State v. Harshman , 2012 Ohio 3901 ( 2012 )

[Cite as State v. Harshman, 2012-Ohio-3901.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-12-02
v.
DONALD L. HARSHMAN, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-12-03
v.
DONALD L. HARSHMAN, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-12-04
v.
DONALD L. HARSHMAN, OPINION
DEFENDANT-APPELLANT.
Case Nos. 13-12-02, 13-12-03, 13-12-04
Appeals from Seneca County Common Pleas Court
Trial Court Nos. 11CR0023, 11CR0075, and 11CR0076
Appeal Dismissed in Case No. 13-12-02
Judgments Affirmed in Case Nos. 13-12-03, 13-12-04
Date of Decision: August 27, 2012
APPEARANCES:
Mary F. Snyder for Appellant
Derek W. DeVine and Rhonda L. Best for Appellee
PRESTON, J.
{¶1} Defendant-appellant, Donald L. Harshman, appeals the Seneca County
Court of Common Pleas’ judgment entries of sentence. For the reasons stated
herein, we dismiss appellate case no. 13-12-02 (trial court case no. 11CR0023)
and affirm the trial court’s judgments in appellate case nos. 13-12-03 (trial court
case no. 11CR0075) and 13-12-04 (trial court case no. 11CR0076).
{¶2} On March 16, 2011, the Seneca County Grand Jury indicted
Harshman on one count of receiving stolen property in violation of R.C.
2913.51(A), (C), a fourth degree felony, which was assigned trial court case no.
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Case Nos. 13-12-02, 13-12-03, 13-12-04
11CR0023. (Doc. No. 3). The bill of particulars alleged that, on or about February
4, 2011 at 107 Clinton Ave. and 44 ½ W. Market St., in the City of Tiffin, Seneca
County, Ohio, Harshman did recklessly receive, retain, or dispose of property of
another knowing it was obtained through a theft offense. (Doc. No. 10).
Discovery in the case indicates that the stolen property consisted of computers and
computer-related electronics and computer components owned by Diverse
Technology Solutions of Tiffin, Ohio. (Doc. No. 20).
{¶3} On April 14, 2011, the Seneca County Grand Jury indicted Harshman
on two counts of illegal manufacture of drugs in violation of R.C. 2925.04(A),
(C)(3)(b), first degree felonies, in two separate indictments assigned trial court
cases nos. 11CR0075 and 11CR0076. In case no. 11CR0075, the bill of
particulars alleged that, on or about February 4, 2011 at 107 Clinton Ave., in the
City of Tiffin, Seneca County, Ohio, Harshman did knowingly manufacture or
otherwise engage in the production of methamphetamine, a controlled substance,
within the vicinity of a school. (Doc. No. 10). In case no. 11CR0076, the bill of
particulars alleged that, on or about March 23, 2011 at 115 Coe St. in the City of
Tiffin, Seneca County, Ohio, Harshman did knowingly manufacture or otherwise
engage in the production of a controlled substance, namely methamphetamine,
within the vicinity of a school. (Doc. No. 10).
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Case Nos. 13-12-02, 13-12-03, 13-12-04
{¶4} On December 5, 2011, pursuant to a written plea agreement,
Harshman entered a plea of guilty to one count of receiving stolen property, a
fourth degree felony, in case no. 11CR0023; a plea of guilty to the lesser-included
offense of illegal manufacture of drugs in violation of R.C. 2925.04(A),(C)(3)(a),
a second degree felony, in case no. 11CR0075; and, a plea of guilty to one count
of illegal manufacture of drugs, a first degree felony, in case no. 11CR0076.
(Doc. Nos. 44, 56, 55). Pursuant to the plea agreement, the parties jointly-
recommended a sentence of 15 months in case no. 11CR0023, a mandatory three-
year sentence in case no. 11CR0075, and a mandatory four-year sentence in case
no. 11CR0076. (Case No. 11CR0023, Doc. No. 43). The trial court sentenced
Harshman to the jointly-recommended sentences. (Doc. Nos. 45, 59, 57).
{¶5} On January 4, 2012, Harshman filed notices of appeal in each case.
(Doc. Nos. 50, 64, 63). Trial court case no. 11CR0023 was assigned appellate
case no. 13-12-02; trial court case no. 11CR0075 was assigned appellate case no.
13-12-03; and, trial court case no. 11CR0076 was assigned appellate case no. 13-
12-04. This Court consolidated the appeals for purposes of review.
{¶6} Harshman now appeals raising two assignments of error. Both
assignments of error relate to Harshman’s sentences in trial court case nos.
11CR0075 and 11CR0076 (appellate case nos. 13-12-03 and 13-12-04,
respectively). Since Harshman has raised no assignments of error related to his
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Case Nos. 13-12-02, 13-12-03, 13-12-04
conviction and sentence in trial court case no. 11CR0023 (appellate case no. 13-
12-02) as required under App.R. 16(A)(3), we dismiss the appeal for want of
prosecution. State v. Matthieu, 3d Dist. Nos. 10-02-04, 10-02-05, 2003-Ohio-
3430, ¶ 10. We now turn to Harshman’s assignments of error in the two
remaining appellate cases.
Assignment of Error No. I
The trial court erred by imposing separate convictions and
prison sentences for Illegal Manufacture of Drugs, ORC
2925.04(A), (C)(3)(a), a Felony of the Second Degree; and Illegal
Manufacture of Drugs, ORC 2925.04(A), (C)(3)(b), a Felony of
the First Degree.
{¶7} In his first assignment of error, Harshman argues that the trial court
committed plain error by sentencing him on both illegal manufacture of drug
convictions since they were allied offenses. We disagree.
{¶8} “Where the defendant’s conduct * * * results in two or more offenses
of the same or similar kind committed separately * * * the indictment * * * may
contain counts for all such offenses, and the defendant may be convicted of all of
them.” R.C. 2941.25(B). As the Ohio Supreme Court recently observed, “if the
offenses are committed separately * * * then, according to R.C. 2941.25(B), the
offenses will not merge.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314,
¶ 51.
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Case Nos. 13-12-02, 13-12-03, 13-12-04
{¶9} The record indicates that Harshman committed two separate acts of
illegally manufacturing drugs at two separate places—on or about February 4,
2011 at 107 Clinton Avenue and on or about March 23, 2011 at 115 Coe Street.
(Bill of Particulars, Doc. Nos. 10, 10). Consequently, these two offenses are not
allied offenses of similar import under R.C. 2941.25(B), and the trial court did not
commit plain error by sentencing Harshman on both offenses. Johnson, 2010-
Ohio-6314, at ¶ 51.
{¶10} Harshman’s first assignment of error is, therefore, overruled.
Assignment of Error No. II
The Appllant’s [sic] trial counsel was ineffective in failing to
raise any allied offense objection, thereby prejudicing the
Appellant.
{¶11} In his second assignment of error, Harshman argues that his trial
counsel was ineffective for failing to raise the issue of allied offenses at
sentencing. We disagree.
{¶12} A defendant asserting a claim of ineffective assistance of counsel
must establish: (1) the counsel’s performance was deficient or unreasonable under
the circumstances; and (2) the deficient performance prejudiced the defendant.
State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052 (1984).
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Case Nos. 13-12-02, 13-12-03, 13-12-04
{¶13} As we have already stated, Harshman’s offenses are not allied under
R.C. 2941.25(B) and Johnson, 2010-Ohio-6314. Therefore, trial counsel was not
ineffective by failing to raise an allied offense argument at sentencing.
{¶14} Harshman’s second assignment of error is, therefore, overruled.
{¶15} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgments of the trial court in case
nos. 11CR0075 and 11CR0076 (appellate case nos. 13-12-03 and 13-12-04,
respectively). Having failed to raise any assignments of error related to trial court
case no. 11CR0023 (appellate case no. 13-12-02), we dismiss the appeal for want
of prosecution.
Appeal Dismissed in
Case No. 13-12-02
Judgments Affirmed in Case
Nos. 13-12-03 and 13-12-04
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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