[Cite as State v. Vannatta, 2011-Ohio-5074.]
IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 10CA34
vs. : T.C. CASE NO. 10CR137
CODY S. VANNATTA : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
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 trafficking in marijuana, assault and riot.
{¶ 2} Defendant entered pleas of guilty pursuant to a
negotiated plea agreement to two fifth-degree felony trafficking
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in marijuana offenses in violation of R.C. 2925.03(A)(1), two
fourth degree felony trafficking in marijuana offenses (schoolyard
enhancement) in violation of R.C. 2925.03(A)(1), and two first
degree misdemeanor offenses, assault in violation of R.C.
2903.13(A) and riot in violation of R.C. 2917.03(A)(1). The trial
court sentenced Defendant to consecutive prison terms of eleven
months on each of the fifth degree felony drug offenses and
seventeen months on each of the fourth degree felony drug offenses.
The court also sentenced Defendant to six months on each of the
first degree misdemeanor offenses, concurrent to each other and
the felony sentences, for an aggregate sentence of fifty-six
months.
{¶ 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 offender,
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,
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2009-Ohio-3511, at ¶36-37, we wrote:
{¶ 7} “The trial court has full discretion to impose any
sentence within the authorized statutory range, and the court is
not 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 and 2929.12. State v. Mathis, 109 Ohio St.3d 54, 846
11 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 sentence,
including R.C. 2929.11 and 2929.12, 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, R.C. 2929.11,
Defendant’s criminal history, the nature of the current criminal
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conduct, and information provided by defense counsel regarding
Defendant’s attendance at AA meetings and G.E.D. classes. The
court also heard oral statements by counsel and Defendant. The
court informed Defendant about post release control requirements.
The court did not, however, specifically mention that it had
considered the seriousness and recidivism factors in R.C. 2929.12.
{¶ 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 purposes of sentencing in R.C. 2929.11 or the
seriousness and recidivism factors in R.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
court 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,
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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). Therefore, 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 purposes and principles of felony
sentencing. We presume the trial court gave proper consideration
to the seriousness and recidivism factors in R.C. 2929.12. Kalish;
Miller. The eleven month sentence the trial court imposed on
each fifth degree felony drug offense, and the seventeen month
sentence the court imposed on each fourth degree felony drug
offense, which the court ordered to be served consecutively, are
within the authorized range of available punishments for felonies
of the fourth and fifth degree. R.C. 2929.14(A)(4) and (5).
Accordingly, we have no basis to conclude that Defendant’s sentence
is contrary to law.
{¶ 13} As for the severity of Defendant’s sentence, the
fifty-six month aggregate sentence the trial court imposed, while
stringent, is supported by this record. The overriding purposes
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of felony sentencing are to protect the public from future crime
by the offender and to punish the offender. R.C. 2929.11(A).
The trial court has discretion to determine the most effective
way to comply with the purposes and principles of sentencing.
R.C. 2929.12(A). The record indicates that after having been
indicted for five drug offenses and being released on bond,
Defendant committed the assault and riot offenses. At sentencing,
Defendant refused to reveal the name of his drug supplier.
Defendant has a record of criminal conduct, including juvenile
delinquency. Those matters demonstrate a pattern of recidivism
and a need to protect the public. We see no abuse of discretion
in the sentences the court imposed.
{¶ 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 offense 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 crimes 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
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{¶ 16} “IT WAS A VIOLATION OF DEFENDANT’S U.S. AND OHIO
CONSTITUTIONAL RIGHTS AGAINST DOUBLE JEOPARDY THAT COUNTS TWO,
THREE AND FIVE DID NOT MERGE PRIOR TO SENTENCING.”
{¶ 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.
R.C. 2941.25(A).
{¶ 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 error. 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.”
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{¶ 20} Counts Two, Three and Five all charge Defendant with
trafficking in marijuana in violation of R.C. 2925.03(A)(1) in
that he did knowingly sell or offer to sell a controlled substance,
marijuana. Counts Two and Three specify that the offense was
committed in the vicinity of a school or juvenile. R.C.
2925.03(C)(3)(b). That makes the offense a felony of the fourth
degree.
{¶ 21} The Double Jeopardy Clause of the United States
Constitution, which applies to the States through the Fourteenth
Amendment 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 R.C.
2941.25, Ohio’s multiple count statute, resolves both the
constitutional and state statutory inquiries regarding the General
Assembly’s intent to permit cumulative punishments for the same
conduct. Id., at ¶12. However, it is not necessary to resort
to that test when the legislature’s intent to impose multiple
punishments is clear from the language of the statute. Id., at
¶37.
{¶ 22} Ohio’s multiple counts statue, R.C. 2941.25, provides:
{¶ 23} “(A) Where the same conduct by defendant can be construed
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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.
{¶ 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
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.”
{¶ 25} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314,
the Ohio Supreme Court announced a new test for determining when
offenses are allied offenses of similar import that must be merged
pursuant to R.C. 2941.25. Johnson overruled the previous test
announced in State v. Rance (1999), 85 Ohio St.3d 632, and held:
“When determining whether two offenses are allied offenses of
similar import subject to merger under R.C. 2941.25, the conduct
of the accused must be considered.” Id. at syllabus. The Supreme
Court explained its holding at ¶47-51, stating:
{¶ 26} “Under R.C. 2941.25, the court must determine prior to
sentencing whether the offenses were committed by the same conduct.
Thus, the court need not perform any hypothetical or abstract
comparison of the offenses at issue in order to conclude that the
offenses are subject to merger.
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{¶ 27} “In determining whether offenses are allied offenses
of similar import under R.C. 2941.25(A), the question is whether
it is possible to commit one offense and commit the other with
the same conduct, not whether it is possible to commit one without
committing the other. Blankenship, 38 Ohio St.3d at 119, 526
N.E.2d 816 (Whiteside, J., concurring) (‘It is not necessary that
both crimes are always committed by the same conduct but, rather,
it is sufficient if both offenses can be committed by the same
conduct. It is a matter of possibility, rather than certainty,
that the same conduct will constitute commission of both offenses.’
[Emphasis sic]). If the offenses correspond to such a degree that
the conduct of the defendant constituting commission of one offense
constitutes commission of the other, then the offenses are of
similar import.
{¶ 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,
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or if the offenses are committed separately, or if the defendant
has separate animus for each offense, then, according to R.C.
2941.25(B), the offenses will not merge.”
{¶ 31} Defendant was convicted of three counts of the same
offense, trafficking in marijuana in violation of R.C.
2925.03(A)(1). Being the very same criminal offense, they can
be committed with the same conduct and are allied offenses of
similar import per R.C. 2941.25(A). The further issue is whether
the exception to merger in R.C. 2941.25(B) applies.
{¶ 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?
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{¶ 38} “DEFENDANT VANNATTA: Yes, sir.” (T. 10).
{¶ 39} Defendant’s admission that there were “four different
times” when he sold marijuana demonstrates that the four drug
offenses were committed separately. Merger is not required. R.C.
2941.25(B).
{¶ 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