State v. Laird , 2017 Ohio 7890 ( 2017 )

[Cite as State v. Laird, 2017-Ohio-7890.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105594
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEMETRIUS L. LAIRD
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-605875-A
BEFORE: E.T. Gallagher, J., Keough, A.J., and Stewart, J.
RELEASED AND JOURNALIZED: September 28, 2017
FOR APPELLANT
Demetrius L. Laird, pro se
Lake Erie Correctional Institution
501 Thompson Road
Conneaut, Ohio 44030
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Marc Bullard
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} This cause came to be heard on the accelerated calendar pursuant to App.R.
11.1 and Loc.R. 11.1. Defendant-appellant, Demetrius L. Laird (“Laird”), appeals, pro se,
from his sentence. He raises the following assignment of error for our review:
1. Appellant suffers infirm to his inalienable protections against double
jeopardy and cruel and unusual punishment pursuant to cumulative sentences
for allied offenses of similar import.
{¶2} After careful review of the record and relevant case law, we affirm Laird’s
sentence.
I. Procedural and Factual History
{¶3} In April 2016, Cleveland Police officers executed search warrants at two
separate residences that were connected to their investigation into Laird’s drug trafficking
activities.
{¶4} In May 2016, Laird was named in a ten-count indictment, charging him with
drug trafficking in violation of R.C. 2925.03(A)(2), for cocaine in an amount exceeding
100 grams, with a one-year firearm specification, a major drug offender specification, and
forfeiture specifications (Count 1); drug possession in violation of R.C. 2925.11(A), for
cocaine in an amount exceeding 100 grams, with a one-year firearm specification, a major
drug offender specification, and forfeiture specifications (Count 2); illegal manufacture or
cultivation of drugs in violation of R.C. 2925.04(A), with a one-year firearm specification
and forfeiture specifications (Count 3); possession of criminal tools in violation of R.C.
2923.24(A), with forfeiture specifications (Count 4); having weapons while under
disability, with forfeiture specifications (Count 5); drug trafficking in violation of R.C.
2925.03(A)(2), for N-Ethylpentylone in an amount less than the bulk amount, with a
one-year firearm specification, a schoolyard specification, and forfeiture specifications
(Count 6); drug possession in violation of R.C. 2925.03(A)(2), for N-Ethylpentylone in an
amount less than the bulk amount, with a one-year firearm specification and forfeiture
specifications (Count 7); possession of criminal tools in violation of R.C. 2923.24(A), with
forfeiture specifications (Count 8); having weapons while under disability, with forfeiture
specifications (Count 9); and endangering children in violation of R.C. 2919.22(A) (Count
10).
{¶5} The matter proceeded to a jury trial in November 2016. At the conclusion of
trial, Laird was found guilty of drug possession, with firearm and forfeiture specifications,
and having weapons while under disability as charged in Counts 7 and 9 of the indictment.
He was found not guilty of drug trafficking as charged in Count 6. There was a mistrial
on Counts 1, 2, 3, 4, 5, and 8. In an effort to avoid a retrial on the pending counts, Laird
pleaded guilty to an amended Count 1, drug trafficking, with firearm and forfeiture
specifications, and possession of criminal tools, with forfeiture specifications, as charged
in Count 8. Counts 2, 3, 4, 5, and 10 were nolled.
{¶6} At sentencing, the trial court imposed an agreed-upon sentence of five years in
prison. The trial court sentenced Laird to one year in prison for the firearm specification
attached to Count 1, and ordered it to be served prior to and consecutive to three years in
prison on the base charge of drug trafficking. The trial court also sentenced Laird to one
year in prison for the firearm specification attached to Count 7, and ordered it to be served
prior to and consecutive to 12 months in prison on the base charge of drug possession. In
addition, Laird was sentenced to 12 months in prison for possessing criminal tools, and 36
months in prison for having weapons while under disability. The trial court ordered the
sentences imposed on the underlying charges to run concurrently to each other, but ordered
the firearm specifications attached to Counts 1 and 7 to run consecutive to each other, for
an aggregate five-year prison term.
{¶7} Laird now appeals from his sentence.
II. Law and Analysis
{¶8} In his sole assignment of error, Laird argues the trial court erred by failing to
merge the drug trafficking, drug possession, possession of criminal tools, and having
weapons while under disability offenses for the purposes of sentencing because “they are
allied offenses of similar import.”
{¶9} Laird does not dispute the fact that he failed to raise the issue of allied
offenses before the trial court. He has, therefore, forfeited the right to raise the issue now
on appeal except for plain error. State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459,
38 N.E.3d 860, ¶ 21-22. To demonstrate plain error, it is Laird’s “burden to demonstrate
a reasonable probability that [his] convictions are for allied offenses of similar import
committed with the same conduct and without separate animus[.]” Rogers at ¶ 3.
{¶10} R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution and Article I, Section 10 of the Ohio
Constitution, prohibiting multiple punishments for the same offense. R.C. 2941.25
states:
(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.
(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.
{¶11} “In determining whether offenses are allied offenses of similar import within
the meaning of R.C. 2941.25, courts must evaluate three separate factors — the conduct,
the animus, and the import.” State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34
N.E.3d 892, paragraph one of the syllabus. If any of the following are true, a defendant’s
convictions do not merge and he or she may be sentenced for multiple offenses: “(1) the
offenses are dissimilar in import or significance—in other words, each offense caused
separate, identifiable harm, (2) the offenses were committed separately, or (3) the offenses
were committed with separate animus or motivation.” Id. at ¶ 25.
{¶12} “At its heart, the allied-offense analysis is dependent upon the facts of a case
because R.C. 2941.25 focuses on the defendant’s conduct.” Id. at ¶ 26. Therefore, the
analysis “may result in varying results for the same set of offenses in different cases.”
State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 52, abrogated
in part, Ruff at ¶ 30-33.
{¶13} Evidence presented at trial, during a plea hearing, or sentencing hearing will
reveal whether the offenses have similar import. Ruff, 143 Ohio St. 3d 114,
2015-Ohio-995, 34 N.E.3d 892, at ¶ 26. When there are multiple victims, a defendant
can be convicted of multiple counts. Id. Also, if a defendant’s conduct constitutes two
or more offenses against a single victim and the harm that results from each offense is
separate and identifiable from the harm of the other offense, a defendant can be convicted
of multiple offenses. Id.
{¶14} In this case, Laird’s indictment reflects that Counts 1-5 stemmed from the
search of a residence, where cocaine, cell phones, vehicles, money, and firearms were
found. Counts 6-10 stemmed from the search of a separate residence, where
N-Ethylpentylone, cell phones, money, a vehicle, and additional firearms were found.
Accordingly, Laird’s drug trafficking conviction (Count 1) relates to the discovery of the
cocaine in the first residence, whereas his convictions for drug possession (Count 7),
possession of criminal tools (Count 8), and having weapons while under disability (Count
9) relates to the discovery of N-Ethylpentylone and other evidence seized from the second
residence.
{¶15} On appeal, Laird argues that each of his convictions should have merged for
the purposes of sentencing because:
(1) “all evidence was discovered simultaneously, (2) “the criminal tools were
alleged to have facilitated all drug trafficking/possession activities,” and (3)
“the having weapons while under disability offense involved the same
weapon used to support the one-year firearm specification attached to the
drug possession [offense] and the forfeiture specifications attached to the
possession of criminal tools and drug possession [offenses].”
{¶16} After careful consideration, we find no merit to Laird’s position. Critically,
Laird has failed to provide this court with a transcript of the proceedings from his jury
trial, plea hearing, or sentencing hearing. In determining whether offenses are allied
offenses subject to merger, courts “are bound to consider more than the indictment.”
State v. Snyder, 9th Dist. Summit No. 28109, 2016-Ohio-7881, ¶ 10, citing Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 26. See also State v. Washington, 137 Ohio
St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, syllabus (“When deciding whether to merge
multiple offenses at sentencing pursuant to R.C. 2941.25, a court must review the entire
record, including arguments and information presented at the sentencing hearing, to
determine whether the offenses were committed separately or with a separate animus.”).
Without a transcript, “this record is inadequate to permit a review of the claimed error
because we are unable to review [Laird’s] conduct to determine whether [his] offenses”
are allied offenses of similar import. State v. Hairston, 8th Dist. Cuyahoga No. 94112,
2010-Ohio-4014, ¶ 8, citing State v. Barber, 2d Dist. Montgomery No. 22929,
2010-Ohio-831, ¶ 29. Accordingly, “we must presume the regularity and validity of the
trial court’s proceedings and affirm its judgment.” Id. See also State v. Lemasters, 8th
Dist. Cuyahoga No. 97611, 2012-Ohio-3080, ¶ 11; State v. Reese, 1st Dist. Hamilton Nos.
C-150711 and C-150712, 2016 Ohio App. LEXIS 3346, *1-2 (Aug. 19, 2016); State v.
Brooks, 9th Dist. Lorain No. 16CA010958, 2017-Ohio-5620, ¶ 6; App.R. 9(B).
{¶17} Based on the foregoing, we are compelled to find that Laird has failed to
demonstrate, based on facts in the record, that his convictions are for allied offenses of
similar import. The trial court, therefore, did not commit plain error.
{¶18} Laird’s sole assignment of error is overruled.
{¶19} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
MELODY J. STEWART, J., CONCUR