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Date: 07-15-2020
Case Style:
STATE OF OHIO v. WILLIAM E. MARTIN, II
Case Number: 18 CO 0033
Judge: Anthony Donofrio
Court: IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT COLUMBIANA COUNTY
Plaintiff's Attorney: Atty. Robert Herron, Prosecutor, Atty. Ryan Weikart, Assistant Prosecutor
Defendant's Attorney:
Need help finding a lawyer for representation for one count of having weapons while under disability; one count of possession of cocaine; one count of possession of heroin; one count of possession of marijuana; one count of trafficking in heroin; two major drug offender specifications; and one forfeiture specification in Ohio.
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Description:
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{¶2} Deputy Brett Grabman of the Columbiana County Sherriff’s Office was an
undercover narcotics detective with the Columbiana County Drug Task Force (Task
Force). On the morning of March 22, 2017, Deputy Grabman received a call from two
potential informants. The informants told Deputy Grabman that appellant was selling
large quantities of heroin, cocaine, and marijuana from a house at 533 West Washington
Street in Lisbon, Ohio (the house).
{¶3} Deputy Grabman and other Task Force officers utilized these informants
to perform a controlled buy of drugs from appellant later that afternoon. During this
purchase, Deputy Grabman heard through the audio surveillance equipment placed on
the informants that appellant was attempting to arrange transportation for a large amount
of marijuana. The informants purchased $500 worth of heroin and $100 worth of crack
cocaine from appellant.
{¶4} On March 28, 2017, Deputy Grabman utilized the same informants to
perform a second controlled buy from appellant at the house. During this controlled buy,
the informants purchased $1,000 worth of heroin from appellant. Immediately after this
controlled buy, an altercation between the informants and Task Force officers arose
related to the informants possessing marijuana paraphernalia. Task Force officers told
the informants why they were not permitted to have anything illegal in their possession
and the informants became “very aggressive.” (Supp. I Tr. 20). The informants left and
were not on good terms with Task Force officers.
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Case No. 18 CO 0033
{¶5} Immediately after the informants left, Task Force officers had a meeting at
the Lisbon Police Department to determine how to proceed with appellant’s investigation.
During this meeting, Task Force officers discovered that appellant had an outstanding
arrest warrant for two felony drug possession charges.
{¶6} Approximately 40 minutes after the altercation between Task Force
officers and the informants, Task Force officers returned to the house to serve the
outstanding arrest warrant. Task Force officers knocked and announced their presence
but no one answered the door despite officers hearing people moving throughout the
house. Task Force officers entered the house by force. Task Force officers found
appellant in an upstairs bedroom closet with guns in his immediate area. A search of
appellant incident to his arrest yielded just under $2,000 with $1,000 of that money being
bills the Task Force used to make the controlled buys.
{¶7} Two women were also present in the home when appellant was arrested.
Chief Michael Abraham of the Lisbon Police Department transported appellant to jail, the
two other people were cleared from the house, and the house was secured. Task Force
officers did not search the house at this time. After appellant’s arrest and the house was
cleared and secured, Deputy Grabman applied for a search warrant for the house.
{¶8} Deputy Grabman’s affidavit for the search warrant included: the two
controlled buys, appellant’s arrest warrant, appellant’s arrest, and appellant’s criminal
history. The Lisbon Municipal Court granted the search warrant and Task Force officers
subsequently searched the house. The search yielded large amounts of marijuana,
heroin, crack cocaine, prescription pills, over $58,000 in cash, and multiple guns.
{¶9} On May 18, 2017, a Columbiana County Grand Jury indicted appellant on
the following charges: Count One for having a weapon while under a disability in violation
of R.C. 2923.13(A)(2), a third-degree felony; Count Two for possession of cocaine in
violation of R.C. 2925.11(A)(C)(4)(f), a first-degree felony, with a major drug offender
specification pursuant to R.C. 2941.1410(A); Count Three for possession of heroin in
violation of R.C. 2925.11(A)(C)(6)(e), a first-degree felony, with a forfeiture specification
in an amount of $57,419 pursuant to R.C. 2941.1417(A); Count Four for possession of
marijuana in violation of R.C. 2925.11(A)(C)(3)(e), a third-degree felony; Count Five for
trafficking heroin in violation of R.C. 2925.03(A)(1)(C)(6)(c), a fifth-degree felony; Count
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Case No. 18 CO 0033
Six for trafficking cocaine in violation of R.C. 2925.03(A)(1)(C)(4)(a), a fifth-degree felony;
and Count Seven for trafficking heroin in violation of R.C. 2925.03(A)(1)(C)(6)(d), a thirddegree felony. A superseding indictment added a major drug offender specification
pursuant to R.C. 2941.1410(A) to Count Three. A bill of particulars subsequently
amended the forfeiture amount in Count Three to $57,277. Appellant entered a not guilty
plea on all charges.
{¶10} On June 19, 2017, appellant filed his first motion to suppress. This motion
sought to suppress all evidence obtained from the house and generally argued that Task
Force officers had conducted an unreasonable warrantless search of the house.
Appellant filed an amended motion to suppress on July 10, 2017 which argued that Task
Force officers were illegally present in the house and anything they observed while
illegally present in the house could not provide a basis for the search warrant.
{¶11} On July 12, 2017, the trial court held a hearing on appellant’s first motion
to suppress. The only witness to testify at this hearing was Deputy Grabman, who
testified to the above stated events. On cross-examination, Deputy Grabman testified
that Task Force officers did not physically possess appellant’s arrest warrant when they
entered the house and that it was more than likely some officers were still inside the house
to secure the two other occupants while he obtained the search warrant.
{¶12} On August 29, 2017, the trial court denied appellant’s first motion to
suppress. The trial court found that there was sufficient evidence to indicate appellant
resided at the house and Task Force officers were permitted to enter the house due to
appellant’s arrest warrant. The trial court also held that there was sufficient probable
cause for the Task Force to obtain a search warrant and the evidence showed that no
search occurred until after Deputy Grabman obtained the search warrant.
{¶13} On February 21, 2018, appellant filed a second motion to suppress.
Appellant argued, relevant to this appeal, that the search of the house was illegal because
Deputy Grabman omitted material facts in his affidavit for the search warrant. Specifically,
appellant argued that Deputy Grabman omitted the fact that the informants compromised
the March 28, 2017 controlled buy by possessing marijuana paraphernalia. Appellant
also argued that Deputy Grabman’s affidavit omitted the fact that Task Force officers had
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Case No. 18 CO 0033
already entered the home, arrested appellant, and may have still been present in the
home while the search warrant was being obtained.
{¶14} On March 14, 2018, the trial court held a hearing on appellant’s second
motion to suppress. At this hearing, Lieutenant Brian McLaughlin testified that the Task
Force’s agreement with the informants included paying them 30% of all transactions the
informants secured. This agreement was made on the same day the informants
contacted the Task Force, which was also the same day of the first controlled buy.
{¶15} Lieutenant McLaughlin and Deputy Grabman both testified that after the
first controlled buy, the informants told them that appellant wanted them to transport a
large amount of marijuana from Chicago, Illinois. Lieutenant McLaughlin told the
informants not to transport drugs for appellant. Deputy Grabman testified that despite
this instruction, the informants transported a substantial amount of drugs from Chicago to
the house. Deputy Grabman also testified that he believed he disclosed the informants
transporting drugs for appellant in his affidavit for the search warrant.
{¶16} In a judgment entry dated May 18, 2018, the trial court denied appellant’s
second motion to suppress. Relevant to this appeal, the trial court held that appellant did
not satisfy his burden to show that any omissions in Deputy Grabman’s affidavit were
material. The trial court also held that it was permissible for Task Force officers to secure
the house while applying for a search warrant.
{¶17} On August 23, 2018, appellant filed a third motion to suppress, which was
subsequently limited to two issues: whether Task Force officers conducted an illegal
search after executing the arrest warrant but prior to obtaining the search warrant and
whether Task Force officers violated the knock-and-announce rule. Plaintiff-appellee, the
State of Ohio, called Lieutenant McLaughlin who generally testified to the same facts that
were previously testified about at the prior two suppression hearings. On August 27,
2018, the trial court denied this motion.
{¶18} Also on August 27, 2018, appellant reached a plea agreement with the
state. The state agreed to dismiss Counts Five and Six. In exchange, appellant pled no
contest to all remaining counts. The trial court accepted appellant’s no contest plea and
scheduled a sentencing hearing for October 12, 2018.
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Case No. 18 CO 0033
{¶19} At the scheduled sentencing hearing, appellant moved that his convictions
for Counts Two, Three, and Four (possession of cocaine, heroin, and marijuana
respectively) be merged for sentencing purposes. The trial court overruled this motion
and sentenced appellant to an aggregate prison term of 31 years and ordered appellant
to forfeit $57,277.
{¶20} The trial court memorialized appellant’s sentence in a judgment entry
dated October 15, 2018. Appellant timely filed his notice of appeal on October 30, 2018.
Appellant now raises four assignments of error.
{¶21} Appellant’s first assignment of error states:
THE TASK FORCE OFFICER’S OMISSION OF HIS
CONFIDENTIAL INFORMANT’S CRIMINAL BEHAVIOR OF
TRANSPORTING LARGE QUANTITIES OF DRUGS FROM CHICAGO TO
LISBON, OHIO, ALONG WITH POSSESSION OF DRUG
PARAPHERNALIA AFTER A CONTROLLED BUY, WHILE EMPLOYED
AS INFORMANTS, FROM THE AFFIDAVIT FOR SEARCH WARRANT
WERE MATERIAL OMISSIONS RENDERING THE APPLICATION
INSUFFICIENT TO ESTABLISH PROBABLE CAUSE.
{¶22} Appellant argues that Deputy Grabman’s affidavit for the search warrant
of the house omitted five material facts: the informants transported a large amount of
drugs to the house; Task Force officers instructed the informants not to transport drugs
for appellant; the informants were in possession of marijuana paraphernalia after the
second controlled buy; the informants had an argument with Task Force officers after the
second controlled buy; and Deputy Grabman did not explain the informants’ reliability or
the veracity of their information.
{¶23} The proper standard of review to determine whether probable cause exists
for the issuance of a search warrant is the totality of the circumstances. See State v.
Jones, 143 Ohio St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 1. The Ohio Supreme
Court has also held:
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Case No. 18 CO 0033
In reviewing the sufficiency of probable cause in an affidavit submitted in
support of a search warrant issued by a magistrate, neither a trial court nor
an appellate court should substitute its judgment for that of the magistrate
by conducting a de novo determination as to whether the affidavit contains
sufficient probable cause upon which that court would issue the search
warrant. Rather, the duty of a reviewing court is simply to ensure that the
magistrate had a substantial basis for concluding that probable cause
existed. In conducting any after-the-fact scrutiny of an affidavit submitted
in support of a search warrant, trial and appellate courts should accord great
deference to the magistrate's determination of probable cause, and doubtful
or marginal cases in this area should be resolved in favor of upholding the
warrant.
State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989) at paragraph two of the
syllabus citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 257 (1983).
{¶24} As for claims that an affidavit for a search warrant contains false
statements, the U.S. Supreme Court has held:
where the defendant makes a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit, and if the allegedly
false statement is necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the defendant's request. In
the event that at that hearing the allegation of perjury or reckless disregard
is established by the defendant by a preponderance of the evidence, and,
with the affidavit's false material set to one side, the affidavit's remaining
content is insufficient to establish probable cause, the search warrant must
be voided and the fruits of the search excluded to the same extent as if
probable cause was lacking on the face of the affidavit.
Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
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Case No. 18 CO 0033
{¶25} Omissions are false statements under Franks if they are “designed to
mislead, or * * * made in reckless disregard of whether they would mislead, the
magistrate.” (Emphasis deleted.) State v. Waddy, 63 Ohio St.3d 424, 441, 588 N.E.2d
819 (1992) quoting U.S. v. Colkley, 899 F.2d 297 (4th Cir.1990). “Reckless disregard”
under Franks means that the affiant had serious doubts of an allegation's truth. Id. citing
U.S. v. Williams, 737 F.2d 594 (7th Cir.1984).
{¶26} Thus, there are two requirements in order to successfully challenge a
warrant as containing material omissions. First, it must be shown by a preponderance of
the evidence that the omissions were made with reckless disregard for the truth (the intent
requirement). Second, had the omitted information been in the affidavit for the warrant,
the omissions would have undermined the probable cause determination (the materiality
requirement).
{¶27} Based on the motions and transcripts, appellant’s Franks motion was his
second suppression motion. As such, this assignment of error will be limited to whether
the trial court erred when it denied the second motion to suppress.
{¶28} Deputy Grabman’s March 28, 2017 affidavit in support of a search warrant
for the house begins by describing the Task Force’s controlled buy process. In essence,
Task Force officers meet with informants, search the informants, send the informants to
a target in order to purchase drugs, and then meet with the informants after the purchase
where the informants relay all necessary information.
{¶29} As it pertains to the investigation of appellant, Deputy Grabman’s affidavit
states the details of both controlled buys. The affidavit also states that appellant arranged
for the informants to meet with Hispanic males in Chicago in order for the informants to
transport drugs. But the affidavit does not state that Task Force officers instructed the
informants to not transport drugs for appellant.
{¶30} The affidavit then avers that Task Force officers discovered appellant’s
arrest warrant, the details of Task Force officers’ entrance into the house, and that they
located appellant with numerous guns in his immediate area. It then details appellant’s
criminal history, which includes numerous felonies, occurring between 1996 and 2009.
{¶31} Appellant primarily argues that Deputy Grabman’s affidavit omits
indications of the informants’ reliability and those omissions are material. He argues that
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Case No. 18 CO 0033
had the issuing judge been informed of the Task Force’s instruction to the informants not
to transport drugs, the informants transported drugs despite said instruction, the
informants’ argument with Task Force officers immediately after the second controlled
buy, and the informants were being paid 30% of all transactions they conducted, the
issuing judge would not have granted the search warrant.
{¶32} In support of this argument, appellant relies on the Fourth Circuit’s
decision in U.S. v. Lull, 824 F.3d 109 (4th Cir.2016). In Lull, a confidential informant
worked with the Wake County North Carolina Sheriff’s Office to perform a controlled buy.
Id. at 111. The informant had previously worked with police in investigations but not with
the Sheriff’s Office. Id. The informant told the Sheriff’s Office he could purchase drugs
from Lull. Id. The Sheriff’s Office arranged for the informant to purchase 3.5 grams of
cocaine from Lull for $180. Id. at 111-112.
{¶33} Shortly before the buy, investigators searched the informant and provided
him with $240 for the purchase. Id. at 112. The informant entered Lull’s house, exited
five minutes later, surrendered approximately four grams of cocaine and $40 to
investigators, and identified Lull as the seller. Id. Investigators questioned the informant
about the missing $20 and the informant claimed that he gave the $20 to Lull. Id.
{¶34} Investigators then strip searched the informant and “$20 dropped out of
his underpants.” Id. The investigators determined that the informant was unreliable,
terminated the informant’s employment, and arrested the informant for the felony of
obtaining property under false pretenses. Id.
{¶35} Investigator Welch then filed for a search warrant for Lull’s house. Id. at
112-113. Investigator Welch’s affidavit did not mention the informant’s theft, the felony
arrest, or the informant’s employment being terminated due to unreliability. Id. at 113.
The state court magistrate granted the warrant. Id. at 112-113. The search of Lull’s
house revealed drugs, firearms, body armor, and $3,600 in cash. Id. at 113.
{¶36} Lull moved to suppress evidence of the search on the basis that
Investigator Welch’s affidavit contained material omissions. Id. The district court denied
the motion holding that Investigator Welch’s omission did not rise to the level of reckless
disregard because the omitted acts occurred after the controlled buy and Investigator
Welch believed that it had no impact on the purchase of narcotics. Id. at 114-116.
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Case No. 18 CO 0033
{¶37} In a split decision, the Fourth Circuit reversed the district court’s judgment
on Lull’s suppression motion. With regard to the intent requirement, the Fourth Circuit
held that Investigator Welch at least recklessly disregarded the truth when he omitted the
information about the informant’s theft and subsequent arrest. Id. at 116-117. The Fourth
Circuit cited four factors as to why Investigator Welch acted with reckless disregard: (1)
the decisiveness with which the Sheriff's Office acted in discharging and arresting the
informant; (2) Investigator Welch's knowledge of the consequences of the informant's
crime; (3) the temporal proximity of the arrest to the decision to omit information from the
affidavit; and (4) the obvious impact of the informant's misconduct on any assessment of
his reliability. Id. at 116.
{¶38} With regard to the materiality requirement, the Fourth Circuit noted that
much of the information contained in Investigator Welch’s affidavit came from the
informant. Id. at 118. The Fourth Circuit held that the omissions rendered the magistrate
unable to make a determination on the informant’s reliability and the veracity of the
informant’s statements. Id. This conclusion was bolstered by the fact that the Sheriff’s
Office determined the informant was unreliable. Id. The Fourth Circuit then concluded
that, when the information provided by the informant was removed from Investigator
Welch’s affidavit, there was insufficient evidence to give rise to probable cause for the
search warrant. Id. at 118-119.
{¶39} Lull is distinguishable. The reason the informant in Lull was determined
unreliable by investigators was because the informant stole from the investigators and
was subsequently charged with a felony. In this case, there is no indication that Task
Force officers terminated the informants’ employment or charged the informants with any
crime for transporting marijuana. There is no indication that Task Force officers believed
the informants were unreliable. Deputy Grabman only testified that the informants
transporting marijuana was “concerning.” (Supp. II Tr. 47). Task Force officers in this
case also conducted the first controlled buy without issues. Overall, the omissions in this
case do not rise to the level in Lull. The omissions were not designed to mislead nor were
they made in reckless disregard of whether they would mislead the issuing judge.
Therefore, the intent requirement is not met.
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Case No. 18 CO 0033
{¶40} Moreover, the materiality requirement is not met. The reason the
materiality requirement was met in Lull was because the informant stole from the
investigators. No such act happened in this case. Additionally, there was sufficient
evidence in Deputy Grabman’s affidavit to establish probable cause for the search
warrant, including: the results of the first controlled buy, the results of the second
controlled buy, and Task Force officers executing the arrest warrant and finding appellant
in the house with numerous guns in his immediate vicinity. Finding that neither of the
Franks requirements were met, the trial court’s judgment denying appellant’s second
motion to suppress was proper.
{¶41} Accordingly, appellant’s first assignment of error is without merit and is
overruled.
{¶42} Appellant’s second assignment of error states:
THE TASK FORCE OFFICERS REMAINING IN THE RESIDENCE
AFTER THE ARREST AND REMOVAL OF THE DEFENDANT IN ORDER
TO PRESERVE ANY POSSIBLE EVIDENCE OF OTHER CRIMES WAS
IN DIRECT VIOLATION OF DEFENDANT’S RIGHT TO BE FREE FROM
UNWARRANTED SEARCHES AND SEIZURES AS GUARANTEED BY
THE U.S. CONST. AMEND. IV AND OHIO CONST. ART. I § 14.
{¶43} Appellant argues that Task Force officers only applied for a search warrant
of his home after they entered the house, arrested him, and secured the house. He
argues that because the search warrant was applied for after the house was secured, his
right against unreasonable searches and seizures was violated.
{¶44} This assignment of error challenges the trial court’s judgment denying his
first and third motions to suppress. As such, this assignment of error will be limited to the
trial court’s judgment on these two motions.
{¶45} Our standard of review with respect to a motion to suppress is first limited
to determining whether the trial court's findings are supported by competent, credible
evidence. State v. Winand, 116 Ohio App.3d 286, 288, 688 N.E.2d 9 (7th Dist.1996),
citing Tallmadge v. McCoy, 96 Ohio App.3d 604, 608, 645 N.E.2d 802 (9th Dist.1994).
Such a standard of review is appropriate as, “[i]n a hearing on a motion to suppress
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Case No. 18 CO 0033
evidence, the trial court assumes the role of trier of fact and is in the best position to
resolve questions of fact and evaluate the credibility of witnesses.” State v. Venham, 96
Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). An appellate court accepts the
trial court's factual findings and relies upon the trial court's ability to assess the witness's
credibility, but independently determines, without deference to the trial court, whether the
trial court applied the appropriate legal standard. State v. Rice, 129 Ohio App.3d 91, 94,
717 N.E.2d 351 (7th Dist.1998). A trial court's decision on a motion to suppress will not
be disturbed when it is supported by substantial credible evidence. Id.
{¶46} Appellant does not dispute the relevant facts in this case, which have been
previously set forth. Because appellant does not dispute the relevant facts and they are
supported by competent and credible evidence from the record, we accept them as true.
{¶47} The issue appellant raises is that six or seven officers remained in the
house after he was arrested and during Deputy Grabman’s application for the warrant.
He argues that because Task Force officers were still in the house while Deputy Grabman
filed for the search warrant, the warrant constituted a retroactive search warrant.
{¶48} Appellant predominantly relies on, and compares this case to, U.S. v.
Allard, 634 F.2d 1182 (9th Cir.1980). In Allard, federal agents illegally entered two hotel
rooms. Id. at 1182. Once the agents were in the rooms and detained the occupants, they
contacted the U.S. Attorney’s Office in order to obtain a search warrant for the rooms. Id.
at 1184. The U.S. Attorney’s application for the warrant did not disclose that agents were
currently in the hotel rooms or disclose any evidence agents observed while in the hotel
rooms. Id. After approximately two hours, a search warrant was issued and agents
searched the rooms. Id. Allard filed a motion to suppress evidence obtained from the
searches, but the district court denied the motion holding that the search warrant was not
obtained as a result of anything agents witnessed upon entering the hotel rooms and any
taint to the evidence obtained was de minimis. Id.
{¶49} The Ninth Circuit reversed holding that the agents’ continued presence in
the hotel rooms for purposes of securing the rooms constituted an unreasonable
warrantless seizure under the Fourth Amendment. Id. at 1187.
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Case No. 18 CO 0033
{¶50} Allard is distinguishable. In Allard, federal agents illegally entered the
hotel rooms. In this case, Task Force officers legally entered the house to execute a
validly issued arrest warrant for appellant.
{¶51} The state cites the U.S. Supreme Court’s ruling in Segura v. U.S., 468
U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). Segura held there is no Fourth
Amendment violation when officers enter a premises with probable cause, arrest the
occupants with a legitimate possessory interest in the premises and its contents, and
secure the premises from within to preserve the status quo while others, in good faith, are
in the process of obtaining a warrant. Id. at 798.
{¶52} Appellant argues that Segura is factually distinguishable because in
Segura, after law enforcement arrested all suspects, no one with a possessory interest in
the home was present while law enforcement sought a search warrant. He argues that,
in this case, two people with a possessory interest in the house were secured in the house
by Task Force officers while Deputy Grabman applied for the search warrant.
{¶53} This is insufficient to distinguish Segura. Appellant resided in the house
and, therefore, he had a possessory interest in the house. The fact that other people also
had a possessory interest in the house does not negate appellant’s possessory interest
in the house and the probable cause Task Force officers had to secure a search warrant
based on their investigation into appellant. Task Force officers legally entered the house
to execute appellant’s arrest warrant. Task Force officers arrested appellant, escorted
him out of the house, and secured the house to preserve the status quo while Deputy
Grabman applied for a search warrant. Based on the above, the trial court’s denial of
appellant’s first and third suppression motions was proper.
{¶54} Accordingly, appellant’s second assignment of error is without merit and
is overruled.
{¶55} Appellant’s third assignment of error states:
THE TRIAL COURT’S FAILURE TO MERGE THE CONVICTIONS
ON COUNTS II, III AND IV FOR THE PURPOSES OF SENTENCING
PURSUANT TO R.C. §2941.25, OHIO’S ALLIED OFFENSES STATUTE
WAS ERROR.
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Case No. 18 CO 0033
{¶56} Appellant argues that the trial court sentenced him to consecutive prison
sentences for allied offenses of similar import in two ways. First, he argues his three drug
possession convictions are allied offenses of similar import. Second, he argues his
possession of heroin and trafficking of heroin convictions are allied offenses of similar
import.
{¶57} Pursuant to the allied offenses of similar import statute, “[w]here 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.” R.C. 2941.25(A). But if the conduct constitutes
two or more offenses that are of dissimilar import, the conduct results in two or more
offenses committed separately, or if there is separate animus as to each offense, the
indictment may contain counts for all such offenses and the defendant may be convicted
of all of them. R.C. 2941.25(B).
{¶58} Offenses are of dissimilar import pursuant to R.C. 2941.25(B) if “the
defendant's conduct constitutes offenses involving separate victims or if the harm that
results from each offense is separate and identifiable.” State v. Ruff, 143 Ohio St.3d 114,
2015-Ohio-995, 34 N.E.3d 892, ¶ 26. The allied offenses analysis is dependent upon the
facts of each case because R.C. 2941.25 focuses on the defendant’s conduct. Id.
{¶59} Beginning with appellant’s three drug possession convictions, he argues
that under Ruff, these convictions are allied offenses of similar import because: they all
involved possessing drugs which requires the same intent, the victim in all of the
convictions was society in general, the harm for each individual drug is arguably
equivocal, and the offenses were committed at the same time.
{¶60} In response, the state cites this court’s decision in State v. Hunt, 7th Dist.
Jefferson No. 17 JE 0012, 2018-Ohio-815. In Hunt, this court held that because the
legislature classified and penalized possession of cocaine and possession of heroin
differently, it would “defeat the legislature's intent to merge the drug possession offenses
into a single offense for purposes of sentencing.” Id. at ¶ 17 quoting State v. Hughes, 5th
Dist. Coshocton No. 15CA0008, 2016-Ohio-880.
{¶61} Other courts have held similarly to our decision in Hunt. State v. Johnson,
6th Dist. Ottawa No. OT-13-022, 2014-Ohio-1558; State v. Williams, 4th Dist. Scioto No.
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Case No. 18 CO 0033
11CA3408, 2012-Ohio-4693; State v. Helmick, 9th Dist. Summit No. 27179, 2014-Ohio4187. Based on authority from this court and other appellate districts, appellant’s drug
possession convictions are based on separate drugs and are, therefore, of dissimilar
import.
{¶62} As for appellant’s argument that his convictions for possession of heroin
and trafficking of heroin should have merged, the Ohio Supreme Court has previously
held that drug possession pursuant to R.C. 2925.11(A) and drug trafficking pursuant to
R.C. 2925.03(A)(1) are not allied offenses of similar import. State v. Cabrales, 118 Ohio
St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 29. Therefore, these convictions are also
of dissimilar import. Based on the above, the trial court did not sentence appellant to
consecutive sentences for allied offenses of similar import.
{¶63} Accordingly, appellant’s third assignment of error is without merit and is
overruled.
{¶64} Appellant’s fourth assignment of error states:
THE COURT ERRED BY IMPOSING CONSECUTIVE PRISON
SENTENCES TOTALING THIRTY-ONE (31) YEARS CONTRARY TO
LAW AND THE CONSTITUTIONAL PROHIBITIONS AGAINST CRUEL
AND UNUSUAL PUNISHMENT.
{¶65} Appellant argues that the imposition a 31-year sentence when he was 40
years old at the time of sentencing is tantamount to a life sentence and is, therefore, a
violation of his right to be free from cruel and unusual punishment.
{¶66} The Eighth Amendment to the Constitution of the United States and
Section 9, Article I of the Ohio Constitution provides that “[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In
State v. Weitbrecht, 86 Ohio St.3d 368, 715 N.E.2d 167 (1999), the Ohio Supreme Court
observed:
Historically, the Eighth Amendment has been invoked in extremely rare
cases, where it has been necessary to protect individuals from inhumane
punishment such as torture or other barbarous acts. Over the years, it has
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Case No. 18 CO 0033
also been used to prohibit punishments that were found to be
disproportionate to the crimes committed. In McDougle v. Maxwell, 1 Ohio
St.2d 68, 30 O.O.2d 38, 203 N.E.2d 334 (1964), this court stressed that
Eighth Amendment violations are rare. We stated that “[c]ases in which
cruel and unusual punishments have been found are limited to those
involving sanctions which under the circumstances would be considered
shocking to any reasonable person.” Furthermore, “the penalty must be so
greatly disproportionate to the offense as to shock the sense of justice of the
community.”
Id. at 370-371 (internal citations omitted).
{¶67} In order to determine whether the sentence imposed is disproportionate to
the offense committed, a tripartite analysis is employed. “First, we look to the gravity of
the offense and the harshness of the penalty * * *. Second, it may be helpful to compare
the sentences imposed on other criminals in the same jurisdiction. If more serious crimes
are subject to the same penalty, or to less serious penalties, that is some indication that
the punishment at issue may be excessive. * * * Third, courts may find it useful to compare
the sentences imposed for commission of the same crime in other jurisdictions.” Id.
quoting Solem v. Helm, 463 U.S. 277, 290-291, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).
{¶68} Appellant concedes that he was convicted of serious crimes deserving of a
proportionate sentence. But he argues that his 31-year sentence, the maximum sentence
he could have received, should shock the conscience of the community.
{¶69} Appellant does not cite any case law to support his argument that his
sentence is so disproportionate to be shocking to a reasonable person or shocks the
sense of justice to the community. Appellant also does not cite any case law from this
district or other jurisdictions which indicate that his sentence is excessive. Appellant pled
no contest to serious crimes including possessing large quantities of various drugs and
trafficking those same drugs. In addition to the large quantities of various drugs, appellant
is a felon who was in possession of firearms. Because of the severity of the crimes
appellant was convicted of, it cannot be said that his sentence is disproportionate to his
offenses.
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Case No. 18 CO 0033
{¶70} As for appellant’s sentence itself, the applicable third-degree felony
sentencing statute for appellant’s convictions is R.C. 2929.14(A)(3)(b). Pursuant to this
statute, third-degree felonies are punishable by up to 36 months. The applicable firstdegree felony sentencing statute for appellant’s convictions is R.C. 2929.14(A)(1)(b).
Pursuant to this statute, first-degree felonies are punishable by up to 11 years. Thus,
appellant’s sentence on each individual count falls within statutory mandates.
{¶71} As for consecutive sentences, R.C. 2929.14(C)(4) requires a trial court to
make specific findings when imposing consecutive sentences:
(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 from 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 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, or 2929.18 of the Revised Code, or was under post-release
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.
{¶72} It has been held that although the trial court is not required to recite the
statute verbatim or utter “magic” or “talismanic” words, there must be an indication that
the court found (1) that consecutive sentences are necessary to protect the public from
future crime or to punish the offender, (2) that consecutive sentences are not
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Case No. 18 CO 0033
disproportionate to the seriousness of the offender's conduct and to the danger posed to
the public, and (3) one of the findings described in R.C. 2929.14(C)(4)(a), (b), or (c). State
v. Bellard, 7th Dist. Mahoning No. 12-MA-97, 2013-Ohio-2956, ¶ 17. However, the court
need not give its reasons for making those findings. State v. Power, 7th Dist. Columbiana
No. 12 CO 14, 2013-Ohio-4254, ¶ 38.
{¶73} The Ohio Supreme Court has held that the trial court must make its findings
at the sentencing hearing and not simply in the sentencing judgment entry:
In order to impose consecutive terms of imprisonment, a trial court is required to
make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. The
court stressed the importance of making the findings at the sentencing hearing, noting
this gives notice to the offender and to defense counsel. Id. at ¶ 29. The trial court should
also incorporate its statutory findings into the sentencing entry. Id. at ¶ 30.
{¶74} The transcript of the sentencing hearing must make it “clear from the record
that the trial court engaged in the appropriate analysis.” State v. Hill, 7th Dist. Carroll No.
13 CA 82, 2014-Ohio-1965, ¶ 27.
{¶75} At sentencing, the trial court found that “consecutive sentences are
necessary to protect the public from future crime, to punish the offender, that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to
the danger he poses to the public.” (Sent. Tr. 62). The trial court also found that at least
two of appellant’s offenses were committed as part of one or more courses of conduct
and the harm was so great or unusual that no single prison term adequately reflected the
seriousness of appellant’s conduct. These findings are also reflected in the trial court’s
October 15, 2018 judgment entry. Thus, the trial court made the appropriate consecutive
sentence findings.
{¶76} In conclusion, appellant’s sentence is not cruel or usual and his sentence
complies with all other statutory requirements.
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{¶77} Accordingly, appellant’s fourth assignment of error is without merit and is
overruled.
Outcome: For the reasons stated above, the trial court’s judgment is hereby affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: