[Cite as State v. Montgomery, 2011-Ohio-1881.]


                                       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. Patricia A. Delaney, J.
-vs-
                                                    Case No. 10-CA-75
WINDELL E. MONTGOMERY

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                         Licking County Court of Common Pleas,
                                                 Case No. 10 CR 191


JUDGMENT:                                        Affirmed in part; Reversed in part
                                                 and Remanded


DATE OF JUDGMENT ENTRY:                          April 18, 2011


APPEARANCES:


For Plaintiff-Appellee                           For Defendant-Appellant


BRIAN T. WALTZ                                   DAVID B. STOKES
Assistant Proseucting Attorney                   21 W. Church St., Suite 206
Licking County Proscutor's Office                Newark, Ohio 43055
20 S. Second St., 4th Floor
Newark, Ohio 43055
Licking County, Case No. 10-CA-75                                                      2

Hoffman, P.J.


       {¶1}   Defendant-appellant Windell E. Montgomery appeals his conviction and

sentence in the Licking County Court of Common Pleas. Plaintiff-appellee is the State

of Ohio.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   On April 7, 2010, Appellant agreed to sell half an ounce of

methamphetamine to a confidential informant. Prior to the sale, Appellant was stopped

and arrested. Pursuant to the arrest, the police found Appellant in possession of 21.21

grams of methamphetamine. Appellant later admitted to the investigating officers his

purpose was to sell the drugs.

       {¶3}   Appellant entered pleas of guilty to one count of aggravated trafficking in

drugs (methamphetamine), in violation of R.C. 2925.03(A)(1) and/or (2)(C)(1)(d); one

count of aggravated possession of drugs (methamphetamine), in violation of R.C.

2925.11(A)(C)(a)(c); and to a forfeiture specification involving monies and a motor

vehicle, pursuant to R.C. 2941.1417 and R.C. 2981.02.

       {¶4}   Via Judgment Entry of July 1, 2010, the trial court sentenced Appellant to

four years on each count, to run consecutively, and the vehicle and monies were

ordered forfeited.

       {¶5}   Appellant now appeals, assigning as error:

       {¶6}   “I. THE TRIAL COURT COMMITTED PLAIN ERROR IN CONVICTING

APPELLANT ON COUNT I AND/OR IN ITS SENTENCE.”
Licking County, Case No. 10-CA-75                                                         3


       {¶7}   Appellant asserts the indictment was defective as to Count I, as the

indictment failed to include the culpable mental state of “knowingly,” as required by R.C.

2925.03(A)(2).

       {¶8}   In State v. Horner, 2010-Ohio-3830, the Ohio Supreme Court held:

       {¶9}   “Further, we hold that failure to timely object to a defect in an indictment

constitutes a waiver of the error. Crim.R. 12(C)(2) (objections to defect in indictment

must be raised before trial). Any claim of error in the indictment in such a case is limited

to a plain-error review on appeal. State v. Frazier (1995), 73 Ohio St.3d 323, 652

N.E.2d 1000; Crim.R. 52(B).”

       {¶10} As Appellant did not raise the issue before the trial court, we find error

relative to the alleged defective indictment waived.

       {¶11} The record indicates Appellant was charged in the alternative as he both

offered to sell drugs to the confidential informant and transported them with intent to

sell. The indictment alleges, in part, Appellant “did knowingly [offer to sell] and/or did

prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute” the

drugs involved. We conclude the use of knowingly at the beginning of the indictment

applies to both subsections. Furthermore, we note a conviction under either subsection

would be sufficient as they were charged in the alternative. Given Appellant’s guilty

plea, we find Appellant has not demonstrated plain error.

       {¶12} In addition, Appellant argues Counts 1 and 2 should have merged for

sentencing purposes as they are allied offenses of similar import. Appellant maintains

trafficking in a controlled substance under R.C. 2925.03(A) and possession of the same

controlled substance under R.C. 2925.11(A) are allied offenses of similar import under
Licking County, Case No. 10-CA-75                                                         4

R.C. 2941.25(A) pursuant to State v. Cabrales 2008-Ohio-1625, because commission of

the first offense necessarily results in commission of the second.1

      {¶13} In State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, the Supreme Court

recently held the offenses of drug possession and drug trafficking are allied offenses of

similar import for which multiple punishments are barred. Id.

      {¶14} Appellant’s assignment of error is overruled in part and sustained in part.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ Sheila G. Farmer___________________
                                             HON. SHEILA G. FARMER


                                             s/ Patricia A. Delaney _________________
                                             HON. PATRICIA A. DELANEY




1
 Via Judgment Entry of December 30, 2010, this Court affirmed Appellant’s conviction
and sentence finding the offenses were not allied offenses of similar import pursuant to
Cabrales, supra. Appellant then filed an application for reconsideration of this Court’s
December 30, 2010 Judgment Entry citing the Ohio Supreme Court’s recent decision in
State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2. Appellee did not file a response.
Licking County, Case No. 10-CA-75                                                    5


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
WINDELL E. MONTGOMERY                     :
                                          :
       Defendant-Appellant                :         Case No. 10-CA-75


       For the reasons stated in our accompanying Opinion, the judgment of the

Licking County Court of Common Pleas is affirmed in part; reversed in part and the

matter remanded for a new sentencing hearing pursuant to the law and our Opinion.

Costs to be divided equally.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY
