State v. Chandler

• Decision Date: 04 December 1989
• Docket Number: No. 57731,57731
• Citation: 560 N.E.2d 832,54 Ohio App.3d 92
• Parties: The STATE of Ohio, Appellee, v. CHANDLER, Appellant. *
• Court: Ohio Court of Appeals

Page 92

54 Ohio App.3d 92

560 N.E.2d 832

The STATE of Ohio, Appellee, v. CHANDLER, Appellant. ^*

No. 57731.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dec. 4, 1989.

Syllabus by the Court

1. Because R.C. 2925.12(A) was clearly enacted to reach criminal possession and control of a syringe and classified such conduct as a misdemeanor of the second degree under R.C. 2925.12(C), R.C. 2923.24, a general statute prohibiting possession and control of criminal tools and classifying such conduct as a fourth degree felony, cannot be used to charge and convict a person of possessing and controlling a syringe. (State v. Volpe [1988], 38 Ohio St.3d 191, 527 N.E.2d 818, paragraph two of the syllabus, followed.)

2. A person's mere presence in an area of high crime activity does not suspend the protections of the Fourth and Fourteenth Amendments to the United States Constitution.

John T. Corrigan, Pros. Atty., for appellee.

Beverly J. Pyle, Asst. County Public Defender, for appellant.

STILLMAN, Judge.

On December 14, 1988, appellant, George P. Chandler, along with a co-defendant, was indicted by a Cuyahoga County Grand Jury under a four-count indictment charging one count of violation of R.C. 2925.11 (possession of cocaine); one count of violation of R.C. 2925.11 (possession of Talwin); one count of violation of R.C. 4729.51 (possession for sale of PBZ); and one count of violation of R.C. 2923.24 (possession of criminal tools). In the possession-of-criminal-tools count, the state alleged that appellant "possessed or had under [his] control a substance, device, instrument or article with purpose to use it criminally, to wit: syringes." Appellant was found not guilty on the three drug possession counts, but guilty of the fourth count, possession of criminal tools. On April 6, 1989, Judge Patricia A. Cleary sentenced appellant to an eighteen-month prison term.

On April 12, 1989, appellant's counsel moved the court for resentencing, asserting that: "[s]ince Mr. Chandler was found guilty of possession [of] syringes only, the maximum penalty that should have been imposed was ninety (90) days in jail under R.C. 2925.12, 'possessing drug abuse instruments.' ". The trial judge summarily denied appellant's motion.

On appeal to this court, appellant requested we set bond pending disposition of the case. Appellant argued that he "should have been found guilty of possessing drug abuse instruments in violation of R.C. 2925.12, a misdemeanor of the second degree, and not of possession of criminal tools in violation of R.C. 2923.24, a felony of the fourth degree." Appellant cited State v. Volpe (1988), 38 Ohio St.3d 191, 527 N.E.2d 818, in support of his argument. This court denied appellant's request for bond and subsequently denied appellant's request for reconsideration.

On August 7, 1989, appellant initiated an action for a writ of habeas corpus in the United States District Court for the Northern District of Ohio. Upon receipt of the respondent's return of writ, the action was referred to a United States Magistrate for report and recommendation pursuant to Section 636(b)(1)(B), Title 28, U.S.Code and Loc.R. 19.08. The magistrate, in a detailed, thorough report, found that "there is not the slightest doubt that the petitioner in this action in habeas corpus has been the victim of a miscarriage of justice, violation of federal constitutional guarantees. * * * " The magistrate stated:

"As it is manifestly clear that under Volpe the petitioner could not properly be convicted of anything other than a misdemeanor offense carrying a term of imprisonment of no more than ninety days, his eighteen month sentence was not only statutorily impermissible under Ohio law, it was also constitutionally infirm. As held in Stiltner v. Rhay, 258 F.Supp. 487, 491 (E.D.Wash.1965), aff'd 367 F. [2d] 148 (9th Cir.1966), cert. denied, 385 U.S. 941 [87 S.Ct. 310, 17 L.Ed.2d 220] (1966):

"[']Where a court is without authority to pass a particular sentence, such sentence is void, and the defendant imprisoned under it is entitled to relief by habeas corpus. See, Hans Nielsen, 131 U.S. 176, 182, 9 S.Ct. 672, 33 L.Ed. 118 (1889).[']"

The magistrate recommended that the court enter an order granting appellant relief in habeas corpus and directing that he be released forthwith. The United States District Judge adopted the report and recommendation of the magistrate in almost all parts. The court ordered that the petition for habeas corpus be held in abeyance pending the petitioner's exhaustion of state remedies. The court ruled, however, that the appellant's motion for bail be granted and that he be released upon posting an unsecured appearance bond.

This case is now before the court on direct appeal of appellant's conviction and sentence. Appellant assigns the following three errors for review:

"I. The trial court erred in denying Mr. Chandler's motion for suppression and in admitting in evidence State's Exhibits One through Four against Mr. Chandler because the evidence has been seized by the Cleveland police in violation of Article One, Section Fourteen of the Ohio Constitution and the Fourth and Fourteenth Amendment[s] of the United States Constitution.

"II. Mr. Chandler's right to due process of law, as guaranteed by the United States and Ohio Constitutions, was denied when he was convicted [of] possession of criminal tools on evidence which was insufficient as a matter of law to support the conviction.

"III. Mr. Chandler was deprived of his liberty without due process of law by his conviction and sentencing for possession of criminal tools in violation of R.C. 2923.24, a felony of the fourth degree."

We will start our discussion with appellant Chandler's third assignment of error.

I

Appellant is absolutely correct in his position that his alleged possession of syringes could not be punished as anything other than a misdemeanor under R.C. 2925.12 and could not constitute possession of criminal tools under R.C. 2923.24. ¹ Appellant rightly concludes that his conviction under R.C. 2923.24 must therefore be vacated.

R.C. 2923.24 (possessing 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.

"(B) Each of the following constitutes prima-facie evidence of criminal purpose:

" * * *

"(3) Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intended for criminal use.

"(C) Whoever violates this section is guilty of possessing criminal tools, a felony of the fourth degree."

R.C. 2925.12 (possessing drug abuse instruments) provides in part:

"(A) No person shall knowingly * * * possess * * * or use any instrument, article, or thing whose customary and primary purpose is for the administration or use of a dangerous drug, other than marijuana, when the instrument involved is a hypodermic or syringe * * *.

" * * *

"(C) Whoever violates this section is guilty of possessing drug abuse instruments, a misdemeanor of the second degree. * * * "

In State v. Volpe (1988), 38 Ohio St.3d 191, 527 N.E.2d 818, the Supreme Court discussed the interaction between R.C. 2923.24 (possessing criminal tools) and R.C. 2915.02(A)(5), which criminalized as a misdemeanor the possession of any gambling device with intent to engage in gambling activities. The defendants in Volpe had been convicted under R.C. 2923.24. The Supreme Court ruled the felony convictions under R.C. 2923.24 could not stand in light of the specific misdemeanor offense defined in R.C. 2915.02(A)(5). In reversing the convictions, the court stated:

"Well-established principles of statutory construction require that specific statutory provisions prevail over conflicting general statutes. R.C. 1.51 states that:

" 'If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.'

"R.C. 2915.02(A)(5) and 2923.24 are irreconcilable. R.C. 2915.02(A)(5), in conjunction with R.C. 2915.02(F), treats possession of a gambling device as a first degree misdemeanor. As such, a person convicted of violating R.C. 2915.02(A)(5) could receive no prison sentence or a prison sentence of up to six months. See R.C. 2929.21. R.C. 2923.24 makes possession of criminal tools, arguably such instruments as gambling devices, a fourth degree felony, carrying a minimum prison sentence of six months and a maximum prison sentence of five years. See R.C. 2929.11. Therefore, since R.C. 2915.02 and 2923.24 provide for different penalties for the same conduct, they cannot be construed to give effect to both. R.C. 2915.02 [footnote omitted] and 2923.24 were enacted effective January 1, 1974, as part of the modern Ohio Criminal Code. Therefore, under R.C. 1.51, the general law, R.C. 2923.24, does not prevail as being the 'later adoption.' Further, the fact that the General Assembly enacted R.C. 2915.02(A)(5) to reach possession and control of gambling devices indicates that it did not intend for R.C. 2923.24 to reach possession and control of such devices.

"Although it was dicta, we observed in State v. McDonald, supra, [31 Ohio St.3d 47] at 50, 31 OBR at 157, 509 N.E.2d at 60, fn. 1 [1987], that 'there are statutes prohibiting possession of specific articles, such as R.C. 2915.02(A)(5) (gambling devices) and R.C. 2925.12 (drug abuse instruments). The General Assembly has manifested a specific intent to classify possession of those articles as misdemeanors. These specific provisions would control over the general provision in R.C. 2923.24. R.C. 1.51.' [Emphasis added.]

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