[Cite as State v. Harshman, 2012-Ohio-3901.]




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


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                    CASE NO. 13-12-02

        v.

DONALD L. HARSHMAN,                            OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                    CASE NO. 13-12-03

        v.

DONALD L. HARSHMAN,                            OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                    CASE NO. 13-12-04

        v.

DONALD L. HARSHMAN,                            OPINION

        DEFENDANT-APPELLANT.
Case Nos. 13-12-02, 13-12-03, 13-12-04




             Appeals from Seneca County Common Pleas Court
            Trial Court Nos. 11CR0023, 11CR0075, and 11CR0076

                  Appeal Dismissed in Case No. 13-12-02
             Judgments Affirmed in Case Nos. 13-12-03, 13-12-04

                      Date of Decision: August 27, 2012




APPEARANCES:

      Mary F. Snyder for Appellant

      Derek W. DeVine and Rhonda L. Best for Appellee




PRESTON, J.

      {¶1} Defendant-appellant, Donald L. Harshman, appeals the Seneca County

Court of Common Pleas’ judgment entries of sentence. For the reasons stated

herein, we dismiss appellate case no. 13-12-02 (trial court case no. 11CR0023)

and affirm the trial court’s judgments in appellate case nos. 13-12-03 (trial court

case no. 11CR0075) and 13-12-04 (trial court case no. 11CR0076).

      {¶2} On March 16, 2011, the Seneca County Grand Jury indicted

Harshman on one count of receiving stolen property in violation of R.C.

2913.51(A), (C), a fourth degree felony, which was assigned trial court case no.

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Case Nos. 13-12-02, 13-12-03, 13-12-04


11CR0023. (Doc. No. 3). The bill of particulars alleged that, on or about February

4, 2011 at 107 Clinton Ave. and 44 ½ W. Market St., in the City of Tiffin, Seneca

County, Ohio, Harshman did recklessly receive, retain, or dispose of property of

another knowing it was obtained through a theft offense. (Doc. No. 10).

Discovery in the case indicates that the stolen property consisted of computers and

computer-related electronics and computer components owned by Diverse

Technology Solutions of Tiffin, Ohio. (Doc. No. 20).

       {¶3} On April 14, 2011, the Seneca County Grand Jury indicted Harshman

on two counts of illegal manufacture of drugs in violation of R.C. 2925.04(A),

(C)(3)(b), first degree felonies, in two separate indictments assigned trial court

cases nos. 11CR0075 and 11CR0076.             In case no. 11CR0075, the bill of

particulars alleged that, on or about February 4, 2011 at 107 Clinton Ave., in the

City of Tiffin, Seneca County, Ohio, Harshman did knowingly manufacture or

otherwise engage in the production of methamphetamine, a controlled substance,

within the vicinity of a school. (Doc. No. 10). In case no. 11CR0076, the bill of

particulars alleged that, on or about March 23, 2011 at 115 Coe St. in the City of

Tiffin, Seneca County, Ohio, Harshman did knowingly manufacture or otherwise

engage in the production of a controlled substance, namely methamphetamine,

within the vicinity of a school. (Doc. No. 10).




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Case Nos. 13-12-02, 13-12-03, 13-12-04


      {¶4} On December 5, 2011, pursuant to a written plea agreement,

Harshman entered a plea of guilty to one count of receiving stolen property, a

fourth degree felony, in case no. 11CR0023; a plea of guilty to the lesser-included

offense of illegal manufacture of drugs in violation of R.C. 2925.04(A),(C)(3)(a),

a second degree felony, in case no. 11CR0075; and, a plea of guilty to one count

of illegal manufacture of drugs, a first degree felony, in case no. 11CR0076.

(Doc. Nos. 44, 56, 55).     Pursuant to the plea agreement, the parties jointly-

recommended a sentence of 15 months in case no. 11CR0023, a mandatory three-

year sentence in case no. 11CR0075, and a mandatory four-year sentence in case

no. 11CR0076. (Case No. 11CR0023, Doc. No. 43). The trial court sentenced

Harshman to the jointly-recommended sentences. (Doc. Nos. 45, 59, 57).

      {¶5} On January 4, 2012, Harshman filed notices of appeal in each case.

(Doc. Nos. 50, 64, 63). Trial court case no. 11CR0023 was assigned appellate

case no. 13-12-02; trial court case no. 11CR0075 was assigned appellate case no.

13-12-03; and, trial court case no. 11CR0076 was assigned appellate case no. 13-

12-04. This Court consolidated the appeals for purposes of review.

      {¶6} Harshman now appeals raising two assignments of error.             Both

assignments of error relate to Harshman’s sentences in trial court case nos.

11CR0075 and 11CR0076 (appellate case nos. 13-12-03 and 13-12-04,

respectively). Since Harshman has raised no assignments of error related to his


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Case Nos. 13-12-02, 13-12-03, 13-12-04


conviction and sentence in trial court case no. 11CR0023 (appellate case no. 13-

12-02) as required under App.R. 16(A)(3), we dismiss the appeal for want of

prosecution. State v. Matthieu, 3d Dist. Nos. 10-02-04, 10-02-05, 2003-Ohio-

3430, ¶ 10.     We now turn to Harshman’s assignments of error in the two

remaining appellate cases.

                             Assignment of Error No. I

        The trial court erred by imposing separate convictions and
        prison sentences for Illegal Manufacture of Drugs, ORC
        2925.04(A), (C)(3)(a), a Felony of the Second Degree; and Illegal
        Manufacture of Drugs, ORC 2925.04(A), (C)(3)(b), a Felony of
        the First Degree.

        {¶7} In his first assignment of error, Harshman argues that the trial court

committed plain error by sentencing him on both illegal manufacture of drug

convictions since they were allied offenses. We disagree.

        {¶8} “Where the defendant’s conduct * * * results in two or more offenses

of the same or similar kind committed separately * * * the indictment * * * may

contain counts for all such offenses, and the defendant may be convicted of all of

them.” R.C. 2941.25(B). As the Ohio Supreme Court recently observed, “if the

offenses are committed separately * * * then, according to R.C. 2941.25(B), the

offenses will not merge.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314,

¶ 51.




                                        -5-
Case Nos. 13-12-02, 13-12-03, 13-12-04


      {¶9} The record indicates that Harshman committed two separate acts of

illegally manufacturing drugs at two separate places—on or about February 4,

2011 at 107 Clinton Avenue and on or about March 23, 2011 at 115 Coe Street.

(Bill of Particulars, Doc. Nos. 10, 10). Consequently, these two offenses are not

allied offenses of similar import under R.C. 2941.25(B), and the trial court did not

commit plain error by sentencing Harshman on both offenses. Johnson, 2010-

Ohio-6314, at ¶ 51.

      {¶10} Harshman’s first assignment of error is, therefore, overruled.

                           Assignment of Error No. II

      The Appllant’s [sic] trial counsel was ineffective in failing to
      raise any allied offense objection, thereby prejudicing the
      Appellant.

      {¶11} In his second assignment of error, Harshman argues that his trial

counsel was ineffective for failing to raise the issue of allied offenses at

sentencing. We disagree.

      {¶12} A defendant asserting a claim of ineffective assistance of counsel

must establish: (1) the counsel’s performance was deficient or unreasonable under

the circumstances; and (2) the deficient performance prejudiced the defendant.

State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052 (1984).




                                        -6-
Case Nos. 13-12-02, 13-12-03, 13-12-04


       {¶13} As we have already stated, Harshman’s offenses are not allied under

R.C. 2941.25(B) and Johnson, 2010-Ohio-6314. Therefore, trial counsel was not

ineffective by failing to raise an allied offense argument at sentencing.

       {¶14} Harshman’s second assignment of error is, therefore, overruled.

       {¶15} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgments of the trial court in case

nos. 11CR0075 and 11CR0076 (appellate case nos. 13-12-03 and 13-12-04,

respectively). Having failed to raise any assignments of error related to trial court

case no. 11CR0023 (appellate case no. 13-12-02), we dismiss the appeal for want

of prosecution.

                                                                Appeal Dismissed in
                                                                 Case No. 13-12-02

                                                       Judgments Affirmed in Case
                                                        Nos. 13-12-03 and 13-12-04

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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