[Cite as State v. Sturgis, 2016-Ohio-3388.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MERCER COUNTY



STATE OF OHIO,
                                                           CASE NO. 10-15-17
       PLAINTIFF-APPELLEE,

       v.
                                                           JUDGMENT
JOHN T. STURGIS,                                             ENTRY

       DEFENDANT-APPELLANT.


                  Appeal from Mercer County Common Pleas Court
                                  Criminal Division
                            Trial Court No. 15-CRM-081

                                       Judgment Affirmed

                               Date of Decision: June 13, 2016



APPEARANCES:

        Bryan Scott Hicks for Appellant

        Matthew K. Fox and Joshua A. Muhlenkamp for Appellee
Case No. 10-15-17


WILLAMOWSKI, J.

       {¶1} Defendant-appellant, John T. Sturgis (“Sturgis”), brings this appeal

from the judgment of the Common Pleas Court of Mercer County, Ohio, which

imposed his sentence upon finding him guilty of attempted illegal manufacture of

drugs and illegal assembly or possession of chemicals for the manufacture of

drugs. For the reasons that follow, we affirm the trial court’s judgment.

                             Procedural Background

       {¶2} On May 21, 2015, the Mercer County Prosecuting Attorney filed a

three-count indictment against Sturgis.    Count one of the indictment charged

Sturgis with illegal manufacture of drugs, a felony of the second degree in

violation of R.C. 2925.04(A), (C)(3)(a).       Count two charged Sturgis with

aggravated possession of drugs, a felony of the fifth degree in violation of R.C.

2925.11(A), (C)(1)(a).     Count three charged him with illegal assembly or

possession of chemicals for the manufacture of drugs, a felony of the third degree

in violation of R.C. 2925.041(A), (C). (R. at 1.) Sturgis initially pled not guilty.

(R. at 17.)

       {¶3} On September 11, 2015, Sturgis entered a plea of guilty to an

amended count one: attempted illegal manufacture of drugs, a felony of the third

degree, in violation of R.C. 2923.02 and R.C. 2925.04(A), (C)(3)(a); and to count

three: illegal assembly or possession of chemicals for the manufacture of drugs, a

felony of the third degree in violation of R.C. 2925.041(A), (C). Count two was

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dismissed. (R. at 33; Tr. of Proceedings, Sept. 11, 2015.) The plea agreement

indicated that count one carried a mandatory prison term and that the State would

not make any recommendations with respect to sentencing.                 (R. at 33.)

Additionally, at the change of plea hearing, the trial court advised Sturgis that

count one carried a mandatory sentence that was between nine and thirty-six

months. (Tr. of Proceedings at 10-11, Sept. 11, 2015.) The trial court ordered a

presentence investigation report and continued the matter for sentencing. (Id. at

15.)

       {¶4} At the sentencing hearing, Sturgis raised an objection to the

mandatory nature of his sentence for attempted illegal manufacture of drugs. (Tr.

of Proceedings at 5, Oct. 20, 2015.) The trial court noted that the mandatory

nature of the plea was consistent with the plea agreement entered by Sturgis and

approved by the trial court. (Id. at 9, 12.) It further noted that the mandatory

sentence was consistent with the statutory sections on attempt, R.C. 2923.02. (Id.

at 10.) The trial court explained that “the reduction in the amount of time does not

change the specificity of that sentence that the Court could impose.” (Id. at 10-

11.) It thus sentenced Sturgis to a mandatory sentence of twenty-four months in

prison on the amended count one: attempted illegal manufacture of drugs, a felony

of the third degree. (Id. at 11-12; R. at 55.) It also sentenced Sturgis to a definite

period of twenty-four months in prison on count three: illegal assembly or

possession of chemicals for the manufacture of drugs, a felony of the third degree.

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(Id.) The trial court ordered the sentences to run consecutively. (Id.) In the nunc

pr tunc judgment entry issued on November 9, 2015, the trial court indicated that

“Defense counsel objected to the court’s ruling.” (R. at 55.)

       {¶5} Sturgis filed this timely appeal in which he challenges his sentence for

count one by raising the following assignment of error.

                               Assignment of Error

       THE TRIAL COURT ERRED IN FINDING A MANDATORY
       SENTENCE.

                                Standard of Review

       {¶6} A trial court has discretion to impose a prison sentence that is within

the statutory range. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846

N.E.2d 1, ¶ 37; State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9.

But in exercising that discretion, the trial court must “carefully consider” the

statutory sentencing guidelines set forth in R.C. 2929.11 and R.C. 2929.12, as well

as the “statutes that are specific to the case itself.” Matthis at ¶ 38. We will

reverse the sentence only if we determine “by clear and convincing evidence that

the record does not support the trial court’s findings under relevant statutes or that

the sentence is otherwise contrary to law.” State v. Marcum, Slip Opinion No.

2016-Ohio-1002, ¶1 (March 15, 2016).

                                      Analysis

       {¶7} Sturgis alleges that his sentence was contrary to law because the trial

court improperly applied the statute for a completed offense of illegal manufacture
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Case No. 10-15-17


of drugs, R.C. 2925.04, instead of the attempt statute, R.C. 2923.02. The State

responds, arguing that the sanctions prescribed by R.C. 2925.04 are more specific

than the general provisions of R.C. 2923.02 and therefore, the more specific

statute controls, making the sentence supported by law. Both parties rely on the

same case from the Ohio Supreme Court, State v. Taylor, 113 Ohio St.3d 297,

2007-Ohio-1950, 865 N.E.2d 37 (2007).

       {¶8} In Taylor, the defendant pled guilty to “attempted possession of crack

cocaine in an amount greater than 25 grams but less than 100 grams, a felony of

the second degree.” Id. at ¶ 2. The defendant was sentenced under the attempt

statute, which states

       (A) No person, purposely or knowingly, and when purpose or
       knowledge is sufficient culpability for the commission of an offense,
       shall engage in conduct that, if successful, would constitute or result
       in the offense.

       ***

       (E)(1) Whoever violates this section is guilty of an attempt to
       commit an offense. * * * An attempt to commit a drug abuse offense
       for which the penalty is determined by the amount or number of unit
       doses of the controlled substance involved in the drug abuse offense
       is an offense of the same degree as the drug abuse offense attempted
       would be if that drug abuse offense had been committed and had
       involved an amount or number of unit doses of the controlled
       substance that is within the next lower range of controlled substance
       amounts than was involved in the attempt. An attempt to commit any
       other offense is an offense of the next lesser degree than the offense
       attempted.

R.C. 2923.02; Taylor at ¶ 5-8, quoting R.C. 2923.02.



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       {¶9} The parties disagreed over which statute should determine penalties

for the attempted offense: the attempt statute, R.C. 2923.02, or the drug possession

statute, R.C. 2925.11. See Taylor at ¶ 4, 10. Analyzing the issue, the Ohio

Supreme Court reasoned,

       “It is a well settled rule of statutory construction that where a statute
       couched in general terms conflicts with a specific statute on the same
       subject, the latter must control.” Humphrys v. Winous Co. (1956),
       165 Ohio St. 45, 48, 59 O.O. 65, 133 N.E.2d 780; see also Bellian v.
       Bicron Corp. (1994), 69 Ohio St.3d 517, 519, 634 N.E.2d 608.

       R.C. 2923.02, the attempt statute, is the general statute. It describes
       the elements of an attempt to commit a crime—any crime—and
       generally describes how an attempt is to be punished in comparison
       to a completed crime of the same import.

       R.C. 2925.11 is a specific drug-offense statute. It describes the
       elements of a drug-possession offense and, unlike most statutes in
       the criminal code, prescribes specific punishments, including
       mandatory sentences, for subcategories of crimes depending on the
       type and amount of illegal substance upon which a criminal charge
       could be made. Thus, R.C. 2925.11 is a specific statute that controls
       over the general statute, and Taylor was subject to the more specific
       mandatory-sentencing requirements of R.C. 2925.11.

Id. at ¶ 12-14.

       {¶10} Applying the same reasoning to the case at issue, we observe that

R.C. 2925.04, the statute under which Sturgis pled and was found guilty of

attempted illegal manufacture of drugs, is also “a specific drug-offense statute”

and “unlike most statutes in the criminal code, prescribes specific punishments,

including mandatory sentences, for subcategories of crimes.” Id. at ¶ 14. It states

that

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       (A) No person shall knowingly cultivate marihuana or knowingly
       manufacture or otherwise engage in any part of the production of a
       controlled substance.

       ***

       (C)(1) Whoever commits a violation of division (A) of this section
       that involves any drug other than marihuana is guilty of illegal
       manufacture of drugs, and whoever commits a violation of division
       (A) of this section that involves marihuana is guilty of illegal
       cultivation of marihuana.

       ***

        (3) If the drug involved in the violation of division (A) of this
       section is methamphetamine, the penalty for the violation shall be
       determined as follows:

       (a) Except as otherwise provided in division (C)(3)(b) of this section,
       if the drug involved in the violation is methamphetamine, illegal
       manufacture of drugs is a felony of the second degree, and, subject
       to division (E) of this section, the court shall impose a mandatory
       prison term on the offender determined in accordance with this
       division. Except as otherwise provided in this division, the court
       shall impose as a mandatory prison term one of the prison terms
       prescribed for a felony of the second degree that is not less than
       three years.

(Emphasis added.) R.C. 2925.04. Although the penalties in R.C. 2925.04 do not

depend on the amount of illegal substance, they do depend “on the type” of drug,

like the penalties in the statute at issue in Taylor, 113 Ohio St.3d 297, 2007-Ohio-

1950, 865 N.E.2d 37, at ¶ 14. Therefore, as a specific statute, R.C. 2925.04

controls over the general statute, R.C. 2923.02.        As a result, the “specific

mandatory-sentencing requirements” of R.C. 2925.04 apply. Id.




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       {¶11} In further support of this reasoning, the Ohio Supreme Court

recognized that an attempted drug abuse offense “is not a separate and distinct

crime,” but is incorporated into the drug abuse offense, and therefore, while the

defendant will benefit from a reduced prison term, he or she will still be subject to

the mandatory sentencing provisions of the drug-abuse statute. Id. at ¶ 16-17,

citing State v. Hall, 8th Dist. Cuyahoga No. 76374, 2000 WL 868478, *5 (June 29,

2000) (recognizing that the attempt statute “was incorporated into” the offense

statute by the plea agreement and that “[t]here was never any agreement to amend

the indictment to delete R.C. 2925.11 so that the penalties provided for violations

of that section would not apply”); see also Kempf v. Scott, 10th Dist. Franklin No.

12AP-937, 2013-Ohio-1153, ¶ 6-7 (holding that “[o]n its face, a violation of an

offense under R.C. Chapter 2923 is not an offense under R.C. Chapter 2925,” but

the Ohio Supreme Court’s reasoning in Taylor “indicates that we must interpret

attempted trafficking in drugs as a drug offense under R.C. Chapter 2925”); R.C.

2925.01(G)(4) (defining a “drug abuse offense” as one that includes an attempt to

commit a violation of R.C. 2925.04).

       {¶12} In conclusion, we hold that the trial court properly determined that

under the general attempt statute, it was required to lower the degree of the offense

to a felony of the third degree. See R.C. 2923.04(E)(1). But because the general

attempt statute does not prescribe specific penalties for the offense of illegal




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manufacturing of drugs,1 the trial court properly used the more-specific illegal

manufacture statute to impose a mandatory prison term. Therefore, we hold that

the mandatory sentence is not contrary to law and we overrule the assignment of

error.

                                              Conclusion

         {¶13} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued. The judgment of the Common Pleas Court of Mercer County, Ohio is

therefore affirmed.

                                                                                 Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/hls




1
  We observe that the attempt statute does prescribe specific penalties for some categories of crimes. See
R.C. 2923.02(E)(1) (prescribing a specific penalty for “an attempt to commit a violation of any provision of
Chapter 3734. of the Revised Code, other than section 3734.18 of the Revised Code, that relates to
hazardous wastes”); (E)(2) (prescribing a specific penalty for “attempted rape” with “a specification of the
type described in section 2941.1418, 2941.1419, or 2941.1420 of the Revised Code”); see also R.C.
2923.04(E)(3) (prescribing specific additional penalty for “an attempt to commit aggravated murder or
murder in violation of division (A) of this section”).

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