[Cite as State v. Little, 2011-Ohio-3286.]




               IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO

                                                  :
STATE OF OHIO
     Plaintiff-Appellee                            :   C.A. CASE NO. 2010-CA-38

vs.                                               :    T.C. CASE NO. 2007-CR-867

                                                  :    (Criminal Appeal from
ADRIAN LITTLE                                          Common Pleas Court)
     Defendant-Appellant                           :

                                         . . . . . . . . .

                                             O P I N I O N

                      Rendered on the 30th day of June, 2011.

                                         . . . . . . . . .

Stephen K. Haller, Atty. Reg. No. 0009172, Stephanie Hayden, Atty.
Reg. No. 0082881, Assistant Prosecutor, 55 Greene Street, Xenia,
OH 45385
     Attorneys for Plaintiff-Appellee

Adrian Little, DCI, 4104 Germantown Street, P.O. Box 17249, Dayton,
OH 45417
     Defendant-Appellant, Pro Se

                                         . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Adrian Little, appeals from a final judgment

that merged some but not all multiple conspiracy offenses to which

he pled guilty, and imposed separate, consecutive sentences for

the unmerged offenses.
                                                                 2

     {¶ 2} The facts of this case were set forth in our prior

decision in Defendant’s direct appeal in State v. Little, Greene

App. No. 2008-CA-76, 2009-Ohio-4328, at ¶4-5, 41-43:

     {¶ 3} “Little was charged by indictment with one count of

Engaging in a Pattern of Corrupt Activity, in violation of R.C.

2923.01(A)(1); with one count of Conspiracy to Commit the Offense

of Engaging in a Pattern of Corrupt Activity, in violation of R.C.

2923.01(A)(2); with two counts of Conspiracy to Commit the Offense

of Trafficking in Cocaine, in violation of R.C. 2923.01(A)(1) and

R.C. 2925.03(A)(1); and with two counts of Conspiracy to Commit

the Offense of Trafficking in Heroin, in violation of R.C.

2923.01(A)(1) and R.C. 2925.03(A)(1).    One of the Conspiracy to

Commit the Offense of Trafficking in Cocaine counts, being Count

5 of the indictment, included four forfeiture specifications,

alleging that various items were used or intended to be used in

the commission of the offense, so that they were subject to

forfeiture.

     {¶ 4} “In April, 2008, Little appeared in open court, and

entered pleas of guilty to the four counts of Conspiracy to Commit

Trafficking, and to the forfeiture specifications.    Pursuant to

a plea bargain, the State dismissed the other two counts, and both

parties informed the trial court that there was an agreed sentence

of twelve years.   The maximum possible sentence on each count was
                                                                   3

eight years, and the trial court informed Little that the maximum

possible sentence on the counts to which he was tendering his plea

was 32 years.

     {¶ 5} “* * *

     {¶ 6} “After a full plea colloquy, Little’s guilty pleas to

the four conspiracy counts were accepted, and the matter was set

for hearing at a later date.    No pre-sentence investigation was

ordered.    At no point did Little, the State, or the trial court,

raise the issue of any possible merger of the four conspiracy counts

to which Little pled guilty.

     {¶ 7} “At the sentencing hearing, Little was sentenced to six

years on each count.    The sentences on Counts III and VI, which

involved Conspiracy to Commit Trafficking in Heroin, but over

different periods of time, were ordered to be served concurrently.

 And the sentences on Counts IV and V, which involved Conspiracy

to Commit Trafficking in Cocaine, but over different periods of

time, were also ordered to be served concurrently.      But the two

pairs of concurrent six-year sentences were ordered to be served

consecutively, making an aggregate sentence of twelve years, as

agreed.    The time periods specified in Counts III and IV of the

indictment, while involving different drugs, were the same; and

the time periods specified in Counts V and VI of the indictment,

while involving different drugs, were the same, although different
                                                                          4

from the time periods specified in Counts III and IV.

     {¶ 8} “The trial court ordered the property forfeited, as

previously agreed. No fine was imposed.”

     {¶ 9} Defendant   timely   appealed   to    this   court    from   his

conviction and sentence.    On direct appeal we concluded that the

trial court committed plain error when it entered convictions on

all four conspiracy counts without first determining whether those

counts must be merged pursuant to R.C. 2923.01(F).              Id. at ¶3,

47-53.   We reversed the judgment of the trial court and remanded

the matter for further proceedings.    We stated: “Upon remand, the

trial court is directed to hold a hearing on the issue of whether

any two or more of the conspiracy offenses to which Little has

pled guilty must be merged.”     Id. at ¶53.

     {¶ 10} On April 2, 2010, the trial court held the merger hearing

pursuant to our remand.    The parties stipulated that Counts III

and IV are part of the same conspiracy and must merge with each

other, and that Counts V and VI are part of the same conspiracy

and must merge with each other.     The only remaining issue to be

decided was whether the conspiracy at issue in Counts III and IV

must merge with the conspiracy at issue in Counts V and VI. One

witness testified at that hearing,     Detective Craig Polston, of

the Greene County ACE Drug Task Force.          Defendant presented no

witnesses.
                                                                        5

      {¶ 11} After considering the testimony and the arguments of

counsel, the trial court concluded that Counts III and IV are not

part of the same agreement or conspiratorial relationship in Counts

V and VI.   Accordingly, they are not required to be merged pursuant

to   R.C.   2923.01(F).   State   v.   Childs,   88   Ohio   St.3d   558,

2000-Ohio-425.    The court sentenced Defendant to consecutive six

year prison terms on Counts III and V, for a total sentence of

twelve years, which is consistent with the parties’ plea agreement.

 No sentences were imposed on Count IV or Count VI.

      {¶ 12} Defendant has once again appealed to this court from

the trial court’s judgment.

      FIRST ASSIGNMENT OF ERROR

      {¶ 13} “WITH STIPULATION OF MERGING COUNTS PRIOR TO MERGER

HEARING, TRIAL COURT ERRED BY INFORMING APPELLANT AT CHANGE OF

PLEA HEARING THE MAXIUM [SIC] SENTENCE WOULD BE 32 YEARS CREATING

U.S. AND STATE CONSTITUTION VIOLATIONS WHEREFORE MAKING SENTENCE

NULLITY & VOID & AT ODD WITH CRIMINAL RULE 11(C)(2) MORELESS

INVOLUNTARY PLEA VIA ACTUAL PREJUDICE.”

      {¶ 14} Defendant complains that the trial court incorrectly

advised him at the time he entered his guilty pleas that the

aggregate maximum sentence he faced was thirty two years, the

maximum sentence on each of the four counts being eight years,

when the merger of two of those offenses permitted a maximum term
                                                                           6

of but sixteen years.            This claim was previously raised by

Defendant in his direct appeal and was rejected by this court.

Little, at ¶60.      Res judicata bars Defendant from now relitigating

that issue in a subsequent appeal. State v. Perry (1967), 10 Ohio

St.2d 175.

       {¶ 15} Defendant’s first assignment of error is overruled.

       SECOND ASSIGNMENT OF ERROR

       {¶ 16} “TRIAL COURT ERRED BY NOT MERGING CONSPIRACY COUNTS IN

SINGLE INDICTMENT PURSUANT TO STATE V. CHILDS (200) [SIC], 88 Ohio

St.3d 528 & OHIO R.C. 2941.09 WHEN THE SAME OBJECT AGREEMENT WAS

THE FORECAST.”

       {¶ 17} R.C.   2923.01(F)   imposes   limitations    upon     multiple

punishments for related conspiracy offenses.           In State v. Childs,

88 Ohio St.3d 558, 2000-Ohio-425, the Supreme Court stated, at

562:

       {¶ 18} “R.C. 2923.01(F) prohibits multiple convictions for

single conspiracies.           That section provides: ‘A person who

conspires to commit more than one offense is guilty of only one

conspiracy, when the offenses are the object of the same agreement

or continuous conspiratorial relationship.’

       {¶ 19} “Pursuant   to    this   statute,    analysis    of    whether

conspiracy     offenses    are    separately      punishable   under    R.C.

2923.01(F) requires a determination as to (1) whether the offenses
                                                                  7

are the object of the same agreement, and (2) whether the offenses

are part of a continuous conspiratorial relationship.    If either

circumstance exists, the offenses constitute one conspiracy and

may not be separately punished.”

     {¶ 20} Defendant argues that the trial court erred in finding

that the conspiracy at issue in Counts III and IV was not part

of the same conspiratorial relationship at issue in counts V and

VI, and in failing to merge those offenses into a single conspiracy

conviction pursuant to R.C. 2923.01(F).

     {¶ 21} The conspiracy offenses in Counts III and IV occurred

during    the time from frame September 1, 2006 through April 17,

2007.    The conspiracy offenses in Counts V and VI occurred during

the time frame from December 1, 2007 through December 19, 2007.

 While Defendant remained a drug dealer throughout the relevant

time periods, and his purpose was the same, to obtain large

quantities of heroin and cocaine to sell, his conspiratorial

relationships changed during that time period.

     {¶ 22} Between September 1, 2006 and April 17, 2007, there

existed an agreement between Defendant and Caesar Lopez-Ruiz for

the distribution of heroin and cocaine.

     {¶ 23} On or about April 17, 2007, Lopez-Ruiz was arrested by

the Greene County ACE Task Force, and he remained incarcerated

thereafter.    Defendant was forced in December 2007 to seek out
                                                                     8

a new drug supplier.   As a result, on December 19, 2007, Defendant

attempted to purchase large quantities of heroin and cocaine in

what turned out to be an undercover drug sting by the ACE Task

Force.     Defendant’s   involvement   was   the   product    of   his

relationship with another drug dealer and a confidential informant,

neither of whom were connected to or working for Lopez-Ruiz’s

enterprise.

     {¶ 24} We agree with the trial court that the agreement and

events that occurred in December 2007 and involved Defendant and

the ACE Task Force, Counts V and VI, are separate and distinct

from and have no nexus to the agreement and events between Defendant

and Lopez-Ruiz and others from that enterprise between September

2006 and April 2007, Counts III and IV.   As the trial court found,

this was not the same continuous conspiratorial relationship.

Because the conspiracy offenses in Counts III and V, on which

sentences were imposed, are not the object or part of the same

agreement or the same continuous conspiratorial relationship, they

may be separately punished.   R.C. 2923.01(F); Childs.       The trial

court did not err in imposing separate sentences on Counts III

and V.

     {¶ 25} Defendant’s second assignment of error is overruled.

     {¶ 26} In a document titled “Amended Assignments of Error,”

Defendant complains that the trial court erred by denying his
                                                                   9

request for grand jury transcripts.      Defendant first requested

such material in a motion filed October 21, 2008, six months after

he was convicted and sentenced.   The trial court denied Defendant’s

request for grand jury transcripts on July 14, 2010.    This issue,

which could have been raised by Defendant at trial or on direct

appeal, but was not, is now barred by res judicata.   State v. Perry

(1967), 10 Ohio St.2d 175.    In any event, Defendant has failed

to demonstrate a particularized need for the grand jury transcripts

required for disclosure.    State v. Greer (1981), 66 Ohio St.2d

139, at syllabus.

     {¶ 27} This assignment of error is overruled.     The judgment

of the trial court will be affirmed.



HALL, J. and DONOFRIO, J. concur.

(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting
by assignment of the Chief Justice of the Supreme Court of Ohio.)


Copies mailed to:

Stephanie R. Hayden, Esq.
Adrian Little
Hon. Stephen A. Wolaver
