[Cite as State v. Sheffey, 2020-Ohio-3561.]


                                     IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                     ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                    :        OPINION

                    Plaintiff-Appellee,            :
                                                            CASE NO. 2019-A-0022
          - vs -                                   :

 JERMAINE CURTIS SHEFFEY,                          :

                    Defendant-Appellant.           :


 Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2017 CR
 00495.

 Judgment: Affirmed.


 Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, Ohio
 44047-1092 (For Plaintiff-Appellee).

 Eric J. Cherry, The Law Offices of Eric J. Cherry, 33977 Chardon Road, Willoughby Hills,
 Ohio 44094 (For Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}       Appellant, Jermaine Curtis Sheffey, appeals his sentence arguing plain

error for failure to merge two of the counts. We affirm.

        {¶2}       In February of 2018, Sheffey was charged with thirteen felony drug counts.

Following discovery, Sheffey pleaded guilty to three counts in exchange for the state

dismissing the remaining counts. The parties recommended a three-year prison sentence

consisting of three consecutive twelve-month terms. The court accepted Sheffey’s guilty
plea and found him guilty of count one, aggravated drug trafficking in U-47700, count four,

aggravating trafficking in carfentanil, both fourth-degree felonies in violation of R.C.

2925.03(A)(2)(C)(1)(a), and count five, trafficking in heroin, a fifth-degree felony in

violation of R.C. 2925.03(A)(2)(C)(1)(a), and dismissed the remaining charges. The trial

court also imposed the jointly recommended sentence of twelve months on each count to

be served consecutively for a total of three years in prison.

       {¶3}    His sole assigned error contends:

       {¶4}    “The trial court erred as a matter of law by adopting a written plea agreement

that was not authorized by law.”

       {¶5}    Sheffey argues the trial court has an independent, mandatory duty to

examine a plea agreement and determine whether any of the pled-to offenses are allied

offenses of similar import subject to merger before sentencing.

       {¶6}    “An accused's failure to raise the issue of allied offenses of similar import in

the trial court forfeits all but plain error, and a forfeited error is not reversible error unless

it affected the outcome of the proceeding and reversal is necessary to correct a manifest

miscarriage of justice. Accordingly, an accused has the burden to demonstrate a

reasonable probability that the convictions are for allied offenses of similar import

committed with the same conduct and without a separate animus; absent that showing,

the accused cannot demonstrate that the trial court's failure to inquire whether the

convictions merge for purposes of sentencing was plain error.” State v. Rogers, 143 Ohio

St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3.




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       {¶7}    Thus, as in Rogers, Sheffey must demonstrate plain error and that a

reasonable probability exists that his convictions are allied offenses of similar import

subject to merger. Id. at ¶ 29.

       {¶8}    “Crim.R. 52(B) affords appellate courts discretion to correct ‘[p]lain errors or

defects affecting substantial rights’ notwithstanding the accused's failure to meet his

obligation to bring those errors to the attention of the trial court. However, the accused

bears the burden of proof to demonstrate plain error on the record, * * * and must show

‘an error, i.e., a deviation from a legal rule’ that constitutes ‘an “obvious” defect in the trial

proceedings,’ State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). However,

even if the error is obvious, it must have affected substantial rights, and ‘[w]e have

interpreted this aspect of the rule to mean that the trial court's error must have affected

the outcome of the trial.’ Id. The accused is therefore required to demonstrate a

reasonable probability that the error resulted in prejudice—the same deferential standard

for reviewing ineffective assistance of counsel claims. United States v. Dominguez

Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (construing

Fed.R.Crim.P. 52(b), the federal analog to Crim.R. 52(B), and also noting that the burden

of proving entitlement to relief for plain error ‘should not be too easy’).

       {¶9}    “But even if an accused shows that the trial court committed plain error

affecting the outcome of the proceeding, an appellate court is not required to correct it;

we have ‘admonish[ed] courts to notice plain error “with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.”’

(Emphasis added.) Barnes at 27, 759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d

91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.” Id. at ¶ 22-23.




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       {¶10} Here, Sheffey argues that counts one and four merge since both convictions

“most likely” arose from a single compound containing both carfentanil and U-47700.

Counts one and four in the indictment each identifies the illegal drug of abuse as weighing

0.55 grams.    As he alleges, counts one and four charge Sheffey with aggravated

trafficking in drugs alleging Sheffey knowingly prepared for shipment, transport, or

distribution a compound, mixture or substance “included in Schedule I or II, in an amount

less than the bulk amount, to-wit: 0.55 gram * * *.” Count one identifies the substance or

drug as “0.55 gram of U-47700, a drug included in Schedule II,” and count four identifies

the substance as “0.55 gram of Carfentanil, a drug included in Schedule II * * *.” In arguing

for reversal and remand for merger of these two offenses, Sheffey relies heavily on our

decision in State v. Lee, 2018-Ohio-4376, 121 N.E.3d 737, holding merger is required

when multiple counts arise from one compound containing multiple different illegal

substances. However, in State v. Pendleton, 2nd Dist. Clark No. 2017-CA-17, 2018-Ohio-

3199, ¶ 29, appeal allowed, 154 Ohio St.3d 1443, 2018-Ohio-4962, 113 N.E.3d 551, the

Second District held the contrary, i.e., that merger is not required and that a single

compound containing different illegal drugs can support more than one conviction.

       {¶11} Sheffey argues his convictions for counts one and four stem from a single

compound containing both carfentanil and U-47700. However, that is but one possibility.

It may be that the counts are supported by two separate compounds both weighing .55

grams and one consisting of all or part carfentanil and the other all or part U-47700. “It is

fundamental that the appellant bears the burden of affirmatively demonstrating error on

appeal.” Wray v. Parsson, 101 Ohio App.3d 514, 518, 655 N.E.2d 1365 (9th Dist.1995),




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citing Pennant Moldings, Inc. v. C & J Trucking Co., 11 Ohio App.3d 248, 251, 464 N.E.2d

175 (1983). Sheffey has failed to establish the factual predicate for Lee to apply.

       {¶12} There is no obvious defect in the trial court’s proceedings, and we do not

find plain error. Sheffey’s sole assigned error is overruled, and the trial court’s decision

is affirmed.



TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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