STATE OF OHIO, Plaintiff-Appellee, v. WILLIE G. SEAWRIGHT, JR., Defendant-Appellant.
No. 109489
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 1, 2021
[Cite as State v. Seawright, 2021-Ohio-1100.]
MARY EILEEN KILBANE, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-640515-A
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 1, 2021
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Jeffrey Maver, Assistant Prosecuting Attorney, for appellee.
Anna Markovich, for appellant.
MARY EILEEN KILBANE, J.:
{¶ 1} Defendant-appellant Willie G. Seawright, Jr. (“Seawright“) appeals from his conviction and sentence for drug trafficking. For the reasons that follow, we affirm.
{¶ 2} On June 28, 2019, a Cuyahoga County Grand Jury indicted Seawright on seven counts of trafficking in violation of
{¶ 3} These charges arose from a noise complaint police received on May 9, 2019. Police responded to the Extended Stay America hotel in Middleburg Heights, Ohio to investigate the complaint. Upon arriving at the hotel, police observed Seawright sitting in his parked car in the hotel‘s parking lot playing loud music. The police asked Seawright if he was staying at the hotel, and when he responded that he was, they asked him for his identification and his hotel room key.
{¶ 4} While looking for his room key, Seawright opened his car door and officers smelled marijuana. When the officers questioned Seawright about the smell of marijuana, he did not answer and attempted to close his car door. Officers instructed him to keep the door open and asked Seawright for his car keys. Seawright refused and then tried to run away from the officers. After a short foot pursuit, officers detained Seawright, who admitted that he ran because he had an
{¶ 5} On January 13, 2020, Seawright pleaded guilty to seven amended counts of drug trafficking: Counts 1, 3, 5, 7, 9, 11, and 13. The drug trafficking counts were amended to delete the firearm specifications. Seawright also pleaded guilty to Count 15, improperly handling firearms in a motor vehicle; Count 16, having weapons while under disability; Count 17, obstructing official business; and Count 18, resisting arrest. The remaining charges were nolled. The court discussed the issue of merger with the prosecutor and defense counsel prior to accepting Seawright‘s plea, and both parties indicated that none of the offenses would merge. After accepting Seawright‘s guilty plea, the trial court denied Seawright‘s request for a presentence-investigation report and proceeded immediately with sentencing.
{¶ 6} The court sentenced Seawright to three years on Counts 1, 3, 5, and 7; 18 months on Counts 9, 11, and 13; six months on Count 15; three years on Count 16; 90 days on Count 17, and 90 days on Count 18. The court ordered the three-year sentences for Counts 1, 3, 5, and 7 to run concurrent to each other but consecutive to the three-year sentence for Count 16. The remaining sentences were ordered to run concurrently, for a total sentence of six years in prison. The court also imposed three years of discretionary postrelease control, ordered Seawright to pay $15,000 in mandatory fines, and imposed court costs.
Assignments of Error
I. The trial court erred when it imposed separate convictions and prison sentences for trafficking offenses.
II. The maximum consecutive sentences imposed by the trial court is contrary to law and violates due process because the trial court findings under
R.C. 2929.14(C)(4) are not supported by the record.III. Seawright was denied effective assistance of counsel when his attorney failed to file an affidavit of indigency to waive the mandatory fine.
Legal Analysis
I. Merger
{¶ 8} In his first assignment of error, Seawright argues that the trial court erred when it failed to merge his trafficking convictions as allied offenses of similar import. He asserts that because the seven trafficking offenses arose from several bags of drugs mixed together, they were allied offenses of similar import. He further argues that even if all seven counts should not have merged, the three counts involving fentanyl-related compounds should have merged because they all involved the same substance.
{¶ 9} Our review of an allied offense question is de novo. State v. Webb, 8th Dist. Cuyahoga No. 98628, 2013-Ohio-699, ¶ 4, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
(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.
Seawright failed to object to the imposition of multiple sentences below, and therefore he has waived all but plain error. State v. Tate, 8th Dist. Cuyahoga No. 97804, 2014-Ohio-5269, ¶ 35. The Ohio Supreme Court has held that the imposition of multiple sentences for allied offenses of similar import is plain error. Id., citing State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, citing State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 96-102.
{¶ 10} Because
- Count 1 related to more than the bulk amount but less than five times the bulk amount of methamphetamine, a Schedule II drug.
- Count 3 related to more than five grams but less than 10 grams of acetylfentanyl, a Schedule I drug.
- Count 5 related to more than five grams but less than 10 grams of fentanyl, a Schedule II drug.
- Count 7 related to more than five grams but less than 10 grams of heroin, a Schedule I drug.
- Count 9 related to more than five grams but less than 10 grams of cocaine, a Schedule II drug.
- Count 11 related to more than one gram but less than five grams of carfentanil, a Schedule II drug.
- Count 13 related to less than the bulk amount of U-47700, a synthetic opioid and a Schedule I drug.
Counts 1, 3, 5, and 7 all related to the drugs found packaged together in Seawright‘s center console and were all felonies of the third degree. Counts 9, 11, and 13 all related to the drugs found packaged together in the trunk and were felonies of the fourth degree.
{¶ 12} This court has previously held that under the standard set forth in Ruff, trafficking offenses of different substances do not merge where the substances are packaged separately. State v. Daniels, 8th Dist. Cuyahoga No. 108299, 2020-Ohio-1496, ¶ 27, citing State v. Bradley, 2015-Ohio-5421, 55 N.E.3d 580, ¶ 39 (8th Dist.). Similarly, this court has held that offenses for simultaneous possession of
{¶ 13} Further, the Ohio Supreme Court has recognized that Ohio‘s drug trafficking statute,
{¶ 14} Here, our holding in Daniels makes clear that different substances, packaged separately, are not allied offenses of similar import. Therefore, none of the trafficking offenses for the drugs found in the center console could have merged with the trafficking offenses for the drugs found in the trunk. Further, although
{¶ 15} While it was not raised by either party to this appeal, we are compelled to address a recent decision in which the Ohio Supreme Court held that multiple punishments for a singular quantity of different drugs violated the Double Jeopardy protections of the Ohio and United States Constitutions. State v. Pendleton, Slip Opinion No. 2020-Ohio-6833. There are several factual and procedural differences that distinguish this case from Pendleton. In Pendleton, the defendant was discovered with multiple bags of a mixture of heroin and fentanyl totaling 133.62 grams and was subsequently charged with one count of trafficking more than 100 grams of heroin and one count of trafficking more than 100 grams of fentanyl. Pendleton was convicted by a jury despite the fact that separate convictions for crimes involving over 100 grams of each drug were undermined by
{¶ 16} Unlike Pendleton, Seawright does not base his merger argument on the respective weights of the substances involved. Moreover, it is not clear from the record exactly what amount of each substance was recovered, or the total amount recovered, because the case was resolved when Seawright pleaded guilty to certain amended charges. Therefore, the state of Ohio did not have the burden of proving each element of Seawright‘s offenses beyond a reasonable doubt, and there is nothing in the indictment to indicate that Seawright‘s commission of the offenses was factually impossible, like the offenses in Pendleton. “It is fundamental that the appellant bears the burden of affirmatively demonstrating an error on appeal.” State v. Sheffey, 11th Dist. Ashtabula No. 2019-A-0022, 2020-Ohio-3561, ¶ 11, quoting Wray v. Parsson, 101 Ohio App.3d 514, 518, 655 N.E.2d 1365 (9th Dist.1995), citing Pennant Moldings, Inc. v. C & J Trucking Co., 11 Ohio App.3d 248, 251, 464 N.E.2d 175 (12th Dist.1983). Unlike the defendant in Pendleton, Seawright has not pointed to anything in the record indicating that he was punished twice for a singular quantity of drugs. Likewise, even if Seawright had made such an
{¶ 17} For these reasons, it was not plain error for the trial court to impose separate sentences for Seawright‘s drug trafficking convictions. Seawright‘s first assignment of error is overruled.
II. Consecutive Sentences
{¶ 18} In his second assignment of error, Seawright argues that his sentence violates due process because the trial court‘s consecutive-sentence findings under
{¶ 19} Pursuant to
{¶ 20}
(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 , or2929.18 of the Revised Code, or was under postrelease 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.
{¶ 21} Here, Seawright does not dispute that the trial court made the required findings on the record. He instead argues that the record does not clearly and convincingly support the court‘s findings because the harm caused by his offenses was not so great and unusual that a single prison term would not adequately reflect the seriousness of his conduct. Seawright also argues that his conduct was not so serious as to require consecutive sentences. Specifically, he argues that a relatively small amount of drugs was found in his car, and there was no evidence that he was engaged in a large-scale drug enterprise. On the contrary, statements made by Seawright and his counsel during the sentencing hearing indicate that Seawright is a drug addict and sold drugs to support his own drug habit.
{¶ 22} Despite Seawright‘s disagreement with the trial court‘s findings, the record reflects that Seawright was in possession of seven different illegal substances,
III. Ineffective Assistance of Counsel
{¶ 23} In his third assignment of error, Seawright argues that he received ineffective assistance of counsel when his attorney failed to file an affidavit of indigency to waive the mandatory fine imposed as part of his sentence.
{¶ 24} To succeed on an ineffective assistance of counsel claim, the appellant must show that his trial counsel‘s performance was deficient and that the deficient performance prejudiced his defense. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland at 694. A
{¶ 25} The third-degree felony offenses to which Seawright pleaded guilty carried mandatory fines pursuant to
If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender.
{¶ 26} Ohio courts have held that the failure to file an affidavit of indigency for purposes of waiving a mandatory fine constitutes ineffective assistance of counsel where the record shows a reasonable probability that the trial court would have found the defendant indigent and unable to pay the fine had the affidavit been
{¶ 27} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
MARY EILEEN KILBANE, JUDGE
MICHELLE J. SHEEHAN, P.J., and LISA B. FORBES, J., CONCUR