State Of Ohio v. Polachek
| Decision Date | 04 November 2010 |
| Docket Number | Case No. 2010-CA-41 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. ANDREW POLACHEK Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES:
Hon. W. Scott Gwin, P.J.
OPINION
For Plaintiff-Appellee JAMES J. MAYER, JR. RICHLAND COUNTY PROSECUTOR
For Defendant-Appellant JEFFEREY R. STIFFLER DAVID C. BADNELL CO., L.P.A. Gwin, P.J.
{¶1} Appellant Andrew Polachek appeals the sentence rendered by the Richland County Court of Common Pleas upon his plea of guilty to three counts of possession of a controlled substance. The plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} The Richland County Grand Jury indicted appellant on one (1) count of possession of controlled substances (Heroin), in violation of R.C. 2925.11(A) and 2925.11(C)(6)(a), a felony of the fifth degree (Count I); one (1) count of possession of controlled substances (Suboxone), in violation of R.C. 2925.11(A) and 2925.11(C)(2)(a), a felony of the fifth degree (Count II); and one (1) count of possession of controlled substances (Alprazolam), in violation of R.C. 2925.11(A) and 2925.11(C)(2)(a), a felony of the fifth degree (Count III). Forfeiture specifications were attached to each count.
{¶3} On February 17, 2010, appellant pled guilty to all counts and received a suspended eight-month prison sentences for each count, to be served consecutively. Appellant was ordered to forfeit the $1,626.00 and to pay $80 in restitution to the Mansfield Police Department Crime Lab. Appellant received three (3) years of Community Control.
{¶4} Appellant has timely appealed raising as his sole assignment of error,
{¶5}
I.
{¶6} In his sole assignment of error appellant argues that his convictions for three counts of possession of controlled substances should have merged for purposes of sentencing. We disagree.
{¶7} The entry of a plea of guilty is a grave decision by an accused to dispense with a trial and allow the state to obtain a conviction without following the otherwise difficult process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States (1962), 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473. A plea of guilty constitutes a complete admission of guilt. Crim. R. 11 (B) (1). "By entering a plea of guilty, the accused is not simply stating that he did the discreet acts described in the indictment; he is admitting guilt of a substantive crime." United v. Broce (1989), 488 U.S. 563, 570, 109 S.Ct. 757, 762.
{¶8} Although appellant did not assert this allied offense argument in the trial court, under Crim. R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Indeed, the Ohio Supreme Court has held that imposition of multiple sentences for allied offenses of similar import constitutes plain error. State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922 N.E. 2d 923, ¶ 31, citing State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 96-102.
{¶9} R.C. 2941.25 provides:
{¶10} "(A) 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.
{¶11} "(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them."
{¶12} Recently, the Supreme Court of Ohio in State v. Cabrales, 118 Ohio St.3d 54, 57, 2008-Ohio-1625, 884 N.E.2d 181, instructed as follows:
{¶13}
{¶14} Nonetheless, even though the offenses are of similar import under R.C. 2941.25(A), Subsection (B) permits convictions for two or more similar offenses if the offenses were either (1) committed separately, or (2) committed with a separate animus as to each. See State v. Price (1979), 60 Ohio St.2d 136, 398 N.E.2d 772, paragraph five of the syllabus.
{¶15} The statute at issue here is R.C. 2925.11. That statute provides, in pertinent part, the following:
{¶16} "(A) No person shall knowingly obtain, possess, or use a controlled substance.
{¶17}" * * *
{¶18} "(C) Whoever violates division (A) of this section is guilty of one of the following:
{¶19} (1) If the drug involved in the violation is a compound, mixture, preparation, or substance included in schedule I or II, with the exception of marihuana, cocaine, L.S.D., heroin, and hashish, whoever violates division (A) of this section is guilty of aggravated possession of drugs. The penalty for the offense shall be determined as follows:
{¶20} (a) Except as otherwise provided in division (C)(1)(b), (c), (d), or (e) of this section, aggravated possession of drugs is a felony of the fifth degree, and division (B) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender.
{¶21} "* * *
{¶22} "(2) If the drug involved in the violation is a compound, mixture, preparation, or substance included in schedule III, IV, or V, whoever violates division (A) of this section is guilty of possession of drugs. The penalty for the offense shall be determined as follows:
{¶23} (a) Except as otherwise provided in division (C) (2) (b), (c), or (d) of this section, possession of drugs is a misdemeanor of the first degree or, if the offender previously has been convicted of a drug abuse offense, a felony of the fifth degree."
{¶24} In the case at bar, appellant pled guilty to three counts of possession of three different controlled substances, not simply a single count. Appellant pled guilty to possession of heroin, a Schedule I controlled substance which is a felony of the fifthdegree in violation of R.C. 2925.11(C)(6)(a), one count of possession of Suboxone, a Schedule III controlled substance which is a felony of the fifth degree in violation of R.C. 2925.11(C)(2)(a); and one count of possession of Alprazolam, a Schedule IV controlled substance which is a felony of the fifth degree in violation of R.C. 2925.11(C)(2)(a).
{¶25} Proof of possession of heroin will not sustain a conviction for possession of Suboxone or Alprazolam. Therefore, conviction of a felony under R.C. 2925.11(C) (1) requires proof of facts that R.C. 2925.11(C) (2) does not. See, State v. Delfino (1986), 22 Ohio St.3d 270, 273, 490 N.E.2d 884, 888. We find therefore, the trial court did not err in sentencing appellant to a prison term for possession of a Schedule I controlled substance separate from that involving the Schedule III and Schedule IV controlled substances. However, our inquiry must continue concerning whether the appellant can be properly sentenced to consecutive prison sentences for simultaneous possession of a Schedule III controlled substance and a Schedule IV controlled substance.
{¶26} The Supreme Court in Delfino further explained,
{¶27} 22 Ohio St.3d at 273, 490 N.E.2d at 888.
{¶28} Based upon the Ohio Supreme Court's reasoning, simultaneous possession of a Schedule III and a Schedule IV controlled substance is a single and separate offense under R.C. 2925.11(C)(2) from the possession of heroin under R.C. 2925.11(C)(1). Additionally, the drugs appellant plead guilty to possessing in Count 2 and Count 3 were two different drug compounds contained on two different drug schedules.
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