COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60851, 60886 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION WARNER WILCOX : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 11, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case Number CR-252985. JUDGMENT: AFFIRMED AS MODIFIED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Paul Mancino, Esq. 75 Public Square Suite 1016 Cleveland, Ohio 44113 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Warner Wilcox ("Wilcox") appeals from his convictions of: Count One--possession of heroin in less than bulk amount [R.C. 2925.11] with one firearm specification and a prior conviction specification; Count Two--carrying a loaded concealed weapon [R.C. 2923.12] with a finding that the firearm was loaded; and, Count Three--having a weapon while under a disability [R.C. 2923.13]. For the reasons adduced below, we affirm as modified and remand for resentencing. A review of the record reveals that Wilcox was indicted on June 21, 1990. At his arraignment on July 30, 1990, Wilcox pled not guilty. Following a pretrial conference in early August, trial was scheduled for August 14, 1990. The defense, on August 9, 1990, filed a motion to suppress any and all evidence seized from the defendant on May 9, 1990. On Tuesday, August 14, 1990, the court conducted a hearing on defendant's motion to suppress. See Transcript, Volume One. Prior to the testimony of witnesses at this hearing, the court discussed the existence of a possible plea bargain in the present case and that any such bargain and resulting sentence would be negated if the case were to go to trial. At the suppression hearing, the prosecution offered the testimony of Cleveland Police Detective Andrew Charchenko ("Charchenko") and the defense offered the testimony of the defendant. - 3 - Charchenko testified that: (1) he was a twenty-year veteran of the police force with nine of those years served in the narcotics unit; (2) on May 5, 1990, at 12:20 a.m., he and two other narcotic unit officers, all in plain clothes and using an unmarked car, were cruising westbound on Kinsman Avenue when he noticed three males in front of a two-story store front/apartment building located at 11618 Kinsman Avenue; (3) the defendant, who was one of the three males, was showing something to the other men on the sidewalk; (4) at the time they viewed this action, the car had passed the area so they went around the block and returned to the scene; (5) returning, they pulled the car up to the curb; (6) as he exited the police car from the front passenger seat, the defendant immediately ran; (7) the area was one of high drug activity and they had received complaints of drug sales in the area; (8) he chased the defendant as the defendant entered the building, running up a flight of stairs to the second floor apartment area; (9) he repeatedly identified himself as a policeman during the chase and ordered the suspect to stop; (10) the defendant tried, unsuccessfully, to force open an apartment door at the top of the stairs with his shoulder; (11) being unsuccessful in forcing the door, the defendant ran down the dimly lit hallway, some twenty-feet ahead of the witness, while at the same time reaching into a pocket and removing an object; (12) the suspect reached the porch door at the end of the short hallway, opened it, and threw the object out - 4 - the door; (13) the object bounced off the porch floor and landed on the ground below; (14) the suspect was detained in the hallway by a fellow detective as the witness descended to the ground and recovered the object, which was the only object on the ground beneath the porch; (15) the witness returned to the second floor hallway and placed the suspect under arrest for carrying a concealed weapon, advising him of his constitutional rights; (16) the object recovered by the witness was a .38 caliber revolver loaded with six live rounds; (17) during the search of defendant's person incident to the arrest, the fellow officer found a packet of suspected heroin in defendant's wallet, which was located in defendant's right rear pants pocket; (18) the defendant, immediately following the arrest and being read his rights, allegedly asked the police not to arrest him for the gun because he had a police record; (19) the attention of the witness was originally drawn to the suspect on the street because he recalled having arrested the suspect several years ago in front of the Hobby Horse Saloon; (20) no one else was observed by the police that night in or near the building. The defendant then testified on his own behalf, stating that: (1) he was arrested on May 8 or 9, 1990, in the hallway of the apartment building at approximately 12:30 - 1:00 a.m.; (2) he had driven to the scene about four to five minutes before the police arrived; (3) he was at the scene to pick up his wife who was at the apartment of Richard Copeland which was located at the - 5 - top of the stairs; (4) he said hello to a man as he entered the door to the building, and walked up the stairs; (5) he heard someone yell "police" as he knocked on Mr. Copeland's apartment door; (6) the police pushed him against the hallway wall and started to frisk him for some unknown reason; (7) his wife and another woman (Mrs. Copeland) opened the apartment door, but the police told them to close the door, that it was police business; (8) he did not go onto the back porch off the hallway that morning; (9) the hallway's lights were not on that morning; (10) Richard Copeland was standing on his apartment porch overlooking Kinsman Avenue as the witness arrived at the scene; (11) it was "pitch black" in the hallway and he only saw the beam from the officer's flashlight; (12) the officer ran up the stairs; (13) he did not see a gun that morning; (14) the police did not find anything on him. Following this testimony, the court overruled the motion to suppress. R. 62-65. Defense then attempted to proffer the testimony of an absent witness (Mr. Richard Copeland), but was refused by the court. R. 65-66. The jury trial on this case began on Friday, October 12, 1990. The prosecution presented three witnesses, the defense none. The first witness on behalf of the State was Detective Charchenko, who generally reiterated his earlier testimony from the suppression hearing except that: (1) the date of the offense - 6 - was May 9, 1990; (2) the revolver found by him was loaded with four live rounds and the weapon was proven to be operable after a test firing; (3) the defendant, immediately following his arrest, stated that (a) he was attempting to sell the gun, (b) he was on parole, and (c) the packet found in his wallet was "boy"; (4) in street vernacular, the term "boy" refers to heroin and "girl" refers to cocaine; (5) the elapsed time from first sighting the suspect on the street until arresting the defendant was a couple of minutes; (6) the street area where the three males were standing was illuminated by several streetlights; (7) he could not remember the exact location of the Hobby Horse Saloon; (8) the stairs were dimly illuminated by virtue of the streetlights and the light at the top of the stairs; (9) no one else was around at the scene of the arrest besides the suspect, the police, and the few men on the street; (10) he assisted Detective Kime in frisking the defendant at arrest. The second witness for the prosecution was Cleveland Police Detective Clifford Kime ("Kime"), a nine year veteran of the force with two of those years in narcotics duty. The witness, whose testimony generally mirrored that of Charchenko, stated in addition that: (1) he saw only two males on the street as their car passed the scene, with one of the males showing something to the other; (2) the defendant fled into the apartment building as the police car approached; (3) he followed Charchenko up the stairs; (4) he observed the defendant enter the upstairs rear - 7 - porch area and discard an object over the railing, hearing a loud thud as the object struck the porch and ground below; (5) no one else was around that he observed; (6) he recovered a packet of suspected narcotics from the defendant's wallet and the defendant identified the contents of the packet as "boy"; (7) immediately after finding the drug packet, the defendant stated that (a) he was trying to sell the gun, (b) asked the officers not to charge him on the gun, and (c) if the officers would help him, he would do some work for the police; (8) the defendant was wearing a jacket and pants but could not recall the type or color; (9) Charchenko may have helped search the defendant's person; (10) he did not really recall if the police car circled the block before approaching the suspect; (11) the hallway was illuminated; (12) the defendant made a comment to Charchenko about knowing him; (13) the street value of the drug in the packet was between forty and fifty dollars; (14) the area of the arrest is a high complaint area. The third and final witness for the prosecution was Cynthia Lewis, a scientific examiner in the Cleveland Police Forensic Unit, who testified that: (1) the packet contained 0.03 grams of heroin, a Schedule I drug; (2) this amount is less than bulk amount; (3) twenty-eight grams equal one ounce. The prosecution then rested. The gun with four bullets and the heroin was admitted into evidence over objection by the defense. The defense motion for acquittal was overruled at that - 8 - time. At that point, the defense requested a continuance of the trial until Monday because his witnesses were not present. The court refused to issue a bench warrant or continue the trial to secure the witnesses' attendance because their subpoenas were served only once with resident service, not personal service. The defense, in the presence of the jury, then stated that it had witnesses to present but they were absent. The court then recessed briefly to her chambers. There, the defense informed the court that the defendant would not testify. The judge returned to open court and ordered the jury to disregard the defense comment about absent witnesses. Subsequent to closing arguments and the charge to the jury, the jury returned with the guilty verdicts mentioned previously. The court immediately sentenced the defendant to the following after giving the defendant an opportunity to address the court (which he refused): Count One, a felony of the third degree, four to ten years imprisonment plus three years actual on the firearm specification; Count Two, a felony of the third degree, four to ten years in prison plus court costs; Count Three, a felony of the fourth degree, three to five years in prison plus court costs; sentences to run concurrently. The defense then asked the court if some of these offenses should be charged as offenses of similar import. R. 195. The court had no knowledge of this request and recessed the - 9 - proceedings. On this timely appeal, the appellant raises eleven assignments of error. I THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED A MOTION TO SUPPRESS EVIDENCE. This assignment deals with whether the officers were justified in stopping the defendant and ultimately obtaining the loaded gun and the heroin which formed the basis for the offenses in question. The facts which are relevant to the motion to suppress are: the area was one of drug activity; it was very early in the morning; the officer (Charchenko) was an experienced veteran of the narcotics service; Charchenko's attention was drawn to the suspect on the street because he recalled having arrested the suspect on a prior occasion and he observed the suspect show an object to another male at the scene; the suspect immediately fled when the police car approached the curb, and he did not stop running when the police identified themselves and ordered him to stop. The standard of review to be applied is stated in State v. Andrews (1991), 57 Ohio St. 3d 86, 87-88: In Terry [Terry v. Ohio (1968), 392 U.S. 1], the United States Supreme Court held that a police officer may stop and investigate unusual behavior, even without probable cause to arrest, when he reasonably concludes that the individual is engaged in criminal - 10 - activity. In assessing that conclusion, the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. Furthermore, the standard against which the facts are judged must be an objective one: "[W]ould the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Id. at 21-22. * * * [C]ourts have concluded that an objective and particularized suspicion that criminal activity was afoot must be based on the entire picture - a totality of the surrounding circumstances. Id. at 417-418; State v. Bobo (1988), 37 Ohio St. 3d 177, 524 N.E. 2d 489; United States v. Rickus (C.A. 3, 1984), 737 F.2d 360, 365. * * * An area's reputation for criminal activity is an articulable fact which is a part of the totality of circumstances surrounding a stop to investigate suspicious behavior. Bobo, supra, at 179, 524 N.E. 2d at 491; Freeman, supra. See, also, United States v. Magda (C.A. 2, 1976), 547 F.2d 756, 758; certiorari denied (1977), 434 U.S. 878. [Explanation added.] Admittedly, the totality of the circumstances herein used to justify the investigatory stop and search balance precariously on the scale used to divide good police work from the public's right to be free of intrusive police interference. Yet, we conclude that the initial stop and subsequent search were reasonable under the totality of circumstances when reviewed through the eyes of the officer who conducted the stop at the time. - 11 - Assignment overruled. II THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT ALLOWED INTO EVIDENCE STATEMENTS ALLEGEDLY ATTRIBUTABLE TO THE DEFENDANT, BUT WHICH WERE NOT DISCLOSED. The statements to which appellant refers, which are oral in nature and not written by the defendant, were allegedly made to the officers immediately following his arrest. Appellant complains that he should have been given the statements elicited at trial during pretrial discovery. The record reveals that the defense filed no motion for discovery in this case. Absent a request for discovery, the prosecution is not obligated to provide discovery and has no continuing duty to disclose favorable evidence. Crim. R. 16. Assignment overruled. III THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN A VACATED CONVICTION WAS OFFERED AND INTRODUCED AT THE TRIAL IN THIS CASE. In this assignment, appellant argues that the trial court improperly allowed the jury to consider a prior conviction on a drug possession offense which had been allegedly reversed by this appellate court in its determination on Count One of the indictment. See common pleas court case number CR-208993, which was the subject of State v. Wilcox (March 14, 1988), Cuyahoga App. No. 53460 (trial court conviction reversed and vacated). At the trial, a certified copy of the journal entry of - 12 - conviction in trial court case number CR-208993 was in evidence. See State Ex. 6. Although defense counsel alleged that the conviction had been reversed, there was no clear and hard evidence before the trial court that such was the case or that the prosecutor knew of a reversal. R. 134-138. Accordingly, we cannot fault the trial court for allowing the jury to use the alleged prior conviction in its deliberations. However, taking judicial notice of our decision in appellate case number 53460, it is clear that the prior conviction of the defendant was, in fact, reversed and vacated. Additionally, after reviewing the remaining evidence, we do not believe that the decision of the jury with respect to Count One would have been different but for the erroneous prior conviction record in evidence. In short, the error herein was harmless. Accordingly, the finding and specification relating to this prior conviction in Count One must be vacated and the matter remanded for resentencing with Count One being reduced from a third degree felony to that of a fourth degree felony. IV THE DEFENDANT WAS DENIED DUE PROCESS OF LAW AND HIS RIGHT TO PRESENT A DEFENSE WHEN THE COURT WOULD NOT TAKE ANY ACTION TO ENFORCE SUBPOENAS THAT HAD BEEN ISSUED BY THE DEFENDANT FOR THE PRODUCTION OF WITNESSES ON BEHALF OF THE DEFENDANT. In this assignment, appellant takes issue with the failure of the trial court to secure the attendance of defense witnesses who were absent from the suppression hearing and trial, thereby - 13 - denying the defendant the right to compulsory process. The record is clear that the defense witness subpoenas in question were served by resident service only. In order to obtain the issuance of a writ of attachment from the court in order to secure the attendance of an absent witness, it is necessary for the disobeying witness to have been personally served with a prior subpoena. R.C. 2317.21. Accordingly, the court did not abuse its discretion in refusing to issue writs of attachment where the defense failed to obtain personal service on their subpoenas. Any action to defeat defendant's right of compulsory process was not of the government's making. Assignment overruled. V THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO GRANT A CONTINUANCE TO OBTAIN WITNESSES. "The decision to grant a continuance is within the sound discretion of the trial judge." State v. Claytor (1991), 61 Ohio St. 3d 234, 241; State v. Hutchison (1989), 63 Ohio App. 3d 721. In the present case, the defense had more than adequate opportunity and time to secure the attendance of his witnesses through proper subpoenas. This he did not accomplish either at the suppression hearing or at trial. Further, defense only notified the court of the non-attendance of witnesses after the prosecution had rested its case in this one day jury trial. We see no abuse of the court's discretion in denying the request for - 14 - a continuance. Assignment overruled. VI THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT WOULD NOT ALLOW A PROFFER OF DEFENSE EVIDENCE. The attempted offer of proof to which this assignment refers occurred during the suppression hearing. The initial offer stemmed from the absence of defense witness Richard Copeland and the request by the defense to continue the hearing: THE COURT: With regard to Mr. Copeland, you indicated that you had served him at home on August 9th, and you indicated today he's been in the hospital for several months. Obviously, he has not been personally served. MR. MANCINO: Right, his wife brought him his subpoena. THE COURT: Obviously, you went out to his home and communicated with his wife concerning his possible testimony in this case in a timely matter. I'm not continuing the case for the motion to suppress for his testimony. You may proffer for the record what his testimony would have been. MR. MANCINO: His wife has been served. THE COURT: Personally served? MR. MANCINO: Yes, as far as I know, she has. THE COURT: Did you check the docket to see if she was personally served or if it's resident service? Is she here this morning? MR. MANCINO: No. - 15 - R. 41-42. At the conclusion of the court's narrative ruling (R. 62- 65) on the motion to suppress, the court rejected an attempted offer of proof by the defense as to the testimony of Mr. Copeland: * * * The motion to suppress is denied. This case is going to go forward for trial. I understand that Judge Carolyn Friedland is waiting for the defense attorney to start an aggravated murder case. We will keep in touch with the Judge's room, and if that case resolves itself, or as soon as it is over, this matter will proceed to trial. Court is in recess. MR. MANCINO: Your Honor, may I proffer the testimony of the witness? THE COURT: No. MR. MANCINO: You said I could before. THE COURT: Yes, but I decided that I don't care to hear -- you haven't interviewed him. MR. MANCINO: Sure, I've interviewed him. THE COURT: You told me you don't know what she looks like, she doesn't have a phone. MR. MANCINO: I'm talking about Richard Copeland. THE COURT: The answer is no. ---o0o--- (Thereupon, proceedings were concluded.) R. 65-66. - 16 - The substance of the evidence sought to be offered was apparent from the context of the defendant's testimony at the suppression hearing in that Mr. Copeland's purported testimony would only have substantiated that of the defendant. Evid. R. 103(A)(2). As such, a proffer of that testimony would not have aided the court in its determination on the motion to suppress. Accordingly, we find no abuse of discretion by the judge in refusing to allow a proffer of that evidence. Assignment overruled. VII THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT REFUSED TO HAVE A SEPARATE HEARING ON THE PRIOR CONVICTIONS. The record reflects that prior to the suppression hearing, the defendant, on August 9, 1990, filed a motion for separate hearing by the court on prior convictions of the defendant which would act as penalty enhancement. R.C. 2941.142. This motion was never ruled on. The record further indicates that after the jury was impanelled for trial and before the jury was instructed at the close of evidence, the defense did not renew the request for a separate hearing on the prior convictions. Cf. State v. Riggins (Cuyahoga, 1986), 35 Ohio App. 3d 1. Neither did the defense have any problem with regard to this issue following the jury charge when the court inquired of counsel if they were satisfied with the jury instructions. R. 186. Additionally, the four certified judgment entries of prior convictions were - 17 - stipulated to by counsel and no objection to their submission to the jury was raised by the defense prior to the jury receiving them. R. 138-139, 140; State Ex. 3-6, inclusive. Under the circumstances presented, we find that the defense waived any error in the failure of the court to conduct a separate hearing. Even were we to conclude the court committed error, that error would be deemed harmless in light of the remaining evidence. Assignment overruled. VIII THE DEFENDANT WAS DENIED DUE PROCES OF LAW WHEN THE COURT OVERRULED MOTIONS FOR JUDGMENT OF ACQUITTAL AS THERE IS INSUFFICIENT EVIDENCE TO PERMIT A RATIONAL FACTFINDER TO PERMIT A VERDICT OF GUILTY AND THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The standard of review for the two issues raised by this assignment were addressed as follows in State v. Clark (November 14, 1991), Cuyahoga App. No. 59427, unreported, at 8-10: This court stated the following in State v. Thompson and Malone (July 18, 1991), Cuyahoga App. Nos. 58803 and 58834, unreported, at pages 5-6: The standard of review to be applied to these assignments of error was stated in State v. Thomas, et al. (September 20, 1990), Cuyahoga App. Nos. 57311 and 57327, unreported, at p. 4, as follows: In this assignment of error, appellants argue insufficiency of the evidence and manifest weight of the evidence. The test for sufficiency of the evidence - 18 - is stated in State v. Martin (1983), 20 Ohio App. 3 172, at paragraph two of the syllabus, as: *** whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. The scope of review to be used where a party alleges the judgment of the trial court is against the manifest weight of the evidence was recently stated by this court in State v. Scott (Mar. 23, 1989), Cuyahoga App. No. 55114, unreported, at p. 7-8. The primary task of weighing evidence and judging the credibility of witnesses is left to the trier of fact, in this case the jury. State v. DeHass (1967), 10 Ohio St. 2d 230, at syllabus number 1. Therefore, a reversal of a judgment based on manifest weight of the evidence will only be done in exceptional cases. State v. Woods (1985), 25 Ohio App. 3d 35. A reviewing court will not reverse where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. See also, State v. Bridgeman (1978), 55 Ohio St. 2d 261; State v. Davis (1988), 49 Ohio App. 3d 109; and Crim. R. 29(A). Appellant also relies on eight factors enunciated in State v. Mattison (Cuyahoga, 1985), 23 Ohio App. 3d 10, in support of his assignment based on manifest weight of the evidence. The Mattison decision and the eight factors were discussed recently by this court in State v. Laux (June 27, 1991), Cuyahoga App. No. 58856, unreported, at pages 15-16: - 19 - This court stated the following in State v. Mattison (1985), 23 Ohio App. 3d 10, at page 14: A reviewing court cannot reverse a judgment of conviction in a criminal case where there is sufficient evidence presented to the jury "'which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt.'" State v. Eley (1978), 56 Ohio St. 2d 169, 172 [10 O.O. 3d 340]; see, also, State v. DeHass (1967), 10 Ohio St. 2d 230 [39 O.O. 2d 366]. *** The eight factors listed in Gaston are merely guidelines to be taken into account when weighing the evidence. They are not hard and fast rules which must be followed. The eight factors mentioned in the above citation and relied upon by appellant, which are contained in State v. Gaston (Jan. 11, 1979), Cuyahoga App. No. 37846, unreported, were referenced by the Mattison court in the syllabus. These factors are: 1. The reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontradicted; 3. whether a witness was impeached; 4. what was not proved; 5. the certainty of the evidence; 6. the reliability of the evidence; 7. whether a witness' testimony is self- serving; 8. whether the evidence is vague, uncertain, conflicting or fragmentary. In the present case, there was competent, credible evidence which, if believed, would support a finding of guilt. - 20 - Additionally, the evidence, viewed in a light most favorable to the prosecution, could have led the trier of fact to find that the essential elements of the offenses were present beyond a reasonable doubt. Assignment overruled. IX THE DEFENDANT WAS UNCONSTITUTIONALLY SENTENCED TO AN INDEFINITE TERM OF IMPRISONMENT AS THERE IS NO DETERMINATION MADE AS TO THE EXISTENCE OF THE PRIOR OFFENSES WHICH WOULD AUTHORIZE THE ENHANCEMENT FROM DEFINITE SENTENCES TO INDEFINITE SENTENCES. On Count One, the jury found Wilcox: (1) guilty of drug abuse in violation of R.C. 2925.11(C)(1); (2) to have been previously convicted of the offense of drug abuse; (3) to have had a firearm on or about his person or under his control while committing the offense of drug abuse in the present case. The finding of the one prior conviction elevates the offense of drug abuse involving heroin, a Schedule I drug, from a fourth degree felony to that of a third degree felony. R.C. 2925.11(C)(1). (The penalty for a fourth degree felony is outlined in the discussion of Count Three below.) The potential penalty for a felony of the third degree is imprisonment for a minimum term of 2, 2 1/2, 3, or 4 years and a maximum of 10 years. R.C. 2929.11(B)(6). The penalty for a firearm specification is three years actual incarceration. R.C. 2929.71 and 2941.141. The court sentenced Wilcox on Count One to a term of 4 to 10 years - 21 - plus 3 years actual. On Count Two, the jury found: (1) Wilcox guilty of carrying a concealed weapon in violation of R.C. 2923.12(A); (2) that the firearm was loaded. The finding that the firearm was loaded elevates the offense of carrying a concealed weapon from a first degree misdemeanor to a third degree felony. R.C. 2923.12(D). The potential imprisonment for a third degree felony is outlined in the previous paragraph. The court sentenced Wilcox on Count Two to a term of 4 to 10 years imprisonment. On Count Three, the jury found Wilcox guilty of having a weapon while under a disability in violation of R.C. 2923.13(A)(3), a fourth degree felony. The potential imprisonment for a fourth degree felony is 1 1/2, 2, 2 1/2, or 3 years minimum with a maximum of 5 years. R.C. 2929.11(B)(7). The court sentenced Wilcox on Count Three to 3 to 5 years in prison. The sentences ran concurrently. Even though the jury made no finding as to the remaining specifications contained in the indictment, which were absent from the verdict forms submitted to the jury, we find no error in the court's sentence, save for that error contained in the third assignment of error. The lack of a finding on those absent specifications was harmless error. Assignment overruled. X - 22 - THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PROCEEDED TO IMPOSE THE MAXIMUM SENTENCE AS IF THE DEFENDANT HAD GONE TO TRIAL AND THE COURT HAD ASSURED THE DEFENDANT THAT IF HE PLEAD GUILTY HE WOULD RECEIVE THE MINIMUM SENTENCE. Contrary to appellant's argument, the court did not impose the maximum sentence possible because the sentences were run concurrently and not consecutively. The sentences given were also within the guidelines for the particular felony at issue. Additionally, the plea bargain of a minimum sentence prior to trial was based on the judge having not reviewed Wilcox's prior record or being knowledgeable about the facts of the case. R. 12-15. There is no indication in the record that the sentence was an abuse of discretion or otherwise not based on the evidence. Assignment overruled. XI THE DEFENDANT WAS SUBJECTED TO MULTIPLE PUNISHMENTS WHERE THE COURT FAILED TO MERGE THE OFFENSES. Following the verdict of the jury and the announcement of sentence, the following discourse occurred: * * * MR. MANCINO: Shouldn't some of those be charged--back in August you felt they were offenses of similar import. THE COURT: I don't recall saying that. MR. MANCINO: I've got the record, if you want to read it. - 23 - THE COURT: These sentences are going to remain as I have indicated. . . . R. 195-196. The offenses of carrying a concealed weapon [R.C. 2923.12(D)] and having a weapon while under a disability [R.C. 2923.13(A)(3)] are not allied offenses of similar import under R.C. 2941.25. State v. Rice (1982), 69 Ohio St. 2d 422, 23 O.O. 3d 374 (defendant charged and convicted under both offenses where police stopped his car and found a concealed loaded shotgun under the front seat and he had a previous conviction for robbery). Assignment overruled. Judgment affirmed as modified and remanded for resentencing on Count One which is reduced to a fourth degree felony on the underlying offense of drug abuse. - 24 - It is ordered that appellee and appellant split equally 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. ANN DYKE, P.J., and PATRICIA A. BLACKMON, J., CONCUR. JAMES D. SWEENEY 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. .