State v. Cunningham

[Cite as State v. Cunningham, 2020-Ohio-3586.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
Nos. 106109 and 108721
v. :

SELVIN R. CUNNINGHAM, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 2, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-614808-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Callista Plemel and Katherine E. Mullin,
Assistant Prosecuting Attorneys, for appellee.

Paul W. Flowers Co., L.P.A., and Louis E. Grube; Rachel A.
Kopec, for appellant.

MICHELLE J. SHEEHAN, J.:

In this reopened appeal pursuant to App.R. 26(B), Selvin Cunningham

appeals his conviction of a second-degree felony of corrupting another with drugs.

He contends that his second-degree felony conviction should be reduced to a fourth-
degree felony because the verdict form returned by the jury was defective pursuant

to R.C. 2945.75.

While his application to reopen State v. Cunningham, 8th Dist.

Cuyahoga No. 106109, 2018-Ohio-4022 (“Cunningham I”), was pending before this

court, Cunningham filed a “Motion [for] Revised/Corrective Judgment” at the trial

court. The trial court held a limited hearing on the motion and imposed a

mandatory fine for his second-degree felony. He filed an appeal from that judgment

in State v. Cunningham, 8th Dist. Cuyahoga No. 108721, which we consolidated

with the reopened appeal for disposition.

Background

On June 15, 2017, Cunningham was indicted with corrupting another

with drugs (Count 1) and promoting prostitution (Count 2). The facts leading to his

indictment was summarized by this court in his direct appeal as follows:

On February 23, 2017, Officer Stephen Krebs (“Krebs”) was
conducting surveillance on a Super 8 motel in Westlake, Ohio as part
of his duties as a patrolman for the Westlake Police Department.
Krebs learned that room 205 was rented and had been paid for in cash.
He also observed that the vehicle associated with room 205 was not
associated with the renter of the room. This led Krebs to continue
monitoring room 205.

When Krebs observed the vehicle associated with the room exit
the motel’s parking lot, he proceeded to follow the vehicle. Upon
observing a traffic violation, Krebs conducted a traffic stop. During
the stop, Krebs discovered that Cunningham, the driver of the vehicle,
was driving under a suspended license. Krebs also noticed a strong
odor of marijuana coming from the vehicle. Krebs detained
Cunningham and conducted a search of Cunningham and an
inventory search of the vehicle, which produced a Super 8 room key.
 Krebs transported Cunningham back to the motel, where
officers observed Demetrius Brown (“Brown”) leaving room 205.
Officers questioned Brown, who stated that he had been alone in the
motel room. Krebs noticed that the door to room 205 was ajar and
proceeded to knock on the door. A woman later identified as J.M.
answered the door and provided Krebs with a false name. Krebs
testified that the room was in disarray and something he suspected to
be heroin was in plain sight on a table inside the room. Krebs testified
that he believed that J.M. was a heroin user based on her appearance
and demeanor. The officers proceeded to collect evidence from the
room, including the suspected heroin from the table and other
apparent drug paraphernalia located in J.M.’s purse. During a
subsequent interview, J.M. told police that she had been working as a
prostitute, primarily finding clients through ads posted on
Backpage.com.

Cunningham I at ¶ 2-4 (Stewart, J., concurring in part and dissenting in part).

After trial, the jury found Cunningham guilty on both counts. The trial

court sentenced him to four years for corrupting another with drugs, a second-

degree felony, and one year for promoting prostitution, a fourth-degree felony, to

run concurrently to each other.

Cunningham appealed his convictions, claiming his convictions were

not supported by sufficient evidence and were against the manifest weight of the

evidence. A majority of the panel affirmed his convictions.1

We divide this consolidated opinion into two parts: the first part

relates to the reopened appeal on the jury verdict form issue (Appeal No. 106109)

1 The dissent disagreed with the majority’s determination that the state presented
sufficient evidence of corrupting another with drugs as charged in the indictment, finding
there was an absence of evidence showing Cunningham provided the victim heroin with
the purpose of causing her serious physical harm or with the purpose to cause her to
become drug dependent.
and the second part relates to his appeal from the trial court’s judgment imposing a

mandatory fine after the resentencing hearing (Appeal No. 108721).

I. Reopened Appeal (Appeal No. 106109)

On December 28, 2018, Cunningham filed an application to reopen his

appeal pursuant to App.R. 26(B). He claimed his appellate counsel failed to raise

three additional errors for our review: the trial court erred in not finding his offenses

of corrupting another with drugs and promoting prostitution to be allied offenses;

the jury verdict forms for his convictions were defective in failing to state the degree

of the offenses and also failed to state the additional element or elements of the

charged offenses; and the trial court erred in failing to inform him of the required

registration requirements as to his Tier I sexual offender status.

This court rejected his assertion of ineffective assistance of appellate

counsel regarding the allied offenses claim and the sex offender registration

requirement issue. However, upon a review of the jury verdict form associated with

Count 1, corrupting another with drugs, we found there exists a question as to

whether the jury verdict form complied with R.C. 2945.75(A)(2) in light of State v.

Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, and State v.

McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374.2

2 With regard to Count 2, promoting prostitution, this court found no prejudice
existed because the trial court imposed a sentence based upon the least degree of the
charged offense — a felony of the fourth degree.
 Consequently, we granted Cunningham’s application to reopen in

order to address whether Cunningham was prejudiced by the failure of appellate

counsel to argue that the jury verdict form associated with conviction of corrupting

another with drugs (Count 1) failed to comply with R.C. 2945.75(A)(2). State v.

Cunningham, 8th Dist. Cuyahoga No. 106109, 2019-Ohio-3269 (“Cunningham II”).

We assigned counsel to represent Cunningham in the reopened appeal and ordered

the parties to brief the issue.

Cunningham presents the following assignment of error in the

reopened appeal for our review:

Counsel provided constitutionally ineffective assistance and thereby
prejudiced the defendant by failing to raise as an assignment of error
that the trial court imposed a conviction of a higher degree and a
prison term far greater than was permitted pursuant to R.C. 2945.75
for the degree of felony authorized by the jury’s verdict forms.

Cunningham claims that the jury verdict form for his conviction of

corrupting another with drugs did not comply with R.C. 2945.75(A)(2), which

requires that a guilty verdict must state the degree of the offense or the additional

element that makes an offense a more serious degree. R.C. 2945.75 states:

(A) the presence of one or more additional elements makes an offense
one of more serious degree:

(1) The affidavit, complaint, indictment, or information either shall
state the degree of the offense which the accused is alleged to have
committed, or shall allege such additional element or elements.
Otherwise such affidavit, complaint, indictment, or information is
effective to charge only the least degree of the offense.

(2) A guilty verdict shall state either the degree of the offense of which
the offender is found guilty, or that such additional element or
 elements are present. Otherwise, a guilty verdict constitutes a finding
of guilty of the least degree of the offense charged.

(Emphasis added.)

Count 1 of the indictment (corrupting another with drugs)

alleged that Cunningham furnished “Heroin, a Schedule I drug” to another person

with the purpose to cause that individual harm or to become drug dependent. The

verdict form returned for Count 1 reads as follows:

We, the jury in this case being duly impaneled and sworn, do find the
Defendant, Selvin R. Cunningham, GUILTY of Corrupting Another
with Drugs in violation of §2925.02(A)(2) of the Ohio Revised Code,
as charged in Count One of the indictment.

The trial court’s entry regarding the verdict stated that the jury

had returned “a verdict of guilty of corrupting another with drugs 2925.02(A) F2 as

charged in Count(s) 1 of the indictment.”

Pelfrey and McDonald

R.C. 2945.75 requires that both the charging instruments, such

as a complaint or indictment, and the jury verdict form to either state the degree of

the offense or state the additional element(s) warranting a higher degree of the

offense. In Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, the

Supreme Court of Ohio applied R.C. 2945.75 to the offense of tampering with

records. The offense of tampering with records is a first-degree misdemeanor

offense but elevated to a third-degree felony if the records involved are government

records. A jury found defendant Pelfrey guilty of the offense, and he was convicted

of the offense as a third-degree felony. The verdict form signed by the jury, however,
did not state either the degree of the offense or a finding that the records involved

were government records.

Although the verdict form mentioned the indictment, which

referenced the government records, and the jury instructions addressed the

government records issue, the court applied R.C. 2945.75(A)(2) and reduced

Pelfrey’s offense of tampering with evidence to a first-degree misdemeanor. The

court emphasized that “[b]ecause the language of R.C. 2945.75(A)(2) is clear, this

court will not excuse the failure to comply with the statute or uphold [a] conviction

based on ‘additional circumstances.’” Id. at ¶ 14. Specifically, the failure in

complying with the statute cannot be excused by showing that “the verdict

incorporates the language of the indictment, or by presenting evidence to show the

presence of the aggravated element at trial or the incorporation of the indictment

into the verdict form, or by showing that the defendant failed to raise the issue of the

inadequacy of the verdict form.” Id. The court held that “pursuant to the clear

language of R.C. 2945.75, a verdict form signed by a jury must include either the

degree of the offense of which the defendant is convicted or a statement that an

aggravating element has been found to justify convicting a defendant of a greater

degree of a criminal offense.” Id.

Six years later, in McDonald, 137 Ohio St.3d 517,

2013-Ohio-5042, 1 N.E.3d 374, the Supreme Court of Ohio reaffirmed its holding in

Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, stating that “Pelfrey

makes clear that in cases involving offenses for which the addition of an element or
elements can elevate the offense to a more serious degree, the verdict form itself is

the only relevant thing to consider in determining whether the dictates of R.C.

2945.75 have been followed.” McDonald at ¶ 17.

McDonald involved the offense of failure to comply with an order

or signal of a police officer in violation of R.C. 2921.331.3 Under the statute, the

lowest degree of the offense is first-degree misdemeanor. The offense is a felony

only if the offender willfully eludes or flees a police officer: if he was fleeing

immediately after committing a felony, the offense is a fourth-degree felony; if his

operation of the vehicle caused a substantial risk of serious physical harm, the

offense is a third-degree felony. Defendant McDonald was indicted for a third-

degree felony count of the offense for willfully eluding or fleeing a police officer and

causing a substantial risk of serious physical harm by his operation of the vehicle.

The jury verdict form did not indicate the degree of the offense, and it only

mentioned his offense of failure to comply with an order or signal of a police officer

and his operation caused a substantial risk of serious harm. It did not mention the

element of “willfully eluding or fleeing a police officer.”

3 R.C. 2921.331 states, in part:

(A) No person shall fail to comply with any lawful order or direction of any police
officer invested with authority to direct, control, or regulate traffic.

(B) No person shall operate a motor vehicle so as willfully to elude or flee a police
officer after receiving a visible or audible signal from a police officer to bring the person’s
motor vehicle to a stop.
 The Supreme Court of Ohio reasoned that the verdict form did

not properly indicate the element of willful elusion and, without it, McDonald can

only be convicted of a first-degree misdemeanor. In reaching this conclusion, the

court emphasized that we look only to the verdict form signed by the jury and not

“additional circumstances” such as the incorporation of the indictment into the

verdict form, the evidence presented at trial, or the fact that the defendant failed to

raise the inadequacy of the verdict form below, when determining whether the

defendant was properly convicted of an elevated offense. McDonald, 137 Ohio St.3d

517, 2013-Ohio-5042, 1 N.E.3d 374, at ¶ 17-18, citing Pelfrey, 112 Ohio St.3d 422,

2007-Ohio-256, 860 N.E.2d 735, at ¶ 14.

Corrupting Another with Drugs

Cunningham claims that, pursuant to Pelfrey and McDonald,

his conviction of corrupting another with drugs under R.C. 2925.02(A)(2) must be

reversed because the verdict form did not comply with the second prong of the

statutory requirement (stating “such additional element or elements [elevating the

degree of the offense] are present”). As we explain in the following, Cunningham

was convicted of the lowest degree of the offense and Pelfrey and McDonald are not

applicable in this case.

R.C. 2925.02(A)(2) makes it a crime to knowingly:

by any means, administer or furnish to another or induce or cause
another to use a controlled substance with the purpose to cause
serious physical harm to the other person, or with the purpose to
cause the other person to become drug dependent.
The degree of the offense of corrupting another with drugs depends on the drug

involved: the offense is a second-degree felony when the drug involved is a

schedule I, II, III, IV, or V drug, with the exception of marijuana.4

R.C. 2925.02(C)(1)-(2); and the degree of the offense is a fourth-degree felony if the

drug involved is marijuana. R.C. 2925.02(C)(3).

Thus, R.C. 2925.02 delineates the degree of the offense in

accordance with the drug involved. The drug involved is not an “additional

element” contemplated by R.C. 2945.75. Accordingly, Pelfrey and McDonald are

not applicable to R.C. 2925.02. Notably, although not pertinent in this case, there

is an aggravating element that makes the offense of corrupting another with drugs

a more serious degree: when the offense is committed in the vicinity of a school.

When the offense is committed in the vicinity of a school, the second-degree felony

(when the drug involved is a schedule I, II, III, IV, or V drug other than marijuana)

is elevated to a first-degree felony, R.C. 2925.02(C)(1)(b) and (C)(2)(b), and the

fourth-degree felony (when marijuana is involved) is elevated to a third-degree

felony. R.C. 2925.02(C)(3)(b).

Therefore, although the degree of the offense is not specified in

the verdict form returned by the jury, the verdict form does not run afoul of

R.C. 2945.75 because heroin is not an additional element contemplated by the

4 R.C. 2925.02 expressly mentions marijuana but refers to other drugs only as
schedule I, II, II, IV, or V drugs.
statute. As delineated in the statute, when a schedule I drug is involved, the degree

of the offense is a second-degree felony. Contrary to Cunningham’s claim, Pelfrey

and McDonald are not applicable in this case. Rather, this case is more akin to State

v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891, a Supreme Court

of Ohio decision decided in 2012, after Pelfrey but before McDonald.

In Eafford, the defendant was indicted for possession of cocaine

(in an amount less than five grams) in violation of R.C. 2925.11(A). The state

produced evidence at trial to support its allegation, and the jury was instructed to

find the defendant guilty only if it found the defendant possessed cocaine.

Possession of cocaine in an amount less than five grams is a fifth-degree felony, and

defendant Eafford was convicted of a fifth-degree felony of the possession of cocaine.

However, the jury verdict form stated the defendant was guilty of possession of

drugs in violation of R.C. 2925.11(A) as charged in the indictment, without stating

the degree of the offense or that the drug Eafford possessed was cocaine. On appeal,

Eafford argued that because of the verdict form did not indicate the degree of the

offense or specified the defendant had possessed cocaine, he could only be convicted

of a minor misdemeanor, the lowest degree of the offense under R.C. 2925.11. The

Supreme Court of Ohio rejected Eafford’s claim.

R.C. 2925.11 (“Possession of Drugs”) states in division (A) that

“[n]o person shall knowingly obtain, possess, or use a controlled substance or a

controlled substance analog.” Division (C) provides for the different degrees of the

offense, depending on the drug involved and the amount possessed. Division (C)
has nine subdivisions; each relates to a drug. For example, subdivision (C)(3) relates

to marijuana. It provides that possession of marijuana less than 100 grams is a

minor misdemeanor, which is the lowest-degree of the offense for a violation of

R.C. 2925.11.

Instead of applying Pelfrey, the court in Eafford did not consider

the type of drug possessed by the defendant (cocaine) to be an additional or elevating

element contemplated in RC. 2945.75(A)(2). Rather, the court noted the statute

elevates the degree of the offense based on the amount of drug involved. The least

degree of the offense for possessing cocaine is a felony of the fifth degree (when the

amount of cocaine possessed in less than five grams). Eafford was convicted of a

fifth-degree felony, the least degree of the offense for possessing of cocaine.

Therefore, the court concluded there was no violation of the dictates of R.C. 2945.75.

The court noted that the indictment alleged that Eafford possessed cocaine, expert

testimony confirmed that the substance at issue tested positive for cocaine, and the

trial court instructed the jury that it could not find Eafford guilty of possession of

drugs as charged in the indictment unless it found the drug involved to be cocaine.

Accordingly, when the jury found Eafford guilty as charged in the indictment, its

finding necessarily related to possession of cocaine.

Similarly here, under R.C. 2925.02, when the drug involved in

the offense is a schedule I drug such as heroin, the offense is a second-degree felony

— the aggravating element of the commission of the offense in the vicinity of the

school is not present in this case. Although the jury verdict form did not specify
heroin, the jury’s finding that Cunningham was guilty of corrupting another with

drugs necessarily related to heroin: the indictment stated Cunningham furnished

“Heroin, a Schedule I drug” to the victim; at trial the state presented evidence to

prove its allegation that Cunningham supplied heroin to the victim; and the trial

court’s jury instruction repeatedly referenced heroin as the drug involved in this

case.

In State v. Emerson, 2016-Ohio-8509, 78 N.E.3d 1199 (2d Dist.),

the Second District was confronted with a similar claim that appellant could only be

convicted of a fourth-degree, instead of a second-degree, felony offense of

corrupting another with drugs because the verdict form did not contain the level of

the offense or state that the drug involved was fentanyl. In a dicta analysis, the court

expressed its belief that Pelfrey was inapplicable to the offense of corrupting another

with drugs, reasoning that under the corrupting-another-with-drugs statute, “it is

not an additional element that changes the degree of the offense; it is the statutorily

classified character of the drug involved. Fentanyl is the drug upon which the charge

was based.” Similarly here, heroin is the drug upon which the charge was based,

not an additional element contemplated in R.C. 2945.75.

For all the foregoing reasons, Cunningham’s claim in this

reopened appeal is without merit and we affirm his conviction of a second-degree

felony of corrupting another with drugs.
II. Appeal from Limited Resentencing (Appeal No. 108721)

A week before Cunningham made the instant application to

reopen his direct appeal, Cunningham filed a “Motion [for] Revised/Corrective

Judgment Entry of Conviction and Sentence.” He requested a de novo sentencing

hearing, claiming his sentencing was deficient because he was not advised of his duty

to register as a sex offender and the trial court also failed to either waive or impose

a mandatory fine pursuant R.C. 2929.18.

R.C. 2929.18 requires the trial court to impose a mandatory fine

for a first-, second-, and third-degree-felony violation of drug-related offenses.

However, it provides that if the offender files an affidavit of indigency prior to

sentencing and if the trial court determines the offender is unable to pay the fine,

the court shall not impose the fine. Cunningham alleged that no affidavit was filed,

and the trial court neither waived nor imposed a mandatory fine.

The state opposed the motion in part, arguing that Cunningham

was properly advised of his duty to register as a Tier I sex offender. The state,

however, agreed that the trial court should hold a limited resentencing hearing for

the imposition of the mandatory fine, citing State v. Moore, 135 Ohio St.3d 151,

2012-Ohio-5479, 985 N.E.2d 432 (a trial court’s failure to include the mandatory

fine required by R.C. 2929.18(B)(1) when an affidavit of indigency is not filed with

the court prior to the filing of the trial court’s journal entry of sentencing, renders

that part of the sentence void and resentencing is limited to the imposition of the

mandatory fine).
 The trial court appointed Cunningham counsel and held a

limited resentencing hearing on April 9, 2019. Cunningham, represented by

counsel, appeared by videoconferencing. While the hearing was limited to the

imposition of the mandatory fine, Cunningham argued that his two offenses were

allied offenses. The trial court stated that the only issue being addressed was the

imposition of the mandatory fine. The prosecutor reported that the minimum

mandatory fine for a second-degree felony was $7,500, and the court imposed the

minimum mandatory fine of $7,500 for Cunningham’s felony of corrupting another

with drugs.

Cunningham appeals from that judgment, raising one

assignment of error for our review: “Appellant received ineffective assistance of

counsel.” Under the assignment of error, he claims that he received ineffective

assistance of counsel because his trial counsel failed to file an affidavit of indigency

to waive the mandatory fine and also failed to address the sex offender registration

issue.

In order to establish a claim of ineffective assistance of counsel,

the defendant must show that his trial counsel’s performance was deficient in some

aspect of his representation and that deficiency prejudiced his defense. Strickland

v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Our

assessment of an attorney’s representation must be highly deferential and we are to

indulge “a strong presumption that counsel’s conduct falls within the range of

reasonable professional assistance.” Id. at 689.
 Regarding the sex offender registration issue, Cunningham

raised the same ineffective assistance of trial counsel claim in the third proposed

assignment of error in his application to reopen, arguing his appellate counsel was

ineffective for failing to argue in his direct appeal that the trial court failed to notify

him of his registration requirement as a Tier I sex offender pursuant to

R.C. 2950.03. We have already addressed this claim in Cunningham II, and found

it to be without merit.

Regarding the issue of the mandatory fine, Cunningham argues

there is a reasonable probability that the trial court would have found him to be

indigent and unable to pay the mandatory fine if his trial counsel had filed an

affidavit of indigency.

This appeal is rather unique in that the trial court did not impose

a mandatory fine when it sentenced Cunningham for his conviction of corrupting

another with drugs. The limited resentencing and the resulting appeal stemmed

from Cunningham’s claim that the trial court failed to impose a mandatory fine

pursuant to R.C. 2929.18.5 Under the particular procedural posture of this case, we

are unable to find counsel’s performance deficient because filing an affidavit of

indigency would appear to be contrary to Cunningham’s own request. “[A] criminal

5 His “Motion [for] Revised/Corrective Judgment Entry” stated “[t]he record and
purported judgment entry in this case reveals that the trial court did not receive any
affidavit of indigency establishing that Cunningham could or could not pay the mandatory
fine for his alleged drug offense F2, nor does the record shows that the trial court had
waived the mandatory fine by entry in this case * * *.”
defendant may not make an affirmative, apparently strategic decision at trial and

then complain on appeal that the result of that decision constitutes reversible error.”

State v. Doss, 8th Dist. Cuyahoga No. 84433, 2005-Ohio-775, ¶ 7. Furthermore, a

failure to file the affidavit of indigency constitutes ineffective assistance of counsel

only if the record demonstrates that there exists a reasonable probability that the

defendant would have been found indigent. State v. Powell, 78 Ohio App.3d 784,

605 N.E.2d 1337 (3d Dist.1992). Cunningham’s claim that there is a reasonable

probability that the trial court would have found him indigent and unable to pay the

mandatory fine is speculative only. The assignment of error is without merit.

Judgment affirmed in both Appeal Nos. 106109 and 108721.

It is ordered that appellee recover of 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 appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

____________________________
MICHELLE J. SHEEHAN, JUDGE

MARY J. BOYLE, P.J., and
RAYMOND C. HEADEN, J., CONCUR