[Cite as State v. Dodson, 2017-Ohio-350.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.      16CA0020-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JESSICA E. DODSON                                     COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   14CR0342

                                 DECISION AND JOURNAL ENTRY

Dated: January 31, 2017



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Jessica E. Dodson, appeals the judgment of the Medina

County Court of Common Pleas sentencing her to a prison term of eighteen months. For the

reasons that follow, this Court affirms.

                                                 I.

        {¶2}     The Medina County grand jury issued an indictment charging Dodson with one

count of possession of heroin in violation of R.C. 2925.11(A)/(C)(6)(a), one count of possession

of cocaine in violation of R.C. 2925.11(A)/(C)(3)(a), and one count of aggravated possession of

drugs (methadone) in violation of R.C. 2925.11(A)/(C)(4)(a). At arraignment, Dodson entered a

plea of not guilty and the matter proceeded through the pretrial process.

        {¶3}     The trial court ultimately found that Dodson met the criteria for intervention in

lieu of conviction (“IILC”). Consequently, Dodson entered a guilty plea to all three counts in the

indictment and the trial court stayed the criminal proceedings without entering a finding of guilt.
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The trial court then ordered Dodson to comply with the terms and conditions of the IILC

program. However, after several violations, the trial court found Dodson guilty of violating the

conditions of IILC and accepted Dodson’s earlier pleas of guilty to possession of heroin,

possession of cocaine, and aggravated possession of drugs. After a presentence investigation, the

trial court sentenced Dodson to 180 days of incarceration at the Medina County Jail with a credit

for 68 days already served. The trial court also imposed a number of non-residential community

control sanctions, including three years of probation under intensive supervision.         While

incarcerated at the Medina County Jail, the trial court also ordered that Dodson be assessed for

placement at the Lorain/Medina County Community Based Correctional Facility (“CBCF”).

          {¶4}   Although Dodson was eventually placed at CBCF, she was unsuccessfully

terminated a short time later. At a hearing, the trial court accepted Dodson’s plea of admission

and found her guilty of violating the terms and conditions of her probation. The trial court

sentenced Dodson to a jail sentence of an additional thirty days and continued Dodson on

probation.

          {¶5}   However, Dodson again violated her probation. At a subsequent hearing, the trial

court accepted Dodson’s plea of admission and again found her guilty of violating the terms and

conditions of her probation. The trial court then imposed a prison sentence on Dodson of six

months incarceration on each of the three counts of possession to run consecutively with a credit

of 206 days for time already served.

          {¶6}   Dodson now brings this timely appeal and raises one assignment of error for our

review.
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                                                 II.

                                       Assignment of Error

       The trial court committed plain error and erred as a matter of law in
       sentencing Appellant to consecutive sentences for allied offenses that arose
       from the same conduct and were not committed separately or with separate
       animus.

       {¶7}    In her sole assignment of error, Dodson contends that the trial court committed

plain error when it imposed consecutive prison sentences because her convictions were allied

offenses arising from the same conduct and were not committed separately or with separate

animus. We disagree.

       {¶8}    In this case, Dodson did not seek to merge her charges prior to entering her guilty

pleas to possession of heroin, possession of cocaine, and aggravated possession of drugs and the

trial court’s subsequent acceptance of those guilty pleas. Consequently, Dodson states that her

separate convictions were proper “since the merger process was waived below.”                Dodson

contends that regardless of this waiver, her convictions for possession of heroin, possession of

cocaine, and aggravated possession of drugs are allied offenses which arose from the same

conduct and, therefore, the trial court committed plain error when it did not merge her

convictions for sentencing purposes.

       {¶9}    Crim.R. 52(B) allows an appellate court to take notice of a plain error affecting a

substantial right even though the error was not first brought to the trial court’s attention.

However, a plain error review is only proper for instances of forfeiture rather than for waiver.

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 23.               Waiver is the intentional

relinquishment or abandonment of a right, and the waiver of a right “cannot form the basis of any

claimed error under Crim.R. 52(B).” Id., quoting State v. McKee, 91 Ohio St.3d 292, 299, fn. 3

(Cook, J., dissenting). However, “[i]n contrast to waiver, forfeiture is the failure to timely assert
                                                 4


a right or object to an error.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 21.

Although Dodson uses the term waiver, in the body of her brief Dodson treats her failure to seek

the merger of her charges in the court below as a forfeiture of the argument and not as a waiver.

We recognize that “[i]t is possible for an accused to expressly waive the protection afforded by

R.C. 2941.25, such as by ‘stipulating in the plea agreement that the offenses were committed

with separate animus.’” Id. at ¶ 20, quoting Underwood at ¶ 29. However, after a thorough

review, we conclude that nothing in the record indicates that by pleading guilty Dodson intended

to relinquish the opportunity to argue that her offenses should have merged for the purposes of

sentencing. Additionally, “an allied offenses claim is consistent with an admission of guilt and

therefore is not waived by pleading guilty to offenses that might be allied offenses of similar

import.” Rogers at ¶ 19. Accordingly, we will analyze Dodson’s failure to raise the issue of the

possible merger of her charges before the trial court as a forfeiture of the argument.

       {¶10} As we stated previously, Crim.R. 52(B) allows an appellate court to take notice of

a plain error affecting a substantial right even though the error was not first brought to the trial

court’s attention. The Supreme Court of Ohio has held that “[a]n 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 unless it affected the outcome of the proceedings and reversal is

necessary to correct a manifest miscarriage of justice.” Id. at ¶ 3. “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 separate animus; absent that

showing, the accused cannot demonstrate that the trial court’s failure to inquire whether the

convictions merge for purposes of sentence was plain error.” Id.
                                                5


       {¶11} “Whether multiple punishments imposed in the same proceeding are permissible

is a question of legislative intent.” State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, ¶

10. “Absent a more specific legislative statement, R.C. 2941.25 is the primary indication of the

General Assembly’s intent to prohibit or allow multiple punishments for two or more offenses

resulting from the same conduct.” Id. at ¶ 11. “R.C. 2941.25 codifies the protections of the

Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section

10, Article I of the Ohio Constitution, which prohibits multiple punishments for the same

offenses.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 23. The statute provides as

follows:

       (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.

       (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.

Accordingly, R.C. 2941.25(B) provides “that the same conduct can be separately punished if that

conduct constitutes offenses of dissimilar import. (Emphasis sic.) State v. Ruff, 143 Ohio St.3d

114, 2015-Ohio-995, ¶ 20. Offenses are of dissimilar import if they involve separate victims or

if the harm that results from each offense is separate and identifiable. Id. at paragraph 2 of the

syllabus.

       {¶12} Dodson contends that her convictions for possession of heroin, possession of

cocaine, and aggravated possession of drugs are allied offenses of similar import because they

were committed on the same day and arose from the same conduct. However, in State v.
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Helmick, 9th Dist. Summit No. 27179, 2014-Ohio-4187, this Court previously recognized the

following:

       Generally, crimes relating to different controlled substances are of dissimilar
       import and do not merge. Under R.C. 2628.11(C), drug possession offenses are
       classified and penalized based on the type and quantity of the controlled substance
       involved. Where each violation of R.C. 2925.11 requires proof of the identity of a
       different drug that was possessed * * * the legislature intended the possession of
       the different drug groups to constitute different offenses.

(Internal quotations and citations omitted.) Id. at ¶ 26. Other Ohio courts have also concluded

that the legislature intended the possession of different drugs to constitute different offenses and

thus, crimes relating to different controlled substances are of dissimilar import. See State v.

Huber, 2d Dist. Clark No. 2010-CA-83, 2011-Ohio-6175, ¶ 7 (“[T]he fact each violation of R.C.

2925.11 requires proof of the identity of a different drug that was possessed demonstrates ‘that

the legislature intended the possession of the different drug groups to constitute different

offenses.’”) quoting State v. Delfino, 22 Ohio St.3d 270, 274 (1986); State v. Heflin, 6th Dist.

Lucas No. L-11-1173, 2012-Ohio-3988, ¶ 14 (holding that convictions for simultaneous

possession of cocaine and heroin were not subject to merger as allied offenses of similar import

since possession of either would never support a conviction for possession of the other); State v.

Santiago, 8th Dist. Cuyahoga No. 101601, 2015-Ohio-1300, ¶ 12 (concluding that possession of

heroin and possession of cocaine do not constitute allied offenses of similar import since they are

recognized as separate offenses under R.C. 2925.11); State v. Hughes, 5th Dist. Coshocton No.

15CA0008, 2016-Ohio-880, ¶ 24-25 (concluding that convictions for possession of cocaine,

heroin and other controlled substances did not merge for purposes of sentencing).

       {¶13} In this case, Dodson was convicted of possession of heroin in violation of R.C.

2925.11(A)/(C)(6)(a), possession of cocaine in violation of R.C. 2925.11(A)/(C)(4)(a), and

aggravated possession of drugs (methadone) in violation of R.C. 2925.11 (A)/(C)(1)(a).
                                                 7


Although it is undisputed that Dodson’s possession of heroin, cocaine, and methadone occurred

simultaneously, each is recognized as a separate offense under R.C.2925.11. Therefore, we

conclude that Dodson has failed to meet her burden to show a reasonable probability that her

offenses were allied offenses and subject to merger.

       {¶14} Accordingly, Dodson’s sole assignment of error is overruled.

                                                III.

       {¶15} Dodson’s sole assignment of error is overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
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WHITMORE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

PAUL E. MEYER, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting
Attorney, for Appellee.
