STATE OF OHIO v. CODY S. VANNATTA
C.A. CASE NO. 10CA34
T.C. CASE NO. 10CR137
IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO
September 30, 2011
[Cite as State v. Vannatta, 2011-Ohio-5074.]
GRADY, P.J.
Criminal Appeal from Common Pleas Court
Rendered on the 30th day of September, 2011.
Nick A. Selvaggio, Pros. Attorney, Atty. Reg. No. 0055607, 200 North Main Street, Urbana, OH 43078 Attorney for Plaintiff-Appellee
Tara C. Dancing, Atty. Reg. No. 0077277, 1158 Kauffman Avenue, Fairborn, OH 45324 Attorney for Defendant-Appellant
GRADY, P.J.:
{¶ 1} Defendant, Cody Vannatta, appeals from his convictions for trаfficking in marijuana, assault and riot.
{¶ 2} Defendant entered pleas of guilty pursuant to a negotiated plea agreement to two fifth-degree felony trafficking
{¶ 3} Defendant timely appealed to this court from his convictions and sentences.
FIRST ASSIGNMENT OF ERROR
{¶ 4} “IT WAS ARBITRARY AND CAPRICIOUS AND AN ABUSE OF DISCRETION OF THE TRIAL COURT TO IMPOSE A 56 MONTH SENTENCE ON A FIRST TIME FELON FOR LOW LEVEL MARIJUANA TRAFFICKING OFFENSES.”
{¶ 5} Defendant argues that the trial court abused its discretion by imposing upon him, a first time felony offеnder, nearly maximum consecutive sentences on the felony drug charges that resulted in an aggregate sentence of fifty-six months.
{¶ 6} In State v. Jeffrey Barker, Montgomery App. No. 22779, 2009-Ohio-3511,
{¶ 7} “The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is nоt required to make any findings or give its reasons for imposing maximum, consecutive, or more than minimum sentences. State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, at paragraph 7 of the syllabus. Nevertheless, in exercising its discretion the trial court must consider the statutory policies that apply to every felony offense, including those set out in
R.C. 2929.11 and2929.12 . State v. Mathis, 109 Ohio St.3d 54, 846 N.E.2d 1, 2006-Ohio-855, at ¶37.{¶ 8} “When reviewing felony sentences, an appellate court must first determine whether the sentencing court complied with all applicable rules and statutes in imposing the sentenсe, including
R.C. 2929.11 and2929.12 , in order to find whether the sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008-Ohio-4912. If the sentence is not clearly and convincingly contrary to law, the trial court‘s decision in imposing the term of imprisonment must be reviewed under an abuse of discretion standard. Id.”
{¶ 9} At sentencing, the trial court stated that it had considered the purposes and principles of sentencing,
{¶ 10} In State v. Miller, Clark App. No. 09CA28, 2010-Ohio-2138, at ¶43, this court stated:
{¶ 11} “In the present case, Miller first argues that his sentence is clearly and convincingly contrary to law. In support, he appears to contend the trial court failed to consider the principles and purpоses of sentencing in
R.C. 2929.11 or the seriousness and recidivism factors inR.C. 2929.12 . Although the trial court did not specifically cite either statute during the sentencing hearing, its judgment entry stated that it had ‘considered the record, oral statements, any victim impact statement and presentence report prepared, as well as the principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and [had] balanced the seriousness and recidivism factors [under] Ohio Revised Code Section 2929.12.’ Because a trial сourt speaks only through its journal entries, Miller‘s sentence is not contrary to law merely because the trial court failed to cite either statute during the sentencing hearing. State v. Cave,Clark App. No. 09-CA-6, 2010-Ohio-1237, ¶ 10. ‘Furthermore, even if there is no specific mention of those statutes in the record, “it is presumed that the trial court gave proper consideration to those statutes.“’ Id., quoting Kalish, supra, at n. 4. We note too that Miller‘s five-year sentence is within the statutory range for a third-degree felony. See R.C. 2929.14(A)(3) . Thеrefore, we have no basis for concluding that the sentence is contrary to law.”
{¶ 12} In its Judgment Entry of Conviction and Sentence (Dkt. 32), the trial court indicated that it considered the presentence investigation report and the purposеs and principles of felony sentencing. We presume the trial court gave proper consideration to the seriousness and recidivism factors in
{¶ 13} As for the severity of Defendant‘s sentence, the fifty-six month aggregate sentence the trial сourt imposed, while stringent, is supported by this record. The overriding purposes
{¶ 14} Defendant relies upon State v. Money, Clark App. No. 2009CA119, 2010-Ohio-6225, wherein we concluded that a twelve month maximum sentence for a first time felony offender who pled guilty to a single fifth degree felony drug trafficking оffense was an abuse of discretion. That reliance is misplaced. Unlike the defendant in Money, Defendant Vannatta refused to cooperate with authorities by naming his supplier of marijuana. In addition, unlike in Money, Defendant committed additional сrimes while he was released on bond. No abuse of discretion is demonstrated.
{¶ 15} Defendant‘s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 17} Defendant argues that the trial court erred by failing to merge the three trafficking in marijuana offenses charged in Count Two, Three and Five of the indictment that occurred during June 2010, because they are allied offenses of similar import.
{¶ 18} At the outset we note that Defendant failed to raise an allied offenses of similar import issue before the trial court. Therefore, he has waived all but plain еrror. State v. Coffey, Miami App. No. 2006CA6, 2007-Ohio-21, Crim.R. 52(B). In Coffey, Id., at ¶10, we stated:
{¶ 19} “The plain error doctrine represents an exception to the usual rule that errors must first be presented to the trial court before they can be raised on appeal and permits an appellate court to review an alleged error where necessary to prevent a manifest ‘miscarriage of justice.’ State v. Long (1978), 52 Ohio St.2d at 96. To prevail under a plain error standard, then, an appellant must demonstrate both that there was an obvious error in the proceedings and that but for the error, the outcome of the trial clearly would have been otherwise. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044.”
{¶ 21} The Double Jeopardy Clause of the United States Constitution, which applies to the States through the Fourteenth Amеndment prohibits multiple punishments for the same offense. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶10. However, the Double Jeopardy Clause only prohibits a sentencing court from prescribing greater punishment than the legislature intended. Id., at ¶11. The two-tiered test set forth in
{¶ 22} Ohio‘s multiple counts statue,
{¶ 23} “(A) Where the same conduct by defendant can be construed
{¶ 24} “(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 separatеly 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.”
{¶ 25} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio Supreme Court announced a new test for determining whеn offenses are allied offenses of similar import that must be merged pursuant to
{¶ 26} “Under
{¶ 27} “In determining whether offenses are allied offenses of similar import under
{¶ 28} “If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’ Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J.,dissenting).
{¶ 29} “If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.
{¶ 30} “Conversely, if the court determines that the commission of one offense will never result in the commission of the other,
{¶ 31} Defendant was convicted of three counts of the same offense, trаfficking in marijuana in violation of
{¶ 32} At the sentencing hearing, the following colloquy took place:
{¶ 33} “THE COURT: Counsel for the State, how many different times have you – do you believe that the defendant sold marijuana he‘s been charged with here?
{¶ 34} “MR. SELVAGGIO: We have him charged in the indictment with four times, and he has pled to four times.
{¶ 35} “THE COURT: One of those was in December of 2009, the others were in June of 2010?
{¶ 36} “MR. SELVAGGIO: Yes.
{¶ 37} “THE COURT: Thank you. So do you understand that there are claims that you admitted that there were four different times when you, in your words, transferred, but in the eyes of the law you have sold marijuana?
{¶ 38} “DEFENDANT VANNATTA: Yes, sir.” (T. 10).
{¶ 39} Defendant‘s admission that there werе “four different times” when he sold marijuana demonstrates that the four drug offenses were committed separately. Merger is not required.
{¶ 40} Defendant‘s second assignment of error is overruled. The judgment of the trial court will be affirmed.
DONOVAN, J., And WAITE, J., concur.
(Hon. Cheryl L. Waite, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Nick A. Selvaggio, Esq.
Tara C. Dancing, Esq.
Hon. Roger B. Wilson