COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73745 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APELLEE : : AND v. : : OPINION JOAO TEIXEIRA : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 10, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case number CR-315719. JUDGMENT: AFFIRMED IN PART; REVERSED IN PART, AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ELEANORE HILOW Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender DANIEL SCULLY Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 -2- SWEENEY, JAMES D., J.: Defendant-appellant Joao Teixeira, d.o.b. May 5, 1974, appeals from his jury trial conviction of Possession of Drugs (cocaine) in an amount equal to or greater than three times the bulk amount, but less than one hundred times the bulk amount in violation of former R.C. 2925.03(A)(6)1 and his subsequent sentence of three years actual incarceration, which term is to be served prior and consecutive to a term of four to fifteen years. For the reasons adduced below, we affirm in part and reverse in part, and remand for resentencing. A review of the record on appeal indicates that the offense at issue had as its genesis, a drug sale. The City of Cleveland Police Department's First District Vice Unit, utilizing a confidential informant ( CI ), arranged for the CI to effect a sale of cocaine from a male known as A.J. 2 The telephone call between the CI and A.J., in which the transaction amount, place and time was set up, was recorded by the police on August 19, 1994. The transaction was to consist of two ounces of cocaine. The place set for the transaction, 6201 Franklin Avenue, was placed under surveillance by the police. Officer Walker drove the CI to the place of the transaction. At the designated time, approximately ten to fifteen minutes after the telephone call setting up the 1This offense is the lesser included offense of the offense contained in the indictment. The offense is also prior to the effective date of Am.Sub.S.B. No. 2, which applies to offenses committed after July 1, 1996. 2A.J.'s true identity is Ajmal Kazmi, a co-defendant at the trial. -3- transaction, the CI identified A.J.'s automobile, a red Toyota in the parking lot of 6201 Franklin Avenue. Officer Walker then radioed this information to the surveillance officers, who were assigned to make the investigatory stop. The surveillance officers approached A.J.'s vehicle and identified themselves as police. Appellant quickly exited from the passenger door of A.J.'s vehicle and attempted to run away with officers in pursuit. Appellant's escape path was blocked by a fence which surrounded the parking lot, where appellant observed back-up police on the other side. Appellant then threw two bags over that fence and attempted to scale the fence. Appellant was apprehended a short time later and the bags recovered by officers on the scene. A.J. was also apprehended. The CI identified A.J. at the scene after the arrests were made. Scientific analysis later determined that the bags each contained approximately one ounce of cocaine.3 The jury convicted the appellant, and the trial court imposed the previously mentioned term of incarceration at a sentencing hearing on November 17, 1997. This timely appeal presents four assignments of error. I THE TRIAL COURT ERRED BY ILLEGALLY SENTENCING THE APPELLANT TO SERVE A THREE-YEAR TERM OF ACTUAL INCARCERATION PURSUANT TO R.C. 2925.03(C)(6)CONSECUTIVE WITH AND PRIOR TO AN INDEFINITE PRISON TERM OF FOUR TO FIFTEEN YEARS FOR A SECOND-DEGREE FELONY PURSUANT TO R.C. 2929.11(B)(5) BECAUSE THIS SENTENCE 3The precise total amount of cocaine was 55.14 grams. -4- EXCEEDS THE MAXIMUM SENTENCE ALLOWABLE UNDER THE LATTER OF THESE PROVISIONS. STATE V. PATTERSON (1998), 81 OHIO ST.3D 524, SYLLABUS. Appellant argues that his mandatory actual imprisonment term and his indefinite term of imprisonment exceeds the maximum term of imprisonment available for the offense at issue under former R.C. 2929.11(B)(5), a practice which is forbidden under State v. Patterson (1998), 81 Ohio St.3d 524, 692 N.E.2d 593. To analyze this assignment, we must determine the applicable penalties available and actually imposed. A violation of former R.C. 2925.03(A)(6) is a non-aggravated felony of the second degree pursuant to former R.C. 2925.03(C)(6), which, in addition to the penalty for such a felony conviction, also mandates that the court shall impose a sentence of actual incarceration of three years ***. Pursuant to former R.C. 2929.11(B)(5), the penalty for a felony of the second degree shall be a minimum term of 2, 3, 4 or 5 years, and a maximum term of 15 years. As previously stated, the trial court sentenced appellant to the mandatory three years actual incarceration, to be served prior to and consecutive to the indefinite term of 4 to 15 years. Thus, appellant was sentenced to serve, in effect, at least a minimum of seven years (three years actual plus four years minimum of the indefinite sentence), but the maximum term which could be served by appellant under the sentence structured by the trial court would be eighteen years (three years actual followed by up to fifteen years on the indefinite term). His combined sentence therefore exceeded the maximum term allowed by law in contravention of State v. Patterson, supra. Accordingly, -5- the appellant's sentence is vacated and the matter must be remanded for resentencing so that appellant serves his actual term of imprisonment concurrent to his indefinite term of imprisonment. The first assignment of error is well taken. II THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT IN ACCORDANCE WITH OHIO SENTENCING LAW AS IT EXISTED PRIOR TO JULY 1, 1996, WHEN IT SENTENCED HIM AFTER THAT DATE FOR AN OFFENSE THAT WAS COMMITTED PRIOR TO THAT DATE, SINCE R.C. 1.58(B) MANDATES THAT HE SHOULD HAVE BEEN SENTENCED IN ACCORDANCE WITH SENTENCING LAWS IN EFFECT AFTER THAT DATE. As previously stated, the date of the offense was August 19, 1994. The sentencing date was November 17, 1997, at which time the trial court sentenced appellant to the former sentencing parameters which predated Am.Sub.S.B. No. 2. Appellant argues that the court should have sentenced him to the revised sentencing scheme provided in Am.Sub.S.B. No. 2. Appellant is mistaken. In the recent case of State v. Rush (1998), 83 Ohio St.3d 53, a case which effectively overruled State v. Delgado (April 9, 1998), Cuyahoga App. No. 71497, unreported, the Court determined that Am.Sub.S.B. No. 2 applies only to those defendants whose crimes were committed on or after July 1, 1996, the effective date of Am.Sub.S.B. No. 2. Accord State v. Shelton (November 5, 1998), Cuyahoga App. No. 72060, unreported, at 7-8. Since appellant's crime was committed prior to July 1, 1996, the trial court did not err in using the old sentencing parameters. The second assignment of error is overruled. III -6- THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY THAT IN ORDER TO FIND THE APPELLANT GUILTY OF POSSESSING COCAINE IT HAD TO FIND THAT HE HAD KNOWINGLY DONE SO, AND THEREBY VIOLATED HIS RIGHT TO DUE PROCESS OF LAW AND HIS RIGHT TO A JURY TRIAL AS PROVIDED BY THE STATE AND FEDERAL CONSTITUTIONS. The lesser included offense at issue, drug abuse, is defined in former R.C. 2925.11(A) as, (A) No person shall knowingly obtain, possess, or use a controlled substance. The trial court charged the jury on the lesser included offense of drug possession, as follows: If all of you are unable to agree on a verdict of either guilty or not guilty of drug trafficking, then you will continue your deliberations to decide whether the State has proved beyond a reasonable doubt all the essential elements of the lesser included offense of possession of drugs. Before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about the 19th day of August, 1994, and in Cuyahoga County, Ohio, the defendant, Joao Teixeira, possessed cocaine, a scheduled (sic) II drug, in an amount equal to or exceeding three times the bulk amount but in an amount less than 100 times the bulk amount. Possess means having control over a thing or substance but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found. If you find that the State proved beyond a reasonable doubt all the essential elements of the offense of possession of drugs, then your verdict must be guilty of drug possession. (R. 805-806.) -7- The record reflects that the court defined the term knowingly as it related to the original offenses of drug trafficking for which appellant was indicted. Appellant argues on appeal that the court committed plain error in not repeating the definition of the term knowingly when it charged the jury (see R. 805-806) on possession of cocaine, the lesser included offense for which he was ultimately convicted. When plain error is raised on the appellate level, we note that such error will not be recognized unless it can be shown the outcome of the trial would clearly have been different but for the alleged error. State v. Thompson (April 23, 1998), Cuyahoga App. No. 72044, unreported, 1998 Ohio App. LEXIS 1716, at 8, citing State v. Campbell (1994), 69 Ohio St.3d 38 and Cleveland v. Buckley (1990), 67 Ohio App.3d 799. Viewing the alleged error in context with the evidence which shows the appellant at a drug transaction bolting from the suspect vehicle upon the approach of the police and throwing the bags of cocaine over the fence when it was clear to him that his escape route was blocked by police (who observed the appellant during the entire episode), we cannot conclude that the outcome of the trial would clearly have been different relative to the lesser included offense of drug possession and whether appellant knowingly possessed the cocaine. The third assignment of error is overruled. IV THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUARANTEED BY -8- THE FEDERAL AND STATE CONSTITUTIONS BECAUSE COUNSEL FAILED TO REQUEST THAT THE COURT INSTRUCT THE JURY AS TO THE REQUISITE CULPABLE MENTAL STATE FOR THE OFFENSE UPON WHICH HE WAS CONVICTED. The standard for evaluating an ineffective assistance of counsel claim was enunciated in State v. Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, as follows: 2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an object ive standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 688, 80 L.Ed.2d 674, 104 S.Ct. 2052, followed.) 3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. As reviewed in the previous assignment, we determined that the failure of the trial court to charge the jury on the culpable mental state of the appellant, to-wit, the knowingly element of the lesser included offense of drug possession, was not prejudicial to the appellant because the claimed error did not clearly influence the outcome of the trial. Absent a demonstration of prejudice, the putative error cannot be deemed to constitute ineffective assistance of counsel. The fourth assignment of error is overruled. Judgment affirmed in part and reversed and remanded in part for resentencing. -9- This cause is affirmed in part and reversed and remanded in part for resentencing. The court finds there were reasonable grounds for this appeal. It is, therefore, considered that said appellant(s) and appellee(s) each pay one-half of the costs herein. 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. PATRICIA A. BLACKMON, A.J., and JOHN T. PATTON, J., CONCUR. ______________________________ JAMES D. SWEENEY JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .