[Cite as State v. Vannatta, 2011-Ohio-5074.]




           IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO

STATE OF OHIO                                   :

        Plaintiff-Appellee                      :      C.A. CASE NO. 10CA34

vs.                                             :      T.C. CASE NO. 10CR137

CODY S. VANNATTA                                :      (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Appellant                     :

                                       . . . . . . . . .

                                          O P I N I O N

                Rendered on the 30th day of September, 2011.

                                       . . . . . . . . .

Nick A. Selvaggio, Pros. Attorney, Atty. Reg. No. 0055607, 200
North Main Street, Urbana, OH 43078
     Attorney for Plaintiff-Appellee

Tara C. Dancing, Atty. Reg. No. 0077277, 1158 Kauffman Avenue,
Fairborn, OH 45324
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Cody Vannatta, appeals from his convictions

for trafficking in marijuana, assault and riot.

        {¶ 2} Defendant            entered     pleas    of   guilty   pursuant   to   a

negotiated plea agreement to two fifth-degree felony trafficking
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in marijuana offenses in violation of R.C. 2925.03(A)(1), two

fourth degree felony trafficking in marijuana offenses (schoolyard

enhancement) in violation of R.C. 2925.03(A)(1), and two first

degree    misdemeanor   offenses,   assault        in   violation   of     R.C.

2903.13(A) and riot in violation of R.C. 2917.03(A)(1).             The trial

court sentenced Defendant to consecutive prison terms of eleven

months on each of the fifth degree felony drug offenses and

seventeen months on each of the fourth degree felony drug offenses.

 The court also sentenced Defendant to six months on each of the

first degree misdemeanor offenses, concurrent to each other and

the felony sentences, for an aggregate sentence of fifty-six

months.

     {¶ 3} Defendant    timely   appealed     to    this   court    from   his

convictions and sentences.

     FIRST ASSIGNMENT OF ERROR

     {¶ 4} “IT WAS ARBITRARY AND CAPRICIOUS AND AN ABUSE OF

DISCRETION OF THE TRIAL COURT TO IMPOSE A 56 MONTH SENTENCE ON

A FIRST TIME FELON FOR LOW LEVEL MARIJUANA TRAFFICKING OFFENSES.”

     {¶ 5} Defendant    argues   that   the   trial      court   abused    its

discretion by imposing upon him, a first time felony offender,

nearly maximum consecutive sentences on the felony drug charges

that resulted in an aggregate sentence of fifty-six months.

     {¶ 6} In State v. Jeffrey Barker, Montgomery App. No. 22779,
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2009-Ohio-3511, at ¶36-37, we wrote:

     {¶ 7} “The trial court has full discretion to impose any

sentence within the authorized statutory range, and the court is

not required to make any findings or give its reasons for imposing

maximum, consecutive, or more than minimum sentences.     State v.

Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, at

paragraph 7 of the syllabus.      Nevertheless, in exercising its

discretion the trial court must consider the statutory policies

that apply to every felony offense, including those set out in

R.C. 2929.11 and 2929.12. State v. Mathis, 109 Ohio St.3d 54, 846

11 N.E.2d 1, 2006-Ohio-855, at ¶37.

     {¶ 8} “When reviewing felony sentences, an appellate court

must first determine whether the sentencing court complied with

all applicable rules and statutes in imposing the sentence,

including R.C. 2929.11 and 2929.12, in order to find whether the

sentence is contrary to law.   State v. Kalish, 120 Ohio St.3d 23,

896 N.E.2d 124, 2008-Ohio-4912.    If the sentence is not clearly

and convincingly contrary to law, the trial court's decision in

imposing the term of imprisonment must be reviewed under an abuse

of discretion standard. Id.”

     {¶ 9} At sentencing, the trial court stated that it had

considered the purposes and principles of sentencing, R.C. 2929.11,

Defendant’s criminal history, the nature of the current criminal
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conduct, and information provided by defense counsel regarding

Defendant’s attendance at AA meetings and G.E.D. classes.                  The

court also heard oral statements by counsel and Defendant.                 The

court informed Defendant about post release control requirements.

 The court did not, however, specifically mention that it had

considered the seriousness and recidivism factors in R.C. 2929.12.

     {¶ 10} In     State   v.    Miller,    Clark     App.    No.     09CA28,

2010-Ohio-2138, at ¶43, this court stated:

     {¶ 11} “In the present case, Miller first argues that his

sentence is clearly and convincingly contrary to law. In support,

he appears to contend the trial court failed to consider the

principles and purposes of sentencing in R.C. 2929.11 or the

seriousness and recidivism factors in R.C. 2929.12. Although the

trial court did not specifically cite either statute during the

sentencing    hearing,     its   judgment   entry   stated    that    it   had

‘considered      the   record,   oral   statements,   any    victim    impact

statement    and   presentence     report   prepared,   as    well    as   the

principles and purposes of sentencing under Ohio Revised Code

Section 2929.11, and [had] balanced the seriousness and recidivism

factors [under] Ohio Revised Code Section 2929.12.’ Because a trial

court speaks only through its journal entries, Miller's sentence

is not contrary to law merely because the trial court failed to

cite either statute during the sentencing hearing. State v. Cave,
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Clark App. No. 09-CA-6, 2010-Ohio-1237, ¶ 10. ‘Furthermore, even

if there is no specific mention of those statutes in the record,

“it is presumed that the trial court gave proper consideration

to those statutes.”’     Id., quoting Kalish, supra, at n. 4. We note

too that Miller's five-year sentence is within the statutory range

for a third-degree felony. See R.C. 2929.14(A)(3). Therefore, we

have no basis for concluding that the sentence is contrary to law.”

     {¶ 12} In its Judgment Entry of Conviction and Sentence (Dkt.

32), the trial court indicated that it considered the presentence

investigation report and the purposes and principles of felony

sentencing.      We presume the trial court gave proper consideration

to the seriousness and recidivism factors in R.C. 2929.12.        Kalish;

Miller.   The eleven month sentence           the trial court imposed on

each fifth degree felony drug offense, and the seventeen month

sentence the court imposed on each fourth degree felony drug

offense, which the court ordered to be served          consecutively, are

within the authorized range of available punishments for felonies

of the fourth and fifth degree.              R.C. 2929.14(A)(4) and (5).

Accordingly, we have no basis to conclude that Defendant’s sentence

is contrary to law.

     {¶ 13} As   for   the   severity   of    Defendant’s   sentence,   the

fifty-six month aggregate sentence the trial court imposed, while

stringent, is supported by this record.           The overriding purposes
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of felony sentencing are to protect the public from future crime

by the offender and to punish the offender.      R.C. 2929.11(A).

The trial court has discretion to determine the most effective

way to comply with the purposes and principles of sentencing.

R.C. 2929.12(A).   The record indicates that after having been

indicted for five drug offenses and being released on bond,

Defendant committed the assault and riot offenses.    At sentencing,

Defendant refused to reveal the name of his drug supplier.

Defendant has a record of criminal conduct, including juvenile

delinquency.   Those matters demonstrate a pattern of recidivism

and a need to protect the public.   We see no abuse of discretion

in the sentences the court imposed.

     {¶ 14} Defendant relies upon State v. Money, Clark App. No.

2009CA119, 2010-Ohio-6225, wherein we concluded that a twelve month

maximum sentence for a first time felony offender who pled guilty

to a single fifth degree felony drug trafficking offense was an

abuse of discretion.    That reliance is misplaced.      Unlike the

defendant in Money, Defendant Vannatta refused to cooperate with

authorities by naming his supplier of    marijuana.    In addition,

unlike in Money, Defendant committed additional crimes while he

was released on bond.   No abuse of discretion is demonstrated.

     {¶ 15} Defendant’s first assignment of error is overruled.

     SECOND ASSIGNMENT OF ERROR
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     {¶ 16} “IT WAS A VIOLATION OF DEFENDANT’S U.S. AND OHIO

CONSTITUTIONAL RIGHTS AGAINST DOUBLE JEOPARDY THAT COUNTS TWO,

THREE AND FIVE DID NOT MERGE PRIOR TO SENTENCING.”

     {¶ 17} Defendant argues that the trial court erred by failing

to merge the three trafficking in marijuana offenses charged in

Count Two, Three and Five of the indictment that occurred during

June 2010, because they are allied offenses of similar import.

R.C. 2941.25(A).

     {¶ 18} At the outset we note that Defendant failed to raise

an allied offenses of similar import issue before the trial court.

 Therefore, he has waived all but plain error.   State v. Coffey,

Miami App. No. 2006CA6, 2007-Ohio-21, Crim.R. 52(B).   In Coffey,

Id., at ¶10, we stated:

     {¶ 19} “The plain error doctrine represents an exception to

the usual rule that errors must first be presented to the trial

court before they can be raised on appeal and permits an appellate

court to review an alleged error where necessary to prevent a

manifest ‘miscarriage of justice.’ State v. Long (1978), 52 Ohio

St.2d at 96. To prevail under a plain error standard, then, an

appellant must demonstrate both that there was an obvious error

in the proceedings and that but for the error, the outcome of the

trial clearly would have been otherwise. State v. Noling, 98 Ohio

St.3d 44, 2002-Ohio-7044.”
                                                                                  8

       {¶ 20} Counts Two, Three and Five all charge Defendant with

trafficking in marijuana in violation of R.C. 2925.03(A)(1) in

that he did knowingly sell or offer to sell a controlled substance,

marijuana.      Counts Two and Three specify that the offense was

committed     in    the    vicinity    of   a   school     or   juvenile.      R.C.

2925.03(C)(3)(b).          That makes the offense a felony of the fourth

degree.

       {¶ 21} The   Double    Jeopardy      Clause   of     the   United     States

Constitution, which applies to the States through the Fourteenth

Amendment prohibits multiple punishments for the same offense.

State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶10.

However, the Double Jeopardy Clause only prohibits a sentencing

court from prescribing greater punishment than the legislature

intended.     Id., at ¶11.       The two-tiered test set forth in R.C.

2941.25,     Ohio’s       multiple    count     statute,    resolves   both     the

constitutional and state statutory inquiries regarding the General

Assembly’s intent to permit cumulative punishments for the same

conduct.     Id., at ¶12.       However, it is not necessary to resort

to that test when the legislature’s intent to impose multiple

punishments is clear from the language of the statute.                      Id., at

¶37.

       {¶ 22} Ohio’s multiple counts statue, R.C. 2941.25, provides:

       {¶ 23} “(A) Where the same conduct by defendant can be construed
                                                                   9

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.

     {¶ 24} “(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.”

     {¶ 25} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314,

the Ohio Supreme Court announced a new test for determining when

offenses are allied offenses of similar import that must be merged

pursuant to R.C. 2941.25.    Johnson overruled the previous test

announced in State v. Rance (1999), 85 Ohio St.3d 632, and held:

“When determining whether two offenses are allied offenses of

similar import subject to merger under R.C. 2941.25, the conduct

of the accused must be considered.”   Id. at syllabus.   The Supreme

Court explained its holding at ¶47-51, stating:

     {¶ 26} “Under R.C. 2941.25, the court must determine prior to

sentencing whether the offenses were committed by the same conduct.

 Thus, the court need not perform any hypothetical or abstract

comparison of the offenses at issue in order to conclude that the

offenses are subject to merger.
                                                                     10

     {¶ 27} “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.

     {¶ 28} “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.’    Brown,   119   Ohio   St.3d   447,

2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J.,dissenting).

     {¶ 29} “If the answer to both questions is yes, then the offenses

are allied offenses of similar import and will be merged.

     {¶ 30} “Conversely, if the court determines that the commission

of one offense will never result in the commission of the other,
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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.”

     {¶ 31} Defendant was convicted of three counts of the same

offense,   trafficking   in   marijuana    in   violation   of   R.C.

2925.03(A)(1).   Being the very same criminal offense, they can

be committed with the same conduct and are allied offenses of

similar import per R.C. 2941.25(A). The further issue is whether

the exception to merger in R.C. 2941.25(B) applies.

     {¶ 32} At the sentencing hearing, the following colloquy took

place:

     {¶ 33} “THE COURT: Counsel for the State, how many different

times have you – do you believe that the defendant sold marijuana

he’s been charged with here?

     {¶ 34} “MR. SELVAGGIO: We have him charged in the indictment

with four times, and he has pled to four times.

     {¶ 35} “THE COURT: One of those was in December of 2009, the

others were in June of 2010?

     {¶ 36} “MR. SELVAGGIO: Yes.

     {¶ 37} “THE COURT: Thank you.   So do you understand that there

are claims that you admitted that there were four different times

when you, in your words, transferred, but in the eyes of the law

you have sold marijuana?
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     {¶ 38} “DEFENDANT VANNATTA: Yes, sir.”   (T. 10).

     {¶ 39} Defendant’s admission that there were “four different

times” when he sold marijuana demonstrates that the four drug

offenses were committed separately.   Merger is not required.   R.C.

2941.25(B).

     {¶ 40} Defendant’s second assignment of error is overruled.

The judgment of the trial court will be affirmed.




DONOVAN, J., And WAITE, J., concur.

(Hon. Cheryl L. Waite, Seventh District Court of Appeals, sitting
by assignment of the Chief Justice of the Supreme Court of Ohio.)


Copies mailed to:

Nick A. Selvaggio, Esq.
Tara C. Dancing, Esq.
Hon. Roger B. Wilson
