COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61090 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION FRANK MCMILLEN : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 15, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 249428 JUDGMENT: Affirmed and Remanded for Resentencing DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. MICHAEL A. WYPASEK, ESQ. County Prosecuting Attorney 1301 Granger Ave. by: THOMAS E. CONWAY, ESQ. Lakewood, Ohio 44107-2232 Assistant Prosecuting Attorney 1200 Ontario Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant was indicted on five counts, one each of drug trafficking, a drug law offense, carrying a concealed weapon, having a weapon under disability, and possession of criminal tools. Each of these five counts of the indictment contained violence specifications for previous convictions. Each of the counts, with the exception of the carrying a concealed weapon count, contained a firearm specification. Appellant had been apprehended by Cleveland Police after trying to escape from an apartment which was being searched pursuant to a warrant. Appellant left the apartment by the rear door where police were stationed. Appellant was found to be carrying a loaded weapon in his jacket pocket and cocaine contained in his cigarette pack. After the State's case in chief, the trial court granted appellant's Crim. R. 29 motion to dismiss counts one and five, the drug trafficking and possession of criminal tools. At that point in the trial, appellant offered to change his plea from not guilty to the remaining three counts, to no contest. The trial court indicated to the appellant that the evidence given by the prosecution in its case in chief was sufficient to find appellant guilty of the drug law offense, carrying a concealed weapon and having a weapon under disability. Therefore, if appellant chose to change his plea to no contest, the court informed him that it would find him guilty on the remaining three charges. - 2 - The court went on to inform the appellant of the nature of each of the three charges and its accompanying penalties. The court informed appellant that the firearm specifications would carry mandatory three year terms which would be merged. Appellant was asked if his plea was a free and voluntary act, to which he responded, "Yes." The court enumerated each of the Constitutional rights to be given up by appellant if he chose to plead no contest. To each of these rights, appellant indicated that he understood the nature of the right and that he would be waiving it by entering his plea of no contest. Three months later, prior to sentencing, appellant filed a written motion to withdraw his plea of no contest. The motion stated that appellant was not guilty of the charges to which he had pleaded no contest and that he had entered the plea without a full understanding of the nature and effects of his plea. His motion was denied. At the sentencing hearing appellant renewed his motion to withdraw his plea of no contest. The trial court offered appellant the chance to address the court on the motion. Appellant stated that he wanted another trial because his lawyer had not filed motions for discovery, that appellant had not received the trial transcript, and that he wanted a new attorney to be appointed. The court responded: In this case, my review of the file indicates that you had a very extensive representation and that you were present in the courtroom during - 3 - the presentation of the State's evidence, and the presentation in your defense which was thorough and covered a substantial amount of time, and your plea of guilty [sic] was entered after the full presentation of the evidence in the case and that was the basis for my denial of your motion to withdraw the guilty plea [sic]. (Transcript p. 148) The trial court proceeded to sentence appellant to one and one-half to five years on the second count, one and one-half to five years on counts three and four to run concurrently, but consecutively to count two, plus three years actual to be served for the firearm specifications. Appellant appeals from the trial court's denial of his motion to withdraw his plea of no contest and his convictions on counts three and four. I THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW DEFENDANT-APPELLANT TO WITHDRAW HIS PLEA OF NO CONTEST Appellant argues that the trial court failed to conduct an adequate hearing before sentencing, constituting an abuse of discretion. Appellant argues further that he was not given a complete and impartial hearing on his motion to withdraw and that the motion was not given a full and fair consideration by the trial court. Finally, appellant asserts that the trial court committed reversible error in accepting the plea without - 4 - informing appellant of the affirmative defenses to the carrying a concealed weapon charge. Crim. R. 32.1 allows a defendant to withdraw a plea of guilty or no contest. The Ohio Supreme Court has held that: A motion made pursuant to Crim. R. 32.1 is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by that court. State v. Smith (1977), 49 Ohio St.2d 261, paragraph two of the syllabus. This court has held that a motion to withdraw a plea should be granted freely if made prior to sentencing. State v. Peterseim (1980), 68 Ohio App.2d 211, State v. Posta (1988), 37 Ohio App. 3d 144. However, in line with the Ohio Supreme Court's holding above, this court has also held that "a denial of the motion may not be reversed by an appellate court without a showing of abuse of discretion by the trial court." State v. Posta, at the syllabus. For this court to find that the trial court's decision was an abuse of discretion, we must find that "`the court's attitude [was] unreasonable, arbitrary or unconscionable.'" State v. Posta, at 145, quoting Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219. We do not find that the court's attitude was unreasonable, arbitrary or unconscionable. - 5 - State v. Peterseim, at paragraph three of the syllabus, set forth the guidelines for the court of appeals when determining whether a trial court's decision was arbitrary or unreasonable. A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to Crim. R. 11, before he entered the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion, and (4) where the record reveals that the court gave full and fair consideration to the plea withdrawal request. Appellant can not be heard to complain that the trial court erred in denying his motion to withdraw his plea. The appellant was adequately represented by competent counsel at trial. The trial judge taking appellant's plea followed the mandates of Crim. R. 11(C) in explaining each of the three charges and the penalties involved and explaining each of the Constitutional rights which appellant would waive upon entering his plea. The appellant at the time of giving his plea of no contest affirmed that he understood the nature of the charges against him and the effects of his plea. The sentencing court offered appellant a full opportunity to be heard on the motion to withdraw his plea, meeting the third element of these guidelines. Finally, the sentencing judge, in explaining her reasoning for the denial of - 6 - appellant's motion, made it abundantly clear that the denial was based upon a full and fair consideration of the motion. The trial court's decision to deny appellant's motion is affirmed. Appellant's argument that the trial court was required to inform him of the affirmative defenses to the carrying a concealed weapon charge is without merit. Carrying a concealed weapon is a violation of R.C. 2923.12. The Ohio Supreme Court has held: Where a criminal defendant represented by counsel is charged with a violation of R.C. 2923.12(A), the trial court is not required pursuant to Crim. R. 11(C), to apprise him of the affirmative defenses thereto contained in R.C. 2923.12(C) prior to accepting his plea of guilty to the charge. State v. Reynolds (1988), 40 Ohio St. 3d 334, at the syllabus. The trial court did not err in accepting appellant's plea of no contest when it failed to enumerate the defenses to the charge. Appellant's first assignment of error is overruled. II THE COURT ERRED BY FINDING DEFENDANT-APPELLANT GUILTY ON A CHARGE OF CARRYING A CONCEALED WEAPON, HAVING A WEAPON UNDER A DISABILITY, AND A FIREARM SPECIFICATION. Appellant argues that carrying a concealed weapon and having a weapon under disability are allied offenses of similar import. Appellant argues further that the firearm specification and the two offenses stem from the same conduct and therefore, - 7 - convictions on all three violate the spirit of R.C. 2941.25. Appellant asserts that the trial court erred by not dismissing two of the three charges. R.C. 2941.25(A) sets forth the rule governing multiple count indictments: 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. The Ohio Supreme Court has held that: The crimes of carrying a concealed weapon, R.C. 2923.12, and having weapons while under disability, R.C. 2923.13, are not allied offenses of similar import under R.C. 2941.25(A), and may be committed separately and with a separate animus under R.C. 2941.25(B). State v. Rice (1982), 69 Ohio St. 2d 422, at the syllabus. The Supreme Court found that the elements of the two offenses "do not correspond to such a degree that commission of the one offense will result in commission of the other." State v. Rice, at 426. Convictions on both of the offenses are correctly imposed under R.C. 2941.25. Appellant's second argument that the firearm specification is improper in conjunction with the convictions for carrying a concealed weapon and having a weapon under disability is also without merit. - 8 - The additional sentence on the firearm specification is imposed pursuant to R.C. 2929.71. A firearm specification is properly added for a conviction on any felony other than carrying a concealed weapon, where a defendant has "a firearm on or about his person or under his control while committing the felony." R.C. 2929.71. Appellant's indictment and conviction on the charge of carrying a concealed weapon did not contain a firearm specification. The drug offense and the offense of having a weapon under a disability each had a firearm specification added. This court has held that R.C. 2929.71 would apply where a defendant has been convicted of having a weapon under disability. Clearly, R.C. 2929.71 applies, and R.C. 2941.25 does not apply, inasmuch as only enhanced punishment is involved, not conviction of a separate crime involving identical conduct. State v. Riggins (1986), 35 Ohio App. 3d 1, 8, quoting State v. Broadus (1984), 14 Ohio App. 2d 443, 445. Appellant's convictions of carrying a concealed weapon and having a weapon under disability, with the added firearm specification are affirmed. The State's reply to appellant's second assignment of error raises the issue of appellant's sentence on the firearm specifications. The State asserts that the trial court failed to sentence the appellant to three year actual sentences for the two firearm specifications. - 9 - This assertion is not well taken. According to the journal entry the trial court did sentence appellant to a three year actual term. Only one three year sentence can be imposed where the felonies to which the firearm specifications are added arise from the same act or transaction. R.C. 2929.71(B). The Court of Appeals from Clermont County held that: The word "transaction" is sufficiently flexible to comprehend any number of criminal offenses so long as such offenses have a logical relationship and are committed within a continuous time sequence. State v. Moore (1984), 20 Ohio App. 3d 75, at paragraph two of the syllabus. Appellant was apprehended by police fleeing from the apartment where a search was being undertaken. At the moment he was apprehended he had a weapon under disability and a small amount of cocaine. The possession of these items occurred simultaneously and was part and parcel of the same illegal conduct. Therefore, the merging of the two firearm specifications at sentencing was proper. Although not raised by either party, an error in sentencing did occur. At the sentencing hearing the trial court judge sentenced appellant to one and one-half years plus three years actual time for the firearm specification on count two of the indictment, the drug offense, a fourth degree felony. The trial court judge sentenced appellant to two to ten years on the third count of the indictment, the carrying a concealed weapon charge, - 10 - a third degree felony, enhanced by the violence specification of prior convictions. The trial court sentenced appellant to one and one-half to five years on the fourth count of the indictment, having a weapon under disability, a fourth degree felony. The trial court ordered the one and one-half to five years on the second count to run consecutively with the three year actual term. The court also ordered the two to ten year term to run concurrently to the three year actual term and the one and one- half to five year term on count four to run consecutively. The journal entry misstates the order given at the sentencing hearing. The journal entry calls for one and one- half to five year terms on all three counts plus one three year actual on the third count and fourth count combined. The journal entry also orders that the terms on the third and fourth counts are to be combined and run consecutively to the term given on count two. Of the two orders, at the hearing and in the journal entry, the sentencing at hearing comes closest to being a correct application of the sentencing requirements of R.C. 2929.11. The terms of one and one-half to five years are correct terms to be given on counts two and four, both fourth degree felonies. The two to ten year sentence is the correct term to be given on count three, the third degree felony. The merging of the two firearm specifications from counts two and four into one three year actual term was also a correct application of R.C. 2929.71. The - 11 - confusion is inherent in the court's use of concurrent and consecutive sentencing. The three year actual term may not run concurrently with any of the other sentences, as the court provided at the hearing. It must be served "consecutively with, and prior to ... the indefinite term[s] of imprisonment." R.C. 2929.71. This case is remanded so defendant can be sentenced as follows: (A) on count two, one and one- half to five years; (B) on count three, two to ten years; (C) on count four, one and one-half to five years. The trial judge should also make clear how these counts are to be run, concurrent or consecutive to one another. The two gun specifications are combined and one three-year sentence is to be served consecutive with the above counts. The appellant's second assignment of error is overruled. The sentence is vacated, sua sponte, and this cause is remanded to the trial court for resentencing consistent with this opinion. - 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. ANN MCMANAMON, J., AND KRUPANSKY, J., CONCUR. PRESIDING JUDGE ANN DYKE 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. .