State v. PribbleState v. Pribble
{¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of conviction and sentence. Darian J. Pribble, defendant below and appellant herein, assigns the following error for review:
ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED WHEN IT SENTENCED DARIAN PRIBBLE TO FIVE YEARS IN PRISON FOR ILLEGAL ASSEMBLY, BECAUSE THE MAXIMUM ALLOWABLE SENTENCE FOR THAT CRIME IS THREE YEARS IN PRISON. STATE V. CLARK , 4TH DIST. HIGHLAND NO. 14CA20,[ 2015-OHIO-5003 ] ; 2015 WL 7777228 R.C. 2929.14(A)(3)(b) ;R.C. 2901.04(A) ; TR. 361-62; FEBRUARY 6, 2017, JOURNAL ENTRY."
{¶ 2} On February 7, 2016, Manchester Village Police Officer Jason Mallott received an email from the NPLEx data system that indicated that a person with whom the department had previous contact for manufacturing methamphetamine had just purchased Sudafedrin, a component used to make methamphetamine, from a local Kroger pharmacy. After receiving further information, Officer Mallott located and stopped the car in that appellant and his two co-defendants occupied. Officer Mallott also determined that appellant had an outstanding warrant.
{¶ 3} During a subsequent search incident to arrest, Officer Mallott found a pouch in appellant's coat pocket that contained "white powder crystal residue" along with small baggies, some ties, and two spoons with white powder residue. The Bureau of Criminal Investigation (BCI) Crime Lab later identified the residue as methamphetamine. Officer Mallott also found in appellant's pocket a severed lithium battery, that Mallott later testified is typically done to extract lithium to use in the manufacture of methamphetamine. After Officer Mallott obtained consent from
{¶ 4} The Adams County Grand Jury returned an indictment that charged appellant with one count of the illegal assembly of chemicals that may be used to manufacture a controlled substance in Schedule I or II, to wit: Sudafed and lithium, with the intent to manufacture a Schedule I or II controlled substance, to wit: Methamphetamine in violation of
{¶ 5} In his sole assignment of error, appellant asserts that the trial court erred (1) in sentencing him to 60 months in prison under
{¶ 6} When the trial court sentenced appellant on February 3, 2017,
(a) For a felony of the third degree that is a violation of section 2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the Revised Code or that is a violation of section 2911.02 or 2911.12 of the Revised Code if the offender previously has been convicted of or pleaded guilty in two or more separate proceedings to two or more violations of section 2911.01, 2911.02, 2911.11, or 2911.12 of the Revised Code, the prison term shall be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.
(b) For a felony of the third degree that is not an offense for which division (A)(3)(a) of this section applies, the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.
The offenses listed in
{¶ 7}
(C) Whoever violates this section is guilty of illegal assembly or possession of chemicals for the manufacture of drugs. Except as otherwise provided in this division, illegal assembly or possession of chemicals for the manufacture of drugs is a felony of the third degree, and * * * the court shall impose a mandatory prison term * * * as follows:
(1) Except as otherwise provided in this division, there is a presumption for a prison term for the offense. * * * If the offender two or more times previously has been convicted of or pleaded guilty to a felony drug abuse offense and if at least one of those previous convictions or guilty pleas was to a violation of division (A) of this section, a violation of [R.C.] 2929.22(B)(6), or a violation of [R.C.] 2925.04(A), the court shall impose as a mandatory prison term one of the prison terms described for a felony of the third degree that is not less than five years.
{¶ 8} In the case sub judice, the record indicates that appellant has previous methamphetamine related convictions for illegal manufacturing (2009) and aggravated possession (2015). Thus, it appears that appellant has the requisite prior convictions
{¶ 9} As appellant argues, this court recently considered the conflict between these two statutes in State v. Clark , 4th Dist. Highland No. 14CA20,
{¶ 10} In Clark , this court also cited the Eleventh District's decision in State v. Owen ,
{¶ 11} Finally, in Clark we cited Young for reliance on the rule of lenity, which applies when an ambiguity exists in a statute, or a conflict exists between two or more statutes. We held that the rule of lenity is codified in
{¶ 12} In State v. Brewer ,
{¶ 13} In view of the foregoing, we reluctantly reaffirm our prior holding in State v. Clark . Although we agree with the trial court's sentiment concerning the appropriate length of sentence for defendants who engage in the manufacture of illegal drugs, we also express our continued frustration with Ohio's convoluted and complex felony sentencing statutes.
{¶ 14} Therefore, based upon the foregoing reasons, we find appellant's five-year mandatory sentence under
JUDGMENT REVERSED IN PART AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
McFarland, J. & Hoover, J.: Concur in Judgment & Opinion