[Cite as State v. Ruffer, 2020-Ohio-2656.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      FULTON COUNTY


State of Ohio                                    Court of Appeals No. F-19-007

        Appellee                                 Trial Court No. 18CR000015

v.

Ian C. Ruffer                                    DECISION AND JUDGMENT

        Appellant                                Decided: April 24, 2020

                                             *****

        Scott A. Haselman, Fulton County Prosecuting Attorney, for appellee.

        Edward J. Stechschulte, for appellant.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an appeal of a June 12, 2018 sentencing judgment of the Fulton

County Court of Common Pleas, sentencing appellant to a total term of incarceration of

50 months following appellant’s guilty pleas, pursuant to a negotiated plea agreement, to

one count of aggravated trafficking in methamphetamines, in violation of R.C. 2925.03,

as amended to a felony of the third degree, one count of trafficking in marijuana, in

violation of R.C. 2925.03, as amended to a felony of the fifth degree, and one count of
trafficking in suboxone, in violation of R.C. 2925.03, as amended to a felony of the fifth

degree.

       {¶ 2} In exchange for the pleas to the three amended offenses, an additional 12

pending felony drug offenses were dismissed. For the reasons set forth below, this court

affirms the judgment of the trial court.

       {¶ 3} Appellant, Ian Ruffer, sets forth the following four assignments of error:

              1: The trial court erred in failing to merge Appellant’s convictions,

       thereby violating the Double Jeopardy Clause of the Fifth Amendment to

       the United States Constitution and Section 10, Article I of the Ohio

       Constitution.

              2: Appellant’s trial counsel deprived Appellant of his rights to the

       effective assistance of counsel, and due process of law [of the United States

       and Ohio constitutions].

              3: The trial court failed to consider the seriousness and recidivism

       factors of R.C. 2929.12 and, therefore, the 50-month sentence is clearly and

       convincingly contrary to law.

              4: The trial court erred in sentencing Appellant to consecutive

       sentences pursuant to R.C. 2929.14(C)(4).

       {¶ 4} The following undisputed facts are relevant to this appeal. On January 10,

2017, appellant and an acquaintance appeared at the Eastern District Court in Swanton in

connection to a separate criminal matter while under the influence of narcotics. Local




2.
police were summoned to the court. Local law enforcement has longstanding familiarity

with appellant given his criminal history in the area for numerous prior drug related

offenses.

       {¶ 5} Appellant, whose conduct was directly observed by court personnel and the

responding officers to be indicative of drug intoxication, was similarly observed to have

fresh drug injection marks on his arm. In the course of the investigation, appellant

conceded to heroin use prior to going to court on the day that this incident occurred.

       {¶ 6} A subsequent search of appellant’s person and vehicle recovered

considerable quantities of multiple unlawful drugs, with each drug being from a different

statutory drug schedule classification, including methamphetamines, marijuana, heroin

and suboxone, in addition to the recovery of drug injection syringes.

       {¶ 7} On February 13, 2018, appellant was indicted on a total of 15 felony drug

offenses stemming from the above-described courthouse incident. Appellant’s sizeable

criminal history includes in excess of 50 prior convictions and multiple prior terms of

incarceration over the course of the 15-year period preceding this incident.

       {¶ 8} Despite appellant’s significant criminal history, appellant was furnished a

favorable plea agreement through which 12 of the 15 pending felony offenses were

dismissed and the remaining three were amended to lower level offenses.

       {¶ 9} On April 5, 2018, appellant pled guilty to three amended felony drug

offenses involving methamphetamines, marijuana, and suboxone. A presentence

investigation was conducted.




3.
       {¶ 10} On June 12, 2018, appellant was sentenced to consecutive terms of

incarceration, totaling 50 months, for the three above-described convictions. The

sentence was ordered to be served concurrently with a separate sentence imposed in a

prior criminal case that was pending against appellant at the time of these events. This

appeal ensued.

       {¶ 11} In the first assignment of error, appellant asserts that the trial court erred in

not merging appellant’s three convictions in this matter for sentencing purposes. We do

not concur.

       {¶ 12} R.C. 2941.25(A) establishes, in relevant part, that criminal conduct which,

“can be construed to constitute two or more allied offenses of similar import * * * the

defendant may be convicted of only one.” This necessitates the merger of convictions

which constitute allied offenses of similar import for sentencing purposes.

       {¶ 13} This court’s decision in State v. Johnson, 6th Dist. Ottawa No. OT-13-022,

2014-Ohio-1558, is analogous and illustrative to the instant case. As held in Johnson at

¶ 7-9, “Possession of different drug groups constitutes different offenses under R.C.

2925.11 and possession of either cocaine or heroin will never support a conviction for

possession of the other * * * Simultaneous possession of different drugs under R.C.

2925.11 do not constitute allied offenses of similar import for purposes of sentencing.”

(Emphasis added).

       {¶ 14} As applied to this case, appellant’s subject drug trafficking convictions

stemmed from three separate drugs, each belonging to a separate drug classification.




4.
Methamphetamine is a schedule II drug, marijuana is a schedule I drug, and suboxone is

a schedule III drug. As such, in accordance with Johnson, trafficking in any one of these

drugs does not support a conviction for trafficking in another one of them. Thus,

appellant’s convictions are not allied offenses of similar import for sentencing purposes.

       {¶ 15} Accordingly, the trial court did not err in finding that the offenses are not

allied offenses of similar import. Merger of these offenses for sentencing purposes would

not have been proper. Appellant’s first assignment of error is found not well-taken.

       {¶ 16} In appellant’s second assignment of error, appellant maintains that his

counsel was ineffective. We do not concur.

       {¶ 17} It is well-established that in order to demonstrate the ineffective assistance

of counsel, one must establish both that counsel’s performance fell below an objective

standard of reasonableness, and show that, but for counsel’s error(s), the outcome of the

case would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984).

       {¶ 18} Given our determination above that the trial court did not err in not

merging appellant’s convictions for sentencing purposes, as they were not allied offenses

of similar import, we therefore find as a matter of law that appellant cannot demonstrate

that the outcome of the matter would have been different but for trial court actions which

were proper.

       {¶ 19} Wherefore, we find appellant’s second assignment of error not well-taken.




5.
       {¶ 20} In appellant’s third assignment of error, appellant contends that the trial

court neglected to consider the R.C. 2929.12 seriousness and recidivism factors, thereby

compromising the propriety of the sentence. The record of evidence clearly refutes this

contention.

       {¶ 21} In support of this assignment of error, appellant unilaterally asserts that,

“[T]he trial court failed to consider the seriousness and recidivism factors of R.C.

2929.12.” The record of evidence does not bear out this claim.

       {¶ 22} The transcript of the sentencing hearing runs counter to appellant’s

position. The transcript reflects thorough consideration of the statutory factors, and

shows the requisite application of them to the facts and circumstances of this case.

       {¶ 23} The trial court stated in pertinent part, “Under those [R.C. 2929.12] factors

to be considered making the Defendant more likely to commit future crimes, the offender

was adjudicated as a delinquent and also has a [considerable adult] history of criminal

convictions * * * [T]he offender has shown no real remorse * * * A prison term is

consistent with the purposes and principles of sentencing * * * The defendant is not

amenable to available community control sanctions, community control sanctions would

demean the seriousness of the Defendant’s conduct, and a sentence of imprisonment is

commensurate with the seriousness of the Defendant’s conduct. * * * [C]onsecutive

service is necessary to protect the public from future crime and or to punish the offender

* * * The Court also finds that the offender’s history of criminal conduct demonstrates

that consecutive sentences are necessary to protect the public.”




6.
       {¶ 24} Consistent with the above-quoted excerpt of statutory considerations at

sentencing, the record reflects that appellant’s criminal history encompasses in excess of

50 criminal offenses prior to the 15 felony offenses underlying this case. It further

reflects that appellant committed the instant offenses while on the premises of the trial

court in the course of separate criminal matters.

       {¶ 25} Suggestions that the trial court failed to properly consider the R.C. 2929.12

factors are not supported by the record of evidence and are without merit. Wherefore, we

find appellant’s third assignment of error not well-taken.

       {¶ 26} In appellant’s fourth assignment of error, appellant similarly contends that

the trial court erred in imposing consecutive sentences in this case. We do not concur.

       {¶ 27} R.C. 2929.14(C)(4) establishes that,

       [T]he 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 not

       disproportionate to the seriousness of the offender’s conduct and to the danger it

       poses to the public, and * * * The offender’s history of criminal conduct

       demonstrates that consecutive sentences are necessary to protect the public from

       future crime by the offender.

       {¶ 28} These precise statutory considerations and requirements, so as to warrant

the imposition of consecutive sentencing, are fully reflected in the above-excerpted




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portions of the trial court sentencing transcript conveyed in our response to the third

assignment of error.

        {¶ 29} The record reflects full consideration of, and compliance with, R.C.

2929.14(C)(4) in support of the trial court’s imposition of consecutive sentences in this

case.

        {¶ 30} Wherefore, we find appellant’s fourth assignment of error not well-taken.

        {¶ 31} On consideration whereof, we find that substantial justice has been done in

this matter. The judgment of the Fulton County Court of Common Pleas is hereby

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                        Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                               _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Christine E. Mayle, J.                                      JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


             This decision is subject to further editing by the Supreme Court of
        Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
             version are advised to visit the Ohio Supreme Court’s web site at:
                      http://www.supremecourt.ohio.gov/ROD/docs/.




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