State v. Gutierrez

• Decision Date: 28 March 2017
• Docket Number: No. 16 CAA 07 0030,16 CAA 07 0030
• Citation: 2017 Ohio 1147,87 N.E.3d 812
• Parties: STATE of Ohio, Plaintiff–Appellee v. Omar Osualdo GUTIERREZ, Defendant–Appellant
• Court: Ohio Court of Appeals

87 N.E.3d 812

2017 Ohio 1147

STATE of Ohio, Plaintiff–Appellee

v.Omar Osualdo GUTIERREZ, Defendant–Appellant

No. 16 CAA 07 0030

Court of Appeals of Ohio, Fifth District, Delaware County.

DATE OF JUDGMENT: March 28, 2017

BRIAN J. WALTER, 140 North Sandusky Street, Delaware, OH 43015, for Plaintiff–Appellee

FRANCISCO E. LÜTTECKE, 250 East Broad Street, Suite 1400, Columbus, OH 43215, for Defendant–Appellant

JUDGES: Hon. Patricia A. Delaney, P.J., Hon. John W. Wise, J., Hon. Earle E. Wise, Jr., J.

OPINION

Wise, Earle, J.

{¶ 1} Defendant–Appellant, Omar Osualdo Gutierrez, appeals the June 14, 2016 judgment of the Court of Common Pleas of Delaware County, Ohio, denying his motion to dismiss his criminal charges. Plaintiff–Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On November 8, 2011, appellant was charged in federal court with conspiracy to distribute and possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. 846 and 841(a)(1) and (b)(1)(C). Specifically, appellant was charged with conspiring to distribute and possess with intent to distribute heroin and cocaine within the southern district of Ohio and elsewhere between January 1, 2006, and September 12, 2011. Appellant pled guilty on the same day pursuant to a cooperation agreement with the federal government, wherein appellant would exchange information and become a witness for a lesser sentence. Appellant was released on bond.

{¶ 3} On October 5, 2012, the Delaware County Grand Jury indicted appellant on one count of possession of cocaine and one count of complicity to trafficking in cocaine in violation of R.C. 2925.11 and R.C. 2925.03/2923.03, both with major drug offender specifications. The indictment alleged appellant committed the offenses on or about September 27, 2012. The major drug offender specification carried a mandatory maximum sentence of eleven years.

{¶ 4} Over the next two and one-half years as appellant cooperated with the federal government, both federal and state agents worked on resolving both cases to everyone's satisfaction. Several defense attorneys and federal and state prosecutors and judges were involved in the ongoing negotiations. Purportedly, the state of Ohio was under the belief that appellant would cooperate with the federal government and then receive a lengthy federal sentence and face deportation.

{¶ 5} On May 15, 2015, the federal court formally accepted appellant's November 8, 2011 plea.¹ Following a change of defense counsel, the assignment of a new judge, and several continuances, appellant withdrew his guilty plea and pled to a lesser included offense on January 7, 2016. According to his superseding plea agreement, appellant agreed that his advisory guideline sentence should be calculated on 3 kilograms of heroin and 15 kilograms of cocaine with a base offense level of 34. According to a second revised presentence investigation report dated February 1, 2016, appellant was accountable for 1 kilogram of heroin and 12.5 kilograms of cocaine which is the equivalent of 3,500 kilograms of marijuana for sentencing purposes. Under the federal sentencing guidelines, offenses involving at least 3,000 but less than 10,000 kilograms of marijuana have a base offense level of 32. Based on a total offense level of 32, without mitigating factors, the advisory guideline provision on sentencing was between 135 and 168 months in prison.

{¶ 6} A sentencing hearing was held in federal court on February 26, 2016. By the Judgment in a Criminal Case filed March 2, 2016, the federal court sentenced appellant to time served as of February 29, 2016 (41 months), as well as five years of supervised release.

{¶ 7} On May 25, 2016, appellant filed a motion to dismiss with the state court, claiming R.C. 2925.50 barred his prosecution in the state of Ohio. By judgment entry filed June 14, 2016, the trial court denied the motion, first stating it was unable to grant a pretrial dismissal of criminal charges, but then finding R.C. 2925.50 did not apply because appellant in his federal case was not prosecuted for, convicted of, or sentenced for the offenses in the state case.

{¶ 8} Appellant filed an appeal and this matter is now before this court for consideration.

Assignments of error are as follows:

I

{¶ 9} "THE TRIAL COURT ERRED WHEN IT RULED THAT IT WAS PROCEDURALLY BARRED FROM RULING ON MR. GUTIERREZ'S MOTION TO DISMISS."

II

{¶ 10} " REVISED CODE 2925.50 BARS THE STATE OF OHIO FROM PROSECUTING A DEFENDANT FOR CONDUCT WHICH FORMED PART OF A FEDERAL CONVICTION AND SENTENCE."

I

{¶ 11} In his first assignment of error, appellant claims the trial court erred when it ruled it was procedurally barred from ruling on the motion to dismiss. We disagree.

{¶ 12} In its judgment entry filed June 14, 2016, the trial court began by saying it was unable to grant the motion to dismiss because "Ohio law does not allow accused persons to seek dismissal of criminal charges before trial," and cited a long list of cases in support, none of which refer to a double jeopardy issue and/or the application of R.C. 2925.50. However, the trial court then proceeded to address the merits of the motion and denied the motion to dismiss.

{¶ 13} Appellant argues the trial court's initial assertion that it could not address the motion is incorrect because trial courts may grant pretrial motions to dismiss on double jeopardy grounds and in support, cites the case of State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23. In Anderson at ¶ 60, the Supreme Court of Ohio unanimously held the following:

Having determined that an order denying a motion to dismiss on double-jeopardy grounds denies a "provisional remedy" as that term is defined in the statute, that the order in effect determines the action with respect to the provisional remedy, and that the appealing party would not be afforded a meaningful review of the decision if that party had to wait for final judgment as to all proceedings in the action, we hold that the order is a final, appealable order.

{¶ 14} In its brief at 3, appellee agrees, as do we, that the trial court's dismissal of appellant's motion to dismiss is a final appealable order and Anderson controls.

{¶ 15} The trial court first posits that it was unable to grant the motion to dismiss on procedural grounds. We find the trial court did deny the motion to dismiss when after a discussion of the merits, it stated: "For the reasons explained above, the defendant's motion to dismiss is denied."

{¶ 16} Based upon this conclusion, we find the trial court ruled on the substantive issues which are properly before this court for review on a final appealable order pursuant to Anderson.

{¶ 17} Assignment of Error I is denied.

II

{¶ 18} In the second assignment of error, appellant claims the trial court erred in denying the motion to dismiss because R.C. 2925.50 bars the state from prosecuting him for conduct which formed part of a federal conviction and sentence. We disagree.

{¶ 19} R.C. 2925.50 states: "If a violation of this chapter is a violation of the federal drug abuse control laws, as defined in section 3719.01 of the Revised Code, a conviction or acquittal under the federal drug abuse control laws for the same act is a bar to prosecution in this state." " ‘Federal drug abuse control laws' means the ‘Comprehensive Drug Abuse Prevention and Control Act of 1970,’ 84 Stat. 1242, 21 U.S.C. 801, as amended." R.C. 3719.01(I). It is undisputed that appellant was convicted under the federal drug abuse control laws.

{¶ 20} Appellant argues R.C. 2925.50 is applicable in this case because he was convicted under federal drug abuse control laws for the same act as charged in the state of Ohio. He argues the federal conspiracy charge included his September 27, 2012 acts in Delaware County. In support, he cites "Sealed Exhibit A" filed June 14, 2016, and urges this court to compare the federal charge with the state charges. This exhibit is a "Second Revised Presentence Investigation Report" prepared by a senior United States probation officer. Under "Part A, The Offense, Charge(s) and Conviction(s)," the report indicates appellant pled guilty to a lesser included offense of Count One of a one-count indictment, and continues as follows:

Count One charges that between January 1, 2006 and September 14, 2011, within the Southern District of Ohio and elsewhere, Omar Gutierrez, together with others, did conspire to distribute and possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). Notably, according to the Government, the period of time stated in the indictment should actually read "between January 1, 2006 and September 12, 2011."

{¶ 21} By the Judgment in a Criminal Case filed March 2, 2016, attached to defendant's May 25, 2016 motion to dismiss, the federal court noted appellant pled guilty to a lesser included offense of a single-count information. The federal court sentenced him on the charge of conspiracy to distribute and possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. 846 and 841(a)(1) and (b)(1)(C). The judgment specifically states the offense ended on November 8, 2011.

{¶ 22} In comparison, the October 5, 2012 indictment in the state case alleged in Count One in part that on or about September 27, 2012, appellant "did knowingly obtain, possess, or use Cocaine, a Schedule II controlled substance, in an amount equaling or exceeding 100 grams but less than 2000 grams, to wit: 1988 grams" in violation of R.C. 2925.11(A), Possession of Cocaine. Count Two alleged in part on or about September 27, 2012, appellant,

acting with the kind of culpability required for the commission of an offense, did aid or abet another in committing the offense of Trafficking in Cocaine, to wit: did knowingly prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute Cocaine, a schedule II controlled substance, when OMAR OSUALDO GUTIERREZ, knew or had

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