[Cite as State v. Cartlidge,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-18-33

v.

LAMAR L. CARTLIDGE, OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court Trial Court No. 17 CR 0166

Judgment Affirmed

Date of Decision: April 8, 2019

APPEARANCES:

Jennifer L. Kahler for Appellant

Stephanie J. Kiser for Appellee Case No. 13-18-33

ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Lamar L. Cartlidge (“Cartlidge”), appeals the

September 13, 2018 judgment entry of sentence of the Seneca County Court of

Common Pleas finding him guilty of: Count One, aggravated trafficking in drugs;

Count Two, trafficking in cocaine; Count Three, failure to comply with an order or

signal of a police officer; Count Four, tampering with evidence; Count Five,

possession of cocaine; Count Six aggravated trafficking in drugs; and Count Seven,

aggravated possession of drugs.

{¶2} On appeal, Cartlidge asserts that: 1) the prosecution breached the plea

agreement thereby denying Cartlidge due process of law, 2) the trial court erred in

ordering Cartlidge to serve consecutive sentences, 3) Cartlidge was denied the

effective assistance of counsel when he failed to file a motion to withdraw his guilty

plea and failed to request a continuance to file said motion, and 4) the trial court

erred by not merging allied offenses of similar import for the purposes of

sentencing. For the reasons that follow, we affirm the judgment of the trial court.

{¶3} On November 8, 2017 and later in a superceding indictment, Cartlidge

was indicted by the Seneca County Grand Jury on seven counts: Count One,

aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1), (C)(1)(a), a

fourth-degree felony; Count Two, trafficking in cocaine in violation of R.C.

2925.03(A)(1), (C)(4)(a), a fifth-degree felony; Count Three, failure to comply with

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the order or signal of a police officer in violation of R.C. 2921.331(B), (C)(5)(a)(ii),

a third-degree felony; Count Four, tampering with evidence in violation of R.C.

2921.12(A)(1), (B), a third-degree felony; Count Five, possession of cocaine in

violation of R.C. 2925.11(A), (C)(4)(a), a fifth-degree felony; Count Six,

aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2), (C)(1)(a), a

fourth-degree felony; and Count Seven, aggravated possession of drugs in violation

of R.C. 2925.11(A), (C)(1)(a), a fifth-degree felony. (Doc. No. 2, 44). Counts Three

through Seven arose from the arrest warrant of Cartlidge on September 6, 2017 for

his offense set forth in Count Two. (PSI).

{¶4} On November 17, 2017, Cartlidge appeared for his initial arraignment

without counsel. (Doc. No. 6). On November 30, 2017, Cartlidge appeared for his

re-scheduled arraignment together with court appointed counsel. (Doc. No. 9). At

that hearing, the trial court entered a plea of not guilty (for Cartlidge), and the matter

was scheduled a pre-trial conference. (Id.).

{¶5} However, on March 16, 2018, Ronnie L. Wingate (“Wingate”), entered

his appearance as counsel of record on behalf of Cartlidge. Wingate filed a demand

for discovery pursuant Ohio Criminal Rule 16 and a motion for bill of particulars

(Doc. No. 15, 16). Thereafter, Cartlidge’s court appointed counsel was granted

leave of court to withdraw on the basis that Cartlidge had privately retained

Wingate. (Doc. No. 17, 19).

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{¶6} On May 30, 2018, the State filed a superceding indictment against

Cartlidge with a summons requiring Cartlidge to appear for arraignment on June 11,

2018. (Doc. No. 44, 45). However, prior to his arraignment and while out on bond,

Cartlidge was arrested for complicity to possess cocaine, a fifth-degree felony,

which the State alleged was committed on or about May 30, 2018. (Doc. No. 48).

Thus, on June 13, 2018, the State requested revocation of Cartlidge’s bond. On June

19, 2018, Cartlidge was arraigned on the superceding indictment and issues related

to the bond revocation were addressed. (Doc. Nos. 52, 53).

{¶7} Ultimately, on August 3, 2018, Cartlidge withdrew his pleas of not

guilty and pled guilty to all counts in the superceding indictment. (Doc. No. 58).

The trial court accepted Cartlidge’s guilty pleas, found him guilty, referred the

matter for the preparation of a presentence investigation report (“PSI”) and

scheduled the matter for a sentencing and a forfeiture hearing on September 12,

2018.1 (Doc. No. 58).

{¶8} On October 3, 2018, the trial court sentenced Cartlidge to: 18 months

in prison on Count One; 12 months in prison on Count Two; 36 months in prison

on Count Three; 36 months in prison on Count Four; 12 month of prison on Count

Five; 18 months in prison on County Six; and to 12 months in prison on Count

Seven of the indictment. (Doc. No. 61). The trial court further ordered Cartlidge to

1 We were not provided with a transcript from the change of plea hearing conducted on August 3, 2018.

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serve the stated terms consecutively for an aggregate term of 144 months in prison.

(Id.). The trial court also denied Appellant’s request to merge Count Six and Count

Seven of the indictment. (Id.). Lastly, the trial court ordered Cartlidge’s terms to

run consecutive to the balance of his post release control days.2 (Id.).

{¶9} On October 9, 2018, Cartlidge filed a notice of appeal and raises four

assignments of error for our review. (Doc. No. 65).

Assignment of Error No. I

The sentence should be reversed and remanded because the prosecution breached the plea agreement, thereby, denying appellant due process of law as guaranteed to him by both the United States’ Constitution and Ohio Constitution and was plain error

{¶10} In his first assignment of error, Cartlidge argues that his due process

rights were violated when the State breached the plea agreement. Specifically, in

the negotiated plea agreement, the State agreed “to argue for a total stated prison

term of no more than six (6) years…” (Doc. No. 67). Nevertheless, Cartlidge failed

to raise this issue at sentencing. Accordingly, Cartlidge’s failure to object at

sentencing results in a waiver of any error related to the State’s breach of its

agreement under the plea agreement except for plain error. See State v. Simmons,

3d Dist. Allen No. 1-14-45,

, citing State v. Sexton, 3d Dist. Union

No. 14-13-25,

, ¶ 85 (the defendant's failure to object to alleged

2 Cartlidge had a balance of 1280 post release control days.

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errors at sentencing resulted in forfeiture of the errors on appeal subject to

the plain error exception only); State v. Hartley, 3d Dist. Hancock No. 5-14-04,

(failure to object to the alleged breach of the plea agreement in

the trial court resulted in forfeiture of “all but plain error on appeal”), citing State v.

McGinnis, 3d Dist. Van Wert No. 15-08-07,

. Thus, plain error

guides this Court’s review.

Standard of Review

{¶11} We recognize plain error “‘with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.’” State v. Frye,

3d Dist. Allen No. 1-17-30,

, citing State v. Landrum,

,

(1990), quoting State v. Long,

,

(1978), paragraph three of the syllabus. Plain error review in criminal

cases is governed by Crim.R. 52(B). State v. Frye, 3d Dist. Allen No. 1-17-30,

, citing State v. Risner,

,

(3d

Dist. 1991). For plain error to apply, the trial court must have deviated from a legal

rule, the error must have been an obvious defect in the proceeding, and the error

must have affected a substantial right. State v. Barnes,

,

(2002). Under the plain error standard, the appellant must demonstrate

that the outcome of his trial would clearly have been different but for the trial court's

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errors. State v. Waddell,

,

(1996), citing State v. Moreland (1990),

,

(1990).

Analysis

{¶12} It is important to note that Cartlidge did not object to the State’s failure

to honor its sentencing recommendation. (September 12, 2018 Tr. at 1-28). The

plea agreement breach raised by the appellant is that the State agreed to recommend

a total of six years in prison for Cartlidge. Regardless, the plea agreement also

contained the following language relative to the State’s promised recommendation:

I also understand that if I have been charged with having violated or have been found guilty of having violated any law: local, state, or federal subsequent to accepting the Sentence Recommendation within this Plea of Guilty and prior to sentencing…the Prosecutor is released from and will not be required to make the Recommendation at sentencing. That decision will be left solely to the discretion of the Prosecuting Attorney.

(Emphasis added.)3 (Doc. No. 57).

{¶13} The record reveals that Cartlidge committed a new offense on May 30,

2018, while out on bond for the original indictment. (Doc. No. 48). Cartlidge was

arrested on June 11, 2018, the day of his arraignment, on the superceding indictment

for the May 30th offense. (Doc. No. 45, 48). Additionally, the record reveals that

Cartlidge was arrested on a second felony drug charge (while out on bond here) on

3 The plea agreement is silent as to the May 30th offense. The plain language of the plea agreement suggests the May 30th offense was contemplated at the time of Cartlidge’s plea on August 3rd.

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September 12, 2018, the morning of his sentencing hearing in this case. (September

12, 2018 Tr. at 13).

{¶14} Cartlidge asserts that the State failed to abide by the terms of the plea

agreement, but fails to address how his being “charged with” committing new

criminal offenses while on bond impacts his plea agreement with the State. To us,

Cartlidge’s new charges filed prior to sentencing released the State from its plea

recommendation contained in the agreement.

{¶15} Accordingly, Cartlidge has failed to meet his burden to demonstrate

plain error that the trial court deviated from a legal rule, an obvious defect in the

proceeding. Moreover, Cartlidge also has failed to establish how his substantial

rights were affected. We can find no manifest miscarriage of justice apparent from

the record as a result of the alleged errors. Cartlidge’s sentence falls within the

statutory limit; it was appropriate, given his prior criminal record and his newly-

charged criminal activity committed while out on bond, awaiting sentencing for the

instant case; and it is supported by the principles and purposes of sentencing in R.C.

2929.11 and the seriousness and recidivism factors under R.C. 2929.12, which the

trial court expressly cited in the its judgment entry.

{¶16} For the foregoing reasons, we overrule Cartlidge’s first assignment of

error.

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Assignment of Error No. II

Appellant’s maximum consecutive sentences is (sic) cruel and unusual punishment when the trial court considered defendant’s arrest and 2013 photos when sentencing

Standard of Review

{¶17} Next, the appellant argues that the maximum, consecutive sentences

imposed by the trial court violated his Eighth Amendment rights under the United

States Constitution. We disagree.

{¶18} In State v. Anderson,

,

, the

Supreme Court of Ohio recognized:

The Eighth Amendment of the United States Constitution precludes cruel and unusual punishment is the ‘precept of justice that punishment for the crime should be graduated and proportioned to [the] offense.’ “ [Brackets sic.] State v. Moore,

,

,

, quoting Weems v. United States,

,

,

(1910). To constitute cruel and unusual punishment, “the penalty must be so greatly disproportionate to the offense as to shock the sense of justice of the community.” McDougle v. Maxwell,

,

(1964).

State v. Lucious, 3d. Dist. Logan No. 8-18-31,

.

Analysis

{¶19} Cartlidge argues that the trial court based its decision to impose

maximum, consecutive sentences upon Cartlidge’s arrest on September 12th and the

2013 exhibits presented at the sentencing hearing. (Appellant’s Brief at 15). To the

contrary, the record supports that the trial court considered the PSI, the oral

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arguments, the principles and purposes of sentencing (under R.C. 2929.11), and

balanced the seriousness and recidivism factors (under R.C. 2929.12) prior to

imposing sentence. (September 12, 2018 Tr. 22-23). Here, the maximum terms

imposed were within the statutory range, and the record demonstrates that the trial

court made the statutorily required findings regarding the imposition of consecutive

sentences. Cartlidge’s counsel of record highlighted Cartlidge’s prior conviction

for robbery and his conviction for drug offenses in 2013. (Id. at 8). The State

emphasized that Cartlidge committed new offenses while out on bond for the instant

offense; that Cartlidge had been convicted of fourteen drug-related offenses, eleven

of which were felonies; and that Cartlidge had significant criminal history. (Id. at

13-14).

{¶20} Based upon the record before us, the trial court engaged in a clear

analysis of all the evidence presented at the sentencing hearing. Thus, upon our

review of the record, we cannot conclude that the trial court’s sentence was so

grossly disproportionate to the offenses committed that it would “shock the sense of

justice of the community.” Accordingly, Cartlidge’s second assignment of error is

overruled in its entirety.

Assignment of Error No. III

Appellant was not provided effective assistance of counsel when appellant’s attorney failed to motion the court to withdraw defendant’s plea and failed to ask for a continuance to allow defendant file a motion to withdraw his plea

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Standard of Review

{¶21} “To establish a claim for ineffective assistance of counsel, a defendant

must show that counsel’s performance was deficient and that counsel’s deficient

performance prejudiced him.” State v. Huddleston, 3d. Dist. Logan No. 8-17-21,

,

, ¶ 6, citing State v. Phillips, 3d Dist. Allen No.

1-15-43,

,

, ¶ 11, (emphasis added), citing State

v. Jackson,

,

,

,

citing, *587 Strickland v. Washington,

,

,

(1984). “The failure to make either showing defeats a claim

of ineffective assistance of counsel.” State v. Bradley,

,

(1989), quoting

(“[T]here is no reason

for a court deciding an ineffective assistance claim to approach the inquiry in the

same order or even to address both components of the inquiry if the defendant makes

an insufficient showing on one.”).

Analysis

{¶22} Here, Cartlidge argues that he was denied effective assistance of

counsel because his trial counsel should have objected to the State’s breach of the

plea agreement at the sentencing hearing. Appellant argues that Wingate should

have “upon receiving notice that the State intended to back out of the plea agreement

and argue for the maximum, consecutive sentences…” moved the trial court

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pursuant to Ohio’s criminal rules to withdraw Cartlidge’s guilty pleas. (Emphasis

added.) (Appellant’s Brief at 16).

{¶23} As we have noted herein before, Cartlidge’s conduct prior to

sentencing (i.e., arrest on new charges) released the State from its sentencing

recommendation contained in the plea agreement. Based upon Cartlidge’s new

charges the State recommended that the trial court impose maximum, consecutive

sentences at the sentencing hearing. The record is void as to whether Appellant’s

counsel had received advanced notice of the State’s decision prior to the sentencing

hearing. (September 12, 2018 Tr. 1-28). Even if such were the case, despite

Cartlidge’s new criminal charges, Appellant’s counsel made a strategic decision to

proceed with sentencing, begging for the trial court’s leniency. He had no

opposition from his client on this strategy.

{¶24} Moreover, Cartlidge in his statements to the trial court at sentencing,

acknowledged responsibility for his criminal activity and requested leniency which

to us suggests a coordinated plan of attack. (Id. at 6-7). There is no indication in

the record that Cartlidge wanted to test the State’s cases against him.

{¶25} Accordingly, there is nothing deficient in counsel’s performance under

the facts presented. Accordingly, Cartlidge’s third assignment of error is overruled.

Assignment of Error No. IV

The trial court erred by not merging allied offenses for purposes of sentencing

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Standard of Review

{¶26} “‘A defendant bears the burden of proving that the offenses for which

he has been convicted and sentenced constitute allied offenses of similar

import.’” State v. Vanausdal, 3rd Dist. Shelby No. 17-16-06,

,

quoting State v. Campbell, 12th Dist. Butler No. CA2014-06-137,

,

¶ 18, citing State v. Luong, 12th Dist. Butler No. CA2011-06-110,

,

¶ 46. Additionally, a reviewing court may look to the information contained in the

record to make its allied offense determination.

“Whether offenses are allied

offenses of similar import is a question of law that this Court reviews de novo.”

State v. Frye, 3d Dist. Allen No. 1-17-30,

; see also State v. Ruff,

,

.

Analysis

{¶27} The Double Jeopardy Clause “protects against three abuses: (1) ‘a

second prosecution for the same offense after acquittal,’ (2) ‘a second prosecution

for the same offense after conviction,’ and (3) ‘multiple punishments for the same

offense.’” State v. Ruff,

,

, ¶ 10, quoting North

Carolina v. Pearce,

,

,

(1969),

overruled on other grounds, Alabama v. Smith,

,

,

(1989). The Double Jeopardy Clause’s third protection is codified in

the Ohio Revised Code in section 2941.25, which prohibits multiple punishments

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for the same offense by prohibiting multiple convictions for “allied offenses of

similar import” arising out of the same conduct.

{¶28} R.C. 2941.25, Ohio’s multiple-count statute, 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.

R.C. 2941.25.

{¶29} The Supreme Court directs us to apply a three-part test to determine

whether a defendant can be convicted of multiple offenses:

As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must ask three questions when defendant’s conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.

State v. Earley,

,

, ¶ 12, quoting State v. Ruff,

,

, ¶ 12 and citing Ruff at paragraphs one, two,

and three of the syllabus.

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{¶30} Applying the allied-offense analysis, we conclude that Cartlidge’s

convictions for aggravated trafficking in drugs and aggravated possession of drugs

are not allied offenses of similar import. We now address only the dissimilar-import

question of the three-part test.

{¶31} “As explained in Ruff, offenses are of dissimilar import ‘when the

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

that results from each offense is separate and identifiable.’” Id. at ¶ 77, quoting Ruff

at paragraph two of the syllabus.

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. The evidence at trial * * * will reveal whether the offenses have similar import. When a defendant’s conduct victimizes more than one person, the harm for each person is separate and distinct, and therefore, the defendant can be convicted of multiple counts.

Ruff at ¶ 26.

{¶32} In the case sub judice, we find that the above listed factors weigh

heavily against finding that the Counts Six and Seven are allied offenses of similar

import. Both parties noted at the sentencing hearing that the drugs were packaged

separately. (September 12, 2018 Tr. 9, 18-19). Count Six involved seven individual

bindles of fentanyl packaged for sale.4 (September 12, 2018 Tr. at 19). Whereas

Count Seven, was packaged in bulk.5 (Id.). The crux of Cartlidge’s argument is

4 Each bindle contained .26 grams of fentanyl packaged individually for sale. (September 12, 2018 at 19). 5 The bulk package contained 2.12 grams of fentanyl packaged either for personal use or for sale. (Id.).

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that the drug packages whether packaged individually or packaged in bulk,

contained the same substance. This is not dispositive. The packaging of the seven

separate bindles demonstrates the separate animus of preparation for sale with

intended sales to, potentially, seven different drug users. Where the single package

represents the separate amicus for either personal consumption or for a bulk sale to

a purchaser, other than, to those who wish purchase smaller bindles.

{¶33} Notwithstanding the previous point, we were not provided with the

change of plea transcript to fully address the facts as they relate to allied offenses.

The appellant bears the burden of providing this Court with the record of the facts

(the missing transcript) necessary to support Cartlidge’s arguments. See, State v

Muller, 3d Dist. Defiance No. 4-11-09,

,

, citing

In re Predmore, 3d Dist. Logan Nos. 8-09-03, 8-09-04, 8-09-05,

,

citing State v. West, 3d. Dist. Auglaize No. 2-06-04,

,

, citing App.R. 9(B). In the absence of the transcript, this Court is required

to presume regularity in the trial court proceedings and affirm. (Id.). We conclude,

if the presumption of a given set of facts is necessary to determine if the offenses

were allied offenses of similar import, we must presume the facts established at the

change of plea hearing would have validated, rather than invalidated, the judgment

of the trial court. See State v. Brandon,

,

(1989)

citing Fisher v. Lanning v. Quillen,

,

(1907). Based

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upon the foregoing, we cannot find that the trial court committed an error is law in

failing to merge Counts Six and Seven.

{¶34} For the foregoing reasons, we reject Cartlidge’s contention that Count

Six and Count Seven are allied offenses of similar import, and we overrule the fourth

assignment of error.

Conclusion

{¶35} Having reviewed the arguments, the briefs, and the record in this case,

we find no error prejudicial to Cartlidge in the particulars assigned and argued. The

judgment of the Common Pleas Court of Seneca County, Ohio is therefore affirmed.

Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr

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