[Cite as State v. Cruz, 2012-Ohio-1943.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96999
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LETICIA CRUZ
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; VACATED IN PART AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-543686
BEFORE: Kilbane, J., Sweeney, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: May 3, 2012
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Chief Public Defender
Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Carl Sullivan
Daniel South
Assistant County Prosecutors
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Leticia Cruz (“Cruz”), appeals her sentence. Finding
merit to the appeal, we vacate her sentence in part and remand for a resentencing hearing.
{¶2} In November 2010, Cruz was charged in a 19-count indictment. Counts 1-6
charged her with drug trafficking. Counts 7-12 charged her with drug possession.
Counts 13-18 charged her with deception to obtain a dangerous drug. Count 19 charged
her with possessing criminal tools.1
{¶3} The charges arise from six prescription slips for oxycotin filled between
September 2009 and November 2009. Cruz worked as a medical assistant at Westshore
Family Practice, where she fraudulently wrote and filled these prescription slips each for
120 pills of 80 milligram oxycotin. In May 2011, the matter proceeded to a bench trial,
at which Cruz was found guilty of all charges.
{¶4} In June 2011, the trial court held a sentencing hearing. For purposes of
sentencing, the trial court merged Count 7 into Count 1, Count 8 into Count 2, Count 9
into Count 3, Count 10 into Count 4, Count 11 into Count 5 and Count 12 into Count 6.
The trial court then sentenced Cruz to a mandatory three years in prison on each of
Counts 1, 2, 3, 4, 5, and 6 to be served concurrently with each other, and a mandatory
1Each count carried a forfeiture of a cell phone and a forfeiture of money
specification.
three years in prison on each of Counts 13, 14, 15, 16, 17, and 18 to be served
concurrently with each other, but consecutive to Counts 1-6. The trial court also
sentenced Cruz to six months in prison on Count 19, to be served concurrently with the
other counts, for a total of a mandatory six years in prison.
{¶5} Cruz now appeals, raising the following three assignments of error for
review.
ASSIGNMENT OF ERROR ONE
The trial court violated [Cruz’s] right to due process by imposing a
mandatory prison term where prison is only presumptive under R.C.
2925.22.
ASSIGNMENT OF ERROR TWO
The trial court erred at sentencing by failing to merge the counts under R.C.
2925.22 in the trafficking counts.
ASSIGNMENT OF ERROR THREE
Trial counsel was ineffective for failing to raise the allied offenses issue or
challenge the mandatory sentence imposed on the R.C. 2925.22 counts.
Standard of Review
{¶6} The Ohio Supreme Court, in a split decision, has set forth the applicable
standard of appellate review of a felony sentence in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, ¶ 4:
In applying [State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470,] to the existing statutes, appellate courts must apply a two-step
approach. First, they must examine the sentencing court’s compliance with
all applicable rules and statutes in imposing the sentence to determine
whether the sentence is clearly and convincingly contrary to law. If this
first prong is satisfied, the trial court’s decision shall be reviewed under an
abuse-of-discretion standard.
Presumption of Prison Term
{¶7} In the first assignment of error, Cruz argues that her sentence for the
deception to obtain dangerous drugs counts is contrary to law. The State, on the other
hand, claims that “[t]here may have been an error of law by the court with respect to
mandatory versus a presumptive prison sentence but there is nothing in the record to
suggest that the trial court’s decision was unreasonable, arbitrary, or unconscionable.”
We find Cruz’s argument more persuasive.
{¶8} At the sentencing hearing, the State advised the trial court that mandatory
prison time was required for any sentence imposed on the deception counts. The court
then stated, “[s]o sentencing Ms. Cruz today means she has to be sentenced to 12
different counts in Counts 1 through 6 and 13 through 18, to a second degree felony
mandatory prison sentence — [.]” The State replied, “[c]orrect.” The corresponding
sentencing journal entry states a “mandatory 3 years on each of Counts 13, 14, 15, 16, 17,
and 18. * * * Net mandatory 6 year sentence.” (Emphasis added.)
{¶9} R.C. 2925.22(B)(2)(c), however, provides that:
If the amount of the drug involved equals or exceeds five times the bulk
amount but is less than fifty times the bulk amount, or if the amount of the
drug involved that could be obtained pursuant to the prescription would
equal or exceed five times the bulk amount but would be less than fifty
times the bulk amount, it is a felony of the second degree, and there is a
presumption for a prison term for the offense. (Emphasis added.)
{¶10} With a presumption, the trial court is not required to impose a mandated
prison term. The trial court retains discretion to sentence the offender as it deems
warranted in accordance with the applicable law. On the other hand, with a mandatory
prison term, the trial court is required to sentence the offender as the applicable law
mandates. While Cruz’s sentence was within the applicable statutory range, the trial
court erred when it sentenced Cruz specifically to a mandatory three years in prison on
the deceptions counts. A mandatory sentence carries additional ramifications regarding
an offender’s prison time. With a mandatory sentence, the offender is not eligible for
community control sanctions or judicial release. As a result, Cruz’s sentence with
respect to the deception counts is contrary to law.
{¶11} Therefore, Cruz’s sentence on Counts 13, 14, 15, 16, 17, and 18 is vacated,
and the matter is remanded for a resentencing hearing on these counts.
{¶12} Accordingly, the first assignment of error is sustained.
Merger of Allied Offenses
{¶13} In the second assignment of error, Cruz argues the trial court erred by failing
to merge the deception counts (Counts 13, 14, 15, 16, 17, and 18 ) with the drug
trafficking counts (Counts 1, 2, 3, 4, 5, and 6).
{¶14} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,
the Ohio Supreme Court redefined the test for determining whether two offenses are
allied offenses of similar import subject to merger under R.C. 2941.25.2 The Johnson
court expressly overruled State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999),
which required a “comparison of the statutory elements in the abstract” to determine
whether the statutory elements of the crimes correspond to such a degree that the
commission of one crime will result in the commission of the other.
{¶15} The Johnson court held that rather than compare the elements of the crimes
in the abstract, courts must consider the defendant’s conduct. Id. at syllabus. The court
found:
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. * * *
If 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.” [State v.] Brown,
2R.C. 2941.25 governs allied offenses and provides:
(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.
119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50, (Lanzinger,
J., dissenting).
If the answer to both questions is yes, then the offenses are allied offenses
of similar import and will be merged.
Conversely, if the court determines that the commission of one offense will
never result in the commission of the other, 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. Id. at ¶ 48-50.
{¶16} While the trial court in the instant case merged the drug possession counts
into the drug trafficking counts, a review of the record reveals that there was no
discussion regarding the merger of the deception counts with the drug trafficking counts
at the sentencing hearing. We note the Ohio Supreme Court has found that the failure to
merge allied offenses of similar import constitutes plain error. 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. Under Crim.R. 52(B), “[p]lain errors or
defects affecting substantial rights may be noticed although they were not brought to the
attention of the court.”
{¶17} Drug trafficking is defined in R.C. 2925.03(A)(2) as follows:
No person shall knowingly * * * [p]repare for shipment, ship,
transport, deliver, prepare for distribution, or distribute a controlled
substance, when the offender knows or has reasonable cause to believe that
the controlled substance is intended for sale or resale by the offender or
another person.
{¶18} Deception to obtain a dangerous drug is defined in R.C. 2925.22(A) as
follows:
[n]o person, by deception, shall procure the administration of, a prescription
for, or the dispensing of, a dangerous drug or shall possess an uncompleted
preprinted prescription blank used for writing a prescription for a dangerous
drug.
{¶19} In analyzing these two offenses under Johnson, we find that they cannot be
committed by the same conduct. The deception convictions resulted from Cruz’s
conduct of completing unauthorized prescriptions for oxycotin and filling them at a
pharmacy. Whereas, the trafficking convictions resulted from Cruz’s conduct of then
selling the oxycotin pills to others or giving them to her boyfriend.
{¶20} Thus, the second assignment of error is overruled.
Ineffective Assistance of Counsel
{¶21} In the third assignment of error, Cruz argues that defense counsel was
ineffective for failing to request that the deception and trafficking counts be merged and
for failing to challenge the mandatory sentence imposed by the trial court.
{¶22} However, in light of our resolution of the first and second assignments of
error, we need not address Cruz’s third assignment of error. See App.R. 12(A)(1)(c).
{¶23} Accordingly, judgment is affirmed in part and vacated in part. Cruz’s
sentence on Counts 13, 14, 15, 16, 17, and 18 is vacated, and the matter is remanded for a
sentencing hearing.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
JAMES J. SWEENEY, P.J., and
KENNETH A. ROCCO, J., CONCUR