STATE OF OHIO v. ROYCE A. COLBURNE
C.A. No. 27553
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
October 21, 2015
2015-Ohio-4348
MOORE, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS CASE No. CR 2014 04 1035
Dated: October 21, 2015
MOORE, Judge.
{1} Defendant-Appellant Royce Colburne appeals from the judgment entry of the Summit County Court of Common Pleas. We affirm in part, and reverse in part.
I.
{2} In April 2014, Mr. Colburne was indicted on two counts of aggravated trafficking in drugs (one count involving hydromorphone and one count involving oxycodone) in violation of
{3} Mr. Colburne has appealed, raising three assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT IMPOSED SEPARATE SENTENCES FOR OFFENSES THAT AROSE FROM THE SAME CONDUCT, WERE NOT COMMITTED SEPARATELY OR WITH SEPARATE ANIMUS, AND SHOULD HAVE BEEN MERGED FOR SENTENCING PURPOSES UNDER
{4} Mr. Colburne asserts in his first assignment of error that the trial court erred in imposing separate sentences for allied offenses. Specifically he argues that, “[t]he [t]rial [c]ourt failed to properly address [his] request that his felony charges merge for purposes of sentencing[.]” Additionally, he broadly asserts that his sentences on the four felony charges merge, but only specifically discusses in any detail the merger of his sentences for trafficking with his sentences for possession.
{5} “We apply a de novo standard of review in reviewing a trial court‘s
(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.
{6} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, the Supreme Court of Ohio clarified how courts are to determine whether offenses are allied within the meaning of the statute. “At its heart, the allied-offense analysis is dependent upon the facts of a case because
{7} Because this case was resolved via a plea agreement, the factual background in the record is somewhat limited. Nonetheless, the presentence investigation report (“PSI“) states that:
[Mr. Colburne] was arrested on April 11, 2014 by the Akron Police Department under the following summarized circumstance[s] as contained in the police report:
The SNUD Unit wished to serve a search warrant upon [Mr. Colburne‘s] apartment residence on Cromwell Drive, noting [Mr. Colburne] had been the
target of a previous narcotics investigation at the same address. [Mr. Colburne] was located as he drove his Trailblazer. He ran two stop signs, prompting the officers to initiate a traffic stop. Approaching [Mr. Colburne], the officers could see a baggie protruding from [his] sweatshirt pocket. The baggie was recovered and found to contain thirty-one 10 mg oxycodone pills. The officers further found twenty-four hydromorphone pills, one hundred thirty-nine 5 mg oxycodone pills, and 7.7 grams of marijuana.
[Mr. Colburne] was taken into custody and returned to his residence, where the search warrant was executed. Two mason jars were found containing 10 mg of marijuana, after [Mr. Colburne] stated it was in the closet.
After receiving his rights, [Mr. Colburne] said he had purchased the pills that were found on him from a male he would not identify. He said he sold the pills to support his percocet addiction. He stated his live-in girlfriend had no knowledge of what he was doing.
{8} During the sentencing hearing, the State clarified that, “[i]mmediately prior to the execution of * * * that warrant at [Mr. Colburne‘s] home he had 32 [o]xycodone pills in his pocket, $415 in the car, 139 [o]xycodone pills more in the car. He also had hydromorphone and marijuana.” Mr. Colburne did not object to the State‘s foregoing recitation of events.
{9} As noted above, in addition to his two misdemeanor convictions, Mr. Colburne was convicted of two counts of aggravated trafficking in drugs (one count involving hydromorphone and one count involving oxycodone) and two counts of aggravated possession of drugs (one count involving hydromorphone and one count involving oxycodone). Prior to sentencing, Mr. Colburne filed a motion seeking merger of the related aggravated trafficking and aggravated possession charges and merger of the hydromorphone charges and oxycodone charges for the possession offenses and trafficking offenses.
{10} At sentencing, the trial court explicitly denied his motion and sentenced Mr. Colburne on all counts. According to the judgment of conviction, the trial court placed Mr. Colburne on two years of community control and indicated that, if he violated community control, he would be sentenced to an aggregate term of 30 months in prison. The entry reflects
{11} On appeal, without any citations to any law or authority, Mr. Colburne asserts the trial court failed “to properly address the issue of merger of the counts[.]” Given Mr. Colburne‘s limited and undeveloped argument on this point, and the fact that the trial court specifically denied his motion, we see no basis for concluding that the trial court failed to properly address merger at the time of sentencing. Mr. Colburne has not pointed us to any authority requiring the trial court to detail the reasons for denying a motion for merger of offenses. Whether the trial court was correct in concluding that the offenses do not merge is a separate and distinct issue from whether the trial court properly addressed the issue of merger.
{12} With respect to Mr. Colburne‘s argument concerning the merger of the aggravated trafficking charge of hydromorphone (count one) and the aggravated possession of hydromorphone charge (count three), the State has conceded on appeal that the sentences for those two offenses should merge.
{13}
{14} In conceding error, the State acknowledges that there was only one set of 24 pills of hydromorphone found, and thus, the same pills formed the basis for both the trafficking and the possession charges. In light of the limited factual record, we agree that Mr. Colburne‘s conduct of possessing the hydromorphone pills was the same conduct that resulted in his conviction for trafficking in hydromorphone. Further there is nothing to suggest that Mr. Colburne possessed a separate animus that would allow for Mr. Colburne to be sentenced on both counts. Thus, we agree that the trial court erred in sentencing Mr. Colburne on both counts one and three.
{16} With respect to whether the sentences for the oxycodone offenses and the hydromorphone offenses should have merged (e.g. whether the sentence for the aggravated trafficking of oxycodone would merge with the sentence for the aggravated trafficking of hydromorphone), we conclude that Mr. Colburne has not adequately developed an argument on this issue. Instead, Mr. Colburne has cited general propositions of law, recited the facts, and generally alleged that the trial court “improperly convicted [Mr.] Colburne of four separate
{17} In summary, Mr. Colburne‘s first assignment of error is sustained in part and overruled in part. The trial court erred in sentencing Mr. Colburne for both aggravated trafficking in hydromorphone and aggravated possession of hydromorphone. Upon remand, the State shall elect which of the two offenses it wishes to pursue for sentencing, and the trial court shall conduct a de novo sentencing hearing on that charge. See State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, ¶ 15, 18.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY SENTENCING [MR.] COLBURNE TO CONSECUTIVE SENTENCES IN VIOLATION OF
{18} Mr. Colburne asserts in his second assignment of error that the trial court failed to make the appropriate findings pursuant to
{19} The trial court ordered counts one (aggravated trafficking in hydromorphone), two (aggravated trafficking in oxycodone), and three (aggravated possession of hydromorphone)
{20} “A plurality of the Supreme Court of Ohio held that appellate courts should implement a two-step process when reviewing a felony sentence.” State v. Blackert, 9th Dist. Summit Nos. 27314, 27315, 2015-Ohio-2248, ¶ 7, quoting State v. Bulls, 9th Dist. Summit No. 27029, 2015-Ohio-276, ¶ 26, quoting State v. Clayton, 9th Dist. Summit No. 26910, 2014-Ohio-2165, ¶ 43, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26. “The first step, reviewed de novo, is to ensure that the trial court complied with applicable rules and statutes in imposing the sentence.” Blackert at ¶ 7, quoting Bulls at ¶ 26, quoting Clayton at ¶ 43. “If the first step is satisfied, the second [step] is to review the term of imprisonment for an abuse of discretion.” Blackert at ¶ 7, quoting Bulls at ¶ 26, quoting Clayton at ¶ 43.
{21}
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(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.
{23} The parties do not dispute that at the sentencing hearing, the trial court failed to explicitly make the required findings using the language in the statute. However, the State argues that one can infer from the trial court‘s statements at sentencing that it made the required findings. See Bonnell at ¶ 33. At sentencing, the trial court pointed out that Mr. Colburne had pleaded guilty to four felonies and two misdemeanors. The State maintains that this indicates that the trial court found that the crimes “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.”
{24} We are not persuaded by the State‘s argument. We conclude that the State‘s argument reads far too much into the trial court‘s limited statements. For instance, we cannot say that the trial court‘s statement listing Mr. Colburne‘s offenses warrants a conclusion that the trial court made a finding under
{25} Given the foregoing, we sustain Mr. Colburne‘s assignment of error, vacate the affected sentence, and remand the matter to the trial court for resentencing. See id.
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY NOT NOTIFYING [MR.] COLBURNE OF THE CONSEQUENCES OF VIOLATING COMMUNITY CONTROL AS REQUIRED BY
{26} Mr. Colburne asserts in his third assignment of error that the trial court erred in failing to notify him of the consequences of violating community control as required by
{27}
If the sentencing court determines at the sentencing hearing that a community control sanction should be imposed and the court is not prohibited from imposing a community control sanction, the court shall impose a community control sanction. The court shall notify the offender that, if the conditions of the sanction are violated, if the offender commits a violation of any law, or if the offender leaves this state without the permission of the court or the offender‘s probation officer, the court may impose a longer time under the same sanction, may impose a more restrictive sanction, or may impose a prison term on the offender and shall indicate the specific prison term that may be imposed as a sanction for the violation, as selected by the court from the range of prison terms for the offense pursuant to section 2929.14 of the Revised Code.
{28} In discussing the statute when it was numbered as
{29} While the trial court did discuss the prison terms it would impose, it did not otherwise inform Mr. Colburne of the statutorily required notifications under
{30} We note that Mr. Colburne also states at the end of his brief that the “sentencing colloquy failed to include a notification of post[-]release control.” Because we have already decided that his sentence must be reversed, and this limited argument is beyond the scope of his assignment of error, we decline to address this issue. The trial court can address this issue when it conducts Mr. Colburne‘s new sentencing hearing.
{31} Mr. Colburne‘s third assignment of error is sustained to the extent that he asserts that the trial court failed to give the appropriate
III.
{32} Mr. Colburne‘s first assignment of error is sustained in part and overruled in part. Specifically, counts one and three must merge for purposes of sentencing, and thus the sentences on those two counts are vacated. The State must elect which count to pursue for purposes of
Judgment affirmed in part, vacated in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
CARLA MOORE
FOR THE COURT
HENSAL, P. J.
SCHAFER, J.
CONCUR.
CHRISTOPHER M. VANDEVERE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.