COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61030 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION JULIO CORDERO : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 23, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-246430 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor EDWARD FERAN The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: DAVID DOUGHTEN 4403 St. Clair Avenue Cleveland, Ohio 44103 - 2 - KRUPANSKY, J.: Defendant-appellant Julio Cordero appeals from his jury conviction and sentence for transporting drugs in violation of R.C. 2925.03, possessing drugs in violation of R.C. 2925.11 and permitting drug abuse in violation of R.C. 2925.13 with accompanying violence specifications based upon his prior conviction for felonious assault. Defendant was indicted by the Cuyahoga County Grand Jury on the three charges following his arrest on the evening of November 8, 1989. The case proceeded to a jury trial February 14, 1990 when the state presented testimony from three police officers. Detective Norman testified that he was assigned to surveillance duty with three other officers at the CMHA Riverview Project that evening in response to complaints concerning drug sales. Norman testified that he was stationed on the third floor of the fifteen story building as a "spotter" with binoculars overlooking the parking lot. Norman stated that he became alerted to activity near two vehicles on the west side of the parking lot. He stated that he observed pedestrian traffic approach the vehicles and the pedestrians would leave the vehicles shortly thereafter. Norman stated that he observed defendant exchange something in a plastic bag for currency with a male pedestrian who was seated at the time in defendant's two door 1980 Buick Regal. Norman added that - 3 - he recognized defendant when the dome light in the vehicle came on and was able to identify him from prior "experiences." Norman concluded that he had observed a drug transaction and called undercover officers Hefferman, Gingell and Dvorek on the radio to inform them of the activity. The three officers approached the two vehicles and ordered the occupants to step out of the vehicles. Detective Gingell testified that he arrested defendant after observing the remains of a marijuana cigarette in plain view on the dashboard of the Buick. Since a crowd of thirty to forty people had gathered at the scene and back-up units were not available, the officers took defendant, the two other suspects they arrested and all the vehicles to a parking lot near West 25th Street and Lorain Avenue and subsequently searched the vehicles driven by the suspects. Detective Gingell testified that he discovered a plastic bag containing eighteen rocks of cocaine under the carpet beneath the dashboard in defendant's Buick. Defendant had been seated in the driver's seat of the Buick prior to his arrest. The jury returned a verdict of guilty on all three counts. Defendant was sentenced by the trial court to an indefinite term of three to ten years for drug trafficking in violation of R.C. 2925.03, two to five years for drug abuse in violation of R.C. 2925.11, and court costs for permitting drug abuse in violation of R.C. 2925.13. Defendant timely appeals from his conviction and sentence raising four assignments of error. - 4 - Defendant's first assignment of error follows: APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY THE INTRODUCTION OF IRRELEVANT EVIDENCE TENDING TO PROVE THAT HE HAD COMMITTED PAST CRIMES. Defendant's first assignment of error lacks merit. Defendant contends he was denied a fair trial when officer Norman testified that "[w]e have had previous experiences with" defendant and the trial court failed to strike the testimony or provide the jury with any limiting instruction. We note based upon our review of the record that no witness stated that defendant had been convicted of any prior crime. Moreover, under the circumstances evidence of such other acts would have been admissible pursuant to Evid. R. 404(B) which provides as follows: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of the person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. (Emphasis added). State v. Robinson (June 11, 1992), Cuyahoga App. No. 60856, unreported. Under the circumstances, the trial court properly declined to strike the officers' testimony since it established the basis for their identification of defendant and the probative value of this testimony was not substantially outweighed by the possibility of unfair prejudice. State v. Matthews (1984), 14 Ohio App. 3d 440, 441. Detective Norman merely stated that he - 5 - recognized defendant based upon his previous experience with defendant. Officer Gingell likewise testified on cross- examination by defense counsel that detective Norman identified the 1980 Buick as defendant's car because he was familiar with it. Defendant has failed to demonstrate any prejudice from the admission of such statements. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS TO A TRIAL AND AGAINST SELF-INCRIMINATION WHEN IT SENTENCED APPELLANT TO PRISON AS PUNISHMENT FOR TAKING HIS CASE TO TRIAL INSTEAD OF PLEADING GUILTY. Defendant's second assignment of error lacks merit. Defendant contends the trial court enhanced the punishment imposed upon defendant since defendant exercised his right to jury trial and refused to plead guilty to the offenses. This Court recently rejected a similar argument in State v. Bray (January 11, 1990), Cuyahoga App. No. 56049, unreported, when the sentence imposed by the trial court did not exceed the statutory limits. The transcript of the sentencing hearing in the case sub judice does not reveal the trial court vindictively sentenced defendant for insisting upon his right to a jury trial. The trial court recognized the prosecution did not offer any plea bargain to induce defendant to plead guilty in the following colloquy: - 6 - [DEFENSE COUNSEL]: Your Honor, there's not a lot I can say. Obviously the jury has found that he's guilty in this matter. I'd just like the Court to bear in mind the various discussions we had of a pre-trial nature relative to this case and understand Mr. Cordero's position as it related to going to trial with this matter, and I'd ask the Court's mercy in that respect. THE COURT: I appreciate, Mr. Hubbard, that this is a three-count indictment, that there were specifications as to all three counts, and that the prosecutor offered absolutely no plea bargain. (Tr. 252-253). Defendant contends the following comments of the trial court demonstrate the trial court improperly enhanced defendant's sentence: As it relates to Mr. Cordero, you know, he still had the privilege of pleading guilty, if that were the fact, and had he done so, I would have passed sentence upon him. Now we are at a point where this indigent defendant, who gets a free lawyer - - it probably costed four or five thousand dollars a day and put us through a couple days of trial to find out that the jury finds that he's guilty and he gets everything for nothing. And, frankly, I don't disagree with that, but I disagree with a guilty person being unwilling to plead, or he's going to trial just because he's got nothing to risk. That's one of the contradictions in the indigency system. I think that's one of the reasons we have plea bargaining. (Tr. 253- 254.) The trial court's introductory comments do not support defendant's claim he was vindictively sentenced. The trial court merely explained that due to the accompanying violence specification the trial court could not impose a determinate sentence. The record demonstrates the trial court did not impose - 7 - the maximum sentence on defendant for any of his three offenses. Moreover, the record demonstrates the trial court did not impose consecutive terms although it could have done so pursuant to R.C. 2929.41. Under the circumstances, we find no ambiguity of the kind presented in State v. Harrison (Oct. 30, 1985), Highland App. No. 561, unreported, to warrant a remand for resentencing. Accordingly, defendant's second assignment of error is overruled. Defendant contends the trial court improperly failed to merge his convictions for possessing and transporting cocaine as follows: THE OFFENSES OF TRANSPORTING AND POSSESSING COCAINE ARE ALLIED OFFENSES OF SIMILAR IMPORT WITHIN THE CONTEMPLATION OF R.C. 2941.25, AND CANNOT BE PUNISHED MULTIPLY WHEN THEY ARE NEITHER COMMITTED SEPARATELY NOR WITH A SEPARATE ANIMUS. Defendant's third assignment of error lacks merit. Defendant contends R.C. 2941.25(A) prohibits conviction for possessing cocaine in violation of R.C. 2925.11 and transporting cocaine in violation of R.C. 2925.03 since they are allied offenses of similar import. However, we find defendant's reliance on State v. Jennings (1987), 42 Ohio App. 3d 179, in support of his argument to be misplaced. The defendant in Jennings was arrested by police while driving a vehicle owned by a suspect wanted on a felony drug warrant who was subsequently indicted for both transporting and possessing the identical amount of cocaine found in Ziploc bags - 8 - in the car following defendant's arrest. The Jennings Court specifically noted contrary to the case sub judice that the prosecution presented no evidence that the defendant prepared the cocaine for shipment or distribution or did anything other than transport or possess the cocaine in the bag to support its conclusion that the two offenses were allied within the meaning of R.C. 2941.25. Id. at 183. However, in the case sub judice, the prosecution presented evidence defendant shipped, transported, delivered or distributed the cocaine Detective Norman observed defendant sell to a pedestrian prior to defendant's arrest. The prosecution likewise presented evidence defendant constructively possessed the eighteen rocks of cocaine subsequently found by Detective Gingell in defendant's Buick following his arrest. This Court held in State v. Mateo (August 17, 1990), Cuyahoga App. No. 55833, unreported, at 5-6, that possessing and transporting cocaine do not necessarily constitute allied offenses of similar import. The two offenses at issue in Mateo, supra were for transporting cocaine pursuant to R.C. 2925.03(A)(2) and possessing cocaine in violation of R.C. 2925.03(A)(6). The Court rejected defendant's argument that these two offenses were allied within the meaning of R.C. 2941.25(A) stating as follows: R.C. 2941.25(A) prohibits convictions for two or more allied offenses of similar import. In determining whether a defendant is charged with allied offenses of similar - 9 - import, a two-part test is employed. First, the elements of the crimes charged are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import. Second, the court must determine if the crimes were committed separately, or with a separate animus. If so, the defendant may be convicted of both offenses. See State v. Blankenship (1988), 38 Ohio St. 3d 116, 117. Both R.C. 2925.03(A)(2) and (6) have possession of a controlled substance as a requisite element of the separate offenses. However, R.C. 2925.03(A)(2) imposes the additional element that possession of the controlled substance is incident to preparation for shipment, transportation, delivery or distribution of the drug through a sale. Since the elements of R.C. 2925.03(A)(2) and (6) do not correspond, they are not allied offenses of similar import. As stated in Mateo, supra, the charge of transporting drugs in violation of R.C. 2925.03(A)(2) requires demonstrating transportation incident to a sale, whereas possessing such drugs in violation of R.C. 2925.03(A)(6) does not. R.C. 2925.11 prohibits anyone from knowingly obtaining, possessing or using a controlled substance and, like R.C. 2925.03(A)(6), does not require any connection with drug sales. Defendant in the case sub judice not only transported and distributed a controlled substance incident to a sale, but also only possessed the eighteen rocks of cocaine found in his vehicle; therefore, the offenses are not allied and defendant may be sentenced on both. - 10 - Accordingly, defendant's third assignment of error is overruled. Defendant's fourth assignment of error follows: APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. Defendant's fourth assignment of error lacks merit. Defendant contends he was denied the effective assistance of trial counsel since his counsel failed to object to his separate sentences for possessing and transporting cocaine on the grounds the offenses were allied offenses of similar import. To demonstrate ineffective assistance of counsel warranting reversal defendant must show the following: (1) trial counsel's performance was deficient, and (2) prejudice resulting from such deficient performance. State v. Brooks (1986), 25 Ohio St. 3d 144 (citing Strickland v. Washington (1984), 466 U.S. 668). Defendant has failed to establish either criteria in the case sub judice. As noted above in connection with defendant's third assignment of error, this Court has held that possession and transportation of cocaine do not necessarily constitute allied offenses of similar import. See, Mateo, supra. Under the circumstances since we find that such an objection by trial counsel would have been groundless, we cannot find trial counsel's failure to raise it in the trial court constituted deficient performance or resulted in any prejudice to defendant. - 11 - Accordingly, defendant's fourth assignment of error is overruled. Judgment affirmed. - 12 - 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. DAVID T. MATIA, C.J., and DYKE, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .