[Cite as State v. Williams, 2012-Ohio-3211.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                  :     JUDGES:
                                               :     Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                     :     Hon. Sheila G. Farmer, J.
                                               :     Hon. John W. Wise, J.
-vs-                                           :
                                               :
SHANNON L. WILLIAMS                            :     Case No. 11-CA-115
                                               :
        Defendant-Appellant                    :     OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Licking County
                                                     Court of Common Pleas, Case No.
                                                     11CR00269


JUDGMENT:                                            Affirmed/Reversed in Part &
                                                     Remanded



DATE OF JUDGMENT:                                    July 12, 2012




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

EARL L. FROST                                        ERIC W. BREHM
20 South Second Street                               604 East Rich Street
4th Floor                                            Suite 2100
Newark, OH 43055                                     Columbus, OH 43215
Licking County, Case No. 11-CA-115                                                   2

Farmer, J.

       {¶1}   On June 6, 2011, the Licking County Grand Jury indicted appellant,

Shannon Williams, on one count of aggravated trafficking in drugs (Psilocybin/Psilocin

mushrooms) in violation of R.C. 2925.03, one count of aggravated possession of drugs

(Psilocybin/Psilocin mushrooms) in violation of R.C. 2925.11, two counts of possession

of drugs (LSD and marijuana) in violation of R.C. 2925.11, and one count of possession

of drug paraphernalia in violation of R.C. 2925.14.

       {¶2}   A jury trial commenced on October 18, 2011. The jury found appellant

guilty as charged save for the possession of marijuana count which was tried to the

bench. The trial court found appellant guilt of said charge. By judgment entry filed

October 20, 2011, the trial court sentenced appellant to an aggregate term of six years

in prison.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

       {¶4}   "THE TRIAL COURT DID ERR BY IMPOSING MULTIPLE PRISON

SENTENCES, WHEN THE OFFENSES WERE ALLIED OFFENSES OF SIMILAR

IMPORT."

                                            II

       {¶5}   "THE TRIAL COURT DID ERR BY IMPOSING CONSECUTIVE

SENTENCES."
Licking County, Case No. 11-CA-115                                                       3


                                            III

      {¶6}   "THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL."

                                             I

      {¶7}   Appellant claims the trial court erred in failing to merge his convictions for

aggravated trafficking in drugs and aggravated possession of drugs as both offenses

resulted from the same conduct under State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314.

      {¶8}   The Johnson court held the following at ¶48-51:

      {¶9}   "In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), the question is whether it is possible to commit one offense and

commit the other with the same conduct, not whether it is possible to commit one

without committing the other.    Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816

(Whiteside, J., concurring) ('It is not necessary that both crimes are always committed

by the same conduct but, rather, it is sufficient if both offenses can be committed by the

same conduct. It is a matter of possibility, rather than certainty, that the same conduct

will constitute commission of both offenses.'        [Emphasis sic]).     If the offenses

correspond to such a degree that the conduct of the defendant constituting commission

of one offense constitutes commission of the other, then the offenses are of similar

import.

      {¶10} "If the multiple offenses can be committed by the same conduct, then the

court must determine whether the offenses were committed by the same conduct, i.e., 'a
Licking County, Case No. 11-CA-115                                                       4

single act, committed with a single state of mind.' Brown, 119 Ohio St.3d 447, 2008-

Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting).

      {¶11} "If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

      {¶12} "Conversely, if the court determines that the commission of one offense

will never result in the commission of the other, or if the offenses are committed

separately, or if the defendant has separate animus for each offense, then, according to

R.C. 2941.25(B), the offenses will not merge."

      {¶13} Appellant     was    convicted       of   aggravated   trafficking   in   drugs

(Psilocybin/Psilocin mushrooms) in violation of R.C. 2925.03(A)(1) and (2)(C)(1)(a) and

aggravated possession of drugs (Psilocybin/Psilocin mushrooms) in violation of R.C.

2925.11(A) and (C)(1)(c). Appellant argues the sale of drugs and the possession of

drugs on the same date constitute the same animus.

      {¶14} In State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, ¶29, the

Supreme Court of Ohio explained the following:

      {¶15} "We begin by comparing the elements of possessing a controlled

substance under R.C. 2925.11(A) and trafficking in a controlled substance under R.C.

2925.03(A)(1). To be guilty of possession under R.C. 2925.11(A), the offender must

'knowingly obtain, possess, or use a controlled substance.' To be guilty of trafficking

under R.C. 2925.03(A)(1), the offender must knowingly sell or offer to sell a controlled

substance.   Trafficking under R.C. 2925.03(A)(1) requires an intent to sell, but the

offender need not possess the controlled substance in order to offer to sell it.

Conversely, possession requires no intent to sell. Therefore, possession under R.C.
Licking County, Case No. 11-CA-115                                                     5


2925.11(A) and trafficking under R.C. 2925.03(A)(1) are not allied offenses of similar

import, because commission of one offense does not necessarily result in the

commission of the other."

        {¶16} The specific facts in this case establish that undercover agents were at

Buckeye Lake Music Center at a "Hookahville" concert observing for illegal narcotics

activity.   T. at 72-74.    Appellant and another individual walked by Licking County

Sheriff's Detective Kyle Boerstler and stated "they had shrooms, which to me means

Psilocybin mushrooms." T. at 75. Detective Boerstler asked if they were any good and

appellant produced a bag of mushrooms and stated the price was $60.00. Id.

        {¶17} Appellant carried the mushrooms in a black backpack. T. at 75-76; State's

Exhibits 7E and 8.     Detective Boerstler did not make a purchase, and appellant's

companion stated if he wished to make a purchase later, they would be at their tent and

pointed out its location. T. at 78-79. Detective Boerstler observed the two go to their

tent and sit down.     T. at 78.   As uniformed deputies were approaching appellant,

appellant dropped the black backpack by another tent and walked away. T. at 80.

Appellant's companion retrieved the black backpack and placed it inside their tent. T. at

82.

        {¶18} After appellant and his companion were arrested, Detective Boerstler

entered the tent and found the black backpack plus a "black Under Armour bag, there

was, like, a green backpack, a tan bag and a gray bag." T. at 84. The black Under

Armour bag contained a large plastic bag of Psilocybin mushrooms. T. at 85-86; State's

Exhibits 7F and 10.
Licking County, Case No. 11-CA-115                                                     6


       {¶19} Appellant argues the offer to sell mushrooms from the black backpack and

the possession of mushrooms found in the black Under Armour bag in his tent

constitute the same conduct. We disagree.

       {¶20} The sale or offer to sell mushrooms to Detective Boerstler was a separate

and distinct act from the possession of mushrooms harbored separately in the tent in a

different bag. This does not contradict this court's decision in State v. Montgomery,

Licking App. No. 10-CA-75, 2011-Ohio-1881, because the Psilocybin mushrooms

offered for sale were not one and the same found in the tent in the black Under Armour

bag. The act of selling or offering was separated in time and space from the possession

of different mushrooms in a different bag in a different location.

       {¶21} Upon review, we find the trial court did not err in failing to merge the

convictions.

       {¶22} Assignment of Error I is denied.

                                             II

       {¶23} Appellant claims the trial court erred in imposing consecutive sentences

without engaging in judicial fact-finding as now required by H.B. No. 86. We agree.

       {¶24} H.B. No 86 amended subsection (E)(4) of R.C. 2929.14 [now subsection

(C)(4)] and subsection (A) of R.C. 2929.41, effective September 30, 2011, and now

state the following, respectively:

       {¶25} "(C)(4) If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the prison terms

consecutively if the court finds that the consecutive service is necessary to protect the

public from future crime or to punish the offender and that consecutive sentences are
Licking County, Case No. 11-CA-115                                                       7


not disproportionate to the seriousness of the offender's conduct and to the danger the

offender poses to the public, and if the court also finds any of the following:

       {¶26} "(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release

control for a prior offense.

       {¶27} "(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the multiple offenses

so committed was so great or unusual that no single prison term for any of the offenses

committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender's conduct.

       {¶28} "(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.

       {¶29} "(A) Except as provided in division (B) of this section, division (E) of

section 2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison

term, jail term, or sentence of imprisonment shall be served concurrently with any other

prison term, jail term, or sentence of imprisonment imposed by a court of this state,

another state, or the United States. Except as provided in division (B)(3) of this section,

a jail term or sentence of imprisonment for misdemeanor shall be served concurrently

with a prison term or sentence of imprisonment for felony served in a state or federal

correctional institution."
Licking County, Case No. 11-CA-115                                                         8


       {¶30} In its brief at 7, the state concedes a "trial court is required to make its

statutorily enumerated findings and give reasons supporting those findings at the

sentencing hearing when imposing consecutive or maximum sentences."

       {¶31} Although the trial court stated it was sentencing appellant under the

sentencing principles of R.C. 2929.11 and the seriousness and recidivism factors, we

find this is not judicial fact-finding under the H.B. No. 86 amendments.

       {¶32} Assignment of Error II is granted for resentencing under H.B. No. 86.

                                              III

       {¶33} Appellant claims he was denied the effective assistance of trial counsel for

his counsel's failure to request an analysis of the facts under Johnson, supra, and to

object to the imposition of consecutive sentences. We disagree.

       {¶34} The standard this issue must be measured against is set out in State v.

Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, certiorari

denied (1990), 497 U.S. 1011. Appellant must establish the following:

       {¶35} "2. Counsel's performance will not be deemed ineffective unless and until

counsel's performance is proved to have fallen below an objective standard of

reasonable    representation    and,   in   addition,   prejudice   arises   from   counsel's

performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623;

Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,

followed.)

       {¶36} "3. To show that a defendant has been prejudiced by counsel's deficient

performance, the defendant must prove that there exists a reasonable probability that,

were it not for counsel's errors, the result of the trial would have been different."
Licking County, Case No. 11-CA-115                                                  9


      {¶37} Consistent with our opinion in Assignment of Error I and our remand for

resentencing in Assignment of Error II, we find no undue prejudice to appellant.

      {¶38} Assignment of Error III is denied.

      {¶39} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed in part, reversed in part, and remanded to said court for resentencing

under H.B. No. 86.

By Farmer, J.

Wise, J. concur and

Hoffman, P.J. concurs separately




                                            _s/ Sheila G. Farmer________________



                                            s/ John W. Wise____________________



                                            _______________________________

                                                          JUDGES

SGF/sg 614
Licking County, Case No. 11-CA-115                                                       10

Hoffman, P.J., concurring

         {¶40} I concur in the majority opinion.    I write separately only to clarify my

position in case the majority opinion might be interpreted as adopting the State's

concession a trial court is separately required to state its reasons for finding consecutive

sentences are warranted. I find the trial court does not need to state its reasons in

addition to making the statutorily enumerated findings.

         {¶41} In 2003, the Ohio Supreme Court held in State v. Comer, 99 Ohio St.3d

463, 2003-Ohio-4165, a court may not impose consecutive sentences unless it "finds"

three statutory factors enumerated in then 2929.14(E)(4). The statutory factors were

the same as those now enumerated in the revised version of R.C. 2929.14(C)(4)

following enactment of H.B. 86. The revised version of the statute again requires the

trial court to "find" the factors enumerated.

         {¶42} The Court in Comer, supra, read R.C. 2929.14(E)(4): as it existed then, in

conjunction with then R.C. 2929.19(B) to reach its conclusion the trial court must also

state its reasons for the sentence imposed. Then R.C. 2929.19(B) stated the trial court

"shall impose a sentence and shall make a finding that gives its reasons for selecting

the sentence imposed in any of the following circumstances:

         {¶43} "***

         {¶44} "(c) if it imposes consecutive sentences under R.C. 2929.14…"

         {¶45} H.B. 86 revised the statutory language in R.C. 2929.19(B), which now

reads:

         {¶46} "(B) At the sentencing hearing, the court, before imposing sentence, shall

consider the record, any information presented…" (Emphasis added.)
Licking County, Case No. 11-CA-115                                                       11

       {¶47} Accordingly, the requirements specified in Comer have been superseded

by the revisions of H.B. 86. Comer held when R.C. 2919.19(B), as it then existed, was

read in conjunction with then existing R.C. 2929.14 clearly stated the legislative intent to

require a trial court to make the statutorily enumerated findings and to give reasons

supporting those findings. Revised R.C. 2929.19, following the enactment of H.B. 86,

does not require the trial court to give its reasons for selecting the sentence imposed.

Rather, R.C. 2929.14 now clearly states the trial court may impose a consecutive

sentence if it "finds" the statutorily enumerated factors.




                                                  ________________________________
                                                  HON. WILLIAM B. HOFFMAN
[Cite as State v. Williams, 2012-Ohio-3211.]


                    IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
SHANNON L. WILLIAMS                            :
                                               :
        Defendant-Appellant                    :        CASE NO. 11-CA-115




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

judgment of the Court of Common Pleas of Licking County, Ohio is affirmed in part,

reversed in part, and remanded to said court for resentencing under H.B. No. 86. Costs

to appellant.




                                               s/ Sheila G. Farmer________________



                                               s/ William B. Hoffman______________



                                               s/ John W. Wise___________________

                                                            JUDGES
