Opinion
Case No. 18-CA-1
07-19-2018
STATE OF OHIO Plaintiff-Appellee v. ZACHARIAH R. BALL Defendant-Appellant
APPEARANCES: For Plaintiff-Appellee HAWKEN FLANAGAN Assistant Prosecutor 20 South Second Street, 4th Floor Newark, OH 43055 For Defendant-Appellant JOSHUA BEDTELYON AARON JONES ROGER SOROKA 503 S. Front Street, Suite 205 Columbus, OH 43215
JUDGES: Hon. John W. Wise, P.J. Hon. W. Scott Hon. Craig R. Baldwin, J.
OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Licking County Court of Common Pleas, Case No. 16-CR-709 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee HAWKEN FLANAGAN
Assistant Prosecutor
20 South Second Street, 4th Floor
Newark, OH 43055 For Defendant-Appellant JOSHUA BEDTELYON
AARON JONES
ROGER SOROKA
503 S. Front Street, Suite 205
Columbus, OH 43215 Gwin, J.,
{¶1} Defendant-appellant Zachariah Ball ["Ball"] appeals his conviction and sentence after a negotiated guilty plea in the Licking County Court of Common Pleas.
Facts and Procedural History
{¶2} On February 1, 2017, the Licking County Grand Jury returned a two-count Indictment against Ball charging him with Operating a Vehicle with a Hidden Compartment Used to Transport a Controlled Substance, a felony of the 2nd degree in violation of Ohio Revised Code section 2923.241 (C)(F); and Possession of Marihuana, a felony of the 3rd degree in violation of Ohio Revised Code section 2925.11(A)(C)(3)(d).
{¶3} Ball and the state agreed to a jointly recommended aggregate sentence of four years in prison. On December 12, 2017, a plea and sentencing hearing was conducted. Ball tendered pleas of guilty to Counts One and Two of the Indictment, as charged.
{¶4} The trial court imposed a sentence of four years in prison on Count One and two years in prison on Count Two. The trial court ordered the sentences in Counts One and Two to be served consecutively, for an aggregate term of six years.
Assignments of Error
{¶5} Ball raises two assignments of error,
{¶6} "I. THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE SENTENCES AS THE RECORD DOES NOT SUPPORT THE IMPOSITION OF CONSECUTIVE SENTENCES, AND THE SENTENCE IS CONTRARY TO LAW.
{¶7} "II. THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE SENTENCES AS COUNTS ONE AND TWO OF THE INDICTMENT SHOULD HAVE MERGED FOR SENTENCING PURPOSES."
I.
{¶8} In his First Assignment of Error Ball challenges the imposition of the consecutive terms on the ground that the trial court failed to make the findings required by R.C. 2929.14(C)(4).
Standard of Appellate Review.
{¶9} We review felony sentences using the standard of review set forth in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence and remand for resentencing where we clearly and convincingly find that either the record does not support the sentencing court's findings under R .C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶28.
{¶10} Accordingly, pursuant to Marcum this Court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that: (1) the record does not support the trial court's findings under relevant statutes, or (2) the sentence is otherwise contrary to law.
{¶11} Clear and convincing evidence is that evidence "which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). "Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof." Cross, 161 Ohio St. at 477 120 N.E.2d 118.
{¶12} In addition, as has been noted,
If the court has properly made the required findings in order to impose consecutive sentences, we must affirm those sentences unless we "clearly and convincingly" find "[t]hat the record does not support the court's findings [.]"State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, 992 N.E.2d 453, ¶19-21. Accord, State v. Creech, 4th Dist., Scioto No. 16CA3730, 2017-Ohio-6951, ¶11; State v. Withrow, 2nd Dist. Clark No. 2015-CA-24, 2016-Ohio-24, ¶22; State v. Mason, 12th Dist. Butler No. CA2014-10-217, 2015-Ohio-1931, ¶8; State v. Taylor, 5th Dist. Holmes No. 12 CA 18, 2013-Ohio-5751, ¶69; State v. Higginbotham, 10th Dist. Franklin Nos. 17AP-147, 17AP-150, 2017-Ohio-7618, ¶11; State v. Moss, 11th Dist. Ashtabula No. 2016-A-0046, 2017-Ohio-0046, ¶22.
It is important to understand that the "clear and convincing" standard applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C. 2953.08(G)(2) makes it clear that "[t]he appellate court's standard for review is not whether the sentencing court abused its discretion." As a practical consideration, this means that appellate courts are prohibited from substituting their judgment for that of the trial judge.
It is also important to understand that the clear and convincing standard used by R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court's findings. In other words, the restriction is on the appellate court, not the trial judge. This is an extremely deferential standard of review.
ISSUE FOR APPEAL.
Whether the record does not support the trial court's findings under relevant statutes, or the sentence is otherwise contrary to law.
R.C. 2929.13(B).
{¶13} R.C. 2929.13(B) applies to one convicted of a fourth or fifth degree felony. Ball pled guilty to a felony of the third degree and a felony of the second degree. Accordingly, this section does not apply to Ball's case.
{¶14} R.C. 2929.13(D) (1) applies to one convicted of a felony of the first or second degree, for a felony drug offense that is a violation of any provision of Chapter 2925., 3719., or 4729. of the Revised Code for which a presumption in favor of a prison term is specified as being applicable, and for a violation of division (A)(4) or (B) of section 2907.05 of the Revised Code for which a presumption in favor of a prison term is specified as being applicable.
{¶15} R.C. 2929.13(D) (1) provides that when sentencing for a first or second-degree felony "it is presumed that a prison sentence is necessary in order to comply with the purposes and principles of sentencing." Nonetheless, R.C. 2929.13(D)(2) provides that "[n]otwithstanding the presumption * * * the sentencing court may impose a community control sanction," (emphasis added), but only if the sentencing court finds that a community control sanction would (1) adequately punish the offender and protect the public from future crime, and (2) not demean the seriousness of the offense because the statutory less serious sentencing factors outweigh the more serious factors.
{¶16} In the case at bar, Ball pled guilty to Operating a Vehicle with a Hidden Compartment Used to Transport a Controlled Substance, a felony of the 2nd degree in violation of R.C. 2923.241 (C)(F). Thus, R.C. 2929.13(D) does not apply to Ball's case.
{¶17} R.C. 2929.14(B)(2)(e) concerns additional prison sentences that a trial court can impose upon a defendant under specified circumstances. Ball was not given an additional prison sentence.
R.C. 2929.14 (C)(4) Consecutive Sentences.
{¶18} In Ohio, there is a statutory presumption in favor of concurrent sentences for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption by making the statutory, enumerated findings set forth in R.C. 2929.14(C) (4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This statute requires the trial court to undertake a three-part analysis. State v. Alexander, 1st Dist. Hamilton Nos. C-110828 and C-110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15.
{¶19} R.C. 2929.14(C)(4) provides,
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the 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 the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶20} Thus, in order for a trial court to impose consecutive sentences the court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender. The court must also find that consecutive sentences are not disproportionate to the offender's conduct and to the danger the offender poses to the public. Finally, the court must make at least one of three additional findings, which include that (a) the offender committed one or more of the offenses while awaiting trial or sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or while under post release control for a prior offense; (b) at least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the offenses was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct would adequately reflect the seriousness of the offender's conduct; or (c) the offender's criminal history demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶ 36.
{¶21} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, syllabus, the Supreme Court of Ohio stated that:
In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings.
{¶22} Furthermore, the sentencing court is not required to recite "a word-for-word recitation of the language of the statute." Bonnell, ¶ 29. "[A]s long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld." Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a consecutive sentence contrary to law. Bonnell, ¶ 34. The findings required by R.C. 2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing entry. Id. at the syllabus. However, a trial court's inadvertent failure to incorporate the statutory findings in the sentencing entry after properly making those findings at the sentencing hearing does not render the sentence contrary to law; rather, such a clerical mistake may be corrected by the court through a nunc pro tunc entry to reflect what actually occurred in open court. Bonnell, ¶ 30.
{¶23} In this case, the record does support a conclusion that the trial court made all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive sentences.
R.C. 2929.14(C)(4): [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 the offender poses to the public.
{¶24} The trial court made this finding. Change of Plea and Sentencing, Dec 12, 2017 at 19. The findings are reflected in the court's sentencing entry. Judgment Entry, filed Dec. 12, 2017 at 2.
R.C. 2929.14(C)(4)(a): The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16 , 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
{¶25} The trial court made no finding on this factor in Ball's case.
R.C. 2929.14(C)(4)(b): At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
{¶26} The trial court made no finding on this factor in Ball's case.
R.C. 2929.14(C)(4)(c): The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶27} The trial court made this finding. Change of Plea and Sentencing, Dec 12, 2017 at 18; Judgment Entry, filed Dec. 12, 2017 at 2.
{¶28} We find that the record in the case at bar clearly and convincingly supports the trial court's findings under R.C. 2929.14(C)(4).
{¶29} R.C. 2929.20 (I) is inapplicable, as Ball was not applying to the court for judicial release.
R.C. 2929.11 and R.C. 2929.12.
{¶30} The Marcum court further noted,
We note that some sentences do not require the findings that R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.146 Ohio St.3d 516 at ¶23, 2016-Ohio-1002, 59 N.E.3d 1231.
{¶31} R.C. 2929.11(A) governs the purposes and principles of felony sentencing and provides that a sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing, which are (1) to protect the public from future crime by the offender and others, and (2) to punish the offender using the minimum sanctions that the court determines will accomplish those purposes. Further, the sentence imposed shall be "commensurate with and not demeaning to the seriousness of the offender's conduct and its impact on the victim, and consistent with sentences imposed for similar crimes by similar offenders." R.C. 2929.11(B).
{¶32} R.C. 2929.12 sets forth the seriousness and recidivism factors for the sentencing court to consider in determining the most effective way to comply with the purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a non-exhaustive list of factors a trial court must consider when determining the seriousness of the offense and the likelihood that the offender will commit future offenses.
{¶33} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court severed the judicial-fact-finding portions of R.C. 2929.14, holding that "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Kalish at ¶ 1 and ¶ 11, citing Foster at ¶ 100, See also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v. Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823, 2006 WL 3185175.
{¶34} "Thus, a record after Foster may be silent as to the judicial findings that appellate courts were originally meant to review under 2953.08(G)(2)." Kalish at ¶ 12. However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C. 2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶ 13, see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1; State v. Firouzmandi supra at ¶ 29.
{¶35} Thus, post-Foster, "there is no mandate for judicial fact-finding in the general guidance statutes. The court is merely to 'consider' the statutory factors." Foster at ¶ 42. State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061, 2006 WL 2257068; State v. Delong, 4th Dist. No. 05CA815, 2006-Ohio-2753, 2006 WL 1495258 at ¶ 7-8. Therefore, post-Foster, trial courts are still required to consider the general guidance factors in their sentencing decisions.
{¶36} There is no requirement in R.C. 2929.12 that the trial court states on the record that it has considered the statutory criteria concerning seriousness and recidivism or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431, 655 N.E.2d 820 (4th Dist. 1995); State v. Gant, 7th Dist. No. 04 MA 252, 2006-Ohio-1469, 2006 WL 771790, at ¶ 60 (nothing in R.C. 2929.12 or the decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth its findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94 (1992); State v. Hughes, 6th Dist. No. WD-05-024, 2005-Ohio-6405, 2005 WL 3254572, ¶ 10 (trial court was not required to address each R.C. 2929.12 factor individually and make a finding as to whether it was applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006-Ohio-1342, 2006 WL 726271, ¶ 19 ("... R.C. 2929.12 does not require specific language or specific findings on the record in order to show that the trial court considered the applicable seriousness and recidivism factors"). (Citations omitted).
{¶37} In the case at bar, the trial court considered the purposes and principles of sentencing under R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12. Change of Plea and Sentencing, Dec 12, 2017 at 18; Judgment Entry, filed Dec. 12, 2017 at 2.
{¶38} The trial court has no obligation to state reasons to support its findings. Nor is it required to give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry.
{¶39} Ball was sentenced for a felony of the second degree. The sentencing range for a second-degree felony is two, three, four, five, six, seven, or eight years. R.C. 2929.14(A)(2). Ball was given a sentence of four years, which is within the statutory range. Ball was sentenced for a felony of the third degree. The sentencing range for a third-degree felony is nine, twelve, eighteen, twenty-four, thirty, or thirty-six months. Ball was given a sentence of two years, which is within the statutory range. Accordingly, the sentence is not contrary to law.
{¶40} Upon review, we find that the trial court's sentencing on the charges complies with applicable rules and sentencing statutes. The sentence was within the statutory sentencing range. Furthermore, the record reflects that the trial court considered the purposes and principles of sentencing and the seriousness and recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised Code and advised Ball regarding post-release control. Upon a thorough review, we find the record clearly and convincing supports the sentence imposed by the trial court.
{¶41} While Ball may disagree with the weight given to these factors by the trial judge, Ball's sentence was within the applicable statutory range for a felony of the second degree and a felony of the third degree and therefore, we have no basis for concluding that it is contrary to law.
{¶42} Ball's First Assignment of Error is overruled.
II.
{¶43} In his Second Assignment of Error, Ball contends that Counts One and Two are allied offenses of similar import and must be merged for sentencing.
Standard of Appellate Review.
{¶44} In State v. Rogers, the Ohio Supreme Court examined a case where the defendant was convicted of multiple offenses pursuant to a guilty plea. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860. The defendant appealed and argued for the first time on appeal that some of the convictions should have merged for sentencing. Id. at ¶ 11. The matter was certified as a conflict and presented to the Ohio Supreme Court. In making its decision, the Court clarified the difference between waiver and forfeiture as it pertains to allied offenses. Id. at ¶ 19-21.
{¶45} The Court rejected the argument that by entering a guilty plea to offenses that could be construed to be two or more allied offenses of similar import, the accused waives the protection against multiple punishments under R.C. 2941.25. Id. at ¶ 19. The Court held that an accused's failure to seek the merger of his or her convictions as allied offenses of similar import in the trial court, the accused forfeits his or her allied offenses claim for appellate review. Id. at ¶ 21. "[F]orfeiture is the failure to timely assert a right or object to an error, and * * * 'it is a well-established rule that "an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court." Id. at ¶ 21.
{¶46} The accused may raise a forfeited claim on appeal through Crim.R. 52(B). Pursuant to Crim.R. 52(B), "plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The Court held in Rogers:
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; 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.2015-Ohio-2459, ¶ 3, 143 Ohio St.3d 385. The Court in Rogers reaffirmed that even if an accused shows the trial court committed plain error affecting the outcome of the proceeding, the appellate court is not required to correct it. Id. at ¶ 23. The Supreme Court stated:
[W]e have "admonish[ed] courts to notice plain error 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.'" (Emphasis added.) Barnes at 27, 94 Ohio St.3d 21, 759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.Rogers at ¶ 23.
{¶47} Because Ball did not raise the merger issue at trial, the plain-error standard applies.
ISSUE FOR APPEAL.
Whether the trial court committed plain error affecting the outcome of the proceedings resulting in a manifest miscarriage of justice by failing to merge the offenses was required to merge the offenses in Ball's case.
{¶48} R.C. 2941.25, Multiple counts states:
(A) Where the same conduct by defendant can be construed 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.
(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.
{¶49} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.2d 892, the Ohio Supreme Court revised its allied-offense jurisprudence,
1. 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.Ruff, at syllabus. The Court further explained,
2. Two 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 harm that results from each offense is separate and identifiable.
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, and (3) the offenses were committed with separate animus or motivation.
* * *
An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.
{¶50} To be guilty of possession under R.C. 2925.11(A), the offender must 'knowingly obtain, possess, or use a controlled substance." To be guilty of designing or operating a vehicle with a hidden compartment used to transport a controlled substance in violation of R.C. 2923.241, the offender must knowingly design, build, construct, or fabricate a vehicle with a hidden compartment, or modify or alter any portion of a vehicle in order to create or add a hidden compartment, with the intent to facilitate the unlawful concealment or transportation of a controlled substance. If the hidden compartment contains a controlled substance at the time of the offense, operating a vehicle with a hidden compartment used to transport a controlled substance is a felony of the second degree.
{¶51} In the case at bar, the facts as agreed to by Ball reveal that Ball had a small bag of marijuana on the seat of his car at the time he was stopped for a traffic violation. Change of Plea and Sentencing, Dec. 12, 2017 at 9-10. Upon further investigation, a hidden compartment containing two bags of marijuana weighing 940 grams of marijuana was located. Id. At 10. Ball led the officers to his home and consented to the subsequent search. The officers located a hole in the drywall behind a picture that contained 2,452 grams of marijuana and $3,360.00. Change of Plea and Sentencing, Dec. 12, 2017 at 11.
{¶52} One can possess marijuana without designing, building or fabricating a vehicle with a hidden compartment. Therefore, the offenses are of dissimilar import. The act of concealing marijuana in the walls of the home was committed separately from any transportation of the drugs. The marijuana located in Ball's residence was separate and distinct from the marijuana located within the hidden compartment on Ball's vehicle.
{¶53} Ball was appropriately subjected to two separate and distinct charges, one charge for transporting marijuana in a hidden compartment and another charge for possession of marijuana at his residence. In the case at bar, the marijuana possessed in the hidden compartment of Ball's car related to separate and distinct occurrence committed with separate animus from the marijuana possessed inside the walls of Ball's apartment.
{¶54} There may be instances when a court's failure to merge allied offenses can constitute plain error, but this case does not present one of those instances. Ball failed to demonstrate any probability that he has, in fact, been convicted of allied offenses of similar import committed with the same conduct and with the same animus, and he therefore failed to show any prejudicial effect on the outcome of the proceeding. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 25 (2015)
{¶55} Ball's Second Assignment of Error is overruled.
{¶56} The judgment of the Licking County Court of Common Pleas is affirmed. By Gwin, J., Wise, John, P.J., and Baldwin, J., concur