State v. Prieto

• Citation: 2016 Ohio 8480,82 N.E.3d 450
• Decision Date: 16 December 2016
• Docket Number: No. 15 MA 0200.,15 MA 0200.
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Jevon PRIETO, Defendant–Appellant.
• Court: United States Court of Appeals (Ohio)

82 N.E.3d 450

2016 Ohio 8480

STATE of Ohio, Plaintiff–Appellee,

v.Jevon PRIETO, Defendant–Appellant.

No. 15 MA 0200.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Dec. 16, 2016.

Paul J. Gains, Mahoning County Prosecutor, Ralph M. Rivera, Assistant Prosecuting Attorney, Youngstown, OH, for plaintiff-appellee.

David Betras, Frank Cassese, Betras, Kopp & Harshman, LLC, Canfield, OH, for defendant-appellant.

GENE DONOFRIO, P.J., CAROL ANN ROBB, CHERYL L. WAITE, JJ.

OPINION

ROBB, J.

{¶ 1} Defendant–Appellant Jevon Prieto appeals the judgment entered in the Mahoning County Common Pleas Court upon his conviction of tampering with evidence and illegal conveyance of a drug of abuse onto the grounds of a specified government facility. As to the elements of illegal conveyance, Appellant argues an inmate cannot convey drugs onto the grounds of a prison if he never left the grounds. As to voir dire, Appellant contends the state failed to provide a race-neutral reason for excluding a prospective juror. These arguments are overruled.

{¶ 2} Appellant and the state agree the trial court's sentencing entry lacks the statutorily-required consecutive sentence findings. Additionally, the court improperly imposed a sentence on a merged offense. In accordance, Appellant's conviction is affirmed, but the sentencing entry is vacated. The case is remanded for the trial court to make consecutive sentence findings and eliminate the sentence on one of the illegal conveyance counts in the sentencing entry.

STATEMENT OF THE CASE

{¶ 3} This case arose while Appellant was a minimum security inmate at the Ohio State Penitentiary ("OSP") in Youngstown, Ohio. The main building at the OSP houses maximum security offenders and is called a "supermax" prison as it houses the state's worst offenders. (Tr. 27–28). The minimum security facility is a 220–bed dormitory-style detention facility with rows of bunks and open common areas surrounded by a fence. (Tr. 28). The minimum security inmates are permitted contact visitation. (Tr. 32). Visitation occurs by appointment only. (Tr. 29). It does not take place at the minimum security facility.

{¶ 4} To meet their visitors, the inmates are strip-searched at the minimum security prison and then escorted to the sally port at the supermax prison, which is surrounded by a fence with concertina wire. (Tr. 29, 39, 154). A different escort leads the inmates to a visiting room on the fourth floor of the supermax prison. (Tr. 31). On returning to the minimum security prison, the inmates wait in a room while being monitored by a correctional officer until it is their turn to be strip-searched again. (Tr. 33–34). The "strip-out" room has a table separating the correctional officer from the inmate; the inmate removes his clothes and places them on the table for the officer. (Tr. 34–35).

{¶ 5} On January 20, 2011, Appellant was visited by his girlfriend. Thereafter, Appellant was escorted back to the minimum security facility. Correctional Officers Newell and Tanner were in the "strip-out" room, while Correctional Officer Walker watched the inmates waiting to be strip-searched to make sure they did not pass items amongst themselves. (Tr. 145). Officer Newell conducted Appellant's strip-search while Officer Tanner conducted a search of another inmate. (Tr. 64). While Officer Newell was inspecting the inside of one of Appellant's boots, he felt something hard under the insole. (Tr. 65–66, 95). He discovered pills in a twisted bag. (Tr. 65, 67). He noticed three different colors of pills (blue, red, and white) and thought some were shaped like states. (Tr. 66, 97). His report estimated there were between seven and ten pills. (Tr. 85–86).

{¶ 6} Officer Newell showed the pills to Officer Tanner who took them from him. Both officers asked, "What are these?" Moving closer, Appellant replied, "I don't know. What are they?" Officer Newell testified Appellant grabbed the pills from Officer Tanner and threw them in his mouth. (Tr. 68). Officer Tanner testified he lunged over the table at Appellant as the pills moved toward his mouth. The table flipped over. He wrestled him to the floor in an attempt to retrieve the pills. (Tr. 126). Appellant swallowed some pills. (Tr. 68–69).

{¶ 7} Officer Walker testified he entered the room upon hearing the commotion. He recovered two pills from the floor; one was white, and one was pink. (Tr. 147, 150). The pills were tested by a criminalist at the Ohio State Highway Patrol (OSHP) crime lab. The white pill appeared to be Percocet, which contains oxycodone and acetaminophen. (Tr. 107). Testing confirmed the pill contained oxycodone, which is a Schedule II controlled substance that is considered a drug of abuse. (Tr. 108). The pink pill was stamped "USA" and shaped like the continental United States. (Tr. 113). Testing confirmed it contained benzylpiperazine or BZP, which is a Schedule I stimulant compound and is considered a drug of abuse. (Tr. 110–112).

{¶ 8} Appellant said the boots were not his. (Tr. 91–92). He was transported to the medical unit in the supermax prison. Prior to being placed in administrative segregation, Appellant told a lieutenant the boots were not his, but he then asked the lieutenant to place the boots in the "pack-up" with the rest of his possessions during his time in segregation. (Tr. 172, 174). An investigator with the OSHP, who was assigned to the prison, was unable to make contact with Appellant's girlfriend and could not verify her involvement. (Tr. 209–210). Appellant was released from prison in March 2011, and the testing of the pills was completed in November 2011.

{¶ 9} Appellant was indicted on two counts of illegal conveyance of a drug of abuse onto the grounds of a specified government facility (one for each pill) and one count of tampering with evidence, all third-degree felonies. The case was tried to a jury. The state presented the testimony of the three correctional officers, the lieutenant, a prison investigator, the OSHP investigator, and the OSHP criminalist.

{¶ 10} At the close of the state's case, the defense moved for an acquittal, focusing on the illegal conveyance counts. Defense counsel argued it was legally impossible for an inmate to be guilty of conveying drugs onto the grounds if he never left the grounds of the facility. (Tr. 246). The prosecution responded that the one who receives the drugs from a visitor can be liable for conveyance under a principal/accomplice theory, noting the state does not have to indict on complicity. (Tr. 247). The trial court overruled the motion for acquittal. The jury found Appellant guilty as charged.

{¶ 11} The court sentenced Appellant to 30 months on count one, 30 months on count two, and 30 months on count three. The court's October 13, 2015 sentencing order said: "Counts One and Two merge to each other for purposes of sentencing however run consecutively to Count Three for a TOTAL PRISON TERM OF SIXTY (60) MONTHS."

ASSIGNMENT OF ERROR ONE: SENTENCING

{¶ 12} Appellant's first assignment of error provides:

"Appellant's sentence is both contrary to law and an abuse of discretion as the trial court failed to make any of the findings required by R.C. 2929.14(C)(4) prior to imposing consecutive sentences."

{¶ 13} Initially, we note the text of Appellant's assignment of error mentions the abuse of discretion standard. The Ohio Supreme Court recently ruled the plain language of R.C. 2953.08(G)(2) prohibits the application of the abuse of discretion standard to sentencing issues. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, 16. "[A]n appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." Id. at ¶ 1, applying R.C. 2953.08(G)(2).

{¶ 14} In any event, Appellant employs only the standard under R.C. 2953.08(G)(2) in constructing his argument. He points out the court ran the sentence on the tampering with evidence count consecutive to the illegal conveyance counts but failed to make any consecutive findings in the sentencing entry. The consecutive sentence findings are contained in R.C. 2929.14(C)(4), which provides:

If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶ 15} The trial court must make these consecutive sentence findings at the sentencing hearing and incorporate those findings into the sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37, syllabus. Appellant only takes issue with the lack of findings in the sentencing entry. He does not contest the findings at the sentencing hearing and did not seek to have the hearing transcribed. Appe...