COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61049, 61141 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION KELLY ANGELO : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 1, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-233299. JUDGMENT: AFFIRMED. 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: Mary Beth Corrigan, Esq. 52 Public Square, Lower Level Medina, Ohio 44256 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Kelly Angelo ("Angelo") appeals from: (1) the denial by the trial court of her motion to vacate the conviction and sentence of possession of criminal tools and her motion to stay execution of sentence [appellate number 61049]; and (2) her February 9, 1989, conviction and sentence subsequent to a plea of guilty to one count of drug abuse (cocaine in less than bulk amount) [R.C. 2925.11] and one count of possession of criminal tools [R.C. 2923.24], to wit, a "snort tube and 1 syringes." [Appellate number 61141.] For the reasons adduced below, we affirm. A review of the record indicates that Angelo was indicted on the two counts mentioned above on November 9, 1988. On December 6, 1988, Angelo pled guilty to the offenses contained in the indictment. Journal Vol. 830, pg. 809, December 2 20, 1988. On February 9, 1989, the court sentenced Angelo to two years confinement on count one, and one and one-half years confinement on count two plus court costs, sentences to run consecutively. On March 14, 1989, the court granted Angelo's motion for shock probation made pursuant to R.C. 2947.061. At this time, 1 The notices of appeal were consolidated for appeal purposes on July 22, 1991. 2 The transcript of the guilty plea hearing was destroyed in a fire at the court house on December 27, 1988. A statement of the guilty plea hearing, pursuant to App. R. 9(C) or (D), is not in the record. - 3 - the court placed Angelo on five years probation, with placement in a drug treatment program. On January 25, 1990, Angelo was found to be a probation violator. The court ordered the original sentence reinstated and into execution. On January 29, 1990, Angelo filed a motion to modify the sentence on count two to something less than the maximum one and one-half years imposed on this count. On February 20, 1990, Angelo filed a petition to vacate or set aside the original sentence pursuant to R.C. 2953.21. Angelo argued that: (1) the two counts could have been allied offenses of similar import, thereby rendering the consecutive sentence voidable; (2) mitigation factors contained in R.C. 2929.13 seem to dictate a sentence other than maximum consecutive terms of confinement. The prosecution, on March 2, 1990, filed a motion to dismiss the post-conviction relief petition. To date, the petition pursuant to R.C. 2953.21 has not been ruled upon. On March 27, 1990, Angelo filed a motion to vacate the conviction and sentence on count two as a void judgment, alternatively, to vacate her plea of guilty and sentence to count two pursuant to Crim. R. 32.1. On November 27, 1990, Angelo filed a "motion to stay execution of sentence and/or motion for bond pending appeal." - 4 - The court denied (1) the motion to vacate the conviction on November 28, 1990, and (2) the motion to stay execution of sentence on December 3, 1990. The notice of appeal in appellate case 61049 was filed on December 20, 1990. The notice of appeal in appellate case number 61141 was filed on January 7, 1991. Angelo presents two assignments of error for review. I THE TRIAL COURT ERRED IN ACCEPTING DEFENDANT'S PLEA OF GUILTY TO THE COUNT OF POSSESSION OF CRIMINAL TOOLS SINCE A PLEA OF GUILTY UNDER THE CIRCUMSTANCES IS VOID AND DEFENDANT DID NOT THEREFORE VOLUNTARILY AND INTELLIGENTLY WAIVE HER CONSTITUTIONAL RIGHT TO A TRIAL. Angelo argues that the plea was defective because count two, rather than a fourth degree felony under R.C. 2923.24(C), should have been treated as a misdemeanor pursuant to possession of drug abuse instruments under R.C. 2925.12. That it was not, allegedly renders the guilty plea to have been unknowledgeable and non- intelligent. The language used in count two lists a "snort tube" and syringes as the criminal tools possessed by Angelo. It is beyond doubt, and admitted by the appellee, that a syringe is defined as a drug abuse instrument pursuant to R.C. 2925.12(A)(1), and possession of a syringe is a misdemeanor. Accordingly, Angelo could not be indicted and convicted of a felony for possession of the syringes as criminal tools. State - 5 - v. Chandler (Cuyahoga, 1989), 54 Ohio App.3d 92, paragraph one of the syllabus. Her plea of guilty and conviction to the offense as charged relative to the syringes is therefore void. However, our analysis does not end at this point because the second count also listed a snort tube as a criminal tool possessed or controlled by Angelo. A snort tube is not specifically classified as a drug abuse instrument, to wit, a hypodermic or a syringe, under R.C. 2925.12(A). A snort tube cannot be classified as either a hypodermic or a syringe. State v. Mateo (1991), 57 Ohio St.3d 50, 54. Accordingly, R.C. 2925.12 is inapplicable relative to the snort tube. "Rather, R.C. 2923.24, possession of a criminal tool, is applicable to this fact pattern" and Angelo was properly charged thereunder for a felony offense, Id. Lacking any substantive record of the guilty plea hearing, we must presume the regularity of that proceeding and compliance with Crim. R. 11 by the trial court in accepting Angelo's guilty plea to the second count relative to the possession of a snort tube. Assignment overruled. II THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO VACATE CONVICTION AND SENTENCE ON COUNT TWO, TO WIT, CRIMINAL TOOLS AND/OR ALTERNATIVELY TO VACATE PLEA AND SENTENCE THEREON. - 6 - Angelo, in her motion to vacate her conviction and sentence on count two, argued that the court should have allowed her to withdraw her guilty plea after sentencing pursuant to Crim. R. 32.1 because syringes were wrongly included in the second count as criminal tools rather than in a separate misdemeanor count as drug abuse instruments. It was argued that a manifest injustice would occur if the conviction for possession of criminal tools were allowed to stand. The alleged manifest injustice was the sentence of eighteen months for a misdemeanor. Having determined in the previous assignment that Angelo was properly indicted and convicted for possession of a criminal tool (snort tube) on count two, a fourth degree felony, we conclude that the trial court did not abuse its discretion in denying Angelo's motion to vacate the conviction and allow her to withdraw her plea of guilty pursuant to Crim. R. 32.1. Assignment overruled. Judgment affirmed. - 7 - 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. ANN McMANAMON, P.J., and SARA J. HARPER, 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. .