STATE OF OHIO v. WILLIAM E. MARTIN, II

{¶2} Deputy Brett Grabman of the Columbiana County Sherriff’s Office was an

undercover narcotics detective with the Columbiana County Drug Task Force (Task

Force). On the morning of March 22, 2017, Deputy Grabman received a call from two

potential informants. The informants told Deputy Grabman that appellant was selling

large quantities of heroin, cocaine, and marijuana from a house at 533 West Washington

Street in Lisbon, Ohio (the house).

{¶3} Deputy Grabman and other Task Force officers utilized these informants

to perform a controlled buy of drugs from appellant later that afternoon. During this

purchase, Deputy Grabman heard through the audio surveillance equipment placed on

the informants that appellant was attempting to arrange transportation for a large amount

of marijuana. The informants purchased $500 worth of heroin and $100 worth of crack

cocaine from appellant.

{¶4} On March 28, 2017, Deputy Grabman utilized the same informants to

perform a second controlled buy from appellant at the house. During this controlled buy,

the informants purchased $1,000 worth of heroin from appellant. Immediately after this

controlled buy, an altercation between the informants and Task Force officers arose

related to the informants possessing marijuana paraphernalia. Task Force officers told

the informants why they were not permitted to have anything illegal in their possession

and the informants became “very aggressive.” (Supp. I Tr. 20). The informants left and

were not on good terms with Task Force officers.

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{¶5} Immediately after the informants left, Task Force officers had a meeting at

the Lisbon Police Department to determine how to proceed with appellant’s investigation.

During this meeting, Task Force officers discovered that appellant had an outstanding

arrest warrant for two felony drug possession charges.

{¶6} Approximately 40 minutes after the altercation between Task Force

officers and the informants, Task Force officers returned to the house to serve the

outstanding arrest warrant. Task Force officers knocked and announced their presence

but no one answered the door despite officers hearing people moving throughout the

house. Task Force officers entered the house by force. Task Force officers found

appellant in an upstairs bedroom closet with guns in his immediate area. A search of

appellant incident to his arrest yielded just under $2,000 with $1,000 of that money being

bills the Task Force used to make the controlled buys.

{¶7} Two women were also present in the home when appellant was arrested.

Chief Michael Abraham of the Lisbon Police Department transported appellant to jail, the

two other people were cleared from the house, and the house was secured. Task Force

officers did not search the house at this time. After appellant’s arrest and the house was

cleared and secured, Deputy Grabman applied for a search warrant for the house.

{¶8} Deputy Grabman’s affidavit for the search warrant included: the two

controlled buys, appellant’s arrest warrant, appellant’s arrest, and appellant’s criminal

history. The Lisbon Municipal Court granted the search warrant and Task Force officers

subsequently searched the house. The search yielded large amounts of marijuana,

heroin, crack cocaine, prescription pills, over $58,000 in cash, and multiple guns.

{¶9} On May 18, 2017, a Columbiana County Grand Jury indicted appellant on

the following charges: Count One for having a weapon while under a disability in violation

of R.C. 2923.13(A)(2), a third-degree felony; Count Two for possession of cocaine in

violation of R.C. 2925.11(A)(C)(4)(f), a first-degree felony, with a major drug offender

specification pursuant to R.C. 2941.1410(A); Count Three for possession of heroin in

violation of R.C. 2925.11(A)(C)(6)(e), a first-degree felony, with a forfeiture specification

in an amount of $57,419 pursuant to R.C. 2941.1417(A); Count Four for possession of

marijuana in violation of R.C. 2925.11(A)(C)(3)(e), a third-degree felony; Count Five for

trafficking heroin in violation of R.C. 2925.03(A)(1)(C)(6)(c), a fifth-degree felony; Count

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Six for trafficking cocaine in violation of R.C. 2925.03(A)(1)(C)(4)(a), a fifth-degree felony;

and Count Seven for trafficking heroin in violation of R.C. 2925.03(A)(1)(C)(6)(d), a thirddegree felony. A superseding indictment added a major drug offender specification

pursuant to R.C. 2941.1410(A) to Count Three. A bill of particulars subsequently

amended the forfeiture amount in Count Three to $57,277. Appellant entered a not guilty

plea on all charges.

{¶10} On June 19, 2017, appellant filed his first motion to suppress. This motion

sought to suppress all evidence obtained from the house and generally argued that Task

Force officers had conducted an unreasonable warrantless search of the house.

Appellant filed an amended motion to suppress on July 10, 2017 which argued that Task

Force officers were illegally present in the house and anything they observed while

illegally present in the house could not provide a basis for the search warrant.

{¶11} On July 12, 2017, the trial court held a hearing on appellant’s first motion

to suppress. The only witness to testify at this hearing was Deputy Grabman, who

testified to the above stated events. On cross-examination, Deputy Grabman testified

that Task Force officers did not physically possess appellant’s arrest warrant when they

entered the house and that it was more than likely some officers were still inside the house

to secure the two other occupants while he obtained the search warrant.

{¶12} On August 29, 2017, the trial court denied appellant’s first motion to

suppress. The trial court found that there was sufficient evidence to indicate appellant

resided at the house and Task Force officers were permitted to enter the house due to

appellant’s arrest warrant. The trial court also held that there was sufficient probable

cause for the Task Force to obtain a search warrant and the evidence showed that no

search occurred until after Deputy Grabman obtained the search warrant.

{¶13} On February 21, 2018, appellant filed a second motion to suppress.

Appellant argued, relevant to this appeal, that the search of the house was illegal because

Deputy Grabman omitted material facts in his affidavit for the search warrant. Specifically,

appellant argued that Deputy Grabman omitted the fact that the informants compromised

the March 28, 2017 controlled buy by possessing marijuana paraphernalia. Appellant

also argued that Deputy Grabman’s affidavit omitted the fact that Task Force officers had

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already entered the home, arrested appellant, and may have still been present in the

home while the search warrant was being obtained.

{¶14} On March 14, 2018, the trial court held a hearing on appellant’s second

motion to suppress. At this hearing, Lieutenant Brian McLaughlin testified that the Task

Force’s agreement with the informants included paying them 30% of all transactions the

informants secured. This agreement was made on the same day the informants

contacted the Task Force, which was also the same day of the first controlled buy.

{¶15} Lieutenant McLaughlin and Deputy Grabman both testified that after the

first controlled buy, the informants told them that appellant wanted them to transport a

large amount of marijuana from Chicago, Illinois. Lieutenant McLaughlin told the

informants not to transport drugs for appellant. Deputy Grabman testified that despite

this instruction, the informants transported a substantial amount of drugs from Chicago to

the house. Deputy Grabman also testified that he believed he disclosed the informants

transporting drugs for appellant in his affidavit for the search warrant.

{¶16} In a judgment entry dated May 18, 2018, the trial court denied appellant’s

second motion to suppress. Relevant to this appeal, the trial court held that appellant did

not satisfy his burden to show that any omissions in Deputy Grabman’s affidavit were

material. The trial court also held that it was permissible for Task Force officers to secure

the house while applying for a search warrant.

{¶17} On August 23, 2018, appellant filed a third motion to suppress, which was

subsequently limited to two issues: whether Task Force officers conducted an illegal

search after executing the arrest warrant but prior to obtaining the search warrant and

whether Task Force officers violated the knock-and-announce rule. Plaintiff-appellee, the

State of Ohio, called Lieutenant McLaughlin who generally testified to the same facts that

were previously testified about at the prior two suppression hearings. On August 27,

2018, the trial court denied this motion.

{¶18} Also on August 27, 2018, appellant reached a plea agreement with the

state. The state agreed to dismiss Counts Five and Six. In exchange, appellant pled no

contest to all remaining counts. The trial court accepted appellant’s no contest plea and

scheduled a sentencing hearing for October 12, 2018.

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{¶19} At the scheduled sentencing hearing, appellant moved that his convictions

for Counts Two, Three, and Four (possession of cocaine, heroin, and marijuana

respectively) be merged for sentencing purposes. The trial court overruled this motion

and sentenced appellant to an aggregate prison term of 31 years and ordered appellant

to forfeit $57,277.

{¶20} The trial court memorialized appellant’s sentence in a judgment entry

dated October 15, 2018. Appellant timely filed his notice of appeal on October 30, 2018.

Appellant now raises four assignments of error.

{¶21} Appellant’s first assignment of error states:

THE TASK FORCE OFFICER’S OMISSION OF HIS

CONFIDENTIAL INFORMANT’S CRIMINAL BEHAVIOR OF

TRANSPORTING LARGE QUANTITIES OF DRUGS FROM CHICAGO TO

LISBON, OHIO, ALONG WITH POSSESSION OF DRUG

PARAPHERNALIA AFTER A CONTROLLED BUY, WHILE EMPLOYED

AS INFORMANTS, FROM THE AFFIDAVIT FOR SEARCH WARRANT

WERE MATERIAL OMISSIONS RENDERING THE APPLICATION

INSUFFICIENT TO ESTABLISH PROBABLE CAUSE.

{¶22} Appellant argues that Deputy Grabman’s affidavit for the search warrant

of the house omitted five material facts: the informants transported a large amount of

drugs to the house; Task Force officers instructed the informants not to transport drugs

for appellant; the informants were in possession of marijuana paraphernalia after the

second controlled buy; the informants had an argument with Task Force officers after the

second controlled buy; and Deputy Grabman did not explain the informants’ reliability or

the veracity of their information.

{¶23} The proper standard of review to determine whether probable cause exists

for the issuance of a search warrant is the totality of the circumstances. See State v.

Jones, 143 Ohio St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 1. The Ohio Supreme

Court has also held:

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In reviewing the sufficiency of probable cause in an affidavit submitted in

support of a search warrant issued by a magistrate, neither a trial court nor

an appellate court should substitute its judgment for that of the magistrate

by conducting a de novo determination as to whether the affidavit contains

sufficient probable cause upon which that court would issue the search

warrant. Rather, the duty of a reviewing court is simply to ensure that the

magistrate had a substantial basis for concluding that probable cause

existed. In conducting any after-the-fact scrutiny of an affidavit submitted

in support of a search warrant, trial and appellate courts should accord great

deference to the magistrate's determination of probable cause, and doubtful

or marginal cases in this area should be resolved in favor of upholding the

warrant.

State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989) at paragraph two of the

syllabus citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 257 (1983).

{¶24} As for claims that an affidavit for a search warrant contains false

statements, the U.S. Supreme Court has held:

where the defendant makes a substantial preliminary showing that a false

statement knowingly and intentionally, or with reckless disregard for the

truth, was included by the affiant in the warrant affidavit, and if the allegedly

false statement is necessary to the finding of probable cause, the Fourth

Amendment requires that a hearing be held at the defendant's request. In

the event that at that hearing the allegation of perjury or reckless disregard

is established by the defendant by a preponderance of the evidence, and,

with the affidavit's false material set to one side, the affidavit's remaining

content is insufficient to establish probable cause, the search warrant must

be voided and the fruits of the search excluded to the same extent as if

probable cause was lacking on the face of the affidavit.

Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

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{¶25} Omissions are false statements under Franks if they are “designed to

mislead, or * * * made in reckless disregard of whether they would mislead, the

magistrate.” (Emphasis deleted.) State v. Waddy, 63 Ohio St.3d 424, 441, 588 N.E.2d

819 (1992) quoting U.S. v. Colkley, 899 F.2d 297 (4th Cir.1990). “Reckless disregard”

under Franks means that the affiant had serious doubts of an allegation's truth. Id. citing

U.S. v. Williams, 737 F.2d 594 (7th Cir.1984).

{¶26} Thus, there are two requirements in order to successfully challenge a

warrant as containing material omissions. First, it must be shown by a preponderance of

the evidence that the omissions were made with reckless disregard for the truth (the intent

requirement). Second, had the omitted information been in the affidavit for the warrant,

the omissions would have undermined the probable cause determination (the materiality

requirement).

{¶27} Based on the motions and transcripts, appellant’s Franks motion was his

second suppression motion. As such, this assignment of error will be limited to whether

the trial court erred when it denied the second motion to suppress.

{¶28} Deputy Grabman’s March 28, 2017 affidavit in support of a search warrant

for the house begins by describing the Task Force’s controlled buy process. In essence,

Task Force officers meet with informants, search the informants, send the informants to

a target in order to purchase drugs, and then meet with the informants after the purchase

where the informants relay all necessary information.

{¶29} As it pertains to the investigation of appellant, Deputy Grabman’s affidavit

states the details of both controlled buys. The affidavit also states that appellant arranged

for the informants to meet with Hispanic males in Chicago in order for the informants to

transport drugs. But the affidavit does not state that Task Force officers instructed the

informants to not transport drugs for appellant.

{¶30} The affidavit then avers that Task Force officers discovered appellant’s

arrest warrant, the details of Task Force officers’ entrance into the house, and that they

located appellant with numerous guns in his immediate area. It then details appellant’s

criminal history, which includes numerous felonies, occurring between 1996 and 2009.

{¶31} Appellant primarily argues that Deputy Grabman’s affidavit omits

indications of the informants’ reliability and those omissions are material. He argues that

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had the issuing judge been informed of the Task Force’s instruction to the informants not

to transport drugs, the informants transported drugs despite said instruction, the

informants’ argument with Task Force officers immediately after the second controlled

buy, and the informants were being paid 30% of all transactions they conducted, the

issuing judge would not have granted the search warrant.

{¶32} In support of this argument, appellant relies on the Fourth Circuit’s

decision in U.S. v. Lull, 824 F.3d 109 (4th Cir.2016). In Lull, a confidential informant

worked with the Wake County North Carolina Sheriff’s Office to perform a controlled buy.

Id. at 111. The informant had previously worked with police in investigations but not with

the Sheriff’s Office. Id. The informant told the Sheriff’s Office he could purchase drugs

from Lull. Id. The Sheriff’s Office arranged for the informant to purchase 3.5 grams of

cocaine from Lull for $180. Id. at 111-112.

{¶33} Shortly before the buy, investigators searched the informant and provided

him with $240 for the purchase. Id. at 112. The informant entered Lull’s house, exited

five minutes later, surrendered approximately four grams of cocaine and $40 to

investigators, and identified Lull as the seller. Id. Investigators questioned the informant

about the missing $20 and the informant claimed that he gave the $20 to Lull. Id.

{¶34} Investigators then strip searched the informant and “$20 dropped out of

his underpants.” Id. The investigators determined that the informant was unreliable,

terminated the informant’s employment, and arrested the informant for the felony of

obtaining property under false pretenses. Id.

{¶35} Investigator Welch then filed for a search warrant for Lull’s house. Id. at

112-113. Investigator Welch’s affidavit did not mention the informant’s theft, the felony

arrest, or the informant’s employment being terminated due to unreliability. Id. at 113.

The state court magistrate granted the warrant. Id. at 112-113. The search of Lull’s

house revealed drugs, firearms, body armor, and $3,600 in cash. Id. at 113.

{¶36} Lull moved to suppress evidence of the search on the basis that

Investigator Welch’s affidavit contained material omissions. Id. The district court denied

the motion holding that Investigator Welch’s omission did not rise to the level of reckless

disregard because the omitted acts occurred after the controlled buy and Investigator

Welch believed that it had no impact on the purchase of narcotics. Id. at 114-116.

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Case No. 18 CO 0033

{¶37} In a split decision, the Fourth Circuit reversed the district court’s judgment

on Lull’s suppression motion. With regard to the intent requirement, the Fourth Circuit

held that Investigator Welch at least recklessly disregarded the truth when he omitted the

information about the informant’s theft and subsequent arrest. Id. at 116-117. The Fourth

Circuit cited four factors as to why Investigator Welch acted with reckless disregard: (1)

the decisiveness with which the Sheriff's Office acted in discharging and arresting the

informant; (2) Investigator Welch's knowledge of the consequences of the informant's

crime; (3) the temporal proximity of the arrest to the decision to omit information from the

affidavit; and (4) the obvious impact of the informant's misconduct on any assessment of

his reliability. Id. at 116.

{¶38} With regard to the materiality requirement, the Fourth Circuit noted that

much of the information contained in Investigator Welch’s affidavit came from the

informant. Id. at 118. The Fourth Circuit held that the omissions rendered the magistrate

unable to make a determination on the informant’s reliability and the veracity of the

informant’s statements. Id. This conclusion was bolstered by the fact that the Sheriff’s

Office determined the informant was unreliable. Id. The Fourth Circuit then concluded

that, when the information provided by the informant was removed from Investigator

Welch’s affidavit, there was insufficient evidence to give rise to probable cause for the

search warrant. Id. at 118-119.

{¶39} Lull is distinguishable. The reason the informant in Lull was determined

unreliable by investigators was because the informant stole from the investigators and

was subsequently charged with a felony. In this case, there is no indication that Task

Force officers terminated the informants’ employment or charged the informants with any

crime for transporting marijuana. There is no indication that Task Force officers believed

the informants were unreliable. Deputy Grabman only testified that the informants

transporting marijuana was “concerning.” (Supp. II Tr. 47). Task Force officers in this

case also conducted the first controlled buy without issues. Overall, the omissions in this

case do not rise to the level in Lull. The omissions were not designed to mislead nor were

they made in reckless disregard of whether they would mislead the issuing judge.

Therefore, the intent requirement is not met.

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Case No. 18 CO 0033

{¶40} Moreover, the materiality requirement is not met. The reason the

materiality requirement was met in Lull was because the informant stole from the

investigators. No such act happened in this case. Additionally, there was sufficient

evidence in Deputy Grabman’s affidavit to establish probable cause for the search

warrant, including: the results of the first controlled buy, the results of the second

controlled buy, and Task Force officers executing the arrest warrant and finding appellant

in the house with numerous guns in his immediate vicinity. Finding that neither of the

Franks requirements were met, the trial court’s judgment denying appellant’s second

motion to suppress was proper.

{¶41} Accordingly, appellant’s first assignment of error is without merit and is

overruled.

{¶42} Appellant’s second assignment of error states:

THE TASK FORCE OFFICERS REMAINING IN THE RESIDENCE

AFTER THE ARREST AND REMOVAL OF THE DEFENDANT IN ORDER

TO PRESERVE ANY POSSIBLE EVIDENCE OF OTHER CRIMES WAS

IN DIRECT VIOLATION OF DEFENDANT’S RIGHT TO BE FREE FROM

UNWARRANTED SEARCHES AND SEIZURES AS GUARANTEED BY

THE U.S. CONST. AMEND. IV AND OHIO CONST. ART. I § 14.

{¶43} Appellant argues that Task Force officers only applied for a search warrant

of his home after they entered the house, arrested him, and secured the house. He

argues that because the search warrant was applied for after the house was secured, his

right against unreasonable searches and seizures was violated.

{¶44} This assignment of error challenges the trial court’s judgment denying his

first and third motions to suppress. As such, this assignment of error will be limited to the

trial court’s judgment on these two motions.

{¶45} Our standard of review with respect to a motion to suppress is first limited

to determining whether the trial court's findings are supported by competent, credible

evidence. State v. Winand, 116 Ohio App.3d 286, 288, 688 N.E.2d 9 (7th Dist.1996),

citing Tallmadge v. McCoy, 96 Ohio App.3d 604, 608, 645 N.E.2d 802 (9th Dist.1994).

Such a standard of review is appropriate as, “[i]n a hearing on a motion to suppress

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Case No. 18 CO 0033

evidence, the trial court assumes the role of trier of fact and is in the best position to

resolve questions of fact and evaluate the credibility of witnesses.” State v. Venham, 96

Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). An appellate court accepts the

trial court's factual findings and relies upon the trial court's ability to assess the witness's

credibility, but independently determines, without deference to the trial court, whether the

trial court applied the appropriate legal standard. State v. Rice, 129 Ohio App.3d 91, 94,

717 N.E.2d 351 (7th Dist.1998). A trial court's decision on a motion to suppress will not

be disturbed when it is supported by substantial credible evidence. Id.

{¶46} Appellant does not dispute the relevant facts in this case, which have been

previously set forth. Because appellant does not dispute the relevant facts and they are

supported by competent and credible evidence from the record, we accept them as true.

{¶47} The issue appellant raises is that six or seven officers remained in the

house after he was arrested and during Deputy Grabman’s application for the warrant.

He argues that because Task Force officers were still in the house while Deputy Grabman

filed for the search warrant, the warrant constituted a retroactive search warrant.

{¶48} Appellant predominantly relies on, and compares this case to, U.S. v.

Allard, 634 F.2d 1182 (9th Cir.1980). In Allard, federal agents illegally entered two hotel

rooms. Id. at 1182. Once the agents were in the rooms and detained the occupants, they

contacted the U.S. Attorney’s Office in order to obtain a search warrant for the rooms. Id.

at 1184. The U.S. Attorney’s application for the warrant did not disclose that agents were

currently in the hotel rooms or disclose any evidence agents observed while in the hotel

rooms. Id. After approximately two hours, a search warrant was issued and agents

searched the rooms. Id. Allard filed a motion to suppress evidence obtained from the

searches, but the district court denied the motion holding that the search warrant was not

obtained as a result of anything agents witnessed upon entering the hotel rooms and any

taint to the evidence obtained was de minimis. Id.

{¶49} The Ninth Circuit reversed holding that the agents’ continued presence in

the hotel rooms for purposes of securing the rooms constituted an unreasonable

warrantless seizure under the Fourth Amendment. Id. at 1187.

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Case No. 18 CO 0033

{¶50} Allard is distinguishable. In Allard, federal agents illegally entered the

hotel rooms. In this case, Task Force officers legally entered the house to execute a

validly issued arrest warrant for appellant.

{¶51} The state cites the U.S. Supreme Court’s ruling in Segura v. U.S., 468

U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). Segura held there is no Fourth

Amendment violation when officers enter a premises with probable cause, arrest the

occupants with a legitimate possessory interest in the premises and its contents, and

secure the premises from within to preserve the status quo while others, in good faith, are

in the process of obtaining a warrant. Id. at 798.

{¶52} Appellant argues that Segura is factually distinguishable because in

Segura, after law enforcement arrested all suspects, no one with a possessory interest in

the home was present while law enforcement sought a search warrant. He argues that,

in this case, two people with a possessory interest in the house were secured in the house

by Task Force officers while Deputy Grabman applied for the search warrant.

{¶53} This is insufficient to distinguish Segura. Appellant resided in the house

and, therefore, he had a possessory interest in the house. The fact that other people also

had a possessory interest in the house does not negate appellant’s possessory interest

in the house and the probable cause Task Force officers had to secure a search warrant

based on their investigation into appellant. Task Force officers legally entered the house

to execute appellant’s arrest warrant. Task Force officers arrested appellant, escorted

him out of the house, and secured the house to preserve the status quo while Deputy

Grabman applied for a search warrant. Based on the above, the trial court’s denial of

appellant’s first and third suppression motions was proper.

{¶54} Accordingly, appellant’s second assignment of error is without merit and

is overruled.

{¶55} Appellant’s third assignment of error states:

THE TRIAL COURT’S FAILURE TO MERGE THE CONVICTIONS

ON COUNTS II, III AND IV FOR THE PURPOSES OF SENTENCING

PURSUANT TO R.C. §2941.25, OHIO’S ALLIED OFFENSES STATUTE

WAS ERROR.

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Case No. 18 CO 0033

{¶56} Appellant argues that the trial court sentenced him to consecutive prison

sentences for allied offenses of similar import in two ways. First, he argues his three drug

possession convictions are allied offenses of similar import. Second, he argues his

possession of heroin and trafficking of heroin convictions are allied offenses of similar

import.

{¶57} Pursuant to the allied offenses of similar import statute, “[w]here 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.” R.C. 2941.25(A). But if the conduct constitutes

two or more offenses that are of dissimilar import, the conduct results in two or more

offenses committed separately, or if there is separate animus as to each offense, the

indictment may contain counts for all such offenses and the defendant may be convicted

of all of them. R.C. 2941.25(B).

{¶58} Offenses are of dissimilar import pursuant to R.C. 2941.25(B) if “the

defendant's conduct constitutes offenses involving separate victims or if the harm that

results from each offense is separate and identifiable.” State v. Ruff, 143 Ohio St.3d 114,

2015-Ohio-995, 34 N.E.3d 892, ¶ 26. The allied offenses analysis is dependent upon the

facts of each case because R.C. 2941.25 focuses on the defendant’s conduct. Id.

{¶59} Beginning with appellant’s three drug possession convictions, he argues

that under Ruff, these convictions are allied offenses of similar import because: they all

involved possessing drugs which requires the same intent, the victim in all of the

convictions was society in general, the harm for each individual drug is arguably

equivocal, and the offenses were committed at the same time.

{¶60} In response, the state cites this court’s decision in State v. Hunt, 7th Dist.

Jefferson No. 17 JE 0012, 2018-Ohio-815. In Hunt, this court held that because the

legislature classified and penalized possession of cocaine and possession of heroin

differently, it would “defeat the legislature's intent to merge the drug possession offenses

into a single offense for purposes of sentencing.” Id. at ¶ 17 quoting State v. Hughes, 5th

Dist. Coshocton No. 15CA0008, 2016-Ohio-880.

{¶61} Other courts have held similarly to our decision in Hunt. State v. Johnson,

6th Dist. Ottawa No. OT-13-022, 2014-Ohio-1558; State v. Williams, 4th Dist. Scioto No.

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Case No. 18 CO 0033

11CA3408, 2012-Ohio-4693; State v. Helmick, 9th Dist. Summit No. 27179, 2014-Ohio4187. Based on authority from this court and other appellate districts, appellant’s drug

possession convictions are based on separate drugs and are, therefore, of dissimilar

import.

{¶62} As for appellant’s argument that his convictions for possession of heroin

and trafficking of heroin should have merged, the Ohio Supreme Court has previously

held that drug possession pursuant to R.C. 2925.11(A) and drug trafficking pursuant to

R.C. 2925.03(A)(1) are not allied offenses of similar import. State v. Cabrales, 118 Ohio

St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 29. Therefore, these convictions are also

of dissimilar import. Based on the above, the trial court did not sentence appellant to

consecutive sentences for allied offenses of similar import.

{¶63} Accordingly, appellant’s third assignment of error is without merit and is

overruled.

{¶64} Appellant’s fourth assignment of error states:

THE COURT ERRED BY IMPOSING CONSECUTIVE PRISON

SENTENCES TOTALING THIRTY-ONE (31) YEARS CONTRARY TO

LAW AND THE CONSTITUTIONAL PROHIBITIONS AGAINST CRUEL

AND UNUSUAL PUNISHMENT.

{¶65} Appellant argues that the imposition a 31-year sentence when he was 40

years old at the time of sentencing is tantamount to a life sentence and is, therefore, a

violation of his right to be free from cruel and unusual punishment.

{¶66} The Eighth Amendment to the Constitution of the United States and

Section 9, Article I of the Ohio Constitution provides that “[e]xcessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In

State v. Weitbrecht, 86 Ohio St.3d 368, 715 N.E.2d 167 (1999), the Ohio Supreme Court

observed:

Historically, the Eighth Amendment has been invoked in extremely rare

cases, where it has been necessary to protect individuals from inhumane

punishment such as torture or other barbarous acts. Over the years, it has

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Case No. 18 CO 0033

also been used to prohibit punishments that were found to be

disproportionate to the crimes committed. In McDougle v. Maxwell, 1 Ohio

St.2d 68, 30 O.O.2d 38, 203 N.E.2d 334 (1964), this court stressed that

Eighth Amendment violations are rare. We stated that “[c]ases in which

cruel and unusual punishments have been found are limited to those

involving sanctions which under the circumstances would be considered

shocking to any reasonable person.” Furthermore, “the penalty must be so

greatly disproportionate to the offense as to shock the sense of justice of the

community.”

Id. at 370-371 (internal citations omitted).

{¶67} In order to determine whether the sentence imposed is disproportionate to

the offense committed, a tripartite analysis is employed. “First, we look to the gravity of

the offense and the harshness of the penalty * * *. Second, it may be helpful to compare

the sentences imposed on other criminals in the same jurisdiction. If more serious crimes

are subject to the same penalty, or to less serious penalties, that is some indication that

the punishment at issue may be excessive. * * * Third, courts may find it useful to compare

the sentences imposed for commission of the same crime in other jurisdictions.” Id.

quoting Solem v. Helm, 463 U.S. 277, 290-291, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

{¶68} Appellant concedes that he was convicted of serious crimes deserving of a

proportionate sentence. But he argues that his 31-year sentence, the maximum sentence

he could have received, should shock the conscience of the community.

{¶69} Appellant does not cite any case law to support his argument that his

sentence is so disproportionate to be shocking to a reasonable person or shocks the

sense of justice to the community. Appellant also does not cite any case law from this

district or other jurisdictions which indicate that his sentence is excessive. Appellant pled

no contest to serious crimes including possessing large quantities of various drugs and

trafficking those same drugs. In addition to the large quantities of various drugs, appellant

is a felon who was in possession of firearms. Because of the severity of the crimes

appellant was convicted of, it cannot be said that his sentence is disproportionate to his

offenses.

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Case No. 18 CO 0033

{¶70} As for appellant’s sentence itself, the applicable third-degree felony

sentencing statute for appellant’s convictions is R.C. 2929.14(A)(3)(b). Pursuant to this

statute, third-degree felonies are punishable by up to 36 months. The applicable firstdegree felony sentencing statute for appellant’s convictions is R.C. 2929.14(A)(1)(b).

Pursuant to this statute, first-degree felonies are punishable by up to 11 years. Thus,

appellant’s sentence on each individual count falls within statutory mandates.

{¶71} As for consecutive sentences, R.C. 2929.14(C)(4) requires a trial court to

make specific findings when imposing consecutive sentences:

(4) 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.

{¶72} It has been held that although the trial court is not required to recite the

statute verbatim or utter “magic” or “talismanic” words, there must be an indication that

the court found (1) that consecutive sentences are necessary to protect the public from

future crime or to punish the offender, (2) that consecutive sentences are not

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Case No. 18 CO 0033

disproportionate to the seriousness of the offender's conduct and to the danger posed to

the public, and (3) one of the findings described in R.C. 2929.14(C)(4)(a), (b), or (c). State

v. Bellard, 7th Dist. Mahoning No. 12-MA-97, 2013-Ohio-2956, ¶ 17. However, the court

need not give its reasons for making those findings. State v. Power, 7th Dist. Columbiana

No. 12 CO 14, 2013-Ohio-4254, ¶ 38.

{¶73} The Ohio Supreme Court has held that the trial court must make its findings

at the sentencing hearing and not simply in the sentencing judgment entry:

In order to impose consecutive terms of imprisonment, a trial court is required to

make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate its findings into its sentencing entry, but it has no obligation to state

reasons to support its findings.

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. The

court stressed the importance of making the findings at the sentencing hearing, noting

this gives notice to the offender and to defense counsel. Id. at ¶ 29. The trial court should

also incorporate its statutory findings into the sentencing entry. Id. at ¶ 30.

{¶74} The transcript of the sentencing hearing must make it “clear from the record

that the trial court engaged in the appropriate analysis.” State v. Hill, 7th Dist. Carroll No.

13 CA 82, 2014-Ohio-1965, ¶ 27.

{¶75} At sentencing, the trial court found that “consecutive sentences are

necessary to protect the public from future crime, to punish the offender, that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and to

the danger he poses to the public.” (Sent. Tr. 62). The trial court also found that at least

two of appellant’s offenses were committed as part of one or more courses of conduct

and the harm was so great or unusual that no single prison term adequately reflected the

seriousness of appellant’s conduct. These findings are also reflected in the trial court’s

October 15, 2018 judgment entry. Thus, the trial court made the appropriate consecutive

sentence findings.

{¶76} In conclusion, appellant’s sentence is not cruel or usual and his sentence

complies with all other statutory requirements.

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Case No. 18 CO 0033

{¶77} Accordingly, appellant’s fourth assignment of error is without merit and is

overruled.

For the reasons stated above, the trial court’s judgment is hereby affirmed.