State v. Setty , 2017 Ohio 9059 ( 2017 )

[Cite as State v. Setty, 2017-Ohio-9059.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2017-CA-28
:
v. : Trial Court Case No. 16-CR-274
: 16-CR-330
JOSEPH SETTY :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
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OPINION
Rendered on the 15th day of December, 2017.
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D. ANDREW WILSON., by ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark
County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, 4th Floor,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Joseph Setty pled no contest in the Clark County Court of Common Pleas to
endangering children, a third-degree felony, and aggravated possession of drugs, a
second-degree felony. The trial court found him guilty and sentenced him to consecutive
sentences of 24 months for endangering children and three years for aggravated
possession of drugs, plus a $7,500 fine and court costs. Setty appeals from his
conviction, challenging his sentence. For the following reasons, the trial court’s
judgment will be affirmed.
I. Background and Procedural History
{¶ 2} According to the presentence investigation report, on February 1, 2016, a
truant officer went to Setty’s home, looking for Setty’s 14-year-old daughter, who had
been absent from school for a long period of time. The truant officer spoke with Setty’s
brother-in-law, Anthony Straight, who owned the home. Straight indicated that Setty had
been “cooking” something in the basement of the home. Based on this information and
observations at the home, the truant officer informed law enforcement that he believed
there was a possible meth lab at the residence.
{¶ 3} Detective Collins and Sergeant Bennett of the Springfield Police Department
went to the residence to investigate. They observed numerous discarded cut-open
lithium batteries in the yard; according to Collins, lithium batteries are commonly used to
cook methamphetamine. The discarded batteries led to a locked cellar.
{¶ 4} Inside the residence, the officers made contact with Setty’s wife, Bridget, and
her 14-year-old daughter. After Bridget told the officers that items used to cook
methamphetamine were in the bedroom, the officers recovered from the bedroom
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numerous items related to the manufacture of methamphetamine, including plastic
bottles, rubber hoses, digital scales, empty boxes of nasal decongestant, and hand
syringes. Three plastic bottles of clear liquid were also located in the cellar; the bottles
were found to contain 214.9 grams of methamphetamine and pseudoephedrine, 116.7
grams of methamphetamine, and 119.4 grams of methamphetamine.
{¶ 5} Upon checking on Setty’s purchases of pseudoephedrine on a national
database (NPLEX), Detective Collins learned that since March 2015, Setty had
purchased 45 packages (95.52 grams) of pseudoephedrine and was stopped from
purchasing another 52 (104.88 grams) of pseudoephedrine. The detective further found
that other individuals associated with Setty had made purchases of pseudoephedrine and
that their purchases stopped after Setty’s arrest.
{¶ 6} Subsequent interviews of the daughter by social workers revealed that the
daughter had been exposed to methamphetamines. The daughter stated that her father
cooked meth in his bedroom and, for the past three weeks, he had been making meth
daily and sometimes twice a day. The daughter could describe how to make meth,
because she had observed her father making it, and she had been exposed to the
chemicals, which had made her nose burn. At one point, the daughter went to Dayton
Childrens because school officials believed that she may be exhibiting symptoms of being
exposed to meth.
{¶ 7} The procedural history of Setty’s case is somewhat complicated. In May
2016, Setty was charged in Case No. 2016 CR 217 with illegal manufacture of a controlled
substance (R.C. 2925.04), a first-degree felony; assembly or possession of chemicals
used to manufacture controlled substance with intent to manufacture controlled
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substance (R.C. 2925.041), a second-degree felony; and child endangerment (R.C.
2919.22(B)(6)), a third-degree felony. In June 2016, Setty was indicted in Case No. 2016
CR 274 with aggravated possession of drugs (R.C. 2925.11(A)), a first-degree felony.
The two cases were consolidated.
{¶ 8} In July 2016, Setty was reindicted in Case No. 2016 CR 330 for the same
three charges as in Case No. 2016 CR 217. In August 2016, the trial court severed Case
Nos. 2016 CR 217 and 2016 CR 274, dismissed Case No. 2016 CR 217 (the original
case), and consolidated Case No. 2016 CR 274 with Case No. 2016 CR 330 (the
reindicted case). The court ordered that the aggravated possession of drugs charge (the
sole count in Case No. 2016 CR 274) be referred to as Count Four of Case No. 2016 CR
330.
{¶ 9} On January 30, 2017, Setty pled no contest to aggravated possession of
drugs, amended from a first-degree felony to a second-degree felony, and to endangering
children, a third-degree felony. In exchange for the plea, the State agreed to dismiss the
additional charges, to recommend a presentence investigation, and not to prosecute
Setty’s wife related to the investigation (Springfield Police Department Investigation No.
16SPD5024). The trial court found Setty guilty and ordered a PSI.
{¶ 10} The trial court conducted a sentencing hearing on February 21, 2017. The
prosecutor argued that Setty was “in denial of the facts and the evidence” in this case,
and the prosecutor described the knowledge and exposure Setty’s daughter had
regarding the manufacturing of methamphetamine. The prosecutor told the court that
Setty had falsely stated to the PSI investigator that another individual was manufacturing
meth, and that he (Setty) was only using the drug. The prosecutor noted that Setty
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lacked a prior felony record, but asked the court to impose a prison sentence based on
the facts of the case.
{¶ 11} In contrast, defense counsel argued that Setty was remorseful for letting his
addiction to meth “take over his life” and for placing his wife and daughter in jeopardy.
Counsel emphasized that Setty had no felony record and a “pretty minimal prior
misdemeanor record,” and that “the fact that he is an addict is very, very clear in this
case.” Speaking on his own behalf, Setty apologized to his family, particularly to his
daughters (he has an older daughter, as well), and stated that addiction had taken over
all of their lives.
{¶ 12} The trial court sentenced Setty to 24 months in prison for child endangering
and to three years in prison for aggravated possession of drugs. In ordering the
sentences to run consecutively, the trial court found, in part, that the offenses were
committed as part of one or more courses of conduct and that no single prison term
adequately reflected the seriousness of the conduct. The court stated:
Making meth in your house is one thing. It puts the house in danger, puts
the neighbors’ homes in danger; but to have your family in the house,
including a minor child while you’re doing that, takes this to a whole ‘nother
level.
Finally, the trial court imposed the mandatory minimum fine of $7,500 and ordered Setty
to pay court costs.
{¶ 13} On appeal, Setty’s sole assignment of error states: “Setty’s sentence is
contrary to law because the trial court failed to consider the sentencing guidelines and
also failed to merge his counts/convictions[.]” In his appellate brief, he articulates three
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arguments: (1) his sentence is contrary to law, because the trial court failed to properly
consider and apply R.C. 2929.11 and R.C. 2929.12; (2) the record does not support the
trial court’s findings in support of consecutive sentences; and (3) the trial court erred in
failing to merge the two offenses as allied offenses of similar import. We will address
Setty’s arguments in an order that facilitates our analysis.
II. Allied Offenses of Similar Import
{¶ 14} Ohio’s allied offense statute, R.C. 2941.25, provides that:
(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.
{¶ 15} “ ‘As a practical matter, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts must ask three
questions when defendant’s conduct supports multiple offenses: (1) Were the offenses
dissimilar in import or significance? (2) Were they committed separately? and (3) Were
they committed with separate animus or motivation? An affirmative answer to any of the
above will permit separate convictions. The conduct, the animus, and the import must
all be considered.’ ” State v. Earley, 145 Ohio St. 3d 281, 2015-Ohio-4615, 49 N.E.3d
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266, ¶ 12, quoting State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶
31. The Supreme Court has further explained:
At its heart, the allied-offense analysis is dependent upon the facts of a case
because R.C. 2941.25 focuses on the defendant’s conduct. The evidence
at trial or during a plea or sentencing hearing will reveal whether the
offenses have similar import. When a defendant’s conduct victimizes more
than one person, the harm for each person is separate and distinct, and
therefore, the defendant can be convicted of multiple counts. Also, a
defendant’s conduct that constitutes two or more offenses against a single
victim can support multiple convictions if the harm that results from each
offense is separate and identifiable from the harm of the other offense. We
therefore hold that two or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes
offenses involving separate victims or if the harm that results from each
offense is separate and identifiable.
Ruff at ¶ 26.
{¶ 16} At the outset, Setty did not object to the trial court’s failure to merge his
offenses as allied offenses of similar import. Accordingly, we review Setty’s claim for
plain error. State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3;
State v. Trigg, 2d Dist. Montgomery No. 26757, 2016-Ohio-2752, ¶ 12. Under this
review, the trial court’s judgment is not reversible “unless [the error] affected the outcome
of the proceeding and reversal is necessary to correct a manifest miscarriage of justice.”
Rogers at ¶ 3.
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{¶ 17} R.C. 2919.22(B)(6), the relevant portion of the endangering children statute,
provides:
(B) No person shall do any of the following to a child under eighteen years
of age * * *:
(6) Allow the child to be on the same parcel of real property and within one
hundred feet of * * * any act in violation of section 2925.04 [illegal
manufacture of controlled substance] or 2925.041 [ assembly or possession
of chemicals used to manufacture controlled substance with intent to
manufacture controlled substance] of the Revised Code when the person
knows that the act is occurring, whether or not any person is prosecuted for
or convicted of the violation of section 2925.04 or 2925.041 of the Revised
Code that is the basis of the violation of this division.
Setty was also convicted of aggravated possession of drugs, which prohibits individuals
from knowingly obtaining, possessing, or using a controlled substance or controlled
substance analog. R.C. 2925.11(A).
{¶ 18} Setty argues that, in this case, the two offenses were both based on the
finding that he engaged in the manufacturing of methamphetamine within 100 feet of his
14-year-old daughter. We disagree with Setty’s assertion that the two offenses were
committed by the same conduct, and we find that they have different import.
{¶ 19} The offense of aggravated possession of drugs is directed to Setty’s
possession of methamphetamine. In setting forth the circumstances of the offenses at
the plea hearing, the prosecutor stated – and Setty agreed – that Setty “possessed three
plastic bottles of clear liquid in the cellar attached to Anthony Strait’s house, and the
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bottles were found to contain 214.9 grams of methamphetamine and pseudoephedrine
and 116.7 grams found containing methamphetamine and 119.4 grams found to contain
methamphetamine.” This act of possession constituted the basis for the aggravated
possession of drug conviction.
{¶ 20} In contrast, Setty’s conviction for endangering children was based on his
manufacturing of methamphetamine and his allowing his 14-year-old daughter to be on
the same property and within 100 feet of his manufacturing activities and possession of
chemicals for the manufacturing of methamphetamine. The prosecutor described at the
plea hearing that leaking batteries were located throughout the yard, that additional items
used to cook methamphetamines were located in the bedroom, and that there were other
indicia that Setty was manufacturing methamphetamine in the cellar. The prosecutor
stated that Setty had allowed his minor child to be on the same parcel of real estate and
within 100 feet of his manufacturing of drugs and illegal assembly and possession of
chemicals for the manufacture of those drugs. Moreover, the focus of the endangering
children statute is the harm to the child, not the drug offense. Accordingly, we find that
Setty’s conviction for endangering children was based on different conduct and had a
different import than the aggravated possession of drugs conviction. Accord State v.
Salyer, 2d Dist. Champaign No. 2013 CA 60, 2015-Ohio-2431 (illegal manufacture of
drugs (methamphetamine) and endangering children (R.C. 2919.22(B)(6)) were
committed by separate conduct and did not merge).
III. Setty’s Individual Sentences
{¶ 21} Setty next claims that his individual sentences are contrary to law, because
the trial court failed to properly consider and apply R.C. 2929.11 and R.C. 2929.12. Setty
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asserts that he should have received “probation for the Endangering charge and the
minimum sentence of two (2) years for Agg. Possession of Drugs.”
{¶ 22} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St. 3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may
increase, reduce, or modify a sentence, or it may vacate the sentence and remand for
resentencing, only if it “clearly and convincingly” finds either (1) that the record does not
support certain specified findings or (2) that the sentence imposed is contrary to law.
{¶ 23} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
court must consider the statutory criteria that apply to every felony offense, including
those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App. 3d
500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 24} R.C. 2929.11 requires trial courts to be guided by the overriding purposes
of felony sentencing. Those purposes are “to protect the public from future crime by the
offender and others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government resources.” R.C. 2929.11(A). The court must “consider the need
for incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
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or both.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony
shall be reasonably calculated to achieve the two overriding purposes of felony
sentencing * * *, commensurate with and not demeaning to the seriousness of the
offender’s conduct and its impact upon the victim, and consistent with sentences imposed
for similar crimes committed by similar offenders.”
{¶ 25} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct
is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth
four factors indicating that an offender’s conduct is less serious than conduct normally
constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that trial courts
are to consider regarding the offender’s likelihood of committing future crimes. Finally,
R.C. 2929.12(F) requires the sentencing court to consider the offender’s military service
record. (Setty did not serve in the military.)
{¶ 26} At the outset, the trial court was required to impose a prison term for both
aggravated possession of drugs and endangering children, and this fact was reflected on
Setty’s plea form. Setty pled to aggravated possession of drugs (methamphetamine) in
an amount equal to or exceeding five times the bulk amount, but less than fifty times the
bulk amount, a felony of the second degree. Accordingly, the trial court was required to
impose “as a mandatory prison term one of the prison terms prescribed for a felony of the
second degree.” R.C. 2925.11(C)(1)(c). The possible prison terms for a second-
degree felony are two, three, four, five, six, seven, or eight years. R.C. 2929.14(A)(2).
{¶ 27} In addition, R.C. 2919.22(E)(3) provides, in relevant part:
If the offender violates division (B)(6) of this section and the drug involved
is methamphetamine, the court shall impose a mandatory prison term on
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the offender as follows:
(a) If the violation is a violation of division (B)(6) of this section that is a
felony of the third degree under division (E)(3) of this section and the drug
involved is methamphetamine, except as otherwise provided in this division,
the court shall impose as a mandatory prison term one of the prison terms
prescribed for a felony of the third degree that is not less than two years. *
* *.
(Emphasis added.) For third-degree felony offenses not listed in R.C. 2929.14(A)(3)(a),
the possible prison term is generally nine, twelve, eighteen, twenty-four, thirty, or thirty-
six months. R.C. 2929.14(A)(3)(b).
{¶ 28} In imposing sentence, the trial court stated that it had considered the facts
presented at the time of the plea and the PSI, and that it applied those facts to the
statutory factors in R.C. 2929.12; the trial court commented on R.C. 2929.12(C) and (D).
The court also noted that mandatory sentences were required, and it imposed 24 months
in prison for child endangering and three years in prison for aggravated possession of
drugs. In other words, Setty received the minimum sentence for endangering children
and close to the minimum sentence for aggravated possession of drugs. Upon review
of the record, the trial court’s sentences are not clearly and unconvincingly unsupported
by the record.
IV. Imposition of Consecutive Sentences
{¶ 29} Setty further claims that the trial court’s findings in support of consecutive
sentencing are clearly and convincingly unsupported by the record.
{¶ 30} After determining the sentence for a particular crime, a sentencing judge
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has discretion to order an offender to serve individual counts of a sentence consecutively
to each other or to sentences imposed by other courts. Pursuant to R.C. 2929.14(C)(4),
a trial court may impose consecutive sentences if it determines that: (1) consecutive
service is necessary to protect the public from future crime or to punish the offender; (2)
consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public; and (3) one or more of the
following three findings are satisfied:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
{¶ 31} In imposing consecutive sentences, the trial court must make the statutory
findings and incorporate them into its sentencing entry, but the trial court is not required
to state reasons to support its findings. State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-
3177, 16 N.E.3d 659, ¶ 37.
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{¶ 32} In imposing consecutive sentences, the trial court made the required
statutory findings, using the language of R.C. 2929.14(C)(4). The court found that
“consecutive sentencing is necessary to protect the public from future crime and to punish
the Defendant, and that the consecutive sentences are not disproportionate to the
seriousness of his conduct and to the danger that he poses to the public.” The court
further found that “these two multiple offenses were committed as part of one or more
courses of conduct and the harm caused by the two or more multiple offenses so
committed was so great or unusual that no single prison term for any of the offenses
committed during this course of conduct adequately reflects the seriousness of his
conduct.”
{¶ 33} Setty points out that the trial court imposed consecutive sentences, stating
that “to have your family in the house, including a minor child while you’re doing that
[making meth], takes this to a whole ‘nother level.” Setty argues that the fact that his
daughter was in the home was already considered and received its own punishment
under the endangering children charge.
{¶ 34} Considering the facts underlying both offenses, which are discussed
extensively in the PSI, we cannot find that the trial court’s findings are clearly and
convincingly unsupported by the record. For example, the record reflects that Setty not
only possessed and manufactured methamphetamine within 100 feet of his daughter, but
he did so to the extent that his daughter was able to describe, in great detail, how to make
meth. In addition, the PSI indicates that Setty would use battery acid, Drano, and
ammonia, and would place them in 20 ounce plastic bottles; Setty then put the bottles in
the sink of the bathroom that his daughter used. His daughter indicated that she could
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smell the chemicals, which were strong, and they would burn her nose. Considering all
of the information before us, Setty’s consecutive sentencing argument is without merit.
{¶ 35} Setty’s assignment of error is overruled.
V. Conclusion
{¶ 36} The trial court’s judgment will be affirmed.
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HALL, P. J. and DONOVAN, J., concur.
Copies mailed to:
D. Andrew Wilson
Andrew P. Pickering
Ben M. Swift
Hon. Richard J. O’Neill