State v. Wolfe , 2022 Ohio 117 ( 2022 )

[Cite as State v. Wolfe, 2022-Ohio-117.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. CT2021-0021
SKYLIE WOLFE :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case No.
CR2020-0593
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 18, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RON WELCH JAMES A. ANZELMO
Muskingum County Prosecutor 446 Howland Drive
BY:JOHN CONNOR DEVER Gahanna, OH 43230
Assistant Prosecutor
27 North Fifth Street
Box 189
Zanesville, OH 43702
Muskingum County, Case No. CT2021-0021 2
Gwin, P.J.
{¶1} Defendant-appellant Skylie Wolfe [“Wolfe”] appeals her sentences after a
negotiated guilty plea in the Muskingum County Court of Common Pleas.
Facts and Procedural History
{¶2} On October 23, 2020, Wolfe was stopped because the vehicle that she was
driving did not have a license plate light illuminating the rear license plate of the vehicle.
(Plea T. at 11). Ultimately, Wolfe was arrested for OVI. (Plea T. at 12). The officer who
made the traffic stop observed a glass smoking pipe with residue on the driver's seat in
plain view. A search of the vehicle revealed a plastic smoking pipe with residue inside of
a brown purse. (Plea T. at 12). Further, a review of the video from the cruiser’s inside
camera showed Wolfe, while seated in the back of the patrol car, taking something out of
her bra and stuffing it inside of her pants. When Wolfe was questioned, she admitted to
placing marijuana inside of her. Wolfe further admitted to dropping methamphetamine
powder on the driver’s side of the floorboard. (Plea T. at 12).
{¶3} On November 6, 2020, troopers observe a silver Jeep westbound on U.S.
22 with no functioning taillights. The vehicle was weaving heavily while traveling outside
of marked lanes. A traffic stop was initiated. The driver was identified as Wolfe. (Plea T.
at 12-13). A K-9 was called to the scene and there was a positive alert to the presence
of narcotics in the vehicle. A search revealed suspected drugs and drug paraphernalia.
Specifically, the troopers observed a bag with a faded print that said “Skylie's drug bag”,
containing a large amount of empty baggies, a digital scale, a needle, and a baggy of a
white, crystal-like substance. Testing identified the substance as .38 grams of
Muskingum County, Case No. CT2021-0021 3
methamphetamine. (Plea T. at 13). When asked about the items, Wolfe stated they were
hers.
{¶4} Wolfe was indicted on one count of Tampering with Evidence, a felony of
the third degree in violation of R.C. 2921.12(A)(1); two counts of possession of Drug
Paraphernalia, misdemeanors of the fourth degree in violation of R.C. 2925.14(C)(1); one
count of Possession of Drug Abuse Instruments, a misdemeanor of the second degree in
violation of R.C. 2925.12(A); and one count of Possession of Methamphetamine, a felony
of the fifth degree in violation of R.C. 2925.11(A). On January 28, 2021, a Bench Warrant
was issued for Wolfe when she missed a scheduled drug test. See, Docket Entry Number
23. On March 29, 2021, Wolfe pled guilty to the charges contained in the indictment
{¶5} On February 22, 2021, the trial court sentenced Wolfe to twelve months on
the Tampering with Evidence count; 30 days local incarceration for each of the Drug
Paraphernalia charges; twelve months on the Possession of Methamphetamine count
and ninety days of local incarceration on the Possession of Drug Abuse Instruments
count. The trial court ordered the sentences to run concurrently for an aggregate prison
sentence of twelve months.
Assignments of Error
{¶6} Wolfe raises two Assignments of Error,
{¶7} “I. THE TRIAL COURT ERRED WHEN IT SENTENCED WOLFE TO
PRISON, INSTEAD OF COMMUNITY CONTROL, IN VIOLATION OF HER DUE
PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE
OHIO CONSTITUTION.
Muskingum County, Case No. CT2021-0021 4
{¶8} “II. THE TRIAL COURT ERRED BY FAILING TO MERGE WOLFE'S DRUG
PARAPHERNALIA AND DRUG INSTRUMENT OFFENSES INTO THE
ACCOMPANYING DRUG POSSESSION OFFENSE, IN VIOLATION OF THE DOUBLE
JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.”
I.
{¶9} In her First Assignment of Error, Wolfe maintains that the trial court erred
by sentencing her to prison rather than imposing a Community Control Sanction.
Standard of Appellate Review.
{¶10} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶22;
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find that either the record
does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.
{¶11} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the
syllabus. “Where the degree of proof required to sustain an issue must be clear and
convincing, a reviewing court will examine the record to determine whether the trier of
Muskingum County, Case No. CT2021-0021 5
facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161
Ohio St. at 477 120 N.E.2d 118.
Issue for Appellate Review: Whether the record clearly and convincing
does not support Wolfe’s sentence under 2929.13(B) and (D), 2929.14(B)(2)(e) and
(C)(4), and 2929.20(I).
R.C. 2929.13(B)
{¶12} R.C. 2929.13(B)(1)(a) includes a presumption for community control if an
offender is convicted of, or pleads guilty to, a felony of the fourth or fifth degree that is not
an offense of violence.
{¶13} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony.
Wolfe pled guilty to Tampering with Evidence, a felony of the third degree in violation of
R.C. 2921.12(A)(1). Accordingly, R.C. 2929.13(B) does do apply in Wolfe’s case.
R.C. 2929.13(C)
{¶14} R.C. 2929.13(C) applies to one convicted of a third-degree felony. Wolfe
pled guilty to Tampering with Evidence, a felony of the third degree in violation of R.C.
2921.12(A)(1).
{¶15} R.C. 2919.13(C) provides,
(C) Except as provided in division (D), (E), (F), or (G) of this section,
in determining whether to impose a prison term as a sanction for a felony of
the third degree or a felony drug offense that is a violation of a provision of
Chapter 2925. of the Revised Code and that is specified as being subject
to this division for purposes of sentencing, the sentencing court shall comply
Muskingum County, Case No. CT2021-0021 6
with the purposes and principles of sentencing under section 2929.11 of the
Revised Code and with section 2929.12 of the Revised Code.
{¶16} Thus, the legislature has provided no presumption either in favor of or
against imprisonment upon conviction of a third degree felony.
R.C. 2929.13(D).
{¶17} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or
second degree, for a felony drug offense that is a violation of any provision of Chapter
2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison
term is specified as being applicable, and for a violation of division (A)(4) or (B) of section
2907.05 of the Revised Code for which a presumption in favor of a prison term is specified
as being applicable. This provision does not apply to Wolfe’s case.
R.C. 2929.14 (B)(2)(e)
{¶18} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court
can impose upon a defendant under specified circumstances. Wolfe was not given an
additional prison sentence.
R.C. 2929.14 (C)(4) Consecutive Sentences
{¶19} This factor is not applicable to Wolfe’s case as Wolfe was given concurrent
sentences.
R.C. 2929.20
{¶20} R.C. 2929.20 (I) is inapplicable as Wolfe was not applying to the court for
judicial release.
Muskingum County, Case No. CT2021-0021 7
R.C. 2929.11 and R.C. 2929.12
{¶21} Recently, the Ohio Supreme Court reviewed the issue of “whether a
sentence is “contrary to law” under R.C. 2953.08(G)(2)(b) when an appellate court finds
that the record does not support a sentence with respect to R.C. 2929.11 and 2929.12.”
State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649. A plurality of the
Court in Jones found,
Nothing in R.C. 2953.08(G)(2) permits an appellate court to
independently weigh the evidence in the record and substitute its judgment
for that of the trial court concerning the sentence that best reflects
compliance with R.C. 2929.11 and 2929.12. In particular, R.C.
2953.08(G)(2) does not permit an appellate court to conduct a freestanding
inquiry like the independent sentence evaluation this court must conduct
under R.C. 2929.05(A) when reviewing a death penalty-sentence. See
State v. Hundley, ––– Ohio St.3d ––––, 2020-Ohio-3775, ––– N.E.3d ––, ¶
128 (recognizing that R.C. 2929.05(A) requires de novo review of findings
and other issues within its scope).
2020-Ohio-6729, ¶ 42. The Court in Jones noted that,
R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate
a sentence if it clearly and convincingly finds that “the record does not
support the sentencing court’s findings under” certain specified statutory
provisions. But R.C. 2929.11 and 2929.12 are not among the statutory
provisions listed in R.C. 2953.08(G)(2)(a). Only R.C. 2929.13(B) and (D),
2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are specified.
Muskingum County, Case No. CT2021-0021 8
2020-Ohio-6729, 2020 WL 7409669, ¶ 28. The plurality concluded,
R.C. 2953.08(G)(2)(b) therefore does not provide a basis for an
appellate court to modify or vacate a sentence based on its view that the
sentence is not supported by the record under R.C. 2929.11 and 2929.12.
2020-Ohio-6729, 2020 WL 7409669, ¶39. The Court clarified,
The statements in Marcum at ¶ 23 suggesting that it would be “fully
consistent” with R.C. 2953.08(G) for an appellate court to modify or vacate
a sentence when the record does not support the sentence under R.C.
2929.11 or 2929.12 were made only in passing and were not essential to
this court’s legal holding. The statements are therefore dicta.
2020-Ohio-6729, ¶ 27.
{¶22} In the case before us, we note that in sentencing Wolfe the trial judge
observed,
Well, the Court has received the presentence investigation, had an
opportunity to review the same. The Court would note for the record, you
entered pleas of guilty to a felony of the third degree, a misdemeanor of the
fourth degree, a felony of the fifth degree, and a misdemeanor of the second
degree.
Upon review of the presentence investigation, the Court would note
several things. First, your bond was revoked in this case at one point in time.
Court also knows that during your history you’ve been to Shepherd Hill.
You've been to Muskingum Behavioral Health. You've been to a place
over in Cambridge, I believe. You've been to several types of treatment
Muskingum County, Case No. CT2021-0021 9
involving either Suboxone or Vivitrol. You've also been under counseling
out of the Family Dependency Court as a juvenile. All of which you've never
successfully completed virtually anything. You go for a while and go
someplace else, do something else, use some other excuse, and continue
to use.
Sent. T. at 5. The trial judge specifically found Wolfe was not amenable to
community control. Id.{¶23} We conclude that the trial court did not commit error when it sentenced
Wolfe. Upon review, we find that the trial court’s sentencing on the charges complies with
applicable rules and sentencing statutes. While Wolfe may disagree with the weight given
to these factors by the trial judge, Wolfe’s sentence was within the applicable statutory
range and therefore, we have no basis for concluding that it is contrary to law. R.C.
2953.08(G)(2)(b) does not provide a basis for an appellate court to modify or vacate a
sentence based on its view that the sentence is not supported by the record under R.C.
2929.11 and 2929.12. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d
649, ¶39.
{¶24} Wolfe’s First Assignment of Error is overruled.
II.
{¶25} In her Second Assignment of Error, Wolfe contends that the trial judge erred
by sentencing her on one count of Possession of Drug Paraphernalia and one count of
possession of Drug Abuse Instruments. Wolfe maintains that those charges should
merge with the Possession of Methamphetamine count for sentencing as allied offenses
Muskingum County, Case No. CT2021-0021 10
of similar import because each charge resulted from the November 6, 2020 traffic stop.
[Appellant’s Brief at 3].
Standard of Review – Plain Error
{¶26} In this case, Wolfe failed to object to her sentences in the trial court. In State
v. Rogers, the Ohio Supreme Court recently examined a case where the defendant was
convicted of multiple offenses pursuant to a guilty plea. State v. Rogers 143 Ohio St.3d
385, 2015–Ohio–2459, 38 N.E.3d 860. The defendant appealed and argued for the first
time on appeal that some of the convictions should have merged for sentencing. Id. at ¶
11. The matter was certified as a conflict and presented to the Ohio Supreme Court.
{¶27} In making its decision, the Court clarified the difference between waiver and
forfeiture as it pertains to allied offenses. Id. at ¶19–21. The Court rejected the argument
that by entering a guilty plea to offenses that could be construed to be two or more allied
offenses of similar import, the accused waives the protection against multiple
punishments under R.C. 2941.25. Id. at ¶ 19. The Court held that an accused's failure to
seek the merger of his or her convictions as allied offenses of similar import in the trial
court, the accused forfeits his or her allied offenses claim for appellate review. Id. at ¶ 21.
“[F]orfeiture is the failure to timely assert a right or object to an error, and * * * ‘it is a well-
established rule that “an appellate court will not consider any error which counsel for a
party complaining of the trial court's judgment could have called but did not call to the trial
court's attention at a time when such error could have been avoided or corrected by the
trial court.” ‘“Id. at ¶ 21.
{¶28} The accused may raise a forfeited claim on appeal through Crim.R. 52(B).
Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be
Muskingum County, Case No. CT2021-0021 11
noticed although they were not brought to the attention of the court.” The Court held in
Rogers:
An accused's failure to raise the issue of allied offenses of similar
import in the trial court forfeits all but plain error, and a forfeited error is not
reversible error unless it affected the outcome of the proceeding and
reversal is necessary to correct a manifest miscarriage of justice.
Accordingly, an accused has the burden to demonstrate a reasonable
probability that the convictions are for allied offenses of similar import
committed with the same conduct and without a separate animus; absent
that showing, the accused cannot demonstrate that the trial court's failure
to inquire whether the convictions merge for purposes of sentencing was
plain error.
2015–Ohio–2459, ¶ 3. The Court in Rogers reaffirmed that even if an accused shows the
trial court committed plain error affecting the outcome of the proceeding, the appellate
court is not required to correct it. Id. at ¶ 23. The Supreme Court stated:
We have “admonish[ed] courts to notice plain error ‘with the utmost
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.’ “(Emphasis added.) Barnes at 27, 759 N.E.2d 1240,
quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph
three of the syllabus.
Rogers at ¶ 23. Accord, State v. Carr, 5th Dist. Ashland No. 15-CA-00007, 2016-Ohio-9,
¶ 10- 12; State v. Starr, 5th Dist. Ashland No. 16-COA-019, 2016-Ohio-8179, ¶10-12.
Muskingum County, Case No. CT2021-0021 12
Issue for Appellate Review: Whether the trial court committed plain error by not
merging Wolfe’s convictions as allied offenses.
{¶29} R.C. 2941.25, Multiple counts states:
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.
{¶30} In State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34 N.E.2d 892, the
Ohio Supreme Court revised its allied-offense jurisprudence,
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 constitutes offenses
involving separate victims or if the harm that results from each offense is
separate and identifiable.
Ruff, at syllabus. The Court further explained,
Muskingum County, Case No. CT2021-0021 13
A trial court and the reviewing court on appeal when considering
whether there are allied offenses that merge into a single conviction under
R.C. 2941.25(A) must first take into account the conduct of the defendant.
In other words, how were the offenses committed? If any of the following is
true, the offenses cannot merge and the defendant may be convicted and
sentenced for multiple offenses: (1) the offenses are dissimilar in import or
significance—in other words, each offense caused separate, identifiable
harm, (2) the offenses were committed separately, and (3) the offenses
were committed with separate animus or motivation.
***
Ruff, 143 Ohio St.3d 114, ¶25. An affirmative answer to any of the above will
permit separate convictions. The conduct, the animus, and the import must all be
considered.
{¶31} On November 6, 2020, Wolfe admitted to possessing empty baggies, a
digital scale, a needle, and a baggy of a white, crystal-like substance later determined to
be methamphetamine.
{¶32} R.C. 2925.12 Possession of Druga Abuse Instruments provides in relevant
part,
(A) No person shall knowingly make, obtain, possess, or use any
instrument, article, or thing the customary and primary purpose of which is
for the administration or use of a dangerous drug, other than marihuana,
when the instrument involved is a hypodermic or syringe, whether or not of
crude or extemporized manufacture or assembly, and the instrument,
Muskingum County, Case No. CT2021-0021 14
article, or thing involved has been used by the offender to unlawfully
administer or use a dangerous drug, other than marihuana, or to prepare a
dangerous drug, other than marihuana, for unlawful administration or use.
Emphasis added. Clearly, this section only applies to the hypodermic or syringe
admittedly possessed by Wolfe.
{¶33} R.C. 2925.14 Use, Possession, or Sale of Drug Paraphernalia; Exemptions;
Forfeiture, provides in relevant part,
(A) As used in this section, “drug paraphernalia” means any
equipment, product, or material of any kind that is used by the offender,
intended by the offender for use, or designed for use, in propagating,
cultivating, growing, harvesting, manufacturing, compounding, converting,
producing, processing, preparing, testing, analyzing, packaging,
repackaging, storing, containing, concealing, injecting, ingesting, inhaling,
or otherwise introducing into the human body, a controlled substance in
violation of this chapter. “Drug paraphernalia” includes, but is not limited to,
any of the following equipment, products, or materials that are used by the
offender, intended by the offender for use, or designed by the offender for
use, in any of the following manners:
***
(6) A scale or balance for weighing or measuring a controlled
substance;
***
Muskingum County, Case No. CT2021-0021 15
(10) A capsule, balloon, envelope, or container for packaging small
quantities of a controlled substance;
***
(11) A container or device for storing or concealing a controlled
substance;
***
(12) A hypodermic syringe, needle, or instrument for parenterally
injecting a controlled substance into the human body;
{¶34} The scales, baggies and pouch containing these items would be considered
to be “drug paraphernalia” under R.C. 2925.14. Although the hypodermic syringe or
needle could also be considered “drug paraphernalia” it could also be considered to be a
Drug Abuse Instrument pursuant to R.C. 2925.12(A). At the time of the November 6, 2020
traffic stopped the officers noted that Wolfe’s driving was erratic, her arms and hands
were visibly shaking, and she appeared to have small holes resembling injection sites in
her neck. (Plea T. at 12-13). Thus, the evidence supports an inference that the
hypodermic syringe or needle had been used by Wolfe to unlawfully administer or use a
dangerous drug, other than marihuana.
{¶35} Because the evidence related to the Possession of Drug Abuse Instruments
is separate and distinct from the evidence supporting the Possession of Drug
Paraphernalia count, Wolfe has failed in her burden to demonstrate a reasonable
probability that the convictions are for allied offenses of similar import committed with the
same conduct and without a separate animus.
Muskingum County, Case No. CT2021-0021 16
{¶36} Wolfe was additionally charged with possessing methamphetamine a
controlled substance. R.C. 2925.11(A) prohibits an individual from knowingly obtaining,
possessing, or using a controlled substance or a controlled substance analog. In addition
to the drugs and the hypodermic syringe or needle, Wolfe also possessed a digitals scale
and empty baggies. Those items are unnecessary to the personal use of the drug. Thus,
from the record it would appear that Wolfe possessed the drugs separately, and with a
separate animus or motivation.
{¶37} Wolfe did not raise the merger argument during her sentencing hearing.
Wolfe points to no evidence in the record before us to establish that Wolfe’s only
motivation for possession the methamphetamine was her own personal use as opposed
to potentially packaging and reselling the drug, or facilitating another individual’s use of
the drug.
{¶38} Wolfe has failed in her burden to demonstrate a reasonable probability that
the convictions are for allied offenses of similar import committed with the same conduct
and without a separate animus.
{¶39} Wolfe’s Second Assignment of Error is overruled.
Muskingum County, Case No. CT2021-0021 17
{¶40} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By Gwin, P.J.,
Wise, John, and
Delaney, J., concur