State v. Montgomery

[Cite as State v. Montgomery, 2011-Ohio-1881.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 10-CA-75
WINDELL E. MONTGOMERY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Licking County Court of Common Pleas,
Case No. 10 CR 191
JUDGMENT: Affirmed in part; Reversed in part
and Remanded
DATE OF JUDGMENT ENTRY: April 18, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRIAN T. WALTZ DAVID B. STOKES
Assistant Proseucting Attorney 21 W. Church St., Suite 206
Licking County Proscutor's Office Newark, Ohio 43055
20 S. Second St., 4th Floor
Newark, Ohio 43055
Licking County, Case No. 10-CA-75 2
Hoffman, P.J.
{¶1} Defendant-appellant Windell E. Montgomery appeals his conviction and
sentence in the Licking County Court of Common Pleas. Plaintiff-appellee is the State
of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On April 7, 2010, Appellant agreed to sell half an ounce of
methamphetamine to a confidential informant. Prior to the sale, Appellant was stopped
and arrested. Pursuant to the arrest, the police found Appellant in possession of 21.21
grams of methamphetamine. Appellant later admitted to the investigating officers his
purpose was to sell the drugs.
{¶3} Appellant entered pleas of guilty to one count of aggravated trafficking in
drugs (methamphetamine), in violation of R.C. 2925.03(A)(1) and/or (2)(C)(1)(d); one
count of aggravated possession of drugs (methamphetamine), in violation of R.C.
2925.11(A)(C)(a)(c); and to a forfeiture specification involving monies and a motor
vehicle, pursuant to R.C. 2941.1417 and R.C. 2981.02.
{¶4} Via Judgment Entry of July 1, 2010, the trial court sentenced Appellant to
four years on each count, to run consecutively, and the vehicle and monies were
ordered forfeited.
{¶5} Appellant now appeals, assigning as error:
{¶6} “I. THE TRIAL COURT COMMITTED PLAIN ERROR IN CONVICTING
APPELLANT ON COUNT I AND/OR IN ITS SENTENCE.”
Licking County, Case No. 10-CA-75 3
{¶7} Appellant asserts the indictment was defective as to Count I, as the
indictment failed to include the culpable mental state of “knowingly,” as required by R.C.
2925.03(A)(2).
{¶8} In State v. Horner, 2010-Ohio-3830, the Ohio Supreme Court held:
{¶9} “Further, we hold that failure to timely object to a defect in an indictment
constitutes a waiver of the error. Crim.R. 12(C)(2) (objections to defect in indictment
must be raised before trial). Any claim of error in the indictment in such a case is limited
to a plain-error review on appeal. State v. Frazier (1995), 73 Ohio St.3d 323, 652
N.E.2d 1000; Crim.R. 52(B).”
{¶10} As Appellant did not raise the issue before the trial court, we find error
relative to the alleged defective indictment waived.
{¶11} The record indicates Appellant was charged in the alternative as he both
offered to sell drugs to the confidential informant and transported them with intent to
sell. The indictment alleges, in part, Appellant “did knowingly [offer to sell] and/or did
prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute” the
drugs involved. We conclude the use of knowingly at the beginning of the indictment
applies to both subsections. Furthermore, we note a conviction under either subsection
would be sufficient as they were charged in the alternative. Given Appellant’s guilty
plea, we find Appellant has not demonstrated plain error.
{¶12} In addition, Appellant argues Counts 1 and 2 should have merged for
sentencing purposes as they are allied offenses of similar import. Appellant maintains
trafficking in a controlled substance under R.C. 2925.03(A) and possession of the same
controlled substance under R.C. 2925.11(A) are allied offenses of similar import under
Licking County, Case No. 10-CA-75 4
R.C. 2941.25(A) pursuant to State v. Cabrales 2008-Ohio-1625, because commission of
the first offense necessarily results in commission of the second.1
{¶13} In State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, the Supreme Court
recently held the offenses of drug possession and drug trafficking are allied offenses of
similar import for which multiple punishments are barred. Id.{¶14} Appellant’s assignment of error is overruled in part and sustained in part.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer___________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
1
Via Judgment Entry of December 30, 2010, this Court affirmed Appellant’s conviction
and sentence finding the offenses were not allied offenses of similar import pursuant to
Cabrales, supra. Appellant then filed an application for reconsideration of this Court’s
December 30, 2010 Judgment Entry citing the Ohio Supreme Court’s recent decision in
State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2. Appellee did not file a response.
Licking County, Case No. 10-CA-75 5
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
WINDELL E. MONTGOMERY :
:
Defendant-Appellant : Case No. 10-CA-75
For the reasons stated in our accompanying Opinion, the judgment of the
Licking County Court of Common Pleas is affirmed in part; reversed in part and the
matter remanded for a new sentencing hearing pursuant to the law and our Opinion.
Costs to be divided equally.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY