing and voluntary plea.
Laury, supra at ¶ 20, citing State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991).
The effect of a voluntary, knowing, and intelligent guilty plea is the waiver of any”
“independent claims relating to the deprivation of constitutional rights that occurred prior
to the entry of the guilty plea.” Id., citing State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-
5283, 855 N.E.2d 48, at ¶ 117, internal citations omitted. As appellee points out, appellant
effectually waived her arguments in Counts III and IV upon entering pleas of guilty.
{¶22} Appellant briefly raised the issue of allied offenses at sentencing, albeit at
the conclusion of the proceedings, and the trial court found Counts I and II are not allied
offenses subject to merger. An allied-offenses claim is consistent with an admission of
guilt and therefore is not waived by pleading guilty to offenses that might be allied offenses
of similar import. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860,
Richland County, Case No. 19CA93 8
¶ 19. We therefore reach the merits of appellant’s arguments in her first and second
assignments of error, to wit, that she was convicted twice of the same offense and that
Counts I and II are allied offenses of similar import.
{¶23} R.C. 2941.25, Ohio's allied-offense statute, 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 to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
{¶24} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
syllabus, the Supreme Court of Ohio held the following:
1. In determining whether offenses are allied offenses of
similar import within the meaning of R.C. 2941.25, courts must
evaluate three separate factors—the conduct, the animus, and the
import.
2. Two or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant's conduct
Richland County, Case No. 19CA93 9
constitutes offenses involving separate victims or if the harm that
results from each offense is separate and identifiable.
3. Under R.C. 2941.25(B), a defendant whose conduct
supports multiple offenses may be convicted of all the offenses if any
one of the following is true: (1) the conduct constitutes offenses of
dissimilar import, (2) the conduct shows that the offenses were
committed separately, or (3) the conduct shows that the offenses
were committed with separate animus.
{¶25} Appellee was required to prove appellant knowingly obtained, possessed,
or used fentanyl [Count I] and heroin [Count II], both in amounts less than bulk. It is well-
established that “[t]he simultaneous possession of different types of controlled
substances can constitute multiple offenses under R.C. 2925.11.” State v. Morgan, 5th
Dist. Richland No. 18CA121, 2019-Ohio-2785, 140 N.E.3d 171, ¶ 18, citing State v.
Delfino, 22 Ohio St.3d 270, 490 N.E.2d 884 (1986), syllabus. Possession of heroin and
aggravated possession of drugs are two separate offenses pursuant to R.C.
2925.11(C)(6) and (C)(1). State v. Woodard, 12th Dist. Warren No. CA2016-09-084,
2017-Ohio-6941, ¶ 35. Each possession offense required proof as to the specific drug
involved and could not be supported by possession of a different controlled substance.
Id.{¶26} Further, appellant acknowledges this Court has found, pursuant to the
allied- offense framework set forth in R.C. 2941.25, that the offenses of possession of
heroin and possession of fentanyl do not merge. Morgan, supra, 2019-Ohio-2785 at ¶
19. In Morgan, we concluded we could see no reason why an individual who chooses to
Richland County, Case No. 19CA93 10
engage in the use of two Schedule I controlled substances should escape responsibility
either simply by mixing one substance into the other. Id., at ¶ 20. Based upon the limited
facts before us, we find no reason to depart from our own precedent in the instant case.
The trial court did not err in refusing to merge Counts I and II for purposes of sentencing.
{¶27} Finally, for all of the reasons cited supra, we find that appellant was not
subject to two punishments for the same offense, such that her constitutional protections
against Double Jeopardy were compromised.
{¶28} Appellant’s four assignments of error are overruled.
CONCLUSION
{¶29} Appellant’s four assignments of error are overruled and the judgment of the
Richland County Court of Common Pleas is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Wise, Earle, J., concur.