626 N.E.2d 965 | Ohio Ct. App. | 1993
This is an appeal by the defendant, Glenn L. Hankins, from a judgment entered in the Common Pleas Court of Allen County convicting him of two counts of aggravated trafficking in drugs in violation of R.C.
On October 7, 1992, appellant offered to sell cocaine to plainclothes police officers. The officers were patrolling in a high drug area when they observed appellant loitering on the street. Appellant indicated he had drugs for sale and the officers stopped their car in order to make a buy. Appellant showed the officers a small bottle containing thirty-seven "rocks" of cocaine. He was subsequently arrested and charged with violating R.C.
"(A) No person shall knowingly do any of the following:
"(1) Sell or offer to sell a controlled substance in an amount less than the minimum bulk amount;
"* * *
"(4) Possess a controlled substance in an amount equal to or exceeding the bulk amount, but in an amount less than three times that amount." *569
A jury found appellant guilty of both offenses. As part of the penalty, the trial court sentenced appellant to four to ten years' imprisonment for each crime with eighteen months' actual incarceration on the possession violation. In his comments made during sentencing, the trial judge indicated his opinion that the two violations were allied offenses of similar import. Therefore, the court ordered the sentence on the sale of cocaine violation to run concurrently with the sentence imposed on the possession violation.
From this judgment appellant appeals, asserting the following assignment of error:
"The trial court committed error of law when after the defendant-appellant was found by the trial court to have committed two allied offenses of similar import, the trial court convicted the defendant-appellant of both counts contrary to O.R.C.
We begin our analysis by indicating that, regardless of the judge's comments from the bench, the court's journal entry makes no "finding" that the offenses were allied and of similar import. "The parties can appeal only errors in the judgment of the court, that is, the journal entry; they cannot appeal errors in the judge's comments that are not a part of the judgment entry." Economy Fire Cas. Co. v. Craft Gen. Constr., Inc.
(1982),
In the present case, there is no indication in the trial court's judgment entry that the court found R.C.
In addition, the two offenses are not allied offenses of similar import. R.C.
"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."
In Newark v. Vazirani (1990),
The relevant elements of aggravated trafficking in drugs, as charged in this case under R.C.
(1) knowingly
(2) offer to sell
(3) a Schedule II controlled substance
(4) in an amount less than the minimum bulk amount.
The relevant elements of aggravated trafficking in drugs, as charged in this case under R.C.
(1) knowingly
(2) possess
(3) a Schedule II controlled substance
(4) in an amount equal to or exceeding the bulk amount but less than three times that amount.
Having reviewed these elements, we are of the opinion that appellant's violations of R.C.
Appellant cites the syllabus holding in State v. Roberts
(1980),
"Where a defendant is charged with the possession for sale of a narcotic drug in violation of R.C.
Appellant's reliance on this holding is misplaced. The elements of the two offenses reviewed in Roberts were the same. R.C.
Having concluded that the elements are sufficiently different so that commission of one crime will not result in the commission of the other, it is not necessary to proceed to the second step and review appellant's conduct in violating these laws.
The trial court's opinion, as stated from the bench, that the offenses were allied and of similar import was incorrect. However, the court's convicting appellant and sentencing him on both offenses was not error and appellant was not prejudiced by the convictions.
The assignment of error is overruled.
Having found no error prejudicial to the appellant herein, in any of the particulars assigned and argued, the judgment of the trial court is affirmed.
Judgment affirmed.
THOMAS F. BRYANT and HADLEY, JJ., concur. *572