State v. RoyState v. Roy
Clayton G. Napier, 29 “D” Street, Hamilton, Ohio 45013, for defendant-appellant
O P I N I O N
RINGLAND, J.
{¶1} On remand from the Ohio Supreme Court, this court is directed to apply State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, to the case at bar. Upon application of the high court‘s decision in Johnson, we reverse in part and remand.
{¶2} On August 4, 2009, defendant-appellant, Deana M. Roy, was charged with six counts of trafficking in cocaine in violation of
{¶3} On appeal, this court upheld appellant‘s convictions and sentence in State v. Roy, Butler App. No. CA2009-11-290, 2010-Ohio-4405 (Roy I). Appellant subsequently appealed to the Ohio Supreme Court, which vacated this court‘s decision relating to appellant‘s sixth assignment of error and remanded the matter for application of Johnson. See State v. Roy, 128 Ohio St.3d 340, 2011-Ohio-544, reconsideration denied by 128 Ohio St.3d 1449, 2011-Ohio-1618. Appellant‘s sixth assignment of error stated as follows:
{¶4} “THE COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT IN FAILING TO MERGE, FOR SENTENCING PURPOSES ALLIED OFFENSES OF SIMILAR IMPORT.”
{¶5} In her sixth assignment of error, appellant argues that the trial court erred by failing to merge her convictions for possession as found in “[c]ounts four, six, eight and ten * * * for sentencing purposes.” Upon application of Johnson to the case at bar, we agree.
{¶6} Initially, just as this court stated in Roy I, because appellant failed to raise an objection with the trial court challenging whether the offenses were allied offenses of similar import, appellant has waived all but plain error. Id. at ¶50. Pursuant to
{¶7}
{¶8} “(A) Where the same conduct by defendant can be construed to constitute two
{¶9} “(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.”
{¶10} In Johnson, the Ohio Supreme Court established a new two-part test to determine whether offenses are allied offenses of similar import under
{¶11} If it is found that the offenses can be committed by the same conduct, the court must then determine “whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.‘” Johnson at ¶49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶50. If both questions are answered in the affirmative, the offenses are allied offenses of similar import and must be merged. Blanda, 2011-Ohio-411 at ¶15, citing Johnson at ¶50. However, if the commission of one offense will never result in the commission of the other, “or if the offenses are committed separately, or if the
{¶12} Applying the Johnson analysis to the case at bar, we must first determine if it is possible for trafficking in violation of
{¶13} To be guilty of trafficking under
{¶14} Having found that it is possible for trafficking and possession to be committed with the same conduct, the Johnson analysis now requires this court to determine whether appellant committed the offenses by way of a single act and with a single state of mind. Id. at ¶49;
{¶15} As this court outlined in Roy I, appellant was involved in six undercover drug deals between March 27, 2009 and May 29, 2009 that ultimately resulted in her being convicted for six counts of trafficking and four counts of possession. See Id. at ¶2-9. After a thorough review of the record, including the transcript of the four-day jury trial, it is apparent that the state relied upon the same conduct to support appellant‘s convictions for trafficking as charged in counts three, five, seven, and nine, as that of her convictions for possession as charged in counts four, six, eight and ten. Johnson at ¶56; Craycraft, 2011-Ohio-413 at ¶20. Therefore, under the facts and circumstances of this case, and in applying the Johnson analysis to the case at bar, we find these offenses to be allied offenses of similar import.
{¶16} As far as this court can discern, upon remand, the state retains the right to elect which allied offense to pursue at sentencing, and the trial court is bound by such election. Craycraft at ¶21, citing State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶24; Bland, 2011-Ohio-411 at ¶25. Therefore, insofar as the trial court erred by failing to merge appellant‘s convictions, appellant‘s sixth assignment of error is sustained, the judgment of the trial court is reversed as to sentencing only, and this matter is remanded for further proceedings according to law and consistent with this opinion.
{¶17} Judgment reversed in part and remanded.
POWELL, P.J., and HENDRICKSON, J., concur.