PATRICIA ANN BLACKMON, J.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED AND REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-17-613271-A and CR-17-614700-A BEFORE: Blackmon, J., Boyle, P.J., and Laster Mays, J.
ATTORNEY FOR APPELLANT
Rick K. Ferrara
2077 East 4th Street
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor By: Janna R. Steinruck
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:
{¶1} Defendant-appellant Sean Quigley ("Quigley") appeals from his guilty pleas to drug possession in Case Nos. CR-17-613271-A and CR-17-614700-A. Quigley initially assigned five errors for our review. At oral argument, however, he withdrew assigned errors pertaining to the trial court's compliance with Crim.R. 11 during his guilty plea, and its compliance with R.C. 2929.14(C) in imposing consecutive sentences. Quigley's three remaining assignments of error are as follows:
I. The trial court erred in imposing consecutive sentences, such that it failed to make findings to impose consecutive sentences for each case and place them in its journal entry.
II. The trial court erred in imposing costs without providing [Quigley] the opportunity to object at sentencing.
III. The trial court erred in failing to merge allied offenses of similar import.
{¶2} Having reviewed the record and pertinent law, we affirm Quigley's convictions and sentence, but remand for issuance of sentencing journal entries that incorporate the court's findings in support of consecutive sentences. The apposite facts follow.
{¶3} On January 26, 2017, Quigley was indicted in CR-17-613271-A for one count of possession of less than the bulk amount of cocaine and possession of criminal tools, both fifth-degree felonies. He subsequently pled guilty to drug possession and the remaining charge was nolled.
{¶4} On March 7, 2017, Quigley was indicted in CR-17-617400-A and charged with four counts of fifth-degree felony drug possession. Count 1 alleged possession of less than the bulk amount of Clonezam. Count 2 alleged less than the bulk amount of Gabapentin. Count 3 alleged that he possessed one milligram of Lorazepam, and Count 4 alleged that he possessed two milligrams of Lorazepam. On March 22, 2017, he pled guilty to Counts 1 and 4, and the remaining charges were nolled.
{¶5} The trial court sentenced Quigley to two concurrent twelve-month terms of imprisonment in CR-17-617400-A, to be served consecutively to a twelve-month term in CR-17-613231-A.
Consecutive Sentences
{¶6} In his first assigned error, Quigley asserts that the trial court's sentencing journal entries imposing consecutive sentences did not incorporate the findings required under R.C. 2929.14(C). Before a trial court may impose consecutive sentences, the court must first make specific findings mandated by R.C. 2929.14(C)(4) and incorporate those findings in the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. Under R.C. 2929.14(C)(4), the court must find that consecutive sentences are: (1) necessary to protect the public from future crime or to punish the offender; and (2) are not disproportionate to the seriousness of the offender's conduct and to the danger the offender posses to the public. R.C. 2929.14(C)(4). In addition to making those findings, the court must also find one 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 postrelease 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.
Id.
{¶7} Overall, the court's findings during the hearing fulfilled its duties under R.C. 2929.14(C). However, we agree that the sentencing journal entries do not reflect that R.C. 2929.14(C) consecutive findings were made, so the matter must be remanded for correction of the entries in both CR-17-613271-A and CR-17-614700-A.
{¶8} The first assigned error is well taken.
Costs
{¶9} In the second assigned error, Quigley argues that the trial court erred in imposing costs in the sentencing journal entries because they were not imposed at the sentencing hearing.
{¶10} Recently, the General Assembly amended R.C. 2947.23 by adding the following provision, "[t]he court retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution * * * at the time of sentencing or at any time thereafter." In State v. Beasley, Slip Opinion No. 2018-Ohio-493, the Ohio Supreme Court noted that in light of this new provision, a case does not need to be remanded to the trial court in order for the defendant to obtain an order waiving, suspending, or modifying costs. Id. at ¶ 264-265.
{¶11} In this case, the state asked the trial court to impose court costs. The following discussion occurred:
THE DEFENDANT: If I have court costs and things like that, can I set up a payment plan to pay the --
THE COURT: Yeah. You can do that. You can set up a payment plan.
{¶12} From the foregoing, the court clearly informed Quigley during the sentencing hearing that costs were going to be imposed. However, any further dispute as to costs can be handled in the manner authorized under R.C. 2947.23, without remand by this court.
{¶13} The second assigned error is without merit.
Merger
{¶14} In his third assigned error, Quigley complains that the trial court erred in failing to merge the drug possession charges in CR-17-614700-A because Clonazepam and Lorazepam are both Schedule IV drugs.
{¶15} Pursuant to R.C. 2941.25(A), "[w]here the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, * * * the defendant may be convicted of only one."
{¶16} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 30-31, the Ohio Supreme Court detailed the allied offenses analysis:
[T]he analysis must focus on the defendant's conduct to determine whether one or more convictions may result because an offense may be committed in a variety of ways and the offenses committed may have different import. No bright-line rule can govern every situation.
As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must ask three questions when defendant's conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.
{¶17} The argument that simultaneous possession of more than one drug of the same drug schedule constitutes allied offenses of similar import has been rejected many times. See State v. Santiago, 8th Dist. Cuyahoga No. 101601, 2015-Ohio-1300, ¶ 12; State v. Blunt, 8th Dist. Cuyahoga Nos. 60165 and 60166, 1992 Ohio App. LEXIS 1205 (Mar. 19, 1992); State v. Duke, 1st Dist. Montgomery No. 14404, 1995 Ohio App. LEXIS 459 (Feb. 8, 1995); State v. Pitts, 4th Dist. Scioto No. 99 CA 2675, 2000 Ohio App. LEXIS 5211 (Nov. 6, 2000); State v. Montgomery, 10th Dist. Franklin No. 89AP-1355,1990 Ohio App. LEXIS 3873 (Aug. 30, 1990); State v. Westbrook, 4th Dist. Scioto No. 09CA3277, 2010-Ohio-2692, ¶ 42.
{¶18} As explained in Blunt:
Blunt possessed cocaine and desoxyn simultaneously, both of which are Schedule II substances. He also possessed heroin, a Schedule I substance, simultaneously with the above-mentioned substances. * * * The proof required for the possession of cocaine will not sustain a conviction for the possession of desoxyn; nor will the proof of possession of desoxyn sustain a conviction for possession of cocaine. Moreover, there is nothing in the record to support Blunt's assertion that he had the same animus when he possessed all three controlled substances. We find that Blunt's conviction for possession of heroin, cocaine, and desoxyn constituted separate offenses under R.C. 2925.11. As a result, the trial court's sentence of two year consecutive terms for each count was proper.
Id. Similarly, as explained in
Montgomery, "[E]ach count of drug abuse requires proof of a different element, namely, the controlled substance."
Accord State v.
Deckard, 4th Dist. Gallia No. 16CA14, 2017-Ohio-8469, ¶ 52 (separate convictions for heroin and cocaine do not merge for purposes of sentencing).
{¶19} In this matter, Quigley possessed two different drugs from the same Schedule: Clonazepam and Lorazepam. However, proof of possession of Clonazepam does not establish possession of Lorazepam, and vice versa. Each offense requires proof of the possession of the particular controlled substance to establish a violation of R.C. 2925.11. The offenses were not allied and do not merge.
{¶20} The third assigned error is without merit.
{¶21} We affirm Quigley's convictions and sentence but remand for issuance of sentencing journal entries that incorporate the court's findings in support of consecutive sentences.
It is ordered that appellant and appellee share equally the 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. /s/_________
PATRICIA ANN BLACKMON, JUDGE MARY J. BOYLE, P.J., and
ANITA LASTER MAYS, J., CONCUR