[Cite as State v. Brooks, 2011-Ohio-2282.]



          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 95395


                                     STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                                vs.

                                 JEFFREY BROOKS
                                              DEFENDANT-APPELLANT




                                   JUDGMENT:
                              REVERSED AND VACATED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-511876

               BEFORE:             Blackmon, P.J., Boyle, J., and E. Gallagher, J.

               RELEASED AND JOURNALIZED:                      May 12, 2011
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                                     -i-

ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square, Suite 1016
Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

Patrick J. Lavelle
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113



PER CURIAM:

     {¶ 1} Appellant Jeffrey Brooks appeals his convictions and sentence

and assigns twelve errors for our review.1 Having reviewed the record and

pertinent law, we reverse Brooks’s convictions, vacate his sentences, and

order him discharged. The apposite facts follow.

     {¶ 2} On June 12, 2008, a Cuyahoga County Grand Jury indicted

Brooks, along with codefendants Thomas Yankowski and Alfred Robinson, on

one count each of drug possession and drug trafficking, both second degree


     1
      See appendix.
                                      3
felonies.    On June 26, 2008, Brooks pleaded not guilty at his arraignment.

Numerous pretrials followed and on March 30, 2010, a jury trial commenced.

      {¶ 3} At the trial, the state presented six witnesses, including four

police officers, whose testimonies established that Brooks arranged for the

shipment of approximately 600 pounds of marijuana from California to the

business establishment of his codefendant, Yankowski, in Cleveland, Ohio.

The testimonies further established that Brooks arrived at Yankowski’s

establishment shortly after a controlled delivery was completed and was

caught on surveillance camera directing the loading of the boxes containing

the drugs into the van of his second codefendant.

      {¶ 4} The jury found Brooks guilty of both charges.         On June 14,

2010, the trial court sentenced Brooks to eight-year concurrent prison terms.

Brooks now appeals.

                                   Verdict Form

      {¶ 5} In the first assigned error, Brooks argues he was denied due

process of law when he was convicted and sentenced for two second degree

felonies without a jury’s determination of the amount of a controlled

substance.      Specifically, Brooks asserts that the verdicts only support

convictions for minor misdemeanors.      The state concedes that the trial court

failed to provide the jury with the proper verdict forms.
                                      4
      {¶ 6} Pursuant to R.C. 2945.75(A)(2):

      “When the presence of one or more additional elements
      makes an offense one of more serious degree: * * * A guilty
      verdict shall state either the degree of the offense of
      which the offender is found guilty, or that such additional
      element or elements are present. Otherwise, a guilty
      verdict constitutes a finding of guilty of the least degree of
      the offense charged.”

      {¶ 7} Pursuant to the clear language of R.C. 2945.75, a verdict form

signed by a jury must include either the degree of the offense of which the

defendant is convicted or a statement that an aggravating element has been

found to justify convicting a defendant of a greater degree of a criminal

offense.   State v. Bryant, 7th Dist. No. 10-MA-11, 2010-Ohio-4401, citing

State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, syllabus.

      {¶ 8} In the instant case, the respective jury verdict forms, containing a

single page each, state in pertinent part as follows:

      “We, the Jury in this case, being duly empaneled and

      sworn, do find Defendant, Jeffrey Brooks, guilty of Drug

      Trafficking, in violation of §2925.03(A)(2) of the Ohio

      Revised Code, as charged in Count One of the indictment.”

      “We, the Jury in this case, being duly empaneled and
      sworn, do find Defendant, Jeffrey Brooks, guilty of
      Possession of Drugs, in violation of §2925.11(A) of the Ohio
      Revised Code, as charged in Count Two of the
      indictment.”
                                       5
      {¶ 9} Here, neither verdict includes a statement indicating either the

degree of the offense charged or that an aggravating circumstance existed to

justify a conviction on the greater offense, specifically that the amount of

marijuana involved was equal to or exceeded 20,000 grams.            The verdict

forms simply stated that Brooks was guilty of drug trafficking and drug

possession in violation of the Ohio Revised Code as “charged in the

indictment.”    This is insufficient under Pelfrey supra.

      {¶ 10} Furthermore, the “as charged in the indictment” language in the

verdict form in the case at bar does not cure the defect, even though the

degrees of the offense were included in the indictment. State v. Eafford,

Cuyahoga App. No. 94718, 2011-Ohio-927, citing State v. Moore, 188 Ohio

App.3d 726, 2010-Ohio-1848, 936 N.E.2d 981.

      {¶ 11} Consequently, Brooks was incorrectly sentenced.         As such, a

felony of the fifth degree is the least degree for a conviction for trafficking in

drugs. State v. Huckleberry, 4th Dist. No. 07CA3142, 2008-Ohio-1007. See,

also, R.C. 2925.03(C)(2)(a). Likewise, a misdemeanor of the third degree is

the least degree for a conviction for possession of drugs. Id. See, also R.C.

2925.11(C)(2)(a).   Accordingly, we sustain Brooks’s first assigned error,

reverse his convictions, and vacate his 8 year sentence.
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     {¶ 12} However, the range of sentence for the crimes for which Brooks

was convicted is six-to-twelve months and 60 days in jail, respectively. The

record indicates that Brooks has been incarcerated for more than twelve

months, the maximum period of incarceration for a felony of the fifth degree.

As such, we order Brooks discharged.

     {¶ 13} Our disposition of the first assigned error renders the remaining

assigned errors moot. App.R. 12(A)(1)(C).

     Judgment reversed.

     It is ordered that appellant recover of appellee his costs herein taxed.

     The court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate be sent to said court to carry this

judgment into execution. Case remanded to the trial court for further

proceedings.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




                       PATRICIA ANN BLACKMON, PRESIDING JUDGE



                       MARY J. BOYLE, JUDGE
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                       EILEEN A. GALLAGHER, JUDGE




                             APPENDIX

Assignments of Error

     “I. Defendant was denied due process of law when he was
     sentenced to an eight year sentence when there was no
     determination by the jury as to the amount of the
     controlled substance.”

     “II. Defendant was denied due process of law when the
     court overruled his motion for judgment of acquittal.”

     “III. Defendant was denied a fair trial when Det. Jamal
     Ansari gave his opinion of defendant’s guilt.”
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“IV. Defendant was denied his right of confrontation and
cross-examination when the court refused to allow
defense counsel to question co-defendant Thomas
Yankowski as to the amount of time he was subject to.”

“V. Defendant was denied his right of confrontation and
cross-examination when the court allowed hearsay
testimony from Det. Jamal Ansari.”

“VI. Defendant was denied his right to present a defense
and his right to cross-examination when the court limited
cross-examination of Det. Jamal Ansari.”

“VII. Defendant was denied due process of law when the
prosecutor expressed his personal opinion of defendant’s
guilt.”

“VIII. Defendant was denied due process of law when the
court instructed the jury on flight.”

“IX. Defendant was denied due process of law concerning
the court’s instruction on a presumption.”

“X. Defendant was denied due process of law when the
court misinstructed the jury concerning Count One.”
“XI. Defendant was denied due process of law when he
was separately sentenced for trafficking and possession of
the same controlled substance.”

“XII. Defendant was denied the effective assistance of
counsel.”
