COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60678 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : CHARLES M. MILLER : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 2, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-249728. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR RESENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Beverly J. Pyle, Esq. Margaret Isquick, Esq. Assistant Public Defenders Room 307 Marion Building Cleveland, OH 44113 -2- DAVID T. MATIA, C.J.: Defendant-appellant, Charles M. Miller, appeals from his conviction for one count of trafficking in drugs (possession of cocaine) and one count of trafficking in drugs (sell or offer to sell cocaine). The appellant's appeal involves the issues of sufficiency of the evidence, allied offenses of similar import and improper sentencing. The appellant's appeal is well taken in part. I. THE FACTS A. INFORMATION RECEIVED FROM A CONFIDENTIAL INFORMANT RE: COCAINE SALE On February 14, 1990, police officers assigned to the United States Gang Task Force received information from a confidential informant that a sale of narcotics in the form of cocaine was scheduled to occur in the area of East 98th and Prince Avenue, Cleveland, Ohio. A surveillance team was assembled in an attempt to observe and arrest those individuals who were to participate in the planned drug transaction. B. APPELLANT IS ARRESTED At approximately 7:30 p.m., the surveillance team observed a blue Buick automobile turn onto Prince Avenue and come to a stop. The automobile was being driven by Marvin Spicer while the appellant occupied the passenger seat. Marvin Spicer exited the stopped automobile and proceeded to speak to the confidential informant who was also parked on Prince Avenue. Marvin Spicer returned to his automobile after which the confidential informant -3- initiated a predetermined signal which instructed the police to effect an arrest. Upon receiving the signal, Marvin Spicer and the appellant were arrested. Cocaine, in the amount of 1.35 grams, was discovered on the person of Marvin Spicer while two bags of cocaine, in the amount of 34.1 grams, were discovered in the automobile at the feet of the appellant. C. THE INDICTMENT On April 17, 1990, the appellant was indicted by the Grand Jury of Cuyahoga County for one count of trafficking in drugs (possess cocaine in an amount equal to or exceeding the bulk amount but less than three times the bulk amount) in violation of R.C. 2925.03(A)(4) and one count of trafficking in drugs (sell or offer to sell cocaine in an amount equal to or exceeding the bulk amount but less than three times the bulk amount) in violation of R.C. 2925.03(A)(5). Each of the two counts of trafficking in drugs contained "furthermore specifications" which indicated that the appellant had previously been convicted of an offense of trafficking in drugs. D. THE ARRAIGNMENT On May 11, 1990, the appellant was arraigned whereupon a plea of not guilty was entered to both of the counts of trafficking in drugs. E. THE TRIAL AND VERDICT On August 13, 1990, a jury trial was commenced with regard to the two counts of trafficking in drugs as charged against the -4- appellant. On August 17, 1990, the jury returned a verdict of guilty as to both counts of trafficking in drugs. F. THE SENTENCE OF THE TRIAL COURT On September 12, 1990, the trial court sentenced the appellant to incarceration within the Lorain Correctional Institute for a term of five years to fifteen years in addition to three years of actual incarceration with regard to the offense of trafficking in drugs (possession of cocaine) and seven years to twenty-five years in addition to five years of actual incarceration with regard to the offense of trafficking in drugs (sell or offer to sell cocaine). G. THE TIMELY APPEAL Thereafter, the appellant timely brought the instant appeal from his conviction for two counts of trafficking in drugs. II. FIRST ASSIGNMENT OF ERROR The appellant's first assignment of error is that: APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS WAS DENIED WHEN HE WAS CONVICTED OF VIOLATING R.C. 2925.03 ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE CONVICTION. A. ISSUE RAISED: CONVICTION NOT SUPPORTED BY SUFFICIENT EVIDENCE The appellant, through his initial assignment of error, argues that his conviction for two counts of trafficking in drugs was not supported by sufficient evidence. Specifically, the appellant argues that the circumstantial evidence adduced on behalf of the State of Ohio to support the conviction for two -5- counts of trafficking in drugs did not exclude all reasonable theories of innocence and thus the appellant's conviction was not supported by sufficient evidence per the application of State v. Kulig (1974), 37 Ohio St. 2d 157. The appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR CLAIM OF INSUFFICIENT EVIDENCE The Supreme Court of Ohio, in State v. Jenks (1991), 61 Ohio St. 3d 259, examined the standard of review to be applied to a claim of insufficient evidence and held that: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) State v. Jenks, supra, paragraph two of the syllabus. C. STANDARD OF REVIEW FOR CIRCUMSTANTIAL EVIDENCE In addition, the Supreme Court of Ohio in Jenks overruled the holding of State v. Kulig, supra, and further established a new standard of review which is to be applied to circumstantial evidence. Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to -6- prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. (Holland v. United States [1954], 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, followed; State v. Kulig [1974], 37 Ohio St.2d 157, 66 O.O.2d 351, 309 N.E.2d 897, overruled.) State v. Jenks, supra, paragraph one of the syllabus. In the case sub judice, both direct and circumstantial evidence were presented by the State of Ohio during the course of trial in an attempt to establish the elements of trafficking in drugs (possession of cocaine) and trafficking in drugs (sell or offer to sell cocaine). D. ELEMENTS OF TRAFFICKING IN DRUGS (POSSESSION) The elements of the offense of trafficking in drugs (possession), as defined by R.C. 2925.03(A)(4), are as follows: 1) knowingly 2) possess a controlled substance 3) in an amount equal to or exceeding the bulk amount but less than three times the bulk amount. E. ELEMENTS OF TRAFFICKING IN DRUGS (SALE) The elements of the offense of trafficking in drugs (sell or offer to sell), as defined by R.C. 2925.03(A)(5), are as follows: 1) knowingly 2) sell or offer to sell a controlled substance -7- 3) in an amount equal to or exceeding the bulk amount but less than three times the bulk amount. F. EVIDENCE ADDUCED AT TRIAL The circumstantial and direct evidence adduced at trial established that: 1) a confidential informant negotiated for the purchase of two ounces of cocaine at the price of $1,200.00 an ounce (Tr. 70, 135, 136); 2) the appellant and Marvin Spicer arrived at East 98th Street and Prince Avenue at approximately 8:00 p.m. as previously arranged with the confidential informant (Tr. 72, 73, 89, 104, 105, 137); 3) Marvin Spicer approached the confidential informant at which time the confidential informant signaled that the cocaine was present (Tr. 104, 105, 138, 141, 142); 4) the appellant, when arrested, was a passenger in an automobile which was being operated by Marvin Spicer (Tr. 104, 105, 106, 140); 5) the cocaine, which formed the basis of the appellant's conviction for two counts of trafficking in drugs, was discovered at the feet of the appellant and in the automobile in which the appellant was a passenger (Tr. 105, 106); and 6) the cocaine discovered in the automobile totaled an amount greater than the bulk amount (Tr. 120, 121, 203). G. CONVICTION WAS SUPPORTED BY SUFFICIENT EVIDENCE Based upon the application of the standard of review for sufficiency of the evidence as established in Jenks, this court must uphold the appellant's conviction for two counts of trafficking in drugs. After viewing the evidence adduced at trial in a light most favorable to the prosecution, a rational -8- trier of fact could have found the essential elements of the offenses of trafficking in drugs (possession of cocaine) and trafficking in drugs (sell or offer to sell cocaine). State v. Wolery (1976), 46 Ohio St. 2d 316; State v. Pruitt (1984), 18 Ohio St. 3d 50; State v. Long (June 20, 1991), Cuyahoga App. No. 58793, unreported. Thus, the appellant's conviction for two counts of trafficking in drugs was supported by sufficient evidence and the appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR The appellant's second assignment of error is that: THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO CONSECUTIVE TERMS [WHEN] IN FACT THE OFFENSES CONSTITUTE ALLIED OFFENSES OF SIMILAR IMPORT UNDER THE DEFINITION OF SIMILAR IMPORT UNDER THE DEFINITION (SIC) OF OHIO REVISED CODE 2941.25. A. ISSUE RAISED: ALLIED OFFENSES OF SIMILAR IMPORT The appellant, through his second assignment of error, argues that he was improperly sentenced by the trial court. Specifically, the appellant argues that the offenses of trafficking in drugs (possession of cocaine) and trafficking in drugs (sell or offer to sell cocaine) were allied offenses of similar import and thus the trial court could only impose one sentence of incarceration per R.C. 2941.25. The appellant's second assignment of error is not well taken. -9- B. POSSESSION AND SALE OF SAME QUANTITY OF A DRUG ARE ALLIED OFFENSES OF SIMILAR IMPORT This court, in State v. Lovelace (June 27, 1991), Cuyahoga App. No. 58657, unreported, held that the offenses of trafficking in drugs (possession) and trafficking in drugs (sale) are allied offenses of similar import where both offenses are based upon the same type and quantity of controlled narcotics. In State v. Roberts (1980), 62 Ohio St. 2d 170, syllabus, U.S. certiorari denied (1980), 449 U.S. 879, the court held that the offenses of possession and sale of narcotics were allied offenses of similar import where both charges were based on a single sale, the same parties and same type and quantity of drugs. The court stated that "[w]hen the state proved all elements necessary to establish the defendant's culpability for the illegal sale of a narcotic drug, it simultaneously proved his illegal possession. . . ." See also State v. Jennings (1987), 42 Ohio App. 3d 179, paragraph three of the syllabus. Similarly, in this case the state necessarily proved that appellant possessed cocaine when it proved that he encouraged the sale of it. See State v. Johnson, supra. The trial court also stated that the offenses were allied. State v. Lovelace, supra, at 9. C. TWO COUNTS OF TRAFFICKING IN DRUGS WERE NOT ALLIED OFFENSES OF SIMILAR IMPORT Herein, the record clearly shows that the same quantity of cocaine was not used to support the appellant's conviction for both trafficking in drugs (possession) and trafficking in drugs (sell or offer to sell). Thus, pursuant to the application of Lovelace, the two counts of trafficking in drugs were not allied -10- offenses of similar import and the trial court properly sentenced the appellant on both counts. See also, State v. Carter (Dec. 19, 1990), Hamilton App. No. C-890787, unreported. Therefore, the appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR The appellant's third assignment of error is that: APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTION WAS DENIED WHEN HE WAS SENTENCED TO A FIRST DEGREE FELONY AND FIVE YEARS ACTUAL INCARCERATION FOR HIS CONVICTION OF VIOLATING R.C. 2925.03(A)(5) AND WHEN HE WAS SENTENCED TO A SECOND DEGREE FELONY AND THREE YEARS ACTUAL INCARCERATION FOR HIS CONVICTION OF VIOLATING R.C. 2925.03(A)(4). A. ISSUE RAISED: IMPROPER SENTENCING OF THE APPELLANT The appellant, in his third assignment of error, argues that he was improperly sentenced by the trial court. Specifically, the appellant argues that the failure of the State of Ohio to establish that his prior drug abuse offense was indeed a felony drug abuse offense prevented the trial court from enhancing the penalties applicable to the offenses of either trafficking in drugs (possession) or trafficking in drugs (sell or offer to sell). The appellant thus argues that he should have been sentenced as if he did not possess a prior felony drug abuse offense. The appellant's third assignment of error is well taken. B. SENTENCING PARAMETERS AS CONTAINED IN R.C. 2925.03 WITH REGARD TO ENHANCED PENALTY -11- R.C. 2925.03(C)(4), which delineates the terms of incarceration that may be imposed by a trial court with regard to the offense of trafficking in drugs (possession of cocaine in an amount greater than the bulk amount but less than three times the bulk amount) provides that: (4) Where the offender has violated division (A)(4) of this section, aggravated trafficking is a felony of the third degree, and the court shall impose a sentence of actual incarceration of eighteen months, except that, if the offender previously has been convicted of a felony drug abuse offense, aggravated trafficking is a felony of the second degree, and the court shall impose a sentence of actual incarceration of three years. (Emphasis added.) Thus, an initial violation of the offense of trafficking in drugs (possession) is a third degree felony which requires the trial court's imposition of a sentence of eighteen months of actual incarceration while a prior felony drug abuse conviction results in a felony of the second degree with the requirement of three years of actual incarceration. R.C. 2925.03(C)(5), which delineates the terms of incarceration that may be imposed by a trial court with regard to the offense of trafficking in drugs (sell or offer to sell cocaine in an amount greater than the bulk amount but less than three times the bulk amount) provides that: (5) Where the offender has violated division (A)(5) of this section, aggravated trafficking is a felony of the second degree, and the court shall impose a sentence of actual incarceration of three years, except -12- that, if the offender commits the offense on school premises, in a school building, or within one thousand feet of the boundaries of any school premises or the offender previously has been convicted of a felony drug abuse offense, aggravated trafficking is a felony of the first degree and the court shall impose a sentence of actual incarceration of five years. (Emphasis added.) Thus, an initial violation of the offense of trafficking in drugs (sell or offer to sell) is a second degree felony which requires the imposition of a sentence of three years of actual incarceration while a prior felony drug abuse conviction results in a felony of the first degree with the requirement of five years of actual incarceration. Both R.C. 2925.03(C)(4) and R.C. 2925.03(C)(5) mandate the existence of a prior felony drug abuse conviction in order to increase the degree of the charged drug violation. C. RECORD FAILS TO DISCLOSE EXISTENCE OF A PRIOR FELONY CONVICTION OF DRUG ABUSE Herein, the indictment which charged the appellant with two counts of aggravated trafficking contained language which provided that the appellant had been previously convicted of a drug abuse offense. FURTHERMORE, the said Charles M. Miller, with counsel, on or about the eight (sic) day of September, 1981, in the Cuyahoga County Court of Common Pleas, Case Number CR059038, having been convicted of the crime of Trafficking in Drugs, in violation of Revised Code Section 2925.03 of the State of Ohio. -13- The indictment, however, specifically failed to indicate that the appellant's previous drug abuse conviction constituted a felony. In addition, the certified copy of the appellant's previous drug abuse conviction as found in CR-59038 and admitted as State's Exhibit 9 did not indicate the existence of a felony offense. Now comes the Prosecuting Attorney on behalf of the State of Ohio and defendant Charles M. Miller, in open court with his counsel present and was fully advised of his constitutional rights. Prosecutor states basis of plea. Criminal Rule 11 complied with. Thereupon said defendant retracts his plea of not guilty heretofore entered, and for plea to said indictment says he is guilty of Trafficking in Drugs, R.C. 2925.03, as charged in the first count, and guilty of Possession of Criminal Tools, R.C. 2923.24, as charged in the third count, and states facts of offense, which pleas on the recommendation of the Prosecuting Attorney are accepted by the court. On recommendation of the Prosecuting Attorney counts two and four nolle prosequi dismissed. It is further ordered that this cause be referred to the Probation Department for pre- sentence investigation and report. Defendant on same bond. Finally, a review of the transcript which reflects the admission of State's Exhibit 9 and the stipulation of the appellant as the party who was indeed previously convicted of the offense of trafficking in drugs fails to disclose whether the previous offense was indeed a felony or a misdemeanor. MR. TRUSIAK: The State would like to enter State's Exhibit 9 reflecting the defendant Miller's judgment of conviction in CR-059038. I've already shown this document to Hedy, and it's my understanding that Hedy -14- and I would like to stipulate to the following that the person named in CR-059038, to wit: A Charles M. Miller is the same Charles M. Miller who stands trial today in CR-249728. Hedy, is that a correct understanding of the stipulation? MS. KANGESSER: That is my understanding. THE COURT: Let the record reflect it's so stipulated. We'll come back. I'm going to take a couple pleas, and we'll come back and we'll go through the evidence that you wish to introduce. (Tr. 198, 199). D. FAILURE TO DEMONSTRATE PRIOR FELONY DRUG ABUSE CONVICTION PREVENTS IMPOSITION OF ENHANCED PENALTY A defendant, however, who is charged with a violation of R.C. 2925.03 cannot be exposed to an enhanced or greater penalty as a result of a conviction unless the state has demonstrated that the defendant's previous offense was a felony drug abuse offense. The indictment sought to charge Reed with a second degree felony, but it failed; it charged him with a third degree felony. Sale of a controlled substance is a violation of R.C. 2925.03(A)(1), and under R.C. 2925.03(C)(1) if the controlled substance is in Schedule II, the offense is "aggravated trafficking," a felony of the third degree unless "the offender has previously been convicted of a felony drug abuse offense" (emphasis added), in which event it is a felony of the second degree. The indictment did not use the word "felony" in designating the prior conviction in case No. B-831935; it used the phrase "drug offense." On its face, the indictment charged a felony of the third degree, not a felony of the second degree. Furthermore, the evidence of the prior conviction (that is, the certified copy of the final judgment entry in case No. B- 831935) disclosed on its face that the offense to which Reed had pleaded guilty was -15- a misdemeanor of the first degree, not a felony. First, the sentence imposed was six months in the local jail, which can only be a misdemeanor penalty (absent the suspension of a felony sentence and the imposition of probation with a condition of time in the local jail, a situation not disclosed by the certified copy). Second, the admitted crime was "Attempted Trafficking Offense" (emphasis added). Under R.C. 2925.03(A)(1), if that attempt involved a substance in Schedule III, IV, or V, the offense would be a felony of the fourth degree (R.C. 2925.03[D][1], reduced to a misdemeanor of the first degree under R.C. 2923.02(E). We cannot determine from the record sub judice what was the drug involved in the July 1983 sale; since the record contains the certified copy of he judgment entry and nothing more, we are limited to its contents, and it does not identify the drug. We must assume it was a drug listed in Schedule III, IV, or V. State v. Reed (1985), 23 Ohio App. 119, at 121. As previously stated, the record fails to disclose that the appellant's previous offense was indeed a felony drug abuse offense. Absent proof that the appellant's previous offense was indeed a felony, the trial court was without the authority to sentence the appellant to enhanced terms of incarceration as found at R.C. 2925.03(C)(4) and R.C. 2925.03(C)(5). The trial court was required to impose a sentence of incarceration as if based upon a first time violation of R.C. 2925.03. In addition, the court finds that the sentencing error was not waived by appellant's counsel since the sentence imposed by the trial court constituted plain error. State v. Long (1978), 53 Ohio St. 2d 91; State v. Craft (1977), 52 Ohio App. 2d 1. -16- Thus, the sentence imposed by the trial court was improper and the appellant's third assignment of error is well taken. Therefore, the appellant's conviction as to two counts of trafficking in drugs is affirmed. The sentence of the trial court, however, is vacated and the matter is remanded to the trial court solely for the purpose of resentencing the appellant in conformity with the instant opinion. Affirmed in part, sentence vacated and remanded for resentencing. -17- This cause is affirmed in part, reversed in part and remanded for resentencing consistent with the opinion herein. It is, therefore, considered that said appellant and said appellee equally share the costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JOHN F. CORRIGAN, J. and PATTON, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE 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. .