COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO.74305 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : JOURNAL ENTRY : AND -vs- : OPINION : CHARNAE HENLEY : PER CURIAM : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 29, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR-355088 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: ANTHONY J. KELLON, ESQ. ASST. COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: FRED D. MIDDLETON, ESQ. 620 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 PER CURIAM: Appellant, Chanae Henley, is appealing her conviction for -2- attempted possession of marijuana in an amount greater than 5,000 grams, but not exceeding 20,000 grams. For the following reasons, we affirm. Appellant was charged with possession of marijuana in the amount specified, a third degree felony. A plea bargain was offered, whereby appellant would plead guilty to attempted possession of marijuana, a fourth degree felony. At the plea hearing, the trial judge informed appellant that the possible sentence was six to eighteen months in prison. Appellant was informed of the consequences of her plea and rights she was waiving. Appellant indicated that she understood the rights she was waiving and the consequences of her plea. Appellant pled guilty to attempted possession of marijuana. At the sentencing hearing, the following took place: MS. HENLEY: . . .I know everything going on here is in Divine order. . . .I'm accepting responsibility for whatever is going on here, and this has got to end. . . THE COURT: Did God have anything to do with your bringing the 7.2 kilos of marijuana into our airport? MS. HENLEY: No. THE COURT: It's a little bit insulting to me to hear you invoke the name of the Divine when you were trafficking drugs into this city. The judge stated that appellant brought 7.2 kilos of marijuana from Los Angeles to the Cleveland Airport. The judge further commented that the children of Cleveland did not want appellant's drugs. Appellant was sentenced to twelve months of incarceration. The court noted that appellant was receiving more than the minimum prison term because the minimum term would demean the seriousness -3- of the offense and not adequately protect the interest of the public. The written sentencing findings included: that appellant was acting for hire or for organized crime, that appellant showed no remorse and that the appellant was not amenable to community control. In its written findings, the court found relevant that appellant was, trafficking in drugs and was arrested with 7.2 kilos of marijuana. I. Appellant's first assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A SENTENCE WITHOUT CONSIDERING THE NATURE OF THE OFFENSE AND THE MITIGATION FACTORS MANDATED BY R.C. 2929.12. R.C. 2929.12 provides that the trial court shall have discretion in fashioning a sentence to meet the purposes of sentencing set out in R.C. 2929.11. A sentence may only be reversed if appellant demonstrates abuse of discretion. State v. Ramirez (1994), 98 Ohio App.3d 388, State v. Yantz (1986), 33 Ohio App.3d 342. Appellant contends that the court improperly considered that appellant was trafficking in drugs , because appellant was neither charged nor convicted of trafficking in drugs, R.C. 2925.031 or 1 Under the current version of R.C. 2925.03, drug trafficking includes only selling or offering to sell drugs. This differs from prior R.C. 2925.03, where drug trafficking included possession over a certain amount and transporting drugs with knowledge the drugs would be sold. In any case, it is clear when the judge referred to drug trafficking, she meant something beyond mere possession of the drugs. -4- conspiracy to traffic in drugs, R.C. 2923.01, 2925.03. It is error for the trial judge to base a sentence upon a crime neither charged nor proven. See State v. Longo (1982), 4 Ohio App.3d 136, Columbus v. Jones (1987), 39 Ohio App.3d 87, State v. Jeffers (1978), 57 Ohio App.2d 107, State v. Patterson (1996), 110 Ohio App.3d 264, State v. Smith (Feb. 20, 1986), Cuyahoga App. No. 50145, unreported. Recently, the Supreme Court has decided that for a conviction under the federal sentencing guidelines, it is proper to consider the underlying facts of a charge of which the defendant was acquitted in determining the sentence for the convicted offense. See United States v. Watts (1997), 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554. One appellate jurisdiction has held that Watts overrules the authority of Columbus v. Jones, supra. See State v. Epley (Aug. 25, 1998), Franklin App. No. 97APA11-1467, 97APA11- 1468, unreported. Another jurisdiction has held that Watts applies only to the federal sentencing guidelines, and does not overrule Jones, Jeffers or Longo, supra. State v. Goodman (Jan. 26, 1998), Stark App. No. CA00171, unreported. We believe that Watts does not overrule Jones, Longo or Jeffers, supra. The federal sentencing guidelines contain different provisions than the Ohio sentencing statutes. Additionally, while Watts may overrule Ohio case law with respect to federal constitutional issues, it does not overrule rulings interpreting Ohio sentencing law. In this case, the trial court erred in considering that appellant engaged in drug trafficking. However, appellant did not -5- object at the sentencing hearing when the judge stated appellant trafficked in drugs. The failure to object waived any error, unless plain error occurred. See State v. Underwood (1983), 3 Ohio St.3d 12. Plain error does not occur unless but for the error, the outcome clearly would have been otherwise. State v. Underwood, supra, State v. Long (1978), 53 Ohio St.2d 91. R.C. 2929.12 requires that the court consider the circumstancesof the offense in determining whether the offender's conduct was more serious than conduct normally causing the offense. R.C. 2929.12(B). The present case contains the additional circumstance that appellant was flying to Cleveland from Los Angeles, and the drugs were discovered at the Cleveland airport. The court also found that the offender committed the offense for hire or as a part of organized criminal activity, a factor required to be considered under R.C. 2929.12(B)(7). Appellant did not object to this finding, and the record does not indicate that the finding was improper. The trial court could have based the one year sentence upon the fact that appellant was paid to perform the offense and that she was discovered in the airport with the drugs, as well as other factual findings. The one year sentence was within the statutory limit and was not unreasonable or an abuse of discretion. See State v. Polick (1995), 101 Ohio App.3d 428, 431. We can not say that the outcome would have clearly been otherwise had the court not considered the inference that appellant was trafficking in drugs. -6- Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE PLEA OF GUILTY WAS NOT KNOWINGLY(sic) AND VOLUNTARY AS REQUIRED UNDER CRIMINAL RULE 11. Appellant contends her plea was not knowing and voluntary because the trial court did not inform her that the charge of drug trafficking would be considered for sentencing purposes. Crim. R. 11 requires that the court inform the defendant of the consequences of his or her plea, including maximum penalties. Appellant was informed of the consequences of her plea and the maximum and minimum penalties. Crim. R. 11 does not require that the trial judge state what sentence will be imposed, or what factors will be considered in formulating a sentence. We find that the trial court complied with Crim. R. 11 and appellant's plea was knowing and voluntary. Accordingly, appellant's assignment of error is overruled. The decision of the trial court is affirmed. -7- It is therefore considered that said appellee recover of said appellant its costs herein. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said 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. PATRICIA BLACKMON, ADMINISTRATIVE JUDGE ANN DYKE, JUDGE DIANE KARPINSKI, JUDGE, CONCURS IN JUDGMENT ONLY 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 .