[Cite as State v. Sydnor,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

State of Ohio, : : Plaintiff-Appellee, : : Case No. 10CA3359 v. : : DECISION AND Mario A. Sydnor, : JUDGMENT ENTRY : Defendant-Appellant. : File-stamped date: 7-29-11 ________________________________________________________________

APPEARANCES:

Bryan Scott Hicks, Lebanon, Ohio, for Appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee. ________________________________________________________________

Kline, J.:

{¶1} Mario A. Sydnor appeals his four felony convictions, which originated from a

drug raid. On appeal, Sydnor contends that the trial court erred in denying his motion to

dismiss on speedy-trial grounds. Because the state brought Sydnor to trial within the

statutory time frame required by R.C. 2745.71(C)(2), we disagree. Sydnor also

contends that the trial court erred when it sentenced him for both trafficking in and

possession of crack cocaine. Because Sydnor’s trafficking and possession offenses are

allied offenses of similar import under R.C. 2941.25(A), and because the same offenses

were not committed separately or with a separate animus as to each under R.C.

2941.25(B), we agree. Accordingly, we affirm, in part, and reverse, in part, the

judgment of the trial court. We remand this cause to the trial court for further

proceedings consistent with this opinion. Scioto App. No. 10CA3359 2

I.

{¶2} On October 19, 2006, Kevin Lodwick informed the Portsmouth Police

Department that two individuals were selling drugs from his house. The police obtained

a warrant and conducted a raid on Lodwick’s home. The police discovered thirty-six

plastic baggies containing 33.67 grams of crack cocaine in the living room. In separate

rooms, the police found and arrested Sydnor and Stephan Banks. Sydnor had 2.8

grams of crack cocaine on his person, and the police found 13.48 grams of crack

cocaine in a toy box in the room where they arrested Banks.

{¶3} A Scioto County Grand Jury indicted Sydnor on October 23, 2006, which

resulted in Case No. 06CR001458 (hereinafter “Case I”). And the police arrested him

on October 24, 2006. The indictment contained six felony counts - two counts for

possession of crack cocaine (a first-degree felony count and a fourth-degree felony

count) and two counts for trafficking in crack cocaine (a first-degree felony count and a

fourth-degree felony count). The indictment also contained a weapon under a disability

charge and a possession of criminal tools charge. Sydnor posted bond on October 27.

The trial court scheduled a pre-trial hearing for December 13, 2006, but Sydnor failed to

appear.

{¶4} On December 21, 2006, a Scioto County Grand Jury returned another

indictment against Sydnor, which resulted in Case No. 06CR001692 (hereinafter “Case

II”). The indictment for Case II related to events that occurred on or about December 5,

2006. The indictment contained a fifth-degree felony possession of drugs charge, a

fifth-degree felony trafficking charge, a possession of criminal tools charge and an

escape charge. Scioto App. No. 10CA3359 3

{¶5} The Scioto County Sheriff eventually re-arrested Sydnor on the outstanding

bench warrant on September 15, 2009. At this point, the trial court conducted pre-trial

hearings together for Case I and Case II. Sydnor remained in jail from September 15,

until November 3, 2009, when he raised bond. Sydnor remained out of jail on bond

from November 4 until November 12. On November 12, Sydnor’s bondsman arrested

him, and the trial court granted the bondsman’s motion for release from the bond. On

January 11, 2010, Sydnor moved to continue his trial, and the trial court granted the

motion. Sydnor’s trial began on April 26, 2010.

{¶6} Prior to Sydnor’s trial for Case I, Sydnor moved to dismiss the case on

speedy-trial grounds. The trial court denied Sydnor’s motion because Sydnor had two

cases pending against him.

{¶7} Additionally, the state moved to amend the indictment in Case I prior to trial.

Consequently, the trial court amended the indictment in Case I to merge the possession

counts and trafficking counts. As a result, only four counts of the original six counts in

Case I remained – (1) first-degree felony possession of crack cocaine, (2) first-degree

felony trafficking in crack cocaine, (3) having a weapon under a disability, and (4)

possession of criminal tools.

{¶8} A jury heard Case I and found Sydnor guilty of all four counts. The trial court

sentenced Sydnor to nine years for possession of crack cocaine, nine years for

trafficking in crack cocaine, four years for the weapon under a disability, and four years

for the possession of criminal tools. The trial court found that Sydnor committed the

possession of crack cocaine and the trafficking in crack cocaine with a separate animus.

The trial court also ran the possession, trafficking, and criminal tools sentences Scioto App. No. 10CA3359 4

concurrently, and the weapon under a disability sentence consecutive to the other

sentences. Thus, the court sentenced Sydnor to an aggregate prison term of thirteen

years. In September 2010, the court dismissed Case II.

{¶9} Sydnor appeals the judgment in Case I and asserts the following assignments

of error: I. “THE TRIAL COURT ERRED BY BRINGING MR. SYDNOR TO TRIAL

AFTER THE 270 DAY DEADLINE FOR A SPEEDY TRIAL PURSUANT TO R.C.

2945.71 HAD PASSED.” And, II. “MR. SYDNOR WAS IMPROPERLY SENTENCED

ON BOTH THE POSSESSION AND THE TRAFFICKING OFFENSE WHEN HE

SHOULD HAVE ONLY BEEN SENTENCED ON THE STATE’S CHOICE OF ONE OF

THE CHARGES.”

II.

{¶10} In his first assignment of error, Sydnor contends that the trial court should

have dismissed this case because the state brought him to trial after Sydnor’s speedy-

trial deadline had expired.

{¶11} Our review of a trial court’s decision of a motion to dismiss alleging a speedy-

trial violation involves a mixed question of law and fact. State v. Eldridge, Scioto App.

No. 02CA2842,

, at ¶5; State v. Brown (1998),

. We defer to the trial court’s findings of fact if supported by competent, credible

evidence. Eldridge at ¶5. We independently review whether the trial court properly

applied the law to the facts of the case.

“Furthermore, when reviewing the legal

issues presented in a speedy trial claim, we must strictly construe the relevant statutes

against the state.”

citing Brecksville v. Cook,

,

. Scioto App. No. 10CA3359 5

{¶12} Under R.C. 2745.71(C)(2), “[t]he state must bring a person arrested and

charged with a felony to trial within two hundred seventy days.” Eldridge at ¶6. If the

accused remains in jail in lieu of bail solely on the pending charge, each day in jail

counts as three days. See R.C. 2745.71(E). This is known as the “triple-count

provision.” See Eldridge at ¶6.

{¶13} “An accused presents a prima facie case for discharge based upon a violation

of speedy trial limitations by alleging in a motion to dismiss that the state held them

solely on the pending charges and for a time exceeding the R.C. 2945.71 limits. State

v. Butcher (1986),

. The burden of proof then shifts to the state

to show that the R.C. 2945.71 limitations have not expired, either by demonstrating that

the time limit was extended by R.C. 2945.72 or by establishing that the accused is not

entitled to use the triple-count provision in R.C. 2945.71(E). The determination of

whether the state holds an accused solely on the pending charges is a legal conclusion

dependent upon the underlying facts. State v. Howard (Mar. 4, 1994), Scioto App. No.

93CA2136.” Eldridge at ¶6.

{¶14} First, we dispose of an inaccuracy in Sydnor’s speedy-trial-clock calculation.

The state arrested Sydnor on October 24, 2006, and the court released him on bond on

October 27, 2006. Sydnor did not appear for a pre-trial hearing scheduled for

December 13, 2006. The Scioto County Sheriff eventually re-arrested Sydnor on the

outstanding bench warrant on September 15, 2009. Sydnor counts non-tolled time from

his initial arrest until his re-arrest in his speedy-trial calculation.

{¶15} Sydnor, however, has waived his right to assert a violation of his speedy-trial

rights for this time period. “Generally, when computing how much time has run against Scioto App. No. 10CA3359 6

the state under R.C. 2945.71 we will begin with the date the state initially arrested the

accused. * * * However, if the accused fails to appear for a scheduled court appearance

he waives his right to assert a violation of his statutory speedy trial rights for the period

of time from his initial arrest to the date that he is rearrested.” Eldridge at ¶7 (citations

and internal quotation omitted). Thus, we only consider the time period following

Sydnor’s September 15, 2009 re-arrest to determine whether his speedy-trial rights

were violated.

{¶16} Sydnor contends that the triple-count provision applies to certain time periods

following his September 15, 2009 re-arrest. Specifically, there are three time periods to

consider: (1) the September 15, 2009 re-arrest until Sydnor was released on bond on

November 3, 2009 (forty-nine days); (2) the November 3, 2009 release until Sydnor’s

re-arrest on November 12, 2009 (nine days); and (3) the November 12, 2009 re-arrest

until Sydnor requested a continuance on January 11, 2010 (sixty days). There is no

dispute that all other relevant time periods are tolled for speedy-trial-calculation

purposes.

{¶17} Sydnor argues that the triple-count provision should apply to time periods (1)

and (3) above, which would count for one hundred forty-seven and one hundred eighty

days respectively. Under Sydnor’s calculation, three hundred thirty-six (non-tolled) days

should apply to his speedy-trial calculation (i.e., 147 + 9 + 180). Therefore, according to

Sydnor, the state failed to bring him to trial in the two hundred seventy days required by

R.C. 2745.71(C)(2), and his case should have been dismissed.

{¶18} The state contends that the triple-count provision does not apply. Under the

state’s straight-time calculations, only one hundred eighteen (non-tolled) days apply to Scioto App. No. 10CA3359 7

Sydnor’s speedy-trial calculation (i.e., 49 + 9 + 60). One hundred eighteen days is

within the two hundred seventy days mandated by R.C. 2745.71(C)(2). Thus, the state

asserts that the trial court correctly denied Sydnor’s motion to dismiss.

{¶19} The triple-count provision applies “only to those defendants held in jail in lieu

of bail solely on the pending charge.” State v. MacDonald (1976),

, at

paragraph one of the syllabus (emphasis added). Thus, when a defendant awaits trial

on separate unrelated cases, the triple-count provision does not apply. State v. Ladd

(1978),

; State v. Kaiser (1978),

; State v.

Dankworth,

,

; State v. Johnson,

Cuyahoga App. Nos. 81692 & 81693,

, at ¶14; State v. Allen (Oct. 6,

1997), Fayette App. No. CA97-02-004.

{¶20} Here, the state has shown that the triple-count provision does not apply.

Sydnor was held in jail with two cases pending. Case I relates to the events from

October 2006. And Case II relates to events that occurred on or about December 5,

2006. Thus, Sydnor was held on two different cases relating to the events of different

dates. Additionally, the court never consolidated the separate indictments for Case I

and Case II. Therefore, the triple-count provision does not apply.

{¶21} Sydnor argues that, even though he had two different cases pending against

him, the triple-count provision should apply. Sydnor relies on State v. Parker,

,

. In Parker, the defendant was arrested and charged with

two felony drug charges and a misdemeanor charge for carrying a concealed weapon,

and the municipal court set bond on all three charges. Parker at ¶2-3. The felonies

were bound over to the common pleas court where the defendant’s bond was modified Scioto App. No. 10CA3359 8

to a personal recognizance bond. Id. at ¶4. However, the defendant remained jailed on

the misdemeanor charge, which required bail in the form of cash or a surety bond. Id.

The Court held that “when multiple charges arise from a criminal incident and share a

common litigation history, pretrial incarceration on the multiple charges constitutes

incarceration on the ‘pending charge’ for the purposes of the triple-count provision of the

speedy-trial statute, R.C. 2745.71(E).” Id. at ¶21. Consequently, the triple-count

provisions applied to the period in which the defendant was in jail prior to executing his

personal recognizance bond. Id. at ¶¶6, 25.

{¶22} Sydnor argues Case I and Case II share a common litigation history, and,

therefore, under Parker, the triple-count provision should apply. Sydnor notes that all

the pretrial hearings were conducted together. Sydnor states that “the behavior of all

parties involved shows that they proceeded and acted as if there was only one case

going to trial.” Appellant’s Brief at 14. Sydnor claims that it was unclear whether the

April 26, 2010 amendment of the indictment for Case I actually merged with the

indictment for Case II. And Sydnor asserts that trial was set for Case II on April 26,

2010, but “the State did not even bother to present evidence of the events which gave

rise to [Case II].” Id. Therefore, according to Sydnor, the triple-count provision should

apply because Case I and Case II share a common litigation history.

{¶23} Parker, however, is inapposite, and Sydnor’s arguments must fail. Parker

applies when “multiple charges arise from a criminal incident and share a common

litigation history[.]” Parker at ¶21 (emphasis added). The defendant in Parker was held

in jail because he faced charges in two jurisdictions (i.e., the Court of Common Pleas

and Municipal Court) arising from one incident. Here, by contrast, Sydnor’s charges Scioto App. No. 10CA3359 9

relate to different criminal incidents. There is nothing in the record demonstrating that

the charges in Case I, which occurred in October 2006, are related to the charges in

Case II, which occurred on or about December 5, 2006. Thus, the fact that the cases

appear to have shared a “common litigation history,” through common pretrial hearings,

does not mean that Parker applies.

{¶24} Additionally, the court did not consolidate the indictment for Case II with the

indictment for Case I. Neither party moved to consolidate the cases. And contrary to

Sydnor’s arguments, it is clear that the April 26, 2010 amendment did not merge the

indictments for Case I and Case II. The state moved to merge counts within the

indictment for Case I only. The judgment entry amending the indictment in Case I

makes no mention of Case II.

{¶25} Finally, Case II continued after the trial in Case I. The docket for Case II

reveals no entries for April 26, 2010, which was the trial date for Case I. Following the

trial for Case I, the docket for Case II shows multiple entries. A pretrial hearing was

scheduled for June 9, 2010. The docket reveals that a motion to permit Sydnor’s

counsel to withdraw was filed on June 1, 2010, and new counsel was appointed on

September 3, 2010. Another pretrial was scheduled for September 23, 2010. And on

September 24, 2010, Case II was dismissed without prejudice.

{¶26} Thus, contrary to Sydnor’s arguments on appeal, the alleged offenses from

Case II were not “done away with” by virtue of the trial in Case I. Case II continued and

was eventually dismissed on September 24, 2010. This is not a situation where multiple

charges arise from a single criminal incident and share a common litigation history.

Therefore, the triple-count provision does not apply. Scioto App. No. 10CA3359 10

{¶27} Under the speedy-trial calculation, the state brought Sydnor to trial after one

hundred eighteen (non-tolled) days. Thus, the state did not fail to bring Sydnor to trial

within the two hundred seventy days required by R.C. 2745.71(C)(2). And the trial court

properly denied Sydnor’s motion to dismiss.

{¶28} Accordingly, we overrule Sydnor’s first assignment of error.

III.

{¶29} In his second assignment of error, Sydnor contends that the trial court erred

when it sentenced him for both trafficking in and possession of crack cocaine. Sydnor

notes that, prior to trial, the state merged the two possession counts into one count and

the two trafficking counts into one count. Consequently, Sydnor argues that the state

could not show a separate animus for possession and trafficking based upon the

aggregate amount of drugs for which Sydnor was convicted.

{¶30} We review de novo whether a defendant’s offenses should have been

merged as allied offenses of similar import. State v. Buckta (Nov. 12, 1996), Pickaway

App. No. 96CA3; see, also, State v. Brown, Allen App. No. 1-10-31,

.

{¶31} “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.” R.C.

2941.25(A). But “[w]here 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 Scioto App. No. 10CA3359 11

or information may contain counts for all such offenses, and the defendant may be

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

{¶32} This statute “codified the judicial doctrine of merger” and “prohibited the

‘cumulative punishment of a defendant for the same criminal act where his conduct can

be construed to constitute two statutory offenses, when, in substance and effect, only

one offense has been committed.’” State v. Ware (1980),

, quoting

State v. Roberts (1980),

.

{¶33} Sydnor’s sentences for possession and trafficking run concurrently. And even

when sentences are served concurrently, the failure to merge sentences for allied

offenses of similar import prejudices a defendant. State v. Underwood,

,

(“[E]ven when the sentences are to be served concurrently, a

defendant is prejudiced by having more convictions than are authorized by law.”).

{¶34} The Supreme Court of Ohio has recently overruled its prior judgments in this

area of the law, and it articulated the proper analysis for determining whether merger is

appropriate. See State v. Johnson,

,

. “In

determining whether offenses are allied offenses of similar import under R.C.

2941.25(A), the question is whether it is possible to commit one offense and commit the

other with the same conduct, not whether it is possible to commit one without

committing the other. [State v.] Blankenship, 38 Ohio St.3d [116,] 119[,] (Whiteside, J.,

concurring) (‘It is not necessary that both crimes are always committed by the same

conduct but, rather, it is sufficient if both offenses can be committed by the same

conduct. It is a matter of possibility, rather than certainty, that the same conduct will

constitute commission of both offenses.’ [Emphasis sic]). * * * Scioto App. No. 10CA3359 12

{¶35} “If the multiple offenses can be committed by the same conduct, then the

court must determine whether the offenses were committed by the same conduct, i.e.,

‘a single act, committed with a single state of mind.’ [State v.] Brown,

,

[,] at ¶50 (Lanzinger, J., dissenting).

{¶36} “If the answer to both questions is yes, then the offenses are allied offenses

of similar import and will be merged.

{¶37} “Conversely, if the court determines that the commission of one offense will

never result in the commission of the other, or if the offenses are committed separately,

or if the defendant has separate animus for each offense, then, according to R.C.

2941.25(B), the offenses will not merge.”

(emphasis sic).

{¶38} Sydnor was convicted of possession of crack cocaine under R.C. 2925.11(A)

and trafficking of crack cocaine under R.C. 2925.03(A)(2). We conclude that “it is

possible to commit [possession of crack cocaine under R.C. 2925.11(A)] and commit

[trafficking of crack cocaine under R.C. 2925.03(A)(2)] with the same conduct.”

. Thus, we analyze whether Sydnor committed the offenses separately

or with a separate animus to justify being sentenced for both under R.C. 2941.25(B).

{¶39} “R.C. 2941.25(B), by its use of the term ‘animus,’ requires [courts] to examine

the defendant’s mental state in determining whether two or more offenses may be

chiseled from the same criminal conduct. In this sense, * * * the General Assembly

intended the term ‘animus’ to mean purpose or, more properly, immediate motive. Like

all mental states, animus is often difficult to prove directly, but must be inferred from the

surrounding circumstances.” State v. Logan (1979),

(citations

omitted). Scioto App. No. 10CA3359 13

{¶40} The state argues that Sydnor had a separate animus for his possession and

trafficking convictions. The state points to evidence that Sydnor possessed crack

cocaine for personal use. Indeed, there is testimony that Sydnor had been using crack

cocaine to get high throughout the night prior to the arrest. Additionally, Banks paid

Sydnor in drugs to package the crack cocaine for sale. And Sydnor had crack cocaine

on his person when he was arrested.

{¶41} The state, however, does not address the pre-trial amendment of the

indictment and the subsequent verdict finding Sydnor guilty of first-degree felony

possession of crack cocaine. The amended indictment merged Sydnor’s first-degree

and fourth-degree felony possession counts into one first-degree felony count of

possession. As a result, Sydnor was found guilty of possessing crack cocaine in an

amount of 25 grams or more and less than 100 grams. A conviction for possession of

25 grams or more of crack cocaine but less than 100 grams is a first-degree felony.

See R.C. 2925.11(C)(4)(e).

{¶42} There is insufficient evidence of Sydnor’s personal use of crack cocaine to

support a conviction for first-degree felony possession, which was committed separately

or with a separate animus from Sydnor's trafficking conviction. The police seized three

stashes of crack cocaine: (1) 33.67 grams found in 36 plastic baggies in the living room;

(2) 13.48 grams in a child’s toy box in the room where Banks was arrested; and (3) 2.84

grams found on Sydnor. Clearly, Sydnor possessed the 33.67 grams found in the thirty-

six plastic baggies for sale, and not personal use. Even assuming the crack cocaine

found on Sydnor’s person and in the toy box was for personal use, the aggregate

amount does not support a first-degree felony conviction. The total amount found on Scioto App. No. 10CA3359 14

Sydnor’s person and in the toy box was 16.32 grams. Thus, the state failed to present

evidence of Sydnor’s personal use of crack cocaine sufficient to support a first-degree

felony conviction for possession under R.C. 2925.11(A)/(C)(4)(e). Therefore, we

conclude that Sydnor did not commit his possession and trafficking offenses separately

or with a separate animus. And the trial court should have merged the possession and

trafficking convictions.

{¶43} Accordingly, we sustain Sydnor’s second assignment of error, and we vacate

Sydnor’s sentences for trafficking in and possession of crack cocaine. We remand for a

new sentencing hearing at which the state must elect to pursue punishment for Sydnor’s

violation of either R.C. 2925.03(A)(2) or R.C. 2925.11(A). See State v. Whitfield,

,

.

IV.

{¶44} In conclusion, we overrule Sydnor’s first assignment of error and sustain his

second assignment of error. Accordingly, we remand this case for further proceedings

consistent with this opinion.

JUDGMENT AFFIRMED, IN PART, AND REVERSED, IN PART, AND CAUSE REMANDED. Scioto App. No. 10CA3359 15

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED, IN PART, REVERSED, IN PART, AND THIS CAUSE BE REMANDED to the trial court for further proceedings consistent with this opinion. Appellant and Appellee shall pay equally the 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 Scioto County Court of Common Pleas 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. Exceptions.

Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.