State v. Rice , 2017 Ohio 1504 ( 2017 )

[Cite as State v. Rice, 2017-Ohio-1504.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
VICKEY L. RICE : Case No. 16-CA-87
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2016 CR 00085
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 24, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CLIFFORD J. MURPHY ROBERT C. BANNERMAN
20 North Second Street P.O. Box 77466
4th Floor Columbus, OH 43207-0098
Newark, OH 43055
Licking County, Case No. 16-CA-87 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Vickey Rice, appeals the October 4, 2016 judgment
entry of the Court of Common Pleas of Licking County, Ohio, sentencing her to a term
of seventy-eight months in prison. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 11, 2016, the Licking County Grand Jury indicted appellant
on two counts of aggravated trafficking in drugs (methamphetamine) in violation of R.C.
2925.03, two counts of aggravated possession of drugs (methamphetamine and
Hydrocodone) in violation of R.C. 2925.11, and one count of possession of drugs
(Zolpidem) in violation of R.C. 2925.11.
{¶ 3} On October 4, 2016, appellant pled guilty as charged. By judgment entry
filed same date, the trial court sentenced appellant to fifteen months each on the
trafficking counts, thirty months on the aggravated possession of methamphetamine
count, nine months on the aggravated possession of Hydrocodone count, and nine
months on the possession of Zolpidem count, to be serve consecutively, for a total term
of seventy-eight months in prison.
{¶ 4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 5} "FAILURE TO MERGE APPELLANT'S THREE CONVICTIONS FOR
DRUG POSSESSION VIOLATED THE PROTECTIONS EMBODIED IN OHIO'S
ALLIED OFFENSE STATUTE R.C. § 2941.25."
Licking County, Case No. 16-CA-87 3
I
{¶ 6} In her sole assignment of error, appellant claims the trial court erred in not
merging her three drug possession convictions in violation of R.C. 2941.25. We
disagree.
{¶ 7} R.C. 2941.25 governs multiple counts and states the following:
(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.
{¶ 8} 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.
Licking County, Case No. 16-CA-87 4
2. 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.
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.
{¶ 9} The Ruff court explained at ¶ 26:
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
Licking County, Case No. 16-CA-87 5
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.
{¶ 10} In this case, appellant pled guilty to three possession counts: two counts
of aggravated possession of drugs (methamphetamine and Hydrocodone) and one
count of possession of drugs (Zolpidem), all in violation of R.C. 2925.11. She received
thirty months for the methamphetamine, and nine months each for the Hydrocodone
and Zolpidem.
{¶ 11} Pursuant to the indictment filed on February 11, 2016 and the bill of
particulars filed on July 1, 2016, appellant possessed all the aforementioned drugs on
December 8, 2015.
{¶ 12} In State v. Hughes, 5th Dist. Coshocton No. 15CA0008, 2016-Ohio-880,
this court reviewed this exact issue. In Hughes, the defendant was convicted of four
counts of possession for possessing heroin, cocaine, Alprazolam, and Buprenorphrine,
all discovered in a safe pursuant to a search warrant on July 2, 2014. This court noted
at ¶ 24, "pursuant to R.C. 2925.11, each of the controlled substances at issue in the
instant case is classified and penalized differently based upon its type and quantity. It
would thus defeat the legislature’s intent to merge the drug possession offenses into a
single offense for purposes of sentencing." The Hughes court concluded the counts
were not allied offenses of similar import and did not merge for sentencing, stating the
following at ¶ 25:
Licking County, Case No. 16-CA-87 6
Other courts have agreed the legislature clearly intended
possession of different drug groups constitutes different offenses, thus if
different drugs and different bulk amounts are involved, "[m]erger as allied
offenses is simply not correct * * *." Houston v. Erdos, S.D.Ohio No. 1:14-
CV-956, 2016 WL 126896, *12 (Jan. 12, 2016), citing Delfino, supra, 22
Ohio St.3d at 274 and Westbrook, supra, 2010-Ohio-2692 at ¶ 43. See
also, State v. Santiago, 8th Dist. Cuyahoga No. 101601, 2015-Ohio-1300,
¶ 12 [simultaneous possession of heroin and cocaine, each recognized as
a separate offense under R.C. 2925.11, does not constitute allied offenses
of similar import for sentencing]; State v. Johnson, 6th Dist. Ottawa No.
OT-13-022, 2014-Ohio-1558 [simultaneous possession of heroin, cocaine,
and oxycodone did not constitute allied offenses of similar import for
sentencing because simultaneous possession of different types of
controlled substances can constitute multiple offenses under R.C.
2925.11]; State v. Huber, 2nd Dist. Clark No. 2010-CA-83, 2011-Ohio-
6175 [convictions for possession of methadone, hydrocodone, oxycodone,
and fentanyl did not merge because legislature intended possession of
different drug groups constitutes different offenses under R.C. 2925.11];
State v. Heflin, 6th Dist. Lucas No. L-11-113, 2012-Ohio-3988 [convictions
for simultaneous possession of cocaine and heroin are not subject to
merger as allied offenses of similar import under R.C. 2941.25]; State v.
Helmick, 9th Dist. Summit No. 27179, 2014-Ohio-4187 [possession of
Licking County, Case No. 16-CA-87 7
methamphetamine and marijuana are not allied and not subject to
merger].
{¶ 13} Based on this court's decision in Hughes, we find the trial court in this
case did not err in not merging the three drug possession convictions.
{¶ 14} The sole assignment of error is denied.
{¶ 15} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Delaney, P.J. and
Hoffman, J. concur.
EEW/sg 413