STATE OF OHIO v. RICHARD A. HUGHES
Case No. 15CA0008
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 4, 2016
[Cite as State v. Hughes, 2016-Ohio-880.]
Hon. John W. Wise, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Case No. 14 CR 0093. JUDGMENT: AFFIRMED.
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 4, 2016
APPEARANCES:
For Plaintiff-Appellee: JASON W. GIVEN, COSHOCTON CO. PROSECUTOR, 318 Chestnut St., Coshocton, OH 43812
For Defendant-Appellant: JEFFREY A. MULLEN, COSHOCTON CO. PUBLIC DEFENDER, 239 N. Fourth St., Coshocton, OH 43812
OPINION
{¶1} Appellant Richard A. Hughes appeals from the Judgment Entry on Sentencing of June 10, 2015 of the Cоshocton County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose when the Coshocton County Sheriff‘s Office investigated information brought to them by two informants, a mother and father. The parents told detectives their daughter‘s boyfriend was selling drugs out of the house trailer all four lived in together located at 4388 U.S. 36. The informants identified appellant as the boyfriend and said he kept drugs and weapons in a safe in the closet of a bedroom he shared with his girlfriend, Kaeley Arnold.
{¶3} Detectives set up two controlled buys. The first buy occurred on June 11, 2014. The informants were searched and wired for video and sound. Detectives followed them to the trailer and watched them enter. The informants came out a short time later and turned over $180 worth of heroin they bought from appellant. Detectives discovered, however, both wires failed and the transaction was not recorded.
{¶4} A second controlled buy was set up for June 30, 2014. The informants were again searched and wired for video and sound. They entered the trailer and returned with $180 worth of heroin. This time, the wires worked and detectives obtained a video of aрpellant sitting at a table crushing up pills, taking $180 from the female informant, and giving her a baggie containing heroin. The exchange of money for heroin was captured on video.
{¶5} Additional intelligence indicated appellant had been selling drugs over time. The informants advised at first appellant did not deal out of the trailer, but as time went on more and more of his trafficking toоk place there. The informants said appellant took trips to Newark where he obtained more drugs from his supplier. In Coshocton, appellant distributed the drugs to “runners” to sell on the street. Appellant reportedly kept a large amount of drugs and cash in a safe in the bedroom closet. He also reportedly kept a firearm in the bedroom.
{¶6} On July 1, 2014, detectivеs obtained a “no-knock” search warrant for the trailer based upon information appellant was armed and a known drug user himself. Officers were also concerned about Arnold‘s response to the police and the possible destruction of evidence.
{¶7} The search warrant was executed on July 2, 2014. Appellant and Arnold were found in the bedroom and detаined. Detectives found small amount of heroin in the bedroom, along with a .22 Jennings handgun on the nightstand and a safe bolted to the floor in the closet.
{¶8} Detectives obtained a second search warrant for the safe and Arnold provided the combination. Inside the safe, detectives found large amounts of heroin, crack cocaine, pills, marijuana, Suboxone, cаsh, and paperwork including vehicle titles.
{¶9} Appellant was charged by indictment with one count of trafficking in heroin pursuant to
{¶10} Count I referenced the sales transaction on June 30, 2014; thе remaining counts referenced possession of controlled substances on July 2, 2014.
{¶11} Appellant entered pleas of not guilty and filed a motion to suppress. Appellee responded with a motion in opposition and the trial court took evidence on April 3, 2015. The trial court overruled the motion to suppress by Judgment Entry dated April 6, 2015. Appellee filed a motion in limine and notice of intent to offer evidence of appellant‘s prior drug convictions. Appellant responded with a motion in opposition.
{¶12} On April 28, 2015, appellant changed his pleas of not guilty to ones of guilty upon Count I and upon the remaining counts as amended; appellee dismissed the firearms specifications from Counts II, III, IV, and V. The trial court found appellant guilty and deferred sentencing pending a pre-sentence investigation (P.S.I.).
{¶13} Appellant appeared for sentencing which was memorialized in a Judgment Entry on Sentencing entered June 10, 2015. Appellant argued Counts II through V should merge for sentencing but the trial court disagreed. Appellant was sentenced to a prison
{¶14} When imposing the consecutive sentences, at the hearing and on the record, the trial court noted appellant‘s significant record of drug trafficking, stating appellant graduated from relatively low-level offenses to major drug offender status. The trial court also noted the following in its judgment entry of sentence:
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In imposing a consecutive sentence, the Court finds that a consecutive sentence is necessary to protect the public from future crime and to punish the offender, 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 the offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
In support of the need to impose consecutive sentences is [appellant‘s] criminal history, which shows that [appellant] was convicted of felony offenses in Case Nos. 01 CR 085, 01 CR 096, 04 CR 110, 07 CR 0181, and 09 CR 0048, as well as the instant cases. All cases were from this Court.
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{¶16} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶17} “I. THE TRIAL COURT ERRED IN FAILING TO MERGE COUNTS TWO THROUGH FIVE AT SENTENCING.”
{¶18} “II. THE TRIAL COURT ERRED IN FAILING TO SENTENCE COUNTS TWO THROUGH FIVE CONCURRENTLY.”
ANALYSIS
I.
{¶19} In his first assignment of error, appellant argues Counts II through V should have merged for purposes of sentencing because they are allied offenses of similar import. We disagree.
{¶20} A defendant may be indicted and tried for allied offenses of similar import, but may be sentenced on only one of the allied offenses. State v. Carr, 5th Dist. Perry No. 15-CA-00007, 2016-Ohio-9, --N.E.3d--, ¶ 42, citing State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 42.
(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.
{¶21} In the relevant counts, appellant entered guilty pleas to possession of cocaine in an amount equal to or greater than 100 grams [Count II]; possession of heroin in an amount greater than or equal to 250 grams [Count III]; possession of Alprazolam having previously been convicted of a drug abuse offense [Count IV]; and possession of Buprenorphrine in an amount exceeding bulk [Count V]. Appellant argues these offenses should merge because each offense represents a controlled substance found together in appellant‘s locked safe recovered during execution of the search warrant. Appellant argues this possession of multiple substances is a single criminal act, but case authority does not support appellant‘s position.
{¶22} The question of whether offenses merge for sentencing depends upon the subjective facts of the case in addition to the elements of the offenses charged. In a plurality opinion, the Ohio Supreme Court modified the test for determining whether offenses are allied offenses of similar import. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The Court directed us to look at the elements of the offenses in question and determinе whether or not it is possible to commit one offense and commit the other with the same conduct. Id. at ¶ 48. If the answer to such question is in the affirmative, the court must then determine whether or not the offenses were
{¶23} Johnson‘s rationale has recently been described by the Court as “incomplete.” State v. Earley, 2015-Ohio-4615, --N.E.3d--, ¶ 11. The Court has recently spoken again on merger issues and instructs us to ask three questions when a defendant‘s conduct supports multiple offensеs: (1) were the offenses dissimilar in import or significance? (2) were they committed separately? and (3) were they committed with separate animus or motivation? State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. An affirmative answer to any of the above will permit separate convictions. Id. The conduct, the animus, and the import must all be considered. Id.
{¶24} As appellee points out, pursuant to
Here, Williams’ various crimes relating to different controlled substances are of dissimilar import and do no not merge. State v. Jones, [18 Ohio St.3d 116, 480 N.E.2d 408 (1985)], discussеd the issue of whether a defendant could be convicted of multiple counts of aggravated vehicular homicide resulting from a single collision.
The relevant inquiry is “whether the legislature intended the relevant statute[s] to authorize multiple convictions.” Jones at 117. Having reviewed the legislative intent of R.C. 2925.11 , “[t]he Supreme Court of Ohio has held that the simultaneous possession of different types of controlled substances can сonstitute multiple offenses underR.C. 2925.11 .” State v. Westbrook, [4th Dist. Scioto No. 09CA3277, 2010-Ohio-2692], at ¶ 42, citing State Delfino, [22 Ohio St.3d 270, 490 N.E.2d 884 (1986)], at syllabus. The same holds true for trafficking in multiple controlled substances. Westbrook at ¶ 46.State v. Williams, 4th Dist. Scioto No. 11CA3408, 2012-Ohio-4693, ¶ 85.
{¶25} Other courts have agreed the legislature clearly intended possession of different drug groups constitutes different offenses, thus if different drugs and different bulk amounts are involved, “[m]erger as allied offenses is simply not correct * * *.” Houston v. Erdos, S.D.Ohio Nо. 1:14-CV-956, 2016 WL 126896, *12 (Jan. 12, 2016), citing Delfino, supra, 22 Ohio St.3d at 274 and Westbrook, supra, 2010-Ohio-2692 at ¶ 43. See also, State v. Santiago, 8th Dist. Cuyahoga No. 101601, 2015-Ohio-1300, ¶ 12 [simultaneous possession of heroin and cocaine, each recognized as a separate offense under
{¶26} We therefore conclude Counts II through V are not allied offenses of similаr import and the trial court properly did not merge the offenses for sentencing.
{¶27} Appellant‘s first assignment of error is overruled.
II.
{¶28} In his second assignment of error, appellant argues the sentences for Counts II through V should be served concurrently. We disagree.
{¶29} Appellant takes issue with the consecutive sentences imposed upon Counts II and III in the instant case.1 The presumption in Ohio is that sentences are to run concurrently unless the trial court makes the required findings for imposing consecutive sentence set forth in
{¶30}
(4) 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 frоm 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 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) The harm caused by the multiple offenses was so great or unusual that no single prison terms for any of the offenses committed as part of a single course of conduct adequately reflects’ the seriousness of the offender‘s сonduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶31} 2011 Am.Sub.H.B. No. 86, which became effective on September 30, 2011, revived the language provided in former
{¶33}
{¶34} Appellant also summarily argues his sentence is disproportionate to his conduct, a sentiment the trial court disavowed in its ringing indictment of the evils of heroin
{¶35} We further note the trial court referred to the P.S.I. repeatedly in sentencing appellant but appellant did not include the P.S.I. in the record. In State v. Untied, 5th Dist. Muskingum No. CT97-0018, 1998 WL 401768, *8 (Mar. 5, 1998), we noted appellate review contemplates that the entire record be presented and if portions of the transcript necessary to resolve issues are not included, we must presume regularity in the trial court proceedings аnd affirm. The P.S.I. report could have been submitted “under seal” for our review. Id. Absent the cited information and considering the trial court‘s findings on the record, we cannot say appellant‘s sentence was against the manifest weight of the evidence or ‘contrary to law.’ State v. Henderson, 5th Dist. Stark No. 2004-CA-00215, 2005-Ohio-1644, ¶ 48, citing State v. Wallace, 5th Dist. Delaware No. 03-CA-A-07-043, 2004-Ohio-1694 and State v. Mills, 5th Dist. Ashland No. 03-COA-001, 2003-Ohio-5083.
{¶36} We conclude the trial court properly imposed consecutive sentences and appellant‘s second assignment of error is overruled.
CONCLUSION
{¶37} Appellant‘s two assignments of error are overruled and the judgment of the Coshocton County Court of Common Pleas is affirmed.
By: Delaney, J. and
Wise, P.J.
Baldwin, J., concur.