State v. Wells

[Cite as State v. Wells, 2016-Ohio-4589.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BROWN COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2015-10-026
: OPINION
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:
CHRISTOPHER WELLS, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
Case No. CRI2014-2165
Jessica A. Little, Brown County Prosecuting Attorney, Mary McMullen, 510 East State Street,
Suite 2, Georgetown, Ohio 45121, for plaintiff-appellee
Christopher Wells, #A711615, Pickaway Correctional Institution, P.O. Box 209, Orient, Ohio
43146, defendant-appellant, pro se
HENDRICKSON, J.
{¶ 1} Defendant-appellant, Christopher Wells, appeals from his sentence in the
Brown County Court of Common Pleas for the illegal manufacture of drugs, the illegal
assembly or possession of chemicals for the manufacture of drugs, and endangering
children. For the reasons set forth below, we affirm his sentence.
{¶ 2} On August 15, 2014, a police officer from the Mt. Orab Police Department
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stopped a stolen vehicle occupied by two men. The driver of the vehicle was arrested on an
outstanding warrant. The passenger of the vehicle consented to a search of his person.
During this search, an officer discovered a full box of pseudoephedrine pills in the
passenger's front pants' pocket. A search of the stolen vehicle resulted in the discovery of
items frequently used in the manufacture of methamphetamine, including syringes, funnels,
Ziploc bags, coffee filters, acetaminophen, a dust mask, and a digital scale.
{¶ 3} The passenger informed the police officer that he and some others were
making methamphetamine near a shed on the property where appellant resided. Both the
passenger and the driver of the vehicle told the officer that one batch of methamphetamine
was in the shed cooking and they were in the process of bringing more pseudoephedrine so
that another batch could be made. The driver of the vehicle agreed to lead law enforcement
to the location of the methamphetamine lab.
{¶ 4} Once at appellant's residence, law enforcement discovered an active
methamphetamine lab in a shed behind a detached garage. A search of the basement of the
home where appellant resided with two other adults and his 14-year-old son resulted in the
discovery of numerous items commonly used in the manufacture of methamphetamine,
including Coleman fuel and bottles labeled "Pseudo."
{¶ 5} Appellant was arrested and subsequently indicted on the illegal manufacture of
drugs in violation of R.C. 2925.04(A) (count one) and aggravated possession of drugs in
violation of R.C. 2925.11(A) (count two), felonies of the first degree. Both offenses were
accompanied by major drug offender specifications. Appellant was also indicted on the
illegal assembly or possession of chemicals used to manufacture drugs in the vicinity of a
juvenile in violation of R.C. 2925.041(A), a felony of the second degree (count three),
endangering children in violation of R.C. 2919.22(B)(6), a felony of the third degree (count
four), and possession of criminal tools in violation of R.C. 2923.24(A), a felony of the fifth
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degree (count five).
{¶ 6} Following plea negotiations, the state dismissed the major drug offender
specification on count one and dismissed counts two and five. On December 10, 2014,
appellant pled guilty to the remaining charges of illegal manufacture of drugs, illegal
assembly or possession of chemicals used to manufacture drugs, and endangering children.
Appellant was sentenced the same day to a mandatory four-year prison term on count one, a
mandatory three-year prison term on count three, and a mandatory two-year prison term on
count four. The prison terms were ordered to be served consecutively to one another, for an
aggregate prison term of nine years.
{¶ 7} In November 2015, this court granted appellant leave to file a delayed appeal.
See State v. Wells, 12th Dist. Brown No.CA2015-10-026 (Nov. 16, 2015) (Entry Granting
Motion to File Delayed Appeal).
{¶ 8} Appellant now raises the following as his sole assignment of error:
{¶ 9} THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
SENTENCED THE APPELLANT TO CONSECUTIVE SENTENCES AFTER APPELLANT
ENTERED PLEAS OF GUILTY TO THE OFFENSES OF ILLEGAL POSSESSION OF
CHEMICALS AND ILLEGAL MANUFACTURING OF DRUGS AS THESE OFFENSES
WERE ALLIED OFFENSES OF SIMILAR IMPORT.
{¶ 10} In his sole assignment of error, appellant contends the trial court committed
plain error in ordering him to serve consecutive sentences on his convictions for the illegal
manufacture of drugs and the illegal assembly or possession of chemicals used to
manufacture drugs as the two offenses are allied offenses of similar import that should have
been merged pursuant to R.C. 2941.25. Specifically, appellant argues that because he could
not have manufactured methamphetamine on August 15, 2014, without also possessing the
chemicals used to manufacture methamphetamine, the two offenses must be merged.
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{¶ 11} As an initial matter, we note appellant failed to raise the issue of whether the
offenses are allied at his sentencing hearing. We will nevertheless review his argument for
plain error. See State v. Peters, 12th Dist. Clermont No. CA2014-09-069, 2015-Ohio-2013, ¶
9. Under Crim.R. 52(B), plain error exists only where there is an obvious deviation from a
legal rule that affected the outcome of the proceeding. State v. Barnes, 94 Ohio St. 3d 21, 27
(2002). The imposition of multiple sentences for allied offenses of similar import constitutes
plain error. State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, ¶ 31-33.
{¶ 12} Pursuant to R.C. 2941.25, Ohio's multiple-count statute, the imposition of
multiple punishments for the same criminal conduct is prohibited. State v. Brown, 186 Ohio
App.3d 437, 2010-Ohio-324, ¶ 7 (12th Dist.). Specifically, R.C. 2941.25 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 as to each, the indictment
or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
{¶ 13} In determining whether offenses are allied, courts are instructed to consider
three separate factors—the conduct, the animus, and the import. State v. Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, paragraph one of the syllabus. Offenses do not merge and a
defendant may be convicted and sentenced for multiple offenses if any of the following are
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." Id. at paragraph three of the syllabus and ¶ 25. Two or
more offenses of dissimilar import exist "when the defendant's conduct constitutes offenses
involving separate victims or if the harm that results from each offense is separate and
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identifiable." Id. at paragraph two of the syllabus.
{¶ 14} "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." Id. at ¶ 26. As a result, this
analysis "'may result in varying results for the same set of offenses in different cases."' Id. at
¶ 32, quoting State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, ¶ 52. When
determining whether multiple offenses merge pursuant to R.C. 2941.25, a court must review
the entire record. State v. Washington, 137 Ohio St. 3d 427, 2013-Ohio-4982, ¶ 24. The
burden is on the defendant to establish his entitlement to the protection provided by R.C.
2941.25 against multiple punishments for a single criminal act. State v. Lewis, 12th Dist.
Clinton No. CA2008-10-045, 2012-Ohio-885, ¶ 14.
{¶ 15} Appellant was convicted of the illegal manufacture of drugs in violation of R.C.
2925.04(A), which provides that "[n]o person shall * * * knowingly manufacture or otherwise
engage in any part of the production of a controlled substance." Appellant was also
convicted of the illegal assembly or possession of chemicals used to manufacture drugs in
violation of R.C. 2925.041(A), which provides that "[n]o person shall knowingly assemble or
possess one or more chemicals that may be used to manufacture a controlled substance in
schedule I or II with the intent to manufacture a controlled substance * * *."
{¶ 16} After reviewing the entire record, which includes transcripts from appellant's
plea, sentencing, and a motion to suppress hearing, we find no merit to appellant's argument
that the offenses of the illegal manufacture of drugs and the illegal assembly or possession
of chemicals used to manufacture drugs are allied offenses of similar import.1 Under the
facts of this case, we find that appellant's conduct demonstrates the offenses were
1. Prior to entering his guilty plea, appellant had moved to suppress evidence obtained from law enforcement's
warrantless search of his residence. A hearing on the motion was held on November 6, 2014, at which time the
state presented testimony from three police officers who had participated in the search of the residence. On
November 21, 2014, the trial court denied appellant's motion to suppress. Appellant does not challenge the
denial of his motion to suppress on appeal.
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committed separately.
{¶ 17} Here, appellant was found actively manufacturing methamphetamine in his
shed. This conduct was separate and distinct from appellant's conduct in possessing and
storing additional chemicals in his basement, a separate structure, for later use in the
manufacture of methamphetamine. The chemicals stored in the basement were over and
above those chemicals actively being used to manufacture the methamphetamine in the
shed. As such, the offenses involved different conduct and are not allied offenses of similar
import. See, e.g., State v. Chandler, 4th Dist. Highland No. 14CA11, 2014-Ohio-5215, ¶ 25-
27.
{¶ 18} In finding that the offenses are not allied offenses of similar import, we reject
appellant's argument that our decision in State v. Collins, 12th Dist. Clinton Nos. CA2010-12-
021 and CA2010-12-022, 2012-Ohio-430, is controlling. In Collins, we found the offenses of
the illegal manufacture of methamphetamine, the illegal assembly or possession of
chemicals used to manufacture methamphetamine, and the possession of
methamphetamine to be allied offenses of similar import. Id. at ¶ 40-42. However, the
conduct surrounding the defendant's unlawful activities in Collins is different than appellant's
conduct in the present case. As the Ohio Supreme Court has recognized, the allied-offense
analysis "'may result in varying results for the same set of offenses in different cases. But
different results are permissible, given that the statute instructs courts to examine a
defendant's conduct—an inherently subjective determination.'" Ruff, 2015-Ohio-995 at ¶ 32,
quoting Johnson, 2010-Ohio-6314 at ¶ 52.
{¶ 19} Accordingly, as appellant's conduct in the present case demonstrates that the
offenses of illegally manufacturing methamphetamine and illegally assembling or possessing
chemicals used in the manufacture of methamphetamine were committed separately, we
overrule appellant's sole assignment of error.
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{¶ 20} Judgment affirmed.
S. POWELL, P.J., and RINGLAND, J., concur.
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