COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 60165, 60166 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ODIS BLUNT, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 19, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case Nos. CR-218,989 and : CR-227,157 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephen Miles Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 Odis Blunt, Pro Se Chillicothe Correctional Institute No. 214-340 P.O. Box 5500 Chillicothe, Ohio 45601 For defendant-appellant: Wendy I. Wills 75 Public Square Building No. 1426 Cleveland, Ohio 44113 - 2 - NAHRA, P.J.: On June 23, 1987, the Cleveland Police Narcotics Unit executed a search warrant at 721 East 131st in Cleveland, Ohio. The execution of such warrant by the Narcotics Unit was performed in coordination with the Cleveland Police SWAT Unit. Detectives David Piekarczyk and Jacalyn Scharf of the Narcotics Unit stationed themselves outside of the above address while the SWAT Unit gained entrance and secured the building. While the SWAT team entered the building, Odis Blunt, defendant- appellant, took a screen out of one of the apartments and threw a box of narcotics and other items out of the window. Such items were dropped on top of Det. Piekarczyk and Det. Scharf. The box of narcotics contained heroin, desoxyn, and cocaine. The box also contained a coke card, rolling papers, and marijuana. The search of the apartment out of which Blunt tossed the narcotics uncovered numerous firearms: a Remington pump shotgun, two Winchester rifles, a semi-automatic caliber rifle, a sixteen gauge shotgun, and a thirty-two caliber revolver. On August 27, 1987, Blunt was indicted on three counts of drug possession under R.C. 2925.11, three counts of drug trafficking under R.C. 2925.03, one count of possession of criminal tools under R.C. 2923.24, and one count in violation of the drug law under R.C. 4729.51. Such indictment fell under case number CR-218,989. -3- On May 17, 1988, Blunt, while under indictment for the above, was again indicted on one count of carrying a concealed weapon under R.C. 2923.12 and one count of having a weapon under a disability pursuant to R.C. 2923.13. The latter indictment fell under case number CR-227,157. On March 7, 1988, Blunt filed a motion to suppress evidence with respect to case number CR-218,989. Jury trial was set for August 15, 1989 for both indictments. On August 21, 1989, Blunt entered a plea of no contest to the charges of carrying a concealed weapon and having a weapon under a disability. The trial court found Blunt guilty on both counts and postponed sentencing until the conclusion of his jury trial in case no. CR- 218,989. The trial court also overruled Blunt's motion to suppress evidence. Trial ensued and a jury found Blunt guilty of three counts of drug possession under R.C. 2925.11, and one count of possession of criminal tools under R.C. 2924.23. The jury also found Blunt not guilty of the drug trafficking counts and not guilty of the drug law under R.C. 4729.51. On September 13, 1989, the trial court sentenced Blunt to three consecutive terms of two years for the three separate drug possession violations, and to a term of one and a half years for possession of criminal tools to be served consecutively to the first three counts in case no. CR-218,989. The trial court also sentenced Blunt to a term of one year on each of the weapons charges in case no. CR-227,157 with such sentences to run -4- consecutively to each other and consecutively to the sentences in case no. CR-218,989. This appeal follows. I. Appellant's first assignment of error states: THE TRIAL COURT COMMITTED SUBSTANTIAL ERROR PREJUDICIAL TO APPELLANT BY SENTENCING APPELLANT TO CONSECUTIVE TERMS OF TWO YEARS ON EACH OF THREE DRUG ABUSE CONVICTIONS, UNDER SECTION 2925.11 OF THE OHIO REVISED CODE, WHICH ARE ALLIED OFFENSES OF SIMILAR IMPORT, UNDER SECTION 2941.25 OF THE OHIO REVISED CODE. Blunt asserts that the trial court erred by sentencing him to consecutive terms of two years on each of the three drug offenses under R.C. 2925.11 since they are allied offenses of similar import. Blunt maintains that because cocaine and desoxyn fall within the category of being Schedule II controlled substances, the possession of each constitutes one offense. R.C. 2941.25 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 allied 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. R.C. 2925.11 provides in part: (A) No person shall knowingly obtain, possess, or use a controlled substance. -5- * * * (C) Whoever violates this section is guilty of drug abuse: (1) Of the drug involved is a compound, mixture, preparation, or substance included in Schedule I or II, with the exception of marijuana, drug abuse is a felony of the fourth degree * * * * Under R.C. 2925.11, the simultaneous possession of different types of controlled substances can constitute multiple offenses. State v. Delfino (1986), 22 Ohio St. 3d 270, 490 N.E.2d 884, syllabus; see State v. Hedelsky (1985), 28 Ohio App. 3d 78, 502 N.E.2d 241. More specifically, the simultaneous possession of more than one Schedule II controlled substance constitutes more than one offense. State v. Jennings (1987), 42 Ohio App. 3d 179, 537 N.E.2d 685, paragraph two of the syllabus. Here, Blunt possessed cocaine and desoxyn simultaneously, both of which are Schedule II substances. He also possessed heroin, a Schedule I substance, simultaneously with the above-mentioned substances. The three drug counts arise out of the June 23, 1987 incident in which Blunt threw various drugs out of an apartment window when members of the Cleveland Police Department were executing a search warrant. The proof required for the possession of cocaine will not sustain a conviction for the possession of desoxyn; nor will the proof of possession of desoxyn sustain a conviction for possession of cocaine. Moreover, there is nothing in the record to support Blunt's assertion that he had the same animus when he -6- possessed all three controlled substances. We find that Blunt's conviction for possession of heroin, cocaine, and desoxyn constituted separate offenses under R.C. 2925.11. As a result, the trial court's sentence of two year consecutive terms for each count was proper. Appellant's assignment of error is overruled. II. Appellant's second and third assignments of error are interrelated and shall be examined together. They state: II. THE TRIAL COURT COMMITTED SUBSTANTIAL PREJUDICIAL ERROR BY SENTENCING APPELLANT TO CONSECUTIVE TERMS OF ONE YEAR EACH FOR CONVICTION ON CARRYING A CONCEALED WEAPON AND HAVING A WEAPON UNDER A DISABILITY. III. THE TRIAL COURT COMMITTED SUBSTANTIAL PREJUDICIAL ERROR BY SENTENCING APPELLANT IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CINSTITUTION (SIC), AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. Blunt maintains that the offenses of carrying a concealed weapon and having a weapon under a disability are allied offenses of similar import. As a result, the trial court should have convicted and sentenced him under only one of the offenses. It is well established that the offenses of carrying a concealed weapon in violation of R.C. 2923.12 and having a weapon under disability in violation of R.C. 2923.13 are not allied offenses of similar import within the meaning of R.C. 2941.25(A). State v. Broadus (1984), 14 Ohio App. 3d 443, 472 N.E.2d 50; see State v. Thompson (1988), 46 Ohio App. 3d 157, 159, 546 N.E.2d -7- 702; see also State v. Vanhorn (March 31, 1983), Cuyahoga App. No. 44655, unreported. The two offenses are different. A violation of R.C. 2923.12 occurs only if a deadly weapon is concealed without respect to whether the person is under a disability. State v. Broadus (1984), 14 Ohio App. 3d at 445. Blunt further contends that his convictions constituted double jeopardy and that he was sentenced improperly as a result of such convictions. In view of our analysis above that the offenses in question were not allied offenses of similar import, the convictions do not constitute double jeopardy. Appellant's assignments of error are overruled. III. Appellant's supplement assignment of error states: THE TRIAL COURT ERRORED (SIC) TO THE PREJUDICE OF THE DEFENDANT-APPELLANT BECAUSE COUNSEL WAS INEFFECTIVE IN PRESENTING CRUCIAL EVIDENCE AND CASE LAW WHICH COULD TO (SIC) HAVE PROVED THAT THE OFFENSES WERE ALLIED OFFENSES OF SIMILAR IMPORT. Blunt asserts that his counsel rendered ineffective assistance by failing to notify the trial court that the charges Blunt faced constituted allied offenses of similar import and that he could only be convicted of one charge. Blunt also claims that his counsel at trial was ineffective because the evidence used against him was not suppressed. In Strickland v. Washington (1984), 466 U.S. 668, the United States Supreme Court adopted a two-prong analysis for determining -8- whether counsel's assistance was so defective as to require reversal of a conviction: * * * First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. * * * Id. at 687. The Strickland test enunciated above is substantially the same as that applied by Ohio courts. In Ohio, the test for determining effective assistance of counsel is whether the accused, under all the circumstances, had a fair trial and substantial justice was accomplished. State v. Hester (1976), 45 Ohio St. 2d 71, 79, 341 N.E.2d 304. In State v. Lytle (1976), 48 Ohio St. 2d 391, 396-397, 358 N.E.2d 623, vacated as to the death penalty (1978), 438 U.S. 910, the Supreme Court enunciated a two- part test: When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. A properly licensed attorney is presumed competent in Ohio. Vaughn v. Maxwell (1965), 2 Ohio St. 299, 301, 209 N.E.2d 164. Thus, the defendant has the burden of proving ineffectiveness of -9- counsel. State v. Smith (1985), 17 Ohio St. 3d 98, 100, 477 N.E.2d 1128. In the case at bar, Blunt has failed to show that counsel's assistance was deficient or prejudicial. Blunt was indicted on eight counts; he was found not guilty of three drug trafficking charges. Blunt fails to set forth any basis that his trial counsel was ineffective or violated an essential duty. Instead, he maintains that since certain evidence was not suppressed, his trial counsel must have been ineffective. We find nothing in the record to indicate that Blunt received ineffective assistance of counsel. As stated above, the offenses for which Blunt were convicted did not constitute allied offenses of similar import. The trial court's resultant sentence was proper. Blunt's counsel was not deficient by failing to argue that the aforementioned offenses were allied offenses of similar import under R.C. 2941.25(A). Appellant's assignment of error is overruled. The judgment of the trial court is affirmed. -10- It is ordered that appellee recover of appellant its 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 appeal 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. CORRIGAN, JOHN F., J., and *ECONOMUS, J., CONCUR. (*SITTING BY ASSIGNMENT: Judge Peter C. Economus of the Mahoning County Common Pleas Court.) JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .