Opinion
No. 109489
04-01-2021
STATE OF OHIO, Plaintiff-Appellee, v. WILLIE G. SEAWRIGHT, JR., Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Jeffrey Maver, Assistant Prosecuting Attorney, for appellee. Anna Markovich, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-640515-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Jeffrey Maver, Assistant Prosecuting Attorney, for appellee. Anna Markovich, for appellant. MARY EILEEN KILBANE, J.:
{¶ 1} Defendant-appellant Willie G. Seawright, Jr. ("Seawright") appeals from his conviction and sentence for drug trafficking. For the reasons that follow, we affirm.
Factual and Procedural History
{¶ 2} On June 28, 2019, a Cuyahoga County Grand Jury indicted Seawright on seven counts of trafficking in violation of R.C. 2925.03(A)(2), seven counts of drug possession in violation of R.C. 2925.11(A), one count of improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(E)(1), one count of having weapons while under disability in violation of R.C. 2923.13(A)(1), one count of obstructing official business in violation of R.C. 2921.31(A), and one count of resisting arrest in violation of R.C. 2921.33(A). The trafficking and drug possession counts all carried one year firearm specifications, and all counts carried various forfeiture specifications.
{¶ 3} These charges arose from a noise complaint police received on May 9, 2019. Police responded to the Extended Stay America hotel in Middleburg Heights, Ohio to investigate the complaint. Upon arriving at the hotel, police observed Seawright sitting in his parked car in the hotel's parking lot playing loud music. The police asked Seawright if he was staying at the hotel, and when he responded that he was, they asked him for his identification and his hotel room key.
{¶ 4} While looking for his room key, Seawright opened his car door and officers smelled marijuana. When the officers questioned Seawright about the smell of marijuana, he did not answer and attempted to close his car door. Officers instructed him to keep the door open and asked Seawright for his car keys. Seawright refused and then tried to run away from the officers. After a short foot pursuit, officers detained Seawright, who admitted that he ran because he had an outstanding warrant. He also admitted that he had a gun in his car. The officers searched Seawright's car and recovered multiple bags of different drugs, a portable digital scale, $1,915 in cash, a loaded gun, and a cellphone.
{¶ 5} On January 13, 2020, Seawright pleaded guilty to seven amended counts of drug trafficking: Counts 1, 3, 5, 7, 9, 11, and 13. The drug trafficking counts were amended to delete the firearm specifications. Seawright also pleaded guilty to Count 15, improperly handling firearms in a motor vehicle; Count 16, having weapons while under disability; Count 17, obstructing official business; and Count 18, resisting arrest. The remaining charges were nolled. The court discussed the issue of merger with the prosecutor and defense counsel prior to accepting Seawright's plea, and both parties indicated that none of the offenses would merge. After accepting Seawright's guilty plea, the trial court denied Seawright's request for a presentence-investigation report and proceeded immediately with sentencing.
{¶ 6} The court sentenced Seawright to three years on Counts 1, 3, 5, and 7; 18 months on Counts 9, 11, and 13; six months on Count 15; three years on Count 16; 90 days on Count 17, and 90 days on Count 18. The court ordered the three-year sentences for Counts 1, 3, 5, and 7 to run concurrent to each other but consecutive to the three-year sentence for Count 16. The remaining sentences were ordered to run concurrently, for a total sentence of six years in prison. The court also imposed three years of discretionary postrelease control, ordered Seawright to pay $15,000 in mandatory fines, and imposed court costs.
{¶ 7} Seawright appeals, presenting three assignments of error for our review.
Assignments of Error
I. The trial court erred when it imposed separate convictions and prison sentences for trafficking offenses.
II. The maximum consecutive sentences imposed by the trial court is contrary to law and violates due process because the trial court findings under R.C. 2929.14(C)(4) are not supported by the record.
III. Seawright was denied effective assistance of counsel when his attorney failed to file an affidavit of indigency to waive the mandatory fine.
Legal Analysis
I. Merger
{¶ 8} In his first assignment of error, Seawright argues that the trial court erred when it failed to merge his trafficking convictions as allied offenses of similar import. He asserts that because the seven trafficking offenses arose from several bags of drugs mixed together, they were allied offenses of similar import. He further argues that even if all seven counts should not have merged, the three counts involving fentanyl-related compounds should have merged because they all involved the same substance.
{¶ 9} Our review of an allied offense question is de novo. State v. Webb, 8th Dist. Cuyahoga No. 98628, 2013-Ohio-699, ¶ 4, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. R.C. 2941.25 provides:
(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.Seawright failed to object to the imposition of multiple sentences below, and therefore he has waived all but plain error. State v. Tate, 8th Dist. Cuyahoga No. 97804, 2014-Ohio-5269, ¶ 35. The Ohio Supreme Court has held that the imposition of multiple sentences for allied offenses of similar import is plain error. Id., citing State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, citing State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 96-102.
(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.
{¶ 10} Because R.C. 2941.25 focuses on the defendant's conduct, a court's determination of whether the defendant has been found guilty of allied offenses of similar import is dependent upon the facts of the case. State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 18, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 26. Specifically, because an offense may be committed in a variety of ways, the Ohio Supreme Court has held that a defendant may be convicted and sentenced for multiple offenses when either "(1) the offenses are dissimilar in import or significance—in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, or (3) the offenses were committed with separate animus or motivation." Ruff at ¶ 25.
{¶ 11} Here, Seawright pleaded guilty to seven trafficking offenses: Counts 1, 3, 5, 7, 9, 11, and 13. Each count related to a different substance, as follows:
a. Count 1 related to more than the bulk amount but less than five times the bulk amount of methamphetamine, a Schedule II drug.Counts 1, 3, 5, and 7 all related to the drugs found packaged together in Seawright's center console and were all felonies of the third degree. Counts 9, 11, and 13 all related to the drugs found packaged together in the trunk and were felonies of the fourth degree.
b. Count 3 related to more than five grams but less than 10 grams of acetylfentanyl, a Schedule I drug.
c. Count 5 related to more than five grams but less than 10 grams of fentanyl, a Schedule II drug.
d. Count 7 related to more than five grams but less than 10 grams of heroin, a Schedule I drug.
e. Count 9 related to more than five grams but less than 10 grams of cocaine, a Schedule II drug.
f. Count 11 related to more than one gram but less than five grams of carfentanil, a Schedule II drug.
g. Count 13 related to less than the bulk amount of U-47700, a synthetic opioid and a Schedule I drug.
{¶ 12} This court has previously held that under the standard set forth in Ruff, trafficking offenses of different substances do not merge where the substances are packaged separately. State v. Daniels, 8th Dist. Cuyahoga No. 108299, 2020-Ohio-1496, ¶ 27, citing State v. Bradley, 2015-Ohio-5421, 55 N.E.3d 580, ¶ 39 (8th Dist.). Similarly, this court has held that offenses for simultaneous possession of different types of drugs do not merge. Id. at ¶ 28, citing State v. Perry, 8th Dist. Cuyahoga No. 105501, 2018-Ohio-487, and State v. Santiago, 8th Dist. Cuyahoga No. 101601, 2015-Ohio-1300. Specifically, the court in Daniels concluded that trafficking heroin and trafficking fentanyl were not allied offenses of similar import even where the substances were mixed together because they belonged to different drug groups and posed separate and identifiable harms in that fentanyl is significantly more deadly than heroin. Id. at ¶ 33 and 35.
{¶ 13} Further, the Ohio Supreme Court has recognized that Ohio's drug trafficking statute, R.C. 2925.11, provides a unique context for a merger analysis because the statute creates different felony levels and imposes different punishments "depending on the type and amount of illegal substance upon which the criminal charge could be made." State v. Pendleton, Slip Opinion No. 2020-Ohio-6833, ¶ 18, quoting State v. Taylor, 113 Ohio St.3d 297, 2007-Ohio-1950, 865 N.E.2d 37, ¶ 14. Thus, our merger analysis here requires an analysis of Seawright's conduct, pursuant to Ruff, that also considers that the legislature "has made it clear from its decision to create separate offenses based on drug classification that drugs of different types can be punished separately." Id. citing State v. Delfino, 22 Ohio St.3d 270, 274, 490 N.E.2d 884 (1986).
{¶ 14} Here, our holding in Daniels makes clear that different substances, packaged separately, are not allied offenses of similar import. Therefore, none of the trafficking offenses for the drugs found in the center console could have merged with the trafficking offenses for the drugs found in the trunk. Further, although some of the substances were packaged together, all seven trafficking offenses were either packaged separately from each other or were a unique drug. Finally, although three of the offenses, including two that were packaged together, were for fentanyl-related compounds, each offense related to a different substance. This is reflected in the legislature's decision to recognize each of the three substances separately in its drug schedules, and in particular in the decision to classify acetylfentanyl as a Schedule I drug and fentanyl and carfentanil as Schedule II drugs. R.C. 3719.41, Schedule I(A)(1) and Schedule II(B)(6) and (9); see also State v. Warren, 5th Dist. Fairfield No. 18-CA-42, 2019-Ohio-2927, ¶ 44. For these reasons, we decline to find that it was plain error for the trial court to sentence Seawright separately on each trafficking offense because they were not allied offenses of similar import.
{¶ 15} While it was not raised by either party to this appeal, we are compelled to address a recent decision in which the Ohio Supreme Court held that multiple punishments for a singular quantity of different drugs violated the Double Jeopardy protections of the Ohio and United States Constitutions. State v. Pendleton, Slip Opinion No. 2020-Ohio-6833. There are several factual and procedural differences that distinguish this case from Pendleton. In Pendleton, the defendant was discovered with multiple bags of a mixture of heroin and fentanyl totaling 133.62 grams and was subsequently charged with one count of trafficking more than 100 grams of heroin and one count of trafficking more than 100 grams of fentanyl. Pendleton was convicted by a jury despite the fact that separate convictions for crimes involving over 100 grams of each drug were undermined by the combined total weight of the drugs involved. Where the evidence showed that Pendleton possessed a total of 133.62 grams of drugs, it was impossible for him to have possessed over 100 grams of heroin and over 100 grams of fentanyl. Because the state could not have proven each element of the charged offenses beyond a reasonable doubt, the Ohio Supreme Court held that the trial court improperly punished Pendleton twice for a singular quantity of drugs and therefore vacated his sentence.
{¶ 16} Unlike Pendleton, Seawright does not base his merger argument on the respective weights of the substances involved. Moreover, it is not clear from the record exactly what amount of each substance was recovered, or the total amount recovered, because the case was resolved when Seawright pleaded guilty to certain amended charges. Therefore, the state of Ohio did not have the burden of proving each element of Seawright's offenses beyond a reasonable doubt, and there is nothing in the indictment to indicate that Seawright's commission of the offenses was factually impossible, like the offenses in Pendleton. "It is fundamental that the appellant bears the burden of affirmatively demonstrating an error on appeal." State v. Sheffey, 11th Dist. Ashtabula No. 2019-A-0022, 2020-Ohio-3561, ¶ 11, quoting Wray v. Parsson, 101 Ohio App.3d 514, 518, 655 N.E.2d 1365 (9th Dist.1995), citing Pennant Moldings, Inc. v. C & J Trucking Co., 11 Ohio App.3d 248, 251, 464 N.E.2d 175 (12th Dist.1983). Unlike the defendant in Pendleton, Seawright has not pointed to anything in the record indicating that he was punished twice for a singular quantity of drugs. Likewise, even if Seawright had made such an argument, our review of the record has revealed nothing to support it. Therefore, the holding in Pendleton does not apply to this case.
{¶ 17} For these reasons, it was not plain error for the trial court to impose separate sentences for Seawright's drug trafficking convictions. Seawright's first assignment of error is overruled.
II. Consecutive Sentences
{¶ 18} In his second assignment of error, Seawright argues that his sentence violates due process because the trial court's consecutive-sentence findings under R.C. 2929.14(C)(4) are not supported by the record.
{¶ 19} Pursuant to R.C. 2953.08, a reviewing court may overturn the imposition of consecutive sentences where it clearly and convincingly finds that the record does not support the sentencing court's findings under R.C. 2929.14(C)(4), or the sentence is otherwise contrary to law.
{¶ 20} R.C. 2929.14(C)(4) requires a sentencing court to make certain findings before imposing consecutive sentences. First, the court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender. R.C. 2929.14(C)(4). The court must also find that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. Id. Finally, the court must find any one 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 postrelease control for a prior offense.R.C. 2929.14(C)(4). Beyond making these findings on the record, the court must also incorporate those findings into its sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 1.
(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.
{¶ 21} Here, Seawright does not dispute that the trial court made the required findings on the record. He instead argues that the record does not clearly and convincingly support the court's findings because the harm caused by his offenses was not so great and unusual that a single prison term would not adequately reflect the seriousness of his conduct. Seawright also argues that his conduct was not so serious as to require consecutive sentences. Specifically, he argues that a relatively small amount of drugs was found in his car, and there was no evidence that he was engaged in a large-scale drug enterprise. On the contrary, statements made by Seawright and his counsel during the sentencing hearing indicate that Seawright is a drug addict and sold drugs to support his own drug habit.
{¶ 22} Despite Seawright's disagreement with the trial court's findings, the record reflects that Seawright was in possession of seven different illegal substances, including four different synthetic opioids, three of which were fentanyl-related compounds. As the Ohio Supreme Court has noted, fentanyl is approximately 50 times more potent than heroin and approximately 100 times more potent than morphine. State v. Pountney, 152 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶ 2, citing R.C. 3719.41 (Schedule II(B)(9)). Further, Seawright was in possession of almost $2,000 in cash, a loaded firearm, and a portable digital scale when he was arrested. Therefore, we cannot clearly and convincingly conclude that the record does not support the trial court's R.C. 2929.14(C)(4) findings. Because the trial court made the required findings, the findings are supported by the record, and Seawright's sentence is not contrary to law, we overrule his second assignment of error.
III. Ineffective Assistance of Counsel
{¶ 23} In his third assignment of error, Seawright argues that he received ineffective assistance of counsel when his attorney failed to file an affidavit of indigency to waive the mandatory fine imposed as part of his sentence.
{¶ 24} To succeed on an ineffective assistance of counsel claim, the appellant must show that his trial counsel's performance was deficient and that the deficient performance prejudiced his defense. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
{¶ 25} The third-degree felony offenses to which Seawright pleaded guilty carried mandatory fines pursuant to R.C. 2925.03(D)(1) and 2929.18(B)(1), Seawright argues that because his counsel did not file an affidavit of indigency prior to sentencing, the trial court could not waive the mandatory fine. R.C. 2929.18(B)(1) establishes a procedure for avoiding the imposition of mandatory fines applicable to certain felony drug offenses. That section provides, in relevant part:
If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender.R.C. 2929.18(B)(1). Therefore, for an offender to avoid the imposition of a mandatory fine, two things must occur: (1) the defendant must submit an affidavit of indigency to the court prior to sentencing; and (2) the court must make a determination that the offender is, in fact, indigent. Id.; State v. Green, 8th Dist. Cuyahoga No. 102837, 2016-Ohio-926, ¶ 12, citing State v. Turner, 8th Dist. Cuyahoga No. 102741, 2015-Ohio-4388.
{¶ 26} Ohio courts have held that the failure to file an affidavit of indigency for purposes of waiving a mandatory fine constitutes ineffective assistance of counsel where the record shows a reasonable probability that the trial court would have found the defendant indigent and unable to pay the fine had the affidavit been filed. Id. We note that in this case, Seawright's counsel requested a presentence-investigation report after the court accepted his guilty plea. The court rejected this request and proceeded immediately with sentencing. Although this did not technically preclude counsel from filing an affidavit of indigency prior to sentencing, or requesting additional time prior to sentencing in which to prepare and file an affidavit, we decline to find that the failure to file an affidavit of indigency here amounted to ineffective assistance of counsel. Furthermore, the record reflects that when Seawright's counsel addressed the court during the sentencing hearing, counsel stated that Seawright was employed and making approximately $10.50 an hour. In addition, the court commented multiple times on both the amount of cash Seawright had when he was arrested and the amount of cash he had on the day of his sentencing hearing. There is no indication from the record that, had counsel filed an affidavit of indigency prior to sentencing as required by R.C. 2929.18(B)(1), the court would have found him indigent and unable to pay the mandatory fines. Therefore, Seawright's third assignment of error is overruled.
{¶ 27} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
MARY EILEEN KILBANE, JUDGE MICHELLE J. SHEEHAN, P.J., and
LISA B. FORBES, J., CONCUR