[Cite as State v. Barnard, 2016-Ohio-7842.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                 :      OPINION

                 Plaintiff-Appellee,           :
                                                      CASE NOS. 2016-A-0010
        - vs -                                 :            and 2016-A-0011

JASON C. BARNARD,                              :

                 Defendant-Appellant.          :


Criminal Appeals from the Ashtabula County Court of Common Pleas, Case Nos. 2015
CR 00253 and 2014 CR 00741.

Judgment: Reversed and remanded.


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

Rick L. Ferrara, 2077 East 4th Street, 2nd Floor, Cleveland, OH            44113 (For
Defendant-Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Jason C. Barnard, appeals his sentence in the Ashtabula

County Court of Common Pleas, following his guilty plea to illegal manufacturing of

meth, aggravated possession of meth, and possession of criminal tools.         Appellant

argues that because some facts in the record indicated the offenses were allied

offenses of similar import, the trial court committed plain error in not merging them. He

argues this court should remand for the trial court to merge the offenses. The state
concedes a remand is necessary, but argues the trial court should conduct a merger

inquiry and determine whether the offenses should merge. For the reasons that follow,

we reverse and remand.

      {¶2}    On March 5, 2015, in Case No. 2014 CR 741 (“the first case”), appellant

was charged in a one-count indictment with illegal assembly or possession of chemicals

for the manufacture of meth, a felony of the third degree. Appellant pled not guilty.

      {¶3}    Thereafter, on July 8, 2015, in Case No. 2015 CR 253 (“the second

case”), appellant was charged in a four-count indictment with illegal manufacture of

meth, a felony of the second degree (Count One); aggravated possession of meth, a

felony of the second degree (Count Two); tampering with evidence, a felony of the third

degree (Count Three); and possession of criminal tools, a felony of the fifth degree

(Count Four). Appellant pled not guilty.

      {¶4}    Subsequently, the parties entered a plea bargain. The two cases were

consolidated in the trial court for purposes of taking appellant’s guilty pleas and

sentencing.   At the guilty plea hearing, appellant pled guilty to all counts as alleged in

both indictments.   The court found that appellant’s guilty pleas were voluntary and

accepted them.

      {¶5}    Pursuant to the plea bargain, while the parties did not jointly agree on the

sentence, the state agreed to recommend concurrent sentences. In the first case, the

court sentenced appellant to five years in prison for illegal assembly or possession of

chemicals for the manufacture of meth.

      {¶6}    In the second case, on Count One, illegal manufacture of meth, the court

sentenced appellant to five years. On Count Two, aggravated possession of meth, the

court sentenced him to five years. On Count Three, tampering with evidence, the court


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sentenced him to three years. On Count Four, possession of criminal tools, the court

sentenced him to one year. All sentences in the second case were ordered to be

served concurrently to each other and the sentences in both cases were ordered to be

served concurrently to each other, for a total sentence of five years in prison.

       {¶7}   Appellant appeals his sentence.      For his sole assignment of error, he

alleges:

       {¶8}   “The trial court erred when it failed to merge allied offenses of similar

import where the facts known to the court raised a reasonable probability that illegal

manufacturing was allied with two other offenses.”

       {¶9}   As a preliminary matter, the one offense charged by the indictment in the

first case occurred on November 30, 2014. The four offenses charged by the indictment

in the second case occurred five months later on April 30, 2015. Thus, the offense

charged in the first case and the four offenses charged in the second were not

committed by the same conduct and are not allied offenses of similar import. Thus,

while appellant purports to appeal both convictions, his appeal actually addresses only

his conviction in the second case.

       {¶10} This court sua sponte consolidated both cases on appeal.              Appellant

argues the trial court committed plain error in not merging three of the four offenses to

which he pled guilty in the second case (illegal manufacturing of meth, aggravated

possession of meth, and possession of criminal tools) because, he contends, these

offenses were allied offenses of similar import.

       {¶11} R.C. 2941.25 reflects the General Assembly’s intent to prohibit or allow

multiple punishments for two or more offenses resulting from the same conduct. State

v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, ¶11. R.C. 2941.25 provides:


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      {¶12} (A) Where the same conduct by defendant can be construed to
            constitute two or more allied offenses of similar import, the
            indictment * * * may contain counts for all such offenses, but the
            defendant may be convicted of only one.

      {¶13} (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 * * * may contain
            counts for all such offenses, and the defendant may be convicted of
            all of them.

      {¶14} The Supreme Court of Ohio in State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, held that “[u]nder R.C. 2941.25, the [trial] court must determine prior to

sentencing whether the offenses were committed by the same conduct.” Id. at ¶47.

      {¶15} In the instant case, appellant concedes that he failed to raise the merger

issue in the trial court and that he is making his merger argument for the first time on

appeal. The Supreme Court’s recent decision in State v. Rogers, 143 Ohio St.3d 385,

2015-Ohio-2459, regarding plain error is pertinent because Rogers also involved a

defendant who pled guilty to multiple offenses and failed to raise the merger issue in the

trial court. The Supreme Court in Rogers stated:

      {¶16} 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; and, 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. Id. at ¶3. (Emphasis added.)

      {¶17} Thus, pursuant to Rogers, a defendant cannot demonstrate that the court

committed plain error in failing to inquire into whether the offenses merge for purposes

of sentencing unless he demonstrates a reasonable probability that the offenses to


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which he pled guilty are allied offenses of similar import, thus showing a “prejudicial

effect on the outcome of the proceeding.” Id. at ¶25.

      {¶18} In Johnson, supra, the Supreme Court of Ohio held that when determining

whether multiple offenses are allied offenses of similar import under R.C. 2941.25, “the

conduct of the accused must be considered.” Id. at syllabus. Further, in making such

determination, “the question is whether it is possible to commit one offense and commit

the other with the same conduct * * *.” (Emphasis added.) Id. at ¶48. “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 single act,

committed with a single state of mind.’” (Emphasis added.) Id. at ¶49. “If the answer to

both questions is yes, then the offenses are allied offenses of similar import and will be

merged.” Id. at ¶50.

      {¶19} More recently, in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, the

Ohio Supreme Court reaffirmed its holding in Johnson that in determining the existence

of allied offenses, the emphasis is on the defendant’s conduct, rather than an abstract

comparison of the elements of the subject offenses. Ruff at ¶16, 26. However, the

Court in Ruff stated that the Johnson test is “incomplete because R.C. 2941.25(B)

provides that when a defendant’s conduct constitutes two or more offenses of dissimilar

import, the defendant may be convicted of all of the offenses.” Ruff at ¶16. The Court

in Ruff held: “In determining whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25, courts must evaluate three separate factors - the

conduct, the animus, and the import.” Id. at paragraph one of the syllabus. Further,

“[t]wo or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B)

when the defendant’s conduct constitutes offenses involving separate victims or if the


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harm that results from each offense is separate and identifiable. Id. at paragraph two of

the syllabus. The Court in Ruff explained:

      {¶20} A trial court and the reviewing court on appeal when considering
            whether there are allied offenses that merge into a single conviction
            under R.C. 2941.25(A) must first take into account the conduct of
            the defendant. In other words, how were the offenses committed?
            If any of the following is true, the offenses cannot merge and the
            defendant may be convicted and sentenced for multiple offenses:
            (1) the offenses are dissimilar in import or significance - in other
            words, each offense caused separate, identifiable harm, (2) the
            offenses were committed separately, [or] (3) the offenses were
            committed with separate animus or motivation. Id. at ¶25.

      {¶21} Ohio Appellate Districts, in applying the Johnson/Ruff test, have held that,

depending on the defendant’s conduct, illegal manufacture of meth and possession of

chemicals and criminal tools used to manufacture meth may be allied offenses of similar

import. In State v. Carr, 5th Dist. Perry No. 15-CA-00007, 2016-Ohio-9, the Fifth District

stated: “Applying the facts and viewing Carr’s conduct in this case, illegal manufacture

of [meth] * * * and illegal * * * possession of chemicals used to manufacture [meth] with

intent to manufacture [meth]” were allied offenses of similar import. Id. at ¶38. Further,

in State v. Biondo, 11th Dist. Portage No. 2012-P-0043, 2013-Ohio-876, this court

stated that it was possible to commit illegal manufacture of meth and possessing

criminal tools (pyrex dishes, coffee filters, and a scale) with the same conduct, but that

the record did not contain sufficient facts concerning whether Biondo did, in fact, commit

the two offenses by the same conduct. Id. at ¶7. Thus, this court in Biondo reversed

and remanded for the trial court to establish the underlying facts concerning the

defendant’s conduct and to determine whether his crimes should merge. Id. at ¶13.

      {¶22} As noted, appellant argues the trial court should have merged three of the

four offenses to which he pled guilty in the second case. The trial court learned some of



                                             6
the facts concerning appellant’s conduct in the second case during his guilty plea

hearing when the court asked him to provide a factual basis for his plea in that case.

The following exchange took place between the court and appellant with respect to the

second case:

      {¶23} THE COURT: Now we’re under 2015 CR 253, this has four counts.
            These are all alleged to have occurred all on the same date and
            that’s what led me to think maybe this was all a part of one course
            of conduct and the State just divided it up into four different
            charges. But the first one is an illegal manufacture of
            methamphetamine. So what was going on there?

      {¶24} * * *

      {¶25} MR. BARNARD: I had a backpack with all of it on my back.

      {¶26} THE COURT:           So you had this methamphetamine that they
            alleged - -

      {¶27} MR. BARNARD: All of this was purchased, carried, whatever you
            want say. (Sic.) It was all in one bag, sir.

      {¶28} THE COURT: All right. That’s so that there was manufacturing of
            methamphetamine was taking place? (Sic.)

      {¶29} MR. BARNARD: Yes, sir.

      {¶30} THE COURT: Now - - and all the other stuff, too, the scale, the
            tubing, and all that that they’re calling criminal tools. (Sic.) You
            had them - -

      {¶31} MR. BARNARD: All those things in the back pack.

      {¶32} THE COURT: - - all in that? And then the last thing is they accused
            you of doing something to try to destroy it or in some way - - that
            was the tampering with evidence.

      {¶33} MR. BARNARD: I put the bag on the ground. It was on my back
            when I ran behind the house. I threw it on the ground. They
            charged me with tampering with evidence.

      {¶34} Based on the foregoing exchange, appellant argues that there was a

reasonable probability that his convictions were for allied offenses of similar import and


                                            7
that the trial court committed plain error in not merging them. He argues this court

should reverse and remand for the trial court to merge the offenses.

      {¶35} The state concedes that the record discloses a reasonable probability that

the three subject offenses were allied offenses of similar import. However, the state

argues the facts in the record are insufficient to determine if the offenses were allied.

Thus, instead of this court remanding for the trial court to simply merge the offenses, the

state asks this court to remand for a new sentencing hearing at which the trial court will

determine whether the offenses are allied offenses of similar import and thus merge for

the purposes of sentencing.

      {¶36} Here, the trial court sentenced appellant without conducting an inquiry on

the issue of merger and without determining whether the three subject offenses were

allied offenses of similar import. While the court obtained some limited information

regarding appellant’s conduct in committing the subject crimes when the court asked

him for the factual basis for his guilty plea, we agree with the state’s argument that the

record contains insufficient facts concerning whether appellant did, in fact, commit the

three offenses by the same conduct. For example, it is possible the subject possession-

of-criminal-tools charge involved more tools than were involved in the manufacture-of-

meth charge. Biondo, supra, at ¶11. As explained by this court in State v. Miller, 11th

Dist. Portage No. 2009-P-0090, 2011-Ohio-1161, ¶56:

      {¶37} Because the Johnson test requires a court to consider the specific
            details of the conduct which precipitated the charges, we are
            unable, at this time, to determine whether appellant’s convictions
            for illegal manufacturing of methamphetamine and possession of
            chemicals to produce methamphetamine should have merged.

      {¶38} This court has previously stated that a trial court’s merger inquiry does not

require formal hearings and witnesses. State v. Devai, 11th Dist. Ashtabula No. 2012-


                                            8
A-0054, 2013-Ohio-5264, ¶26.        Rather, the inquiry can be accomplished by the

prosecutor making a recitation on the record of the facts during the sentencing that

would support a determination that certain offenses are not allied. Id.

       {¶39} We therefore hold that because appellant demonstrated a reasonable

probability that the three subject offenses are allied offenses of similar import, the trial

court’s failure to inquire into and determine whether the convictions merge for

sentencing purposes was plain error. On remand, the trial court shall conduct a re-

sentencing during which the court shall establish the underlying facts of appellant’s

conduct and determine whether his crimes should merge for sentencing purposes.

       {¶40} For the reasons stated in the opinion of this court, it is the judgment and

order of this court that the judgment of the Ashtabula County Court of Common Pleas is

reversed, and this matter is remanded to the trial court for further proceedings

consistent with the opinion.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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