[Cite as State v. Gutierrez, 2017-Ohio-1147.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                   :    JUDGES:
                                                :    Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                      :    Hon. John W. Wise, J.
                                                :    Hon. Earle E. Wise, Jr., J.
-vs-                                            :
                                                :
OMAR OSUALDO GUTIERREZ                          :    Case No. 16 CAA 07 0030
                                                :
        Defendant-Appellant                     :    OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 12 CRI 10 0376




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    March 28, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

BRIAN J. WALTER                                      FRANCISCO E. LÜTTECKE
140 North Sandusky Street                            250 East Broad Street
Delaware, OH 43015                                   Suite 1400
                                                     Columbus, OH 43215
Delaware County, Case No. 16 CAA 07 0030                                                2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Omar Osualdo Gutierrez, appeals the June 14, 2016

judgment of the Court of Common Pleas of Delaware County, Ohio, denying his motion

to dismiss his criminal charges. Plaintiff-Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On November 8, 2011, appellant was charged in federal court with

conspiracy to distribute and possess with intent to distribute heroin and cocaine in

violation of 21 U.S.C. 846 and 841(a)(1) and (b)(1)(C).        Specifically, appellant was

charged with conspiring to distribute and possess with intent to distribute heroin and

cocaine within the southern district of Ohio and elsewhere between January 1, 2006, and

September 12, 2011. Appellant pled guilty on the same day pursuant to a cooperation

agreement with the federal government, wherein appellant would exchange information

and become a witness for a lesser sentence. Appellant was released on bond.

       {¶ 3} On October 5, 2012, the Delaware County Grand Jury indicted appellant on

one count of possession of cocaine and one count of complicity to trafficking in cocaine

in violation of R.C. 2925.11 and R.C. 2925.03/2923.03, both with major drug offender

specifications. The indictment alleged appellant committed the offenses on or about

September 27, 2012.       The major drug offender specification carried a mandatory

maximum sentence of eleven years.

       {¶ 4} Over the next two and one-half years as appellant cooperated with the

federal government, both federal and state agents worked on resolving both cases to

everyone's satisfaction. Several defense attorneys and federal and state prosecutors and

judges were involved in the ongoing negotiations. Purportedly, the state of Ohio was
Delaware County, Case No. 16 CAA 07 0030                                                3


under the belief that appellant would cooperate with the federal government and then

receive a lengthy federal sentence and face deportation.

       {¶ 5} On May 15, 2015, the federal court formally accepted appellant's November

8, 2011 plea.1 Following a change of defense counsel, the assignment of a new judge,

and several continuances, appellant withdrew his guilty plea and pled to a lesser included

offense on January 7, 2016. According to his superseding plea agreement, appellant

agreed that his advisory guideline sentence should be calculated on 3 kilograms of heroin

and 15 kilograms of cocaine with a base offense level of 34. According to a second

revised presentence investigation report dated February 1, 2016, appellant was

accountable for 1 kilogram of heroin and 12.5 kilograms of cocaine which is the equivalent

of 3,500 kilograms of marijuana for sentencing purposes. Under the federal sentencing

guidelines, offenses involving at least 3,000 but less than 10,000 kilograms of marijuana

have a base offense level of 32. Based on a total offense level of 32, without mitigating

factors, the advisory guideline provision on sentencing was between 135 and 168 months

in prison.

       {¶ 6} A sentencing hearing was held in federal court on February 26, 2016. By

the Judgment in a Criminal Case filed March 2, 2016, the federal court sentenced

appellant to time served as of February 29, 2016 (41 months), as well as five years of

supervised release.




1Appellant’s brief indicates the plea was not accepted by the federal court until May of
2015. We find nothing in the record to support the date. Appellee does not dispute the
time frame. We accept the date. The filing in May 2015 of the November 8, 2011 plea
has no bearing on the issues presented.
Delaware County, Case No. 16 CAA 07 0030                                                   4


      {¶ 7} On May 25, 2016, appellant filed a motion to dismiss with the state court,

claiming R.C. 2925.50 barred his prosecution in the state of Ohio. By judgment entry filed

June 14, 2016, the trial court denied the motion, first stating it was unable to grant a

pretrial dismissal of criminal charges, but then finding R.C. 2925.50 did not apply because

appellant in his federal case was not prosecuted for, convicted of, or sentenced for the

offenses in the state case.

      {¶ 8} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶ 9} "THE TRIAL COURT ERRED WHEN IT RULED THAT IT WAS

PROCEDURALLY BARRED FROM RULING ON MR. GUTIERREZ'S MOTION TO

DISMISS."

                                             II

      {¶ 10} "REVISED CODE 2925.50 BARS THE STATE OF OHIO FROM

PROSECUTING A DEFENDANT FOR CONDUCT WHICH FORMED PART OF A

FEDERAL CONVICTION AND SENTENCE."

                                             I

      {¶ 11} In his first assignment of error, appellant claims the trial court erred when it

ruled it was procedurally barred from ruling on the motion to dismiss. We disagree.

      {¶ 12} In its judgment entry filed June 14, 2016, the trial court began by saying it

was unable to grant the motion to dismiss because "Ohio law does not allow accused

persons to seek dismissal of criminal charges before trial," and cited a long list of cases

in support, none of which refer to a double jeopardy issue and/or the application of R.C.
Delaware County, Case No. 16 CAA 07 0030                                                     5


2925.50. However, the trial court then proceeded to address the merits of the motion and

denied the motion to dismiss.

       {¶ 13} Appellant argues the trial court's initial assertion that it could not address

the motion is incorrect because trial courts may grant pretrial motions to dismiss on double

jeopardy grounds and in support, cites the case of State v. Anderson, 138 Ohio St.3d

264, 2014-Ohio-542, 6 N.E.3d 23. In Anderson at ¶ 60, the Supreme Court of Ohio

unanimously held the following:



              Having determined that an order denying a motion to dismiss on

       double-jeopardy grounds denies a "provisional remedy" as that term is

       defined in the statute, that the order in effect determines the action with

       respect to the provisional remedy, and that the appealing party would not

       be afforded a meaningful review of the decision if that party had to wait for

       final judgment as to all proceedings in the action, we hold that the order is

       a final, appealable order.



       {¶ 14} In its brief at 3, appellee agrees, as do we, that the trial court's dismissal of

appellant's motion to dismiss is a final appealable order and Anderson controls.

       {¶ 15} The trial court first posits that it was unable to grant the motion to dismiss

on procedural grounds. We find the trial court did deny the motion to dismiss when after

a discussion of the merits, it stated: "For the reasons explained above, the defendant's

motion to dismiss is denied."
Delaware County, Case No. 16 CAA 07 0030                                                      6


       {¶ 16} Based upon this conclusion, we find the trial court ruled on the substantive

issues which are properly before this court for review on a final appealable order pursuant

to Anderson.

       {¶ 17} Assignment of Error I is denied.

                                               II

       {¶ 18} In the second assignment of error, appellant claims the trial court erred in

denying the motion to dismiss because R.C. 2925.50 bars the state from prosecuting him

for conduct which formed part of a federal conviction and sentence. We disagree.

       {¶ 19} R.C. 2925.50 states: "If a violation of this chapter is a violation of the federal

drug abuse control laws, as defined in section 3719.01 of the Revised Code, a conviction

or acquittal under the federal drug abuse control laws for the same act is a bar to

prosecution in this state." " 'Federal drug abuse control laws' means the 'Comprehensive

Drug Abuse Prevention and Control Act of 1970,' 84 Stat. 1242, 21 U.S.C. 801, as

amended." R.C. 3719.01(I). It is undisputed that appellant was convicted under the

federal drug abuse control laws.

       {¶ 20} Appellant argues R.C. 2925.50 is applicable in this case because he was

convicted under federal drug abuse control laws for the same act as charged in the state

of Ohio. He argues the federal conspiracy charge included his September 27, 2012 acts

in Delaware County. In support, he cites "Sealed Exhibit A" filed June 14, 2016, and

urges this court to compare the federal charge with the state charges. This exhibit is a

"Second Revised Presentence Investigation Report" prepared by a senior United States

probation officer. Under "Part A, The Offense, Charge(s) and Conviction(s)," the report
Delaware County, Case No. 16 CAA 07 0030                                                7


indicates appellant pled guilty to a lesser included offense of Count One of a one-count

indictment, and continues as follows:



             Count One charges that between January 1, 2006 and September

      14, 2011, within the Southern District of Ohio and elsewhere, Omar

      Guitierrez, together with others, did conspire to distribute and possess with

      intent to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 846,

      841(a)(1), and 841(b)(1)(C). Notably, according to the Government, the

      period of time stated in the indictment should actually read "between

      January 1, 2006 and September 12, 2011."



      {¶ 21} By the Judgment in a Criminal Case filed March 2, 2016, attached to

defendant's May 25, 2016 motion to dismiss, the federal court noted appellant pled guilty

to a lesser included offense of a single-count information. The federal court sentenced

him on the charge of conspiracy to distribute and possess with intent to distribute heroin

and cocaine in violation of 21 U.S.C. 846 and 841(a)(1) and (b)(1)(C). The judgment

specifically states the offense ended on November 8, 2011.

      {¶ 22} In comparison, the October 5, 2012 indictment in the state case alleged in

Count One in part that on or about September 27, 2012, appellant "did knowingly obtain,

possess, or use Cocaine, a Schedule II controlled substance, in an amount equaling or

exceeding 100 grams but less than 2000 grams, to wit: 1988 grams" in violation of R.C.

2925.11(A), Possession of Cocaine. Count Two alleged in part on or about September

27, 2012, appellant,
Delaware County, Case No. 16 CAA 07 0030                                                8




      acting with the kind of culpability required for the commission of an offense,

      did aid or abet another in committing the offense of Trafficking in Cocaine,

      to wit: did knowingly prepare for shipment, ship, transport, deliver, prepare

      for distribution, or distribute Cocaine, a schedule II controlled substance,

      when OMAR OSUALDO GUTIERREZ, knew or had reasonable cause to

      believe that the controlled substance was intended for sale or resale by

      himself or another person, the amount of Cocaine involved equaled or

      exceeded 100 grams but less than 2000 grams, to wit: 1988 grams

      ***

      this being in violation of Section 2923.03(A)(2) as it relates to 2925.03(A)(2)

      of the Ohio Revised Code, Complicity To Trafficking In Cocaine***.



      {¶ 23} Although the second revised presentence investigation report discusses,

"Re-Arrest of Gutierrez on September 27, 2012," and the underlying facts, the May 2,

2016 Judgment in a Criminal Case very clearly states the offense ended on November 8,

2011. There is no indication in the record that appellant was convicted in federal court

under the federal drug abuse control laws for the same acts as those charged in the state

of Ohio. The state offenses resulted from acts that took place on or about September 27,

2012, one year after the latest date covered by the federal indictment (January 1, 2006,

to September 14, 2011) and ten months after the "offense ended date" (November 8,

2011) listed in the federal court's Judgment in a Criminal Case.
Delaware County, Case No. 16 CAA 07 0030                                                 9


       {¶ 24} In his June 13, 2016 reply memorandum in support of his motion to dismiss,

appellant argued his federal plea agreement "took into account not only the time frame

set forth in the indictment," but also his acts committed "in or about September 2012."

Attached to the reply memorandum is appellant's "Superseding Plea Agreement." 2

Appellant argued in the agreement at ¶ 5(a)(1) and (2), the United States Attorney for the

Eastern District of New York ("Office") agreed to the following:



       5. The Office agrees that:

              a. no further criminal charges will be brought against the defendant

       for:

              1. conspiracy to possess with intent to distribute heroin and cocaine

       and possession with intent to distribute heroin and cocaine, all from the

       period between January 1, 2007 and September 14, 2011;

              2. conspiracy to possess with intent to distribute cocaine and

       possession with intent to distribute cocaine, in or about September 2012;



       {¶ 25} We find this paragraph does not establish that appellant was "convicted"

under the federal drug abuse control laws for the "same act" because the language can



2
 We note this agreement is not dated and is unsigned because appellant likely retrieved
the document via the electronic federal court docket (PACER). Appellant's Brief at 1.
Appellant urges this court to take judicial notice of the document under Evid.R. 201(A)-
(C) and (F), and appellee has not objected. We will take judicial notice of this document,
although we find the better practice would have been to obtain a certified copy of the
document or file an affidavit along with the document attesting to its origination. We also
note the transcript of the January 7, 2016 plea hearing in federal court has not been
provided for our review, which renders us unable to review the agreement within the
context of a discussion between the parties.
Delaware County, Case No. 16 CAA 07 0030                                                  10


be read as the U.S. Attorney agreeing not to bring criminal charges against appellant for

his state acts under the dual sovereignty doctrine: "[A] defendant may be subjected to

successive trials at both the state and federal levels for the same act or offense." State

v. McKinney, 80 Ohio App.3d 470, 473, 609 N.E.2d 613 (2d Dist.1992). We note ¶ 7 of

the Superseding Plea Agreement states: "This agreement does not bind any federal,

state, or local prosecuting authority other than the Office* * *."

       {¶ 26} Appellant argues the following in his brief at 15:



              In using the 2012 Delaware transaction as relevant conduct in

       sentencing, the federal court found by a preponderance of the evidence that

       Mr. Gutierrez was responsible, and thus guilty of, the criminal conduct that

       took place in Delaware County in 2012. Because that conduct was used to

       sentence Mr. Gutierrez, he was sentenced for that conduct, fulfilling the

       definition of "conviction" in Ohio: a finding of guilt and an accompanying

       sentence.



       {¶ 27} Although "preponderance of the evidence" may be the applicable degree of

proof for purposes of determining "relevant conduct," it has no bearing on criminal liability

because "beyond a reasonable doubt" is the applicable degree of proof to establish guilt

in criminal cases.

       {¶ 28} "Conviction" is defined as: "In a general sense, the result of a criminal trial

which ends in a judgment or sentence that the accused is guilty as charged." Black's Law

Dictionary 333 (6th Ed.1990). Fed.R.Crim.P. 32(k) governs judgment and states in
Delaware County, Case No. 16 CAA 07 0030                                                  11


pertinent part: "In the judgment of conviction, the court must set forth the plea, the jury

verdict or the court's findings, the adjudication, and the sentence.* * *The judge must sign

the judgment, and the clerk must enter it."         Similarly, Ohio Crim.R. 32(C) governs

judgment and states in pertinent part: "A judgment of conviction shall set forth the fact of

conviction and the sentence.* * *The judge shall sign the judgment and the clerk shall

enter it on the journal. A judgment is effective only when entered on the journal by the

clerk."     In State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142,

paragraph one the syllabus, the Supreme Court of Ohio held:



                 A judgment of conviction is a final order subject to appeal under R.C.

          2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence,

          (3) the judge's signature, and (4) the time stamp indicating the entry upon

          the journal by the clerk. (Crim.R.32(C), explained; State v. Baker, 119 Ohio

          St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, modified.)



          {¶ 29} "Relevant conduct" is defined in 18 U.S.C.S. app. 1B1.3 as follows:



                 (a) Chapters Two (Offense Conduct) and Three (Adjustments).

          Unless otherwise specified, (i) the base offense level where the guideline

          specifies more than one base offense level, (ii) specific offense

          characteristics and (iii) cross references in Chapter Two, and (iv)

          adjustments in Chapter Three, shall be determined on the basis of the

          following:
Delaware County, Case No. 16 CAA 07 0030                                               12


            (1)(A) all acts and omissions committed, aided, abetted, counseled,

     commanded, induced, procured, or willfully caused by the defendant; and

            (B) in the case of a jointly undertaken criminal activity (a criminal

     plan, scheme, endeavor, or enterprise undertaken by the defendant in

     concert with others, whether or not charged as a conspiracy), all acts and

     omissions of others that were- -

            (i) within the scope of the jointly undertaken criminal activity,

            (ii) in furtherance of that criminal activity, and

            (iii) reasonably foreseeable in connection with that criminal activity;

            that occurred during the commission of the offense of conviction, in

     preparation for that offense, or in the course of attempting to avoid detection

     or responsibility for that offense;

            (2) solely with respect to offenses of a character for which § 3D1.2(d)

     would require grouping of multiple counts, all acts and omissions described

     in subdivisions (1)(A) and (1)(B) above that were part of the same course

     of conduct or common scheme or plan as the offense of conviction;

            (3) all harm that resulted from the acts and omissions specified in

     subsections (a)(1) and (a)(2) above, and all harm that was the object of

     such acts and omissions; and

            (4) any other information specified in the applicable guideline.



     {¶ 30} Commentary Application Note 1 to the statute states the following:
Delaware County, Case No. 16 CAA 07 0030                                               13


             1. Sentencing Accountability and Criminal Liability.--The

      principles and limits of sentencing accountability under this guideline are

      not always the same as the principles and limits of criminal liability. Under

      subsections (a)(1) and (a)(2), the focus is on the specific acts and omissions

      for which the defendant is to be held accountable in determining the

      applicable guideline range, rather than on whether the defendant is

      criminally liable for an offense as a principal, accomplice, or conspirator.



      {¶ 31} Based upon this application note, it would seem the U.S. Congress, in

enacting 18 U.S.C.S. app. 1B1.3, intended for sentencing accountability to be broader in

scope than criminal liability. The use of "relevant conduct" in sentencing appellant in

federal court is not synonymous with "convicting" him of the September 2012 state acts

in federal court. Although the federal court included the September 2012 cocaine amount

in its offense level computation as set forth in Sealed Exhibit A at ¶ 9, 10, and 31, the

added amount did not affect the base offense level of 32.3 Subtracting the 2.5 kilograms

of cocaine associated with the state's case would leave the equivalent of 3,000 kilograms

of marijuana which is the minimum amount for a base offense level of 32. Sealed Exhibit

A, ¶ 9, 10, and 16. See, Witte v. United States, 515 U.S. 389, 398 and 406, 115 S.Ct.

2199, 132 L.Ed.2d 351 (1995) ("we specifically have rejected the claim that double

jeopardy principles bar a later prosecution or punishment for criminal activity where that

activity has been considered at sentencing for a separate crime" and "consideration of



3
 We note ¶ 9 mentions "Illinois" and we accept appellant's argument in his brief at 9 that
it should read "Ohio."
Delaware County, Case No. 16 CAA 07 0030                                                  14


relevant conduct in determining a defendant's sentence within the legislatively authorized

punishment range does not constitute punishment for that conduct.)4

       {¶ 32} Based on the definition of "conviction" in relation to the use of relevant

conduct for federal sentencing purposes, we do not find appellant was "convicted" under

the federal drug abuse control laws for the "same act" committed in Ohio in September

2012 under the facts of this case. We find appellant's acts in Ohio were committed

separately and with a different motivation than his 2011 charged acts in federal court.

       {¶ 33} As appellant succinctly states in his brief at 17: "Its [R.C. 2925.50]

application hinges on whether the federal sentencing practice of considering 'relevant

conduct' uncharged in an information or indictment, but used to calculate a final sentence,

fulfills the 'conviction or acquittal' and 'same act' requirements of the statute." For the

reasons cited above, we find R.C. 2925.50 does not apply to the facts of this case.

       {¶ 34} Upon review, we find the trial court did not err in denying appellant's motion

to dismiss.

       {¶ 35} Assignment of Error II is denied.




4
 We acknowledge the Witte case involved a pure double jeopardy analysis, but find it is
relevant to the analysis sub judice.
Delaware County, Case No. 16 CAA 07 0030                                       15


      {¶ 36} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Wise, Earle J.

Delaney, P.J. and

Wise, John, J. concur.




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