COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67304 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION GUIDO CASTELLANOS : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 14, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-304373. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Deborah Naiman, Esq. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Jean M. Gallagher, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 - 3 - SWEENEY, JAMES D., J.: Defendant-appellant Guido A. Castellanos, d.o.b. August 19, 1965, appeals from his bench-trial conviction of the following: (1) one count [count two] of Trafficking in Drugs, to wit, selling or offering to sell Cocaine, a schedule II drug, in an amount exceeding three times the bulk amount, in violation of R.C. 1 2925.03(A)(6) ; (2) one count [count three] of Possession of Criminal Tools, to wit, an electronic pager and a 1984 Toyota, in violation of R.C. 2923.24; and, (3) one count [count four] of Permitting Drug Abuse, to wit, knowingly permitting a motor vehicle to be used for the commission of a felony drug abuse offense while being the owner, operator or person in charge of said motor vehicle, in violation of R.C. 2925.13(A). For the reasons adduced below, we affirm in part and reverse and remand in part for resentencing on counts three and four. A review of the record on appeal indicates that appellant was indicted on a multi-count indictment concerning allegations of a drug trafficking enterprise, with related offenses, involving a total of six defendants: (1) Ipolito Rojas; (2) Thomas Abreu; (3) Guido Castellanos; (4) Maria Caraballo; (5) Jeremiah Ventura; and, (6) Oscar Sanchez. Prior to the start of the trial, defendant Ventura was discharged on motion by the prosecution. Castellanos 1 Bulk amount for cocaine is ten grams or twenty-five unit doses. R.C. 2925.01(E)(1). - 4 - was tried separately before the bench beginning on February 9, 1994. The prosecution offered the testimony of fourteen witnesses during its case-in-chief. The first prosecution witness was Cleveland Police Detective Charles Escalante, who testified in pertinent part as follows (R. 127-354): (1) he has been a police officer for eighteen years, a vice department detective for nine of those years; (2) on approximately November 3, 1993, he was notified by an informant that a group of New York-based Dominican nationals, 2 led by a man identified as "Minguito" , was operating a drug enterprise on the west side of Cleveland in the vicinity of West 117th Street and Detroit Avenue; (3) he opened an investigation in conjunction with police from Lakewood, Ohio; (4) on November 5, 1993, he made a controlled telephone page to a number alleged to be that of Minguito; (5) as a result of that telephone call, a meeting, to obtain a drug transaction, was arranged between the police confidential informant and Minguito at a parking lot at West 117th and Detroit Avenue which had been placed under video and audio surveillance by two undercover police teams; (6) at the prearranged meeting place, the informant met Minguito and 3 appellant ; (7) Minguito and the appellant drove to and from the meeting; (8) no drugs were sold at the meeting because Minguito had 2 "Minguito" was later identified as defendant-Rojas. 3 See State Exhibits 1 and 2, which are videotapes of the November 5, 1993, meeting recorded by the witness and the narcotics unit. - 5 - unexpectedly increased the purchase price, but another meeting was planned; (9) after the meeting, the witness later located the car driven by the defendants parked in a driveway at 3090 West 112th Street; (10) on November 8, 1993, a controlled two-ounce purchase of cocaine [54.26 grams total] in exchange for $1,100.00 in marked currency was made by the informant from Minguito, who drove a Mazda to the meeting; (11) on November 12, 1993, a second controlled two- ounce purchase of cocaine [55.11 grams total] in exchange for $1,100.00 in marked currency was made between the informant and Minguito, who was accompanied by Thomas Abreu, and a future purchase of a kilogram of cocaine was discussed; (12) on November 15, 1993, the witness started video surveillance of 3090 West 112th 4 Street ; (13) the license plate displayed on the Mazda was registered to Thomas Abreu, but the license plate belonged to a Chevrolet; (14) the appellant, Minguito, Abreu, and Sanchez were seen entering and exiting the address in question; (15) on November 16, 1993, a meeting was arranged to discuss a controlled purchase of a kilogram of cocaine between Minguito and the informant at a Hispanic grocery store located at West 32nd Street and Clark Avenue in Cleveland; (16) at this meeting, the informant wore a mini- cassette tape recorder which recorded the conversation between the 5 trio ; (17) on November 17, 1993, and as a result of the meeting 4 See State Exhibit 11 representing the videotape of that surveillance. 5 See State Exhibit 15, which is the cassette tape recording. - 6 - held the previous day, an attempt was made to effect a controlled purchase of one and one-half kilograms of cocaine, which was to be followed by the execution of a search warrant at the premises at 3090 West 112th Street and the vehicles there; (18) the informant was fitted with a radio transmitter and access to $9,000.00 in marked currency; (19) surveillance detected that two cars left the address on West 112th Street heading for the meeting place, with appellant in the Mazda; (20) the informant was picked up by the Mazda, driven around for a short period of time, and was ultimately dropped off on West 38th Street; (21) the informant had retained the money because the suspects were nervous and suspicious; (22) the search warrant was executed at 5:30 p.m. on November 17, 1993; (23) Sanchez, Ventura, appellant and Minguito were found inside the duplex upstairs/downstairs house; (24) items seized in the search of the upstairs property, as detailed in the two-page inventory represented by State Exhibit 21, included, among other things, [a] a fictitious Ohio driver's license for Minguito, [b] the electronic pager which was detailed to the telephone number the police had called, [c] paper towels similar to the ones which wrapped the cocaine purchased by the informant, [d] a telephone/address book containing numerous pager numbers in New York City, [e] a local cable television bill addressed to the appellant and due November 22, 1993, [f] expensive telephone and utility bills to a Galion Avenue address in the name of Abreu and Rojas, [g] two boards, which tested positive for the presence of cocaine, and two vises - 7 - 6 found in the upstairs hall closet , [h] compressed rerocked chunks of cocaine found beneath the insulation in the attic, [i] a partially filled 32-ounce can of liquid acetone found in the hall closet, which substance is commonly used to cut the pure cocaine in the rerocking process, [j] a .25 caliber Raven pistol found under the bed in the second-floor northeast bedroom, [k] a brick of approximately one-half of a kilogram of uncut cocaine, wrapped in duct tape and placed in a plastic freezer bag containing ground coffee, [l] eighteen small bags of small chunks of cocaine, approximately one-half kilogram total, [m] five small separate plastic bags containing crack cocaine, [n] $4,000.00 in currency wrapped in aluminum foil and concealed in the air intake below the windshield on the Mazda, [o] $4,000.00 in currency wrapped in 7 aluminum foil and concealed in the Honda vehicle , of which $1,010.00 was marked currency from the informant's purchases; (25) when the appellant was arrested several weeks later, two local cable television work orders, billed to the appellant at the West 112th Street address, as well as an Ohio driver's license listing a Lorain, Ohio address, were found on his person; (26) the informant 6 The boards and vises are referred to "rerocking" devices by those knowledgeable with New York-based Dominican drug gangs and are unique to those gangs. The device, which emulates a large clamp, is used to compress the adulterated, or cut, cocaine slurry into a block, which compression squeezes excess moisture from the cocaine. The block, typically a kilogram in weight, is then fully dried in a microwave oven to complete the wholesale level pre- packaging process. 7 The Honda vehicle displayed a Massachusetts license plate. - 8 - was paid between $100 and $200 for her efforts because she was destitute and had several young children, and the informant had no criminal record; (27) no usable fingerprints were found on the items seized at the search. The second witness for the prosecution was Cleveland Police Vice Detective Bernard Norman, who assisted Detective Escalante in the surveillance/investigation and corroborated the testimony of Detective Escalante, adding (R. 355-423): (1) at the attempted controlled buy on November 5, 1993, appellant and Minguito drove a Toyota vehicle; (2) after that aborted buy on November 5, the pair of suspects in the Toyota drove around in such a manner as to detect the presence of any following police vehicle, and the police later observed the Toyota parked in the driveway at the West 112th Street address; (3) shortly after the informant's paged call was made to Minguito on November 8, 1993, at the West 112th Street address, the witness observed appellant and Minguito leave that address driving a Mazda and travel in the direction of the meeting place, and after the meeting, the witness observed the suspects return and re-enter the address; (4) the witness also observed Minguito and Abreu exit and re-enter the address at the time of the controlled buy on November 12, 1993; (5) on the date of November 17, 1993, the witness observed a great deal of traffic into and out of the West 112th Street address [upstairs] by Minguito, Sanchez, Abreu, Caraballo, and appellant around the time of the attempted controlled buy; (6) the search warrant was executed at the side - 9 - entrance leading to the second floor unit at 5:30 p.m. on November 17, 1993, at which time the witness observed Sanchez leap to the ground in the backyard from the second floor porch; (7) the witness stopped and secured Sanchez, then assisted the SWAT team in the search of the premises and the vehicles; (8) the witness located the brick of cocaine concealed in a bag of ground coffee in the attic [State Exhibit 33]; (9) on November 18, 1993, the informant, who lives in the area of the search, notified the witness that she had observed appellant in the mid-afternoon return to the West 112th Street address driving a red Pulsar, but the appellant was not at the address when the witness responded to that address about one hour later; (10) the downstairs unit was vacant until after November 8, 1993. The third prosecution witness was Mr. Douglas L. Addison, Jr., a customer service representative from Ameritech Telephone Company, who stated in pertinent part the following (R. 425-430): (1) company records indicate that appellant had telephone service established at the West 112th Street [upstairs unit] address on October 28, 1993, and that it was terminated on November 18, 1993; (2) company records also disclose thirty-three long distance calls to Lorain, Ohio between October 30 through November 15, 1993, several calls to and from New York in late October through early November of 1993, and four collect calls accepted from the Dominican Republic. - 10 - The fourth prosecution witness was Cleveland Police Vice Detective David Santiago, who corroborated the testimony of Detectives Escalante and Norman (R. 431-453), adding: (1) he was the inventory officer at the search scene; (2) a title to a 1984 Toyota in the name of Alfredo S. Perez was found in the search. The fifth prosecution witness was Lakewood Police Vice Detective Bruce Wilkins, who corroborated the testimony of Detective Escalante, adding (R. 454-500): (1) he and his partner, Detective Capretto, assisted Detective Escalante in the investigation/surveillance; (2) he dropped the informant off near the meeting place on November 5, 1993, and observed the suspects, one of whom was the appellant, who also drove the gray Toyota which took evasive action after the meetings; (3) he participated in the surveillance of the suspects on the dates of the meetings and he participated in the search of the apartment unit; (4) he could not determine who occupied the northwest bedroom. The sixth prosecution witness was Cleveland Police Narcotics Detective Frank Cusumano, who testified in pertinent part (R. 501- 522): (1) he received the narcotics seized by the police, logged them in for further processing by the police laboratory, and transported the suspected narcotics to the scientific investigation unit for analysis. The seventh prosecution witness was Cleveland Police Officer James Shaw, who testified in pertinent part (R. 523-526): (1) he received evidence seized at the search, logged it into the - 11 - Narcotics Unit logbook, and delivered it to the scientific investigation unit for analysis. The eighth prosecution witness was Cleveland Police scientific investigator Cynthia Lewis, who testified in pertinent part (R. 527-535): (1) the white powder substance in the two plastic bags represented by State Exhibit 3 tested positive for cocaine in the amount of 54.26 grams. The ninth prosecution witness was Cleveland Police scientific investigator Eugenia Whitt, who testified in pertinent part (R. 536-551): (1) the white powder substance in the two plastic bags represented by State Exhibit 7 tested positive for cocaine in the amount of 55.11 grams; (2) the white powder substance in the eighteen plastic bags represented by State Exhibits 33 and 34 tested positive for cocaine in the total amount of 479.39 grams; (3) the white powder substance represented by State Exhibit 65 tested positive for cocaine in the amount of 547.01 grams; (4) the two boards used for rerocking tested positive for the presence of cocaine residue. The tenth prosecution witness was The Illuminating Company's customer service representative Robin Liebenguth, who stated in pertinent part (R. 553-560): (1) the electric company records for the West 112th Street [upstairs unit] address billed the appellant and shut off service on December 6, 1993; (2) the company billed the appellant because it was learned from the local natural gas company that appellant was the true renter of the unit. - 12 - The eleventh prosecution witness was Cleveland Police Officer Gary Gingell, who corroborated the testimony of the earlier police witnesses, adding (R. 561-585): (1) he is the officer in charge of the Second District Vice and Strike Force Units; (2) he authorized the investigation and surveillance of the suspected drug activity herein, and was personally involved in the surveillance of November 12 and 17, 1993, and participated in the search of the address, helping to find some cocaine in the attic and the vises and boards 8 in the hall closet . The twelfth prosecution witness was East Ohio Gas Company customer information supervisor Ronald Thompson, who testified in pertinent part (R. 586-595): (1) company records reflect that in October of 1993 the appellant applied for gas service at the upstairs unit of the West 112th Street address, with service to start on November 23, 1993; (2) service to the appellant at that address was terminated on January 28, 1994. The thirteenth prosecution witness was Mr. John Halmoz, who stated in pertinent part (R. 597-617): (1) he owns the West 112th Street address; (2) in October of 1993 he rented the upstairs unit to a husband and wife; (3) the woman who signed the rental application on October 19, 1993, in his presence, was Caraballo; (4) he evicted the downstairs unit's tenants in late October of 1993, after which it was vacant until it was rented on November 10, 8 These boards were tongue-and-groove and were sawn from floorboards located in the attic. - 13 - 1993; (5) before renting the upstairs unit, the husband and wife had rented an apartment also owned by the witness on Galion Avenue in Old Brooklyn. The fourteenth prosecution witness was the female confidential informant, identified as Marcela, who corroborated the testimony of Detective Escalante regarding her involvement in the controlled buys, adding (R. 625-839): (1) appellant acted as a look-out, about three to five steps behind Minguito and near the street, when she met and spoke with Minguito on November 5, 1993; (2) Minguito told her that he changes cars once a month; (3) her boyfriend, Ramon, on probation for a drug conviction at the time, for which she held Minguito and other drug pushers responsible; (4) she knew the appellant and Minguito in late October, 1993, when they would come to her house searching for Ramon for the payment of drug money and offering to sell drugs to her; (5) no promises were given her in exchange for her help; (6) she came to Cleveland from New Jersey in November, 1992; (7) Detective Escalante has given her no more than a total of $200 during her career as an informant; (8) she is adamantly opposed to drug pushers and decided to help get them off the streets. At this point the prosecution rested (R. 841) its case-in- chief. The defense then made a motion for acquittal pursuant to Crim.R. 29. After considerable oral argument by the parties, this motion was overruled. (R. 876.) - 14 - The defense offered the testimony of three witnesses during its case-in-chief. The first defense witness was Mr. Leonard Bruhn, who testified in pertinent part (R. 878-888): (1) he is the general manager of General Bag Corporation, located at West 137th Street, Cleveland, Ohio; (2) company records indicate that the appellant was employed by the company for approximately one week, from November 7 through 12, 1993; (3) on November 8, 1993, appellant worked from 3:38 p.m. through 12:30 a.m.; (4) on November 9, 1993, appellant worked from 7:56 a.m. until 4:00 p.m.; (5) on November 10, 1993, appellant worked from 7:48 a.m. until 4:00 p.m.; (6) appellant just stopped coming to work, saying that he had a better job at the Regional Transit Authority; (7) it would take less than ten minutes to get from the factory to West 117th Street. The second defense witness was Mr. Ipolito Rios, who testified in pertinent part (R. 890-927): (1) he is employed by the Spanish- American Committee at West 44th Street and Lorain Avenue, an employment service for the Hispanic community, as a receptionist; (2) appellant visited the witness's place of employment in the early mornings looking for job opportunities on October 17, 20, 26 and November 11, 12, 1993; (3) appellant was at the witness's place of employment on November 15 and 17, 1993, scheduled from 9:00 a.m. until 5:00 p.m., for job training related to the Regional Transit Authority; (4) the witness does not know if the appellant stayed for the entire training session on each day, or whether the witness observed the appellant on each of the training dates; (5) it takes - 15 - about 4 to 5 minutes to travel from the witness's place of employment to West 117th Street. The third defense witness was Mrs. Ruth Castellanos, who testified in pertinent part (R. 928-978): (1) she is a native of the Dominican Republic and is the appellant's wife, having met him in the Dominican Republic about ten years ago; (2) the pair married in December, 1992; (3) appellant was issued a "green card" by the U.S. Department of Immigration in March, 1993; (4) the appellant had a very spotty employment record; (5) in August, 1993, the couple lived on Seymour Avenue; (6) in late October, 1993, she told appellant that he had to vacate the family home as a result of domestic violence perpetrated upon her by appellant, and he did leave, but she does not know where he was staying; (7) appellant placed many long-distance telephone calls to his family in Miami and the Dominican Republic in late October, 1993; (8) the witness also placed calls to the Miami area in late October and early November, 1993; (9) after October 25, 1993, appellant told her that he had met some people and that these people had asked him to move in with them, but a condition of moving in was that he had to put the electric, cable television and telephone bills in appellant's name; (10) appellant would keep in touch by always calling her at her workplace; (11) appellant's 1993 gross earned income, as represented by two W-2 forms, was $707.00. At this point the defense rested. All defense exhibits were admitted into evidence, one over the objection of the prosecution. - 16 - The defense renewed its motion for acquittal, which was again denied. Following closing arguments by the prosecution (R. 986- 1007) and by the defense (R. 1008-1040), and rebuttal by the prosecution (R. 1040-1070). On March 31, 1994, the trial court announced its verdict. At sentencing on April 11, 1994, the trial court sentenced appellant to the following: (1) a term of 4 to 25 years "(5 years mandatory) consecutive" for the offense of Trafficking in Drugs; (2) 6 months on each of the two remaining offenses of Possessing Criminal Tools and Permitting Drug Abuse; (3) mandatory fine waived due to indigency. This appeal presenting eight assignments of error followed. Subsequent to the notice of appeal, the trial court, by order journalized on March 15, 1995, re-sentenced appellant on count two only, stating as follows: Defendant Guido Castellano's (sic.) original sentence for violation of R.C. 2925.03 as set forth in count two of the indictment, only, is hereby vacated, sua sponte, in that the sentence was imposed in mistaken reliance on State v. Odubanjo (1992), 80 Ohio App.3d 329 as has been clarified in State v. Herring (July 28, 1994), Cuyahoga App. No. 65815, unreported. Accordingly, defendant is resentenced as to count two only, for violation of R.C. 2925.03 for 4 years to 25 years, with 5 years being actual, concurrent. All other conditions of defendant's original sentence are to remain the same. I PLAIN ERROR WAS COMMITTED BY THE ADMISSION OF HEARSAY IN VIOLATION OF EVID.R. 802 AND MR. CASTELLANOS' RIGHTS UNDER ARTICLE I, SECTION 10 - 17 - OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. Appellant argues plain error in the following direct examination testimony of the confidential informant, Marcela, which conversation occurred in the presence of the appellant at Marcela's home: Q. Did you hear this conversation? 9 A. Yes, I was there, so was Alfred , and Alfred said, excuse me for butting in, but that's what you [Ramon] got to do, talk with the man [the man who owes Ramon money from drug sales so that Ramon could then pay Minguito]. Minguito was talking to Ramon. At this point he says, talk to the man and let him know how would you be able to pay his money. So that's when I asked Minguito, I said Minguito, I know some people that would like to buy ounces, are you willing to buy for me so that this way I could make some business? He said, as long as you have cash I will sell it to you. (R. 729)(Emphasis added)[Explanation added]. Appellant argues that the statement made by Minguito that he would sell cocaine to Marcela was inadmissible hearsay, offered to prove that Minguito was a seller of narcotics. Appellant further argues that without this piece of hearsay, there was no evidence that appellant knew that Minguito was a drug trafficker. 9 The person identified as Alfred is the appellant, Mr. Castellanos. - 18 - Contrary to the asseverations of the appellant, we conclude that the statement was admissible because it was not hearsay. Evid.R. 801(D)(2)(e) provides: (D) Statements Which Are Not Hearsay. A statement is not hearsay if: (2) Admission by Party-Opponent. The statement is offered against a party and is ***, or (e) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy upon independent proof of the conspiracy. The record on appeal amply supports the inference, through independent proof, that appellant and Minguito were involved in a conspiracy to traffick in cocaine. See State v. Martin (1983), 9 Ohio App.3d 150, 152. This is demonstrated through: (1) the actions of appellant and Minguito at the November 5, 1993, meeting with the informant, at which time a two-ounce purchase was discussed while appellant acted as a look-out; (2) appellant drove Minguito to and from the November 5, 1993, meeting; (3) appellant drove away and exhibited counter-surveillance driving maneuvers; (4) appellant had free access to the West 112th Street [upstairs unit] residence, where cocaine and its processing materials were located, which unlimited access would certainly not be afforded to one not privy to the goings on in that residence due to the covert nature of drug trafficking in general; (5) a number of services to the residence were billed to the appellant. The first assignment of error is overruled. II - 19 - MR. CASTELLANOS'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN HIS CONVICTIONS ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE. Our review of this assignment is guided by State v. Jenks (1991), 61 Ohio St.3d 259, 273: In other words, 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. State v. Eley, supra. Thus, in reviewing both weight and sufficiency of the evidence, the same test is applied. The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of facts. Jackson v. Virginia, supra. It must be kept in mind by the appellate court that the jury heard all the evidence and was instructed as to the law and as a result found the accused guilty beyond a reasonable doubt. Moreover, the relevant inquiry does not involve how the appellate court might interpret the evidence. Rather, the inquiry is, after viewing the evidence in the light most favorable to the prosecution, whether any reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id., 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573-574. (Emphasis added.) Also see, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, and State v. Eley (1978), 56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d 132. Upon reviewing the record on appeal, we conclude that the convictions for Trafficking in Drugs and Permitting Drug Abuse were - 20 - supported by the sufficiency of the evidence. The conviction for Possession of Criminal Tools (Toyota vehicle) was also supported by the sufficiency of the evidence. However, there was no evidence linking appellant to the possession of an electronic pager. Accordingly, the conviction for Possession of Criminal Tools (electronic pager) was against the sufficiency of the evidence and the trial court erred in not granting an acquittal as to the pager. The second assignment of error is affirmed in part and reversed in part. III THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE OFFENSES HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Applying the standard of review contained in State v. Jenks, supra, we conclude that the weight of the evidence supported the convictions for Trafficking in Drugs, Possession of Criminal Tools (Toyota vehicle), and Permitting Drug Abuse. However, the weight of the evidence does not support the conviction of Possession of Criminal Tools (electronic pager). The third assignment of error is affirmed in part and reversed in part. IV THE CONVICTION FOR POSSESSION OF CRIMINAL TOOLS (AS TO THE VEHICLE) IS IN VIOLATION OF R.C. - 21 - 2941.25 (ALLIED OFFENSES) AND A DENIAL OF MR. CASTELLANOS' RIGHTS TO PROTECTION FROM DOUBLE JEOPARDY GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. In this assignment, appellant argues that the offenses of Possession of Criminal Tools (Toyota vehicle) and Permitting Drug Abuse should have been merged for sentencing purposes. We note from the record on appeal that appellant neglected to raise a timely objection at trial or at sentencing that his offenses should have merged under R.C. 2941.25. Accordingly, any error therein is waived for appellate purposes. State v. Burge (1992), 82 Ohio App.3d 244; State v. Morgan (1992), 80 Ohio App.3d 150. In analyzing whether plain error is evident, we note that: 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 and the *** defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses. Newark v. Vazirani (1990), 48 Ohio St.3d 81, syllabus. R.C. 2923.24, Possession of Criminal Tools, provides in part: (A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. R.C. 2925.13(A), Permitting Drug Abuse, provides: - 22 - (A) No person who is the owner, operator, or person in charge of a locomotive, watercraft, aircraft, or other vehicle as defined in division (A) of section 4501.01 of the Revised Code, shall knowingly permit the vehicle to be used for the commission of a felony drug abuse offense. This court has previously determined that where the alleged criminal tool is a vehicle, then the offenses of Possessing Criminal Tools and Permitting Drug Abuse are allied offenses of similar import pursuant to R.C. 2941.25. State v. Mallett (March 3, 1994), Cuyahoga App. No. 64752, unreported, citing State v. McNamee (December 7, 1989), Cuyahoga App. No. 56294, unreported, and State v. Brown (June 18, 1987), Cuyahoga App. No. 52339, unreported. In the present case, the trial court sentenced appellant to six months on Possession of Criminal Tools and six months on Permitting Drug Abuse. At the sentencing hearing, the record reflects the sentence but adds that the two six-month sentences were to be served "concurrent to the second count" of Trafficking in Drugs. (R. 1081.) Thus, the trial court recognized the merger of the two offenses at issue, but did not vacate one of the convictions. Also, the sentencing order does not reflect a merger of those two offenses, nor does it vacate one of the allied offense convictions pursuant to R.C. 2941.25(A). Likewise, the sentencing order does not reflect that the two offenses be served concurrently with the drug trafficking offense. Accordingly, the matter is remanded to the trial court to resentence the appellant to reflect: - 23 - (1) the merger of the two offenses; (2) the vacation of one of those convictions; and, (3) the surviving conviction being served concurrently with the drug trafficking count. The fourth assignment of error is affirmed. V MR. CASTELLANOS WAS GIVEN AN ILLEGAL SENTENCE ON COUNT TWO [DRUG TRAFFICKING] WHEN THE TRIAL JUDGE IMPROPERLY ORDERED THE TERM OF ACTUAL INCARCERATION REQUIRED BY R.C. 2925.03(C) TO RUN CONSECUTIVE TO THE INDEFINITE TERM REQUIRED BY R.C. 2929.11. VI MR. CASTELLANOS WAS GIVEN AN ILLEGAL SENTENCE ON COUNT TWO [DRUG TRAFFICKING] WHEN THE TRIAL JUDGE FAILED TO EXERCISE HIS DISCRETION AS REQUIRED WHEN HE ORDERED THE TERM OF ACTUAL INCARCERATION REQUIRED BY R.C. 2925.03(C) TO RUN CONSECUTIVE TO THE INDEFINITE TERM REQUIRED BY R.C. 2929.11 ON THE STATED BUT MISTAKEN BELIEF THAT HE HAD NO DISCRETION TO ORDER THE TERMS CONCURRENT. In these assignments, appellant argues that the trial court erred in ordering that the five-year actual term on the drug trafficking offense be run consecutively and prior to the start of the 4 to 25 year indefinite term on that same offense. Instead, appellant argues that the two terms must be run concurrent to one another. The offense of Trafficking in Drugs in this case [R.C. 2925.03(A)(7)] is a first degree aggravated felony pursuant to R.C. 2925.03(C)(7), requiring under (C)(7) of that section the - 24 - 10 imposition of a sentence of "actual incarceration" of five years. As a first degree felony, the offense is further punishable by an indefinite sentence of 4, 5, 6, or 7 to 25 years. R.C. 2929.11(B)(4). Pursuant to State v. Arnold (1991), 61 Ohio St.3d 175, syllabus, both sentencing schemes must be applied by the trial court through the imposition of the indefinite term "in addition to" the mandatory term. In the present case, the trial court applied the Arnold holding by including both the mandatory and indefinite terms in sentencing. The Arnold holding does not address whether the mandatory term must be served prior to the indefinite term. Cf State v. Odubanjo (Cuyahoga, 1992), 80 Ohio App.3d 329. Indeed, this court has determined subsequent to Odubanjo that there is no requirement that the terms be served consecutively, State v. Herring (July 28, 1994), Cuyahoga App. No. 65815, unreported, at 4, but that the trial court may elect to do so pursuant to its discretion. State v. Martinez (March 2, 1995), Cuyahoga App. No. 66992, unreported; State v. Brown (December 1, 1994), Cuyahoga App. No. 67017, unreported; State v. Nunn (August 25, 1994), Cuyahoga App. No. 66221, unreported, at 6. The trial court recognized its discretion in sentencing when it resentenced appellant to a concurrent term on count two. From the foregoing, we conclude in the fifth assignment of error that the trial court had the authority to order a consecutive 10 The term "actual incarceration", as used in section 2925 of the Revised Code, has the same meaning as in division (C) of section 2929.01 of the Revised Code. R.C. 2925.01(D). - 25 - sentence for the terms of incarceration for the offense of drug trafficking. Accordingly, the fifth assignment of error is overruled. The sixth assignment of error also attacks the same general area as the fifth assignment, but argues that the sentence on the offense of drug trafficking must be vacated because the trial judge stated on the record that he was under the belief that he was required by law to impose a consecutive sentence on that offense. 11 (R. 1080-1081.) It is argued by appellant that if the court believed that it was required to impose a consecutive sentence, then the court did not exercise its discretion in the matter, which runs contrary to the duty imposed on the trial court at the sentencing. This argument has merit if one looks only at the original sentencing. However, the trial court has resentenced appellant after recognizing its misconception of the sentencing law and applying its discretion in the matter. Accordingly, the sixth assignment is overruled. VII 11 At sentencing on the drug trafficking count, the court stated the following: "The law requires five years consecutive, of four to 25 years and the five years have to be completed first before the time of four to 25." (R. 1081.)(Emphasis added.) - 26 - MR. CASTELLANOS WAS DENIED HIS RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. In this assignment, appellant argues that his trial counsel was ineffective in: (1) failing to object to the non-merger of the allied offenses [see the fourth assignment of error, infra]; (2) failing to object to the allegedly inadmissible hearsay [see the first assignment of error, infra]; and, (3) failing to object to the improper sentencing on the drug trafficking count [see the fifth and sixth assignments of error, infra]. In State v. Harris (June 2, 1994), Cuyahoga App. No. 65653, unreported, at 23, this appellate court, citing State v. Aziz (March 10, 1994), Cuyahoga App. No. 64581, unreported, at 9-10, provided the standard of review for an allegation of ineffective assistance of trial counsel: In order to overcome the general rule that a properly licensed attorney in Ohio is presumed competent, the complaining party must meet the following standard enunciated in State v. Lytle (1976), 48 Ohio App.2d 391, at 396- 397, "When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the Defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness." - 27 - Also see, Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, and State v. Williams (1969), 19 Ohio App.2d 234. Also, Strickland v. Washington (1984), 466 U.S. 668, and State v. Bradley (1989), 42 Ohio St.3d 136. As to the first ground alleged for ineffective assistance, to wit, the failure to object to the non-merger of the offenses, we conclude that counsel did violate a duty to his client in failing to object, however there was no prejudice to the appellant because the trial court recognized at the sentencing hearing that merger of the two offenses must occur under the circumstances. As to the second ground alleged for ineffective assistance, to wit, the failure to object to the allegedly inadmissible hearsay, we conclude that no duty was violated nor was there any prejudice because the statement was not hearsay. For defense counsel to have raised an objection would have been a needless act of futility. As to the third ground alleged for ineffective assistance, to wit, the failure to object to the consecutive sentencing on the drug trafficking count, we conclude that any possible prejudice to the appellant has been obviated as a result of the resentencing on count two. The seventh assignment of error is overruled. VIII THE JUDGMENT OF CONVICTION MUST BE MODIFIED WHEN THE JOURNAL INCORRECTLY STATES THAT MR. CASTELLANOS WAS CONVICTED OF PERMITTING USE OF A PREMIUM DRUG. - 28 - The verdict journal entry of the trial court, journalized March 31, 1994, provides in pertinent part as to the fourth count, "Guilty Permit Use Premium Drug, R.C. 2925.13 Charged Ct 4; ***." The sentencing journal entry of the trial court, journalized April 18, 1994, provides in pertinent part as to the fourth count, "The Defendant Herein Having On A Former Day Of Court Was Found Guilty By The Jury *** Of Permit Use Of Premises For Drug Abuse O.R.C. 2925.13 As Charged Count Four, ***." As stated earlier, the premises used in count four was a Toyota vehicle. The problem with the two journal entries is obvious. While both entries correctly provide the Revised Code section applicable to count four as charged in the indictment, the description of the offense is incorrect in the verdict entry. Accordingly, pursuant to App.R. 12(A)(1)(a), the verdict entry of the trial court is modified to reflect the correct description/title of the offense as charged and convicted under the fourth count of the indictment. The eighth assignment is affirmed as modified. Judgment affirmed in part and reversed and remanded in part for resentencing on the third and fourth counts [see the discussion of the fourth assignment, infra]. - 29 - This cause is affirmed in part, reversed in part, and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant and said said appellee equally share the costs herein taxed. 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. SPELLACY, P.J. and DAVID T. MATIA, 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 .