[Cite as State v. Horton, 2016-Ohio-8181.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-

ROBERT D. HORTON, JR.                            Case No. CT2015-0054

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. CR2015-0183




JUDGMENT:                                     Affirmed




DATE OF JUDGMENT ENTRY:                       December 12, 2016



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

D. MICHAEL HADDOX                              RICHARD L. CROSBY III
PROSECUTING ATTORNEY                           20 South Third Street
GERALD V. ANDERSON II                          Suite 210
ASSISTANT PROSECUTOR                           Columbus, Ohio 43215
27 North Fifth Street, P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2015-0054                                                     2

Wise, J.

       {¶1}   Appellant Robert D. Horton, Jr. appeals his conviction and sentence entered

in the Muskingum County Court of Common Pleas on two counts of trafficking in cocaine

following a plea of no contest.

       {¶2}   Appellee is the State of Ohio.

                        STATEMENT OF THE FACTS AND CASE

       {¶3}   This case carne about from an investigation by the Central Ohio Drug

Enforcement (''CODE") Task Force using a confidential informant (''CI"). The intended

target was Appellant, but due to the nature of the drug enterprise, the CI could not directly

approach Appellant. The CI was friends with Appellant’s father, Robert Horton, Sr., and

approached him to introduce the CI to Appellant. While unintended, Horton, Sr. agreed to

facilitate a drug buy between Appellant and the CI. Two separate drug buys were made,

each for approximately 28 grams of cocaine.

       {¶4}   Appellant conducted the first controlled buy through his father, Horton, Sr.

During the second controlled buy, Horton, Sr. put the CI in direct contact with Appellant.

The proceeds from both of these illegal transactions went to Appellant.

       {¶5}   On June 3, 2015, Appellant, Robert Horton, Jr. was indicted on two counts

of Trafficking in Cocaine, one with a Forfeiture specification, and both were first degree

felonies.

       {¶6}   On August 19, 2015, Appellant pled no contest to one count of Trafficking

in Cocaine, amended to a third degree felony, and one count of Trafficking in Cocaine, a

felony of the first degree.
Muskingum County, Case No. CT2015-0054                                                  3


      {¶7}   On October 5, 2015, the trial court sentenced Appellant to a mandatory term

of ten (10) years on the first degree felony and two (2) years on the third degree felony,

to be served concurrently, for an aggregate sentence of ten (10) years.

      {¶8}   Appellant now appeals, setting forth the following assignments of error:

                              ASSIGNMENTS OF ERROR

      {¶9}   “I. THE SENTENCE IS DISPROPORTIONATE/INCONSITENT [SIC]

CONTRARY TO R.C. 2929.11(B).

      {¶10} “II. THE STATE ERRED IN OVERRULING DEFENDANT’S MOTION TO

DISMISS AS THIS COCAINE OFFENSE INVOLVING MIXED SUBSTANCES UNDER

R.C. 2925.11(C)(4)(A) THROUGH (I) AS THEY FAILED TO ESTABLISH THE WEIGHT

OF COCAINE MEETS THE STATUTORY THRESHOLD, EXCLUDING THE WEIGHT

OF ANY FILLER MATERIALS USED IN THE MIXTURE.”

                                            I.

      {¶11} In his First Assignment of Error, Appellant argues his sentence is

inconsistent with the sentence imposed on his co-defendant in this matter and therefore

is in violation of the purposes and principles of R.C. 2929.11. We disagree.

      {¶12} Revised Code §2929.11 states:

             (A) A court that sentences an offender for a felony shall be guided by

       the overriding purposes of felony sentencing. The overriding purposes of

       felony sentencing are to protect the public from future crime by the offender

       and others and to punish the offender. To achieve those purposes, the

       sentencing court shall consider the need for incapacitating the offender,

       deterring the offender and others from future crime, rehabilitating the
Muskingum County, Case No. CT2015-0054                                                  4


       offender, and making restitution to the victim of the offense, the public, or

       both.

               (B) A sentence imposed for a felony shall be reasonably calculated

       to achieve the two overriding purposes of felony sentencing set forth in

       division (A) of this section, commensurate with and not demeaning to the

       seriousness of the offender's conduct and its impact upon the victim, and

       consistent with sentences imposed for similar crimes committed by similar

       offenders.

      {¶13} Initially, we note, the maximum prison term appellant could have received

was eleven (11) years on the first-degree felony and 36 months on the third degree felony.

Also, there was a presumption in favor of a prison term.

      {¶14} In sentencing Appellant, the trial court had before it the sentencing

memoranda filed by the State and Appellant, a pre-sentence investigation report,

statements made by Appellant, and arguments made at the sentencing hearing. The trial

court also considered Appellant’s criminal history which included that his first adult

conviction occurred while he was on parole from a juvenile facility and an attempted

escape conviction. The State’s sentencing memorandum contained the following

account:

               His contact with the criminal justice system dates back far into his

       youth, with six separate convictions during the three years of contact he

       had in the juvenile justice system before he joined a small group of

       Muskingum       County   youthful   offenders   who   was    sentenced     to

       imprisonment with the Ohio Department of Youth Services. It was during
Muskingum County, Case No. CT2015-0054                                                 5


       this time of youthful felonious conduct, including felony offenses of assault

       and narcotics violations, that the Defendant honed his profession of

       narcotics distribution. Since obtaining the age of majority the Defendant

       has been charged with serious offenses involving felonious assault with a

       firearm, and convicted and sent to prison for possessing a weapon under

       disability and trafficking in narcotics. These cases pre-date the extremely

       serious charges in this case." (State's Sentencing Memorandum filed

       August 19, 2015, p. 4).

       {¶15} We further disagree with Appellant's argument as to the disparity between

his sentence and the sentence received by his co-defendant father. This Court addressed

this issue in Hickman, stating:

              Consistency, however, does not necessarily mean uniformity.

       Instead, consistency aims at similar sentences. Accordingly, consistency

       accepts divergence within a range of sentences and takes into

       consideration a trial court's discretion to weigh relevant statutory factors.

       The task of an appellate court is to examine the available data, not to

       determine if the trial court has imposed a sentence that is in lockstep with

       others, but to determine whether the sentence is so unusual as to be outside

       the mainstream of local judicial practice. Although offenses may be similar,

       distinguishing factors may justify dissimilar sentences.

              ***

              Simply pointing out an individual or series of cases with different

       results will not necessarily establish a record of inconsistency. State v.
Muskingum County, Case No. CT2015-0054                                                  6

     Gorgakopoulos, supra. The Ninth District Court of Appeals has stated: ‘[i]t

     is not the trial court's responsibility to research prior sentences from

     undefined, and largely unavailable, databases before reaching its

     sentencing decision. The legislature did not intend to place such a burden

     on the trial court when it enacted 2929.11(B). The legislature's purpose for

     inserting the consistency language contained in R.C. 2929.11(B) is to make

     consistency rather than uniformity the aim of the sentencing structure. See

     Griffin and Katz, Ohio Felony Sentencing Law (2001), 59.’ Uniformity is

     produced by a sentencing grid, where all persons convicted of the same

     offense with the same number of prior convictions receive identical

     sentences. Id. Consistency, on the other hand, requires a trial court to weigh

     the same factors for each defendant, which will ultimately result in an

     outcome that is rational and predictable. Under this meaning of

     ‘consistency,’ two defendants convicted of the same offense with a similar

     or identical history of recidivism could properly be sentenced to different

     terms of imprisonment. Consequently, Appellant cannot establish, either at

     trial or on appeal, that his sentence is contrary to law because of

     inconsistency by providing the appropriate court with evidence of other

     cases that show similarly situated offenders have received different

     sentences than did he. Thus, the only way for Appellant to demonstrate that

     his sentence was ‘inconsistent,’ that is, contrary to law within the meaning

     of R.C. 2929.11(B), is if he establishes that the trial court failed to properly

     consider the factors and guidelines contained in R.C. 2929.12, R.C.
Muskingum County, Case No. CT2015-0054                                                      7


          2929.13 and R.C. 2929.14. These sections, along with R.C. 2929.11, create

          consistency in sentencing.

          {¶16} In State v. Hill (1994), 70 Ohio St.3d 23, the defendant was convicted of

complicity to trafficking in marijuana, and sentenced to one year in prison and further

ordered to forfeit his apartment complex. His co-defendant received probation instead of

a prison sentence. Id. at 29. On appeal, he argued that the trial court abused its discretion

by giving him a harsher sentence than was given his co-defendant. Id. The Ohio Supreme

Court observed: “[t]here is no question that on its face the sentence received by appellant,

when compared to Newbauer's punishment, is disproportionate. Given the fact that

Newbauer received probation, appellant's one-year prison sentence does appear to be

harsh. However, as a general rule, an appellate court will not review a trial court's exercise

of discretion in sentencing when the sentence is authorized by statute and is within the

statutory limits.

          {¶17} In the case sub judice, as in Hickman, the trial court followed the sentencing

scheme set forth in the statutory guidelines, and the sentence was within the statutory

limits.

          {¶18} Appellant's co-defendant’s prior criminal record included domestic violence,

menacing, criminal trespass and robbery convictions which occurred in the 1990’s.

Additionally, he had a number of traffic violations. He had no prior drug offenses, unlike

Appellant. Further, as stated above, Appellant was the intended target of the CODE

investigation.
Muskingum County, Case No. CT2015-0054                                                  8


       {¶19} Upon review, we find Appellant's sentence was within the statutory

guidelines and the trial court made the requisite findings. We do not find the trial court

abused its discretion in sentencing Appellant, nor was its sentence contrary to law.

       {¶20} Appellant’s First Assignment of Error is overruled.

                                             II.

       {¶21} In Appellant's Second Assignment of Error he argues that the trial court

erred in convicting and sentencing him for enhanced-degree felonies. We disagree.

       {¶22} More specifically, Appellant herein asserts the State failed to present any

evidence regarding the purity of the cocaine-containing substance at issue, and therefore

there was no evidence of the weight of the actual cocaine. Appellant argues that he could

therefore be convicted of, at most, fifth-degree felony trafficking in cocaine.

       {¶23} Appellant cites the case of State of Ohio v. Gonzales, in support of his

argument that the absence of quantitative testing regarding the purity of the substances

sold or offered to be sold by a defendant requires that he be convicted of and sentenced

to the lowest degree of the offense.

       {¶24} The issue of whether the state, in prosecuting cocaine offenses involving

mixed substances under R.C. § 2925.11(C)(4)(a) through (f), must prove that the weight

of the cocaine meets the statutory threshold, excluding the weight of any filler materials

used in the mixture, is currently before the Ohio Supreme Court on a certified conflict

between the decision of the Sixth District in State v. Gonzales, 6th Dist. Wood No. WD–

13–086, 2015–Ohio–461, and the decision of the Second District in State v. Smith, 2nd

Dist. Greene No.2010–CA–36, 2011–Ohio–2658.
Muskingum County, Case No. CT2015-0054                                                   9


      {¶25} This Court has previously ruled that in order to sustain a conviction for

trafficking in cocaine, with the offense elevated from offer to sell a controlled substance

based on the offered substance being cocaine and with a major drug offender

specification based on weight of the drug compound, the State is required to prove the

identity and a detectable amount of a controlled substance. We find that the legislature

intended to prohibit the possession of any amount of a controlled substance, whether the

substance occurs in its purest state or when mixed with or contained in another form.

Therefore, the entire amount is included to determine the quantity involved and the

penalty to be imposed. State v. Chandler, 5th Dist. Stark No. 2003–CA–00342, 157 Ohio

App.3d 672, 2004–Ohio–3436, 813 N.E.2d 65, aff'd, 109 Ohio St.3d 223, 2006–Ohio–

2285, 846 N.E.2d 1234; State v. Reese, 5th Dist. Muskingum No. CT2015–0046, 2016–

Ohio–1591; State v. Newman, 5th Dist. Muskingum No. CT2016-0002, 2016-Ohio-7498;

State v. James, 5th Dist. Muskingum No. CT2015-0059, 2016-Ohio-7660.

      {¶26} For the foregoing reasons, the judgment of the Court of Common Pleas of

Muskingum County, Ohio, is affirmed.


By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.


JWW/d 1130
