[Cite as State v. Davis, 2012-Ohio-4922.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   W. Scott Gwin, P.J.
                                               :   William B. Hoffman, J.
                          Plaintiff-Appellee   :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. CT2011-0033
                                               :
                                               :
LISA A. DAVIS                                  :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Muskingum
                                                    County Court of Common Pleas Case
                                                    No. CR2011-0024

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             October 17, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

D. MICHAEL HADDOX                                   ELIZABETH N. GABA
Muskingum County Prosecutor                         1231 East Broad Street
Muskingum County, Ohio                              Columbus, Ohio 43205

BY: RON WELCH
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street
Zanesville, Ohio 43701
[Cite as State v. Davis, 2012-Ohio-4922.]


Edwards, J.

        {¶1}     Defendant-appellant, Lisa Davis, appeals her sentence from the

Muskingum County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     On January 26, 2011, the Muskingum County Grand Jury indicted

appellant on one count (Count Two) of trafficking in drugs (crack cocaine) in violation of

R.C. 2925.03(A)(1), a felony of the fourth degree, two counts (Counts Three and Four )

of trafficking in drugs (crack cocaine) in violation of R.C. 2925.03(A)(1), felonies of the

third degree, one count ( Count Five) of possession of drugs (cocaine) in violation of

R.C. 2925.11(A), a felony of the fifth degree, and one count (Count Six) of engaging in

a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), a felony of the first

degree. At her arraignment on February 2, 2011, appellant entered a plea of not guilty

to the charges.

        {¶3}     Subsequently, on April 25, 2011, appellant withdrew her former not guilty

plea and pleaded guilty to Counts Two, Three (as amended to a felony of the fourth

degree), and Five. The remaining counts were dismissed. Pursuant to an Entry filed on

June 30, 2011, appellant was sentenced to eighteen (18) months on Count Two, to

eighteen (18) months on Count Three and to twelve (12) months of Count Five. The trial

court, in its Entry, ordered that the sentences be served consecutively for an aggregate

prison sentence of four (4) years.

        {¶4}     Appellant now raises the following assignments of error on appeal:
Muskingum County App. Case No. CT2011-0033                          3


     {¶5}   “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

AND ABUSED ITS DISCRETION BY NOT FOLLOWING THE MANDATES OF CRIM.

R. 32(B) IN SENTENCING; AS SUCH THE SENTENCING IS VOID AB INITIO.

     {¶6}   “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

AND ABUSED ITS DISCRETION WHEN IT IMPOSED SEPARATE CONVICTIONS

AND SEPARATE MAXIMUM CONSECUTIVE SENTENCES ON COUNT TWO AND

COUNT THREE, AND FAILED TO MERGE COUNT TWO AND COUNT THREE AS

ALLIED OFFENSES OF SIMILAR IMPORT IN VIOLATION OF THE DOUBLE

JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES

CONSTITUTION, ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION, R.C.

2941.25, AND STATE V. JOHNSON 2010-OHIO-6314.

     {¶7}   “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

AND ABUSED ITS DISCRETION WHEN IT FAILED TO CONDUCT INQUIRY INTO

WHETHER THERE SHOULD BE A MERGER OF COUNT TWO AND COUNT THREE

AS ALLIED OFFENSES OF SIMILAR IMPORT IN VIOLATION OF THE DOUBLE

JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES

CONSTITUTION, ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION, R.C.

2941.25, AND STATE V. JOHNSON 2010-OHIO-6314.

     {¶8}   “IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

AND ABUSED ITS DISCRETION WHEN IT SENTENCED APPELLANT TO MAXIMUM

CONSECUTIVE SENTENCES. THE SENTENCE WAS UNREASONABLE AND NOT

PROPORTIONAL TO THE OFFENSE, WAS IN VIOLATION OF APPELLANT’S

EIGHTH AMENDMENT RIGHTS, AND WAS IN VIOLATION OF HB 86.”
Muskingum County App. Case No. CT2011-0033                                                   4


       {¶9}   “V. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

AND ABUSED ITS DISCRETION WHEN IT MAXED APPELLANT ON AN F5

POSSESSION-USE OF POWDER COCAINE. A SENTENCE OF ONE YEAR BASED

ON APPELLANT’S STATEMENT AT THE TIME OF ARREST THAT SHE HAD JUST

‘USED’ WAS UNREASONABLE AND NOT PROPORTIONAL TO THE OFFENSE,

WAS IN VIOLATION OF APPELLANT’S EIGHTH AMENDMENT RIGHTS, AND IN

VIOLATION OF HB 86.”

                                                  I

       {¶10} Appellant, in her first assignment of error, argues that the trial court erred

by not following the mandates of Crim.R. 32(B) in sentencing appellant and that her

sentence is, therefore, void ab initio.

       {¶11} Appellant specifically argues the trial court erred in not informing

appellant, pursuant to Crim. R. 32(B), of her right to appeal, her right to appeal without

payment, that counsel would be appointed and documents provided at no cost and that

she had a right to have a Notice of Appeal timely filed on her behalf.

       {¶12} Crim.R. 32 states in relevant part, as follows: “(B) Notification of right to

appeal

       {¶13} “(2) After imposing sentence in a serious offense, the court shall advise

the defendant of the defendant's right, where applicable, to appeal or to seek leave to

appeal the sentence imposed.

       {¶14} “(3) If a right to appeal or a right to seek leave to appeal applies under

division (B)(1) or (B)(2) of this rule, the court also shall advise the defendant of all of the

following:
Muskingum County App. Case No. CT2011-0033                                                                 5


        {¶15} “(a) That if the defendant is unable to pay the cost of an appeal, the

defendant has the right to appeal without payment;

        {¶16} “(b) That if the defendant is unable to obtain counsel for an appeal,

counsel will be appointed without cost;

        {¶17} “(c) That if the defendant is unable to pay the costs of documents

necessary to an appeal, the documents will be provided without cost;

        {¶18} “(d) That the defendant has a right to have a notice of appeal timely filed

on his or her behalf.”

        {¶19} The record shows that the trial court did not inform appellant of her right to

appeal under Crim.R. 32(B) after sentencing appellant.1 Assuming, arguendo, that the

trial court erred, we find that appellant has failed to show prejudice. Appellant filed an

appeal in this matter and is represented by counsel. Accordingly, we find no reversible

error. See State v. Middleton, 12th Dist. No. CA2004–01–003, 2005–Ohio–681, ¶ 25;

State v. Whetstone, 5th Dist. No. 2010 CA 00132, 2011-Ohio-1957 and State v. Finch,

5th Dist. No. 11 CA 6, 2011-Ohio-4273.

        {¶20} Appellant’s first assignment of error is, therefore, overruled.

                                                       II, III

        {¶21} Appellant, in her second assignment of error, argues that the trial court

erred when it imposed separate convictions and separate maximum consecutive

sentences on Counts Two and Three because the offenses contained in such counts

were allied offenses of similar import and should have merged. Appellant, in her third




1
  The trial court did advise appellant, at the time of her plea, that she had a right to appeal within thirty
(30) days of her sentence.
Muskingum County App. Case No. CT2011-0033                                               6


assignment of error, argues that the trial court erred in failing to inquire into whether

such counts should be merged.

       {¶22} As an initial matter, we note that the State maintains that appellant waived

her right to challenge whether the crimes were allied offenses by pleading guilty.

However, the Ohio Supreme Court considered this issue recently in State v.

Underwood, 124 Ohio St.3d 365, 2010–Ohio–1, 922 N.E.2d 923, and concluded that a

defendant's plea to multiple counts does not affect the trial court's duty to merge allied

offenses at sentencing nor bar appellate review of the sentence. Id. at ¶ 26–29. In

Underwood, the Ohio Supreme Court held that a defendant can appeal a sentence after

a plea and jointly-recommended sentence where the trial court fails to merge allied

offenses because such a decision is not authorized by law, despite it being agreed to.

       {¶23} R.C. 2941.25 reads as follows:

       {¶24} “(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be convicted of only one.

       {¶25} “(B) Where the defendant's conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of the same or

similar kind committed separately or with a separate animus as to each, the indictment

or information may contain counts for all such offenses, and the defendant may be

convicted of all of them.”

       {¶26} In State v. Rance, 85 Ohio St.3d 632, 636, 1999–Ohio–291, 710 N.E.2d

699, the Ohio Supreme Court held that offenses are of similar import if the offenses

“correspond to such a degree that the commission of one crime will result in the
Muskingum County App. Case No. CT2011-0033                                             7

commission of the other.” Id. The Rance court further held that courts should compare

the statutory elements in the abstract. Id.

       {¶27} In 2008, the Ohio Supreme Court instructed as follows in State v.

Cabrales, 118 Ohio St.3d 54, 2008–Ohio–1625, 886 N.E.2d 181, paragraph one of the

syllabus:

       {¶28} “In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), courts are required to compare the elements of offenses in the

abstract without considering the evidence in the case, but are not required to find an

exact alignment of the elements. Instead, if, in comparing the elements of the offenses

in the abstract, the offenses are so similar that the commission of one offense will

necessarily result in the commission of the other, then the offenses are allied offenses

of similar import.”

       {¶29} According to Cabrales, if the sentencing court has initially determined that

two crimes are allied offenses of similar import, the court then proceeds to the second

part of the two-tiered test and determines whether the two crimes were committed

separately or with a separate animus. Id. at 57, citing State v. Blankenship, 38 Ohio

St.3d 116, 117, 526 N.E.2d 816 (1988).

       {¶30} However, on December 29, 2010, the Ohio Supreme Court decided State

v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, 942 N.E.2d 1061, which specifically

overruled the 1999 Rance decision. The Court held: “When determining whether two

offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the

conduct of the accused must be considered.” Id., at the syllabus.
Muskingum County App. Case No. CT2011-0033                                                             8


        {¶31} In Counts Two and Three, appellant was charged and convicted of

trafficking in drugs (crack cocaine) in violation of R.C. 2925.03(A)(1). Such section

states, in relevant part, as follows: “(A) No person shall knowingly do any of the

following: (1) Sell or offer to sell a controlled substance;…” In the case sub judice, the

record reveals that, on May 19, 2010, appellant offered to sell crack cocaine while on

June 16, 2010, nearly a month later, appellant actually sold crack cocaine. Thus, there

were two distinct violations of R.C. 2925.03(A)(1) committed on two different dates.

        {¶32} Based on the foregoing, we find that the offenses were not allied offenses

of similar import and that the trial court did not err in failing to merge the offenses

contained in Counts Two and Three.

        {¶33} Appellant’s second and third assignments of error are, therefore,

overruled.

                                                       IV

        {¶34} Appellant, in her fourth assignment of error, argues that the trial court

abused its discretion in sentencing her to maximum consecutive sentences.2 Appellant

argues that the sentence was not reasonable and was not proportionate to the offenses.

        {¶35} “It is well-established that a sentence that is agreed upon as part of a

negotiated plea, and that does not exceed the statutory maximum sentence applicable

to the crime, is not subject to appellate review pursuant to R.C. § 2953.08(D).” State v.

Yeager, 7th Dist. No. 03CA786, 2004–Ohio–3640, ¶ 21 (additional citations omitted). In

the case sub judice, in exchange for appellant’s guilty plea, the State recommended a

four year prison sentence. Appellant was sentenced to an aggregate prison sentence of


2
 We note that appellant does not allege that the trial court did not consider the factors in R.C. 2929.11
and 2929.12 in sentencing her.
Muskingum County App. Case No. CT2011-0033                                                9


four years. Appellant has thus waived her right to appeal her maximum consecutive

sentences.

       {¶36} Moreover, upon our review of the record, we cannot say that the trial court

abused its discretion in sentencing appellant. An abuse of discretion is “more than an

error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶37} The trial court, in sentencing appellant, noted that appellant had been to

prison before for distribution of drugs, that appellant had been terminated from

community control on or about December 23, 2009 and that “these events occurred less

than – some of these occurred less than six months after you returned from your federal

community control;…” Transcript of June 27, 2011, hearing at 7.           The trial court’s

decision to sentence appellant to maximum consecutive sentences was not arbitrary,

unconscionable or unreasonable. Finally, while appellant, both in this assignment of

error and the following assignment of error contends that her sentence violated H.B 86,

we note that H.B. 86 went into effect on September 30, 2011. Appellant was sentenced

prior to the effective date. H.B. 86 is not retroactive. See State v. Fields, 5th Dist. No.

CT11-0037, 2011-Ohio-6044, ¶10.

       {¶38} Appellant’s fourth assignment of error is, therefore, overruled.

                                                V

       {¶39} Appellant, in her fifth assignment of error, argues that the trial court

abused its discretion in sentencing her to the maximum on the charge of possession of

drugs (cocaine), a fifth degree felony.
Muskingum County App. Case No. CT2011-0033                                             10


       {¶40} As is stated above, appellant has waived her right to appeal her sentence.

The sentence that appellant received was in accordance with the negotiated plea that

appellant would receive a four year sentence. Moreover, based on appellant’s criminal

history, we cannot say that the trial court abused its discretion in sentencing appellant.

The trial court’s decision was not arbitrary, unconscionable or unreasonable.

       {¶41} Accordingly, the judgment of the Muskingum County Court of Common

Pleas is affirmed.




By: Edwards, J.

Gwin, P.J. and

Hoffman, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                                JUDGES

JAE/d0813
[Cite as State v. Davis, 2012-Ohio-4922.]


            IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
LISA A. DAVIS                                     :
                                                  :
                        Defendant-Appellant       :       CASE NO. CT2011-0033




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Muskingum County Court of Common Pleas is affirmed.                Costs

assessed to appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
