State v. Franklin

[Cite as State v. Franklin, 2014-Ohio-4152.]

STATE OF OHIO, JEFFERSON COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )

)

PLAINTIFF-APPELLEE, )

) CASE NO. 13 JE 32

V. )

) OPINION

RAYMOND CORTEZ FRANKLIN, )

)

DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common

Pleas of Jefferson County, Ohio

Case No. 13CR30

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee Jane M. Hanlin

Prosecuting Attorney

16001 S.R. 7

Steubenville, Ohio 43952

For Defendant-Appellant Attorney R. Aaron Miller

P.O. Box 166

Wellsburg, West Virginia 26070

JUDGES:

Hon. Gene Donofrio

Hon. Joseph J. Vukovich

Hon. Mary DeGenaro

Dated: September 17, 2014

[Cite as State v. Franklin, 2014-Ohio-4152.]

DONOFRIO, J.

{¶1} Defendant-appellant, Raymond Cortez Franklin, appeals from a

Jefferson County Common Pleas Court judgment convicting him of possession of

drugs following his no contest plea.

{¶2} On December 5, 2012, a Jefferson County Grand Jury indicted

appellant on one count of trafficking in drugs, a fourth-degree felony in violation of

R.C. 2925.03(A)(1)(C)(6)(b); and one count of possession of drugs, specifically

possession of heroin in an amount that equals or exceeds one gram but is less than

five grams, a fourth-degree felony in violation of R.C. 2925.11(A)(1)(C)(6)(b) (the first

indictment). Appellant eventually entered a guilty plea to the first indictment and the

trial court entered its judgment of sentence on February 14, 2013.

{¶3} On March 6, 2013, a Jefferson County Grand Jury indicted appellant on

one count of possession of drugs, specifically possession of heroin in an amount

greater than 10 grams but less than 50 grams, a second-degree felony in violation of

R.C. 2925.11(A)(C)(6)(d) (the second indictment). This is the charge at issue in the

present appeal.

{¶4} On July 10, 2013, appellant filed a Motion to Dismiss on the Basis of

Double Jeopardy or Collateral Estoppel. Appellant argued that the current charge

placed him twice in jeopardy for the same offense or act and asked that plaintiff-

appellee, the State of Ohio, be estopped from prosecuting him for an act which he

had already pleaded guilty to and was sentenced for.

{¶5} The trial court overruled appellant’s motion. It found the following.

Appellant was arrested on October 23, 2012, and was apparently in possession of

two separate amounts of heroin. A 17-unit dose amount was immediately discovered

and appellant was charged with possessing that batch of heroin. It is alleged that

appellant also had on his person an additional 177 doses of heroin that were not

initially located. The state alleges that these 177 doses of heroin remained with

appellant as he was transported to the Jefferson County Jail. The state further

contends that the heroin remained with appellant’s belongings, undetected, until the

police received a tip leading to its discovery on January 18, 2013. In the interim, on

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December 5, 2012, appellant was indicted for the original and separate 17 doses of

heroin. He entered a guilty plea to that indictment.

{¶6} The trial court went on to find that the first indictment alleged 17 doses

of heroin, which could not have possibly included the 177 doses alleged in the

second indictment. The court found these were separate offenses. The court noted

that had the indictments been reversed with the first indictment alleging 177 doses

and the second alleging 17 doses, there may have been a possibility that the 17

doses were included in the first 177 doses. But in this case the 17-dose indictment

came first and there was no chance that the 177 doses were included in that

indictment.

{¶7} Appellant subsequently entered a no contest plea to the second

indictment. The court entered findings that appellant was arrested on another drug

charge and had the drugs in this case hidden in his underwear when he was booked

into jail. Those drugs were later discovered after appellant bragged about it to a

cellmate. The offense for which appellant was jailed, leading to the discovery of the

drugs in this case, was Case Number 12-CR-211(C). The parties entered into an

agreed recommendation of sentence which the court followed. The court then

sentenced appellant to two mandatory years in prison.

{¶8} Appellant filed a timely notice of appeal on September 20, 2013.

{¶9} Appellant raises two assignments of error, the first of which states:

THE TRIAL COURT’S DECISION TO OVERRULE APPELLANT’S

MOTION TO DISMISS WAS ERROR BECAUSE APPELLANT WAS

TWICE PLACED IN JEOPARDY FOR THE SAME OFFENSE IN

VIOLATION OF HIS CONSTITUTIONAL RIGHTS AS GUARANTEED

BY THE FIFTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND SECTION 10, ARTICLE ONE OF THE OHIO

CONSTITUTION.

{¶10} Appellant argues the second indictment should have been dismissed.

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He notes that in both the first and second indictments, he was charged with

possession of heroin. He further notes both counts of possession were alleged to

have occurred at the same time and place. And he notes that the elements of the

offenses are identical except for the amounts of heroin involved, which he claims is

an element only for sentencing. Thus, appellant contends the state should have

been barred from prosecuting him on the second indictment due to his right against

double jeopardy.

{¶11} The Double Jeopardy Clause of the United States Constitution bars

multiple prosecutions for the same offense. An appellate court reviews a trial court’s

denial of a motion to dismiss on double jeopardy grounds de novo. State v. Grimm,

5th Dist. No. 13-CA-25, 2014-Ohio-38, ¶12; State v. Trimble, 4th Dist. No. 13CA8,

2013-Ohio-5094, ¶5.

{¶12} In determining whether two offenses are actually the same offense for

double jeopardy purposes, courts apply the test set out in State v. Best, 42 Ohio

St.2d 530, 330 N.E.2d 421 (1975). For double jeopardy to apply it must appear that:

(1) there was a former prosecution for the same offense; (2) the same person was in

jeopardy on the first prosecution; (3) the parties are identical; and (4) the particular

offense, on the prosecution of which the jeopardy attached, was such an offense as

to constitute a bar. Id. at 533.

{¶13} The state offers State v. Wilder, 2d Dist. No. 20966, 2006-Ohio-1975,

as providing direct support of its position in this case. Wilder was arrested on April

26. At the time of her arrest, Wilder was in a car with two other individuals. She had

crack cocaine in her pocket. She was charged with, pleaded guilty to, and was

sentenced for possession of crack cocaine in an amount less than one gram. Wilder

was then indicted again, this time for possession of crack cocaine in an amount equal

to or in excess of 25 grams but less than 100 grams. The second indictment came

after Wilder testified at her co-defendant’s trial that the crack cocaine located in the

console of the car they were in belonged exclusively to her. Wilder was tried and

convicted of possessing the second amount of cocaine. Prior to sentencing, she filed

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a motion to dismiss the charges alleging a violation of double jeopardy. The trial

court overruled her motion finding Wilder was charged with and convicted on two

separate charges. She appealed.

{¶14} On appeal, the Second District found:

We agree with the trial court that Wilder's possession of the 27 grams

of cocaine was a separate and distinct offense from the possession of

the one gram of cocaine retrieved from her pocket. Wilder had actual

possession of the one gram of cocaine in her pocket. The State lacked

evidence to establish Wilder's constructive possession of the distinct 27

grams of cocaine retrieved from the console until she admitted at

Hairston's trial that she alone purchased the 27 grams of cocaine

earlier that day. Wilder's subsequent indictment and trial was not for the

same offense that gave rise to her guilty plea. Each possession charge

stemmed instead from distinct acts on the part of Wilder, thus her actual

physical possession of one gram of cocaine in her pocket did not bar

her prosecution for constructive possession of the 27 grams in the

console. Because Wilder's offenses in the two cases were separate and

distinct, with separate animus as to each, the trial court did not violate

her constitutional right to avoid double jeopardy in overruling her motion

for a new trial/dismissal.

Id. at ¶11. Thus, the Second District affirmed Wilder’s conviction.

{¶15} Additionally, in State v. Brown, 3d Dist. No. 1-10-31, 2011-Ohio-1461,

¶44, the court concluded the defendant could be sentenced for multiple offenses of

possession of cocaine and crack cocaine when police found separate quantities of

cocaine and crack cocaine in separate locations, the separate quantities were stored

in different types of containers, and the amount of each quantity of drugs differed

significantly from the other quantity of drugs.

{¶16} In the present case, appellant’s second conviction is not barred by the

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Double Jeopardy Clause. Like the defendants in Wilder and Brown, appellant was

convicted of possessing two separate and distinct quantities of drugs.

{¶17} The quantity that led to his first indictment and conviction was 17 unit

doses of heroin. Appellant was arrested and taken to jail based on this quantity of

heroin. At the jail, appellant’s personal belongings were placed into storage.

Appellant entered a guilty plea to possession of heroin in an amount equal to or

greater than one gram but less than 5 grams.

{¶18} After his guilty plea and sentence in the first case, appellant was

indicted for possessing an amount of heroin equal to or greater than 10 grams but

less than 50 grams. This indictment stemmed from 177 unit doses of heroin

allegedly found hidden in appellant’s underwear that were with his personal

belongings in the jail storage. Police allegedly located this heroin after a tip from an

informant. The indictments in both cases allege appellant possessed the quantities

of heroin on October 23, 2012, the day of his initial arrest.

{¶19} The two possession offenses with which appellant was charged dealt

with separate quantities of heroin. The first 17-dose quantity was found the day

appellant was arrested. This was the reason he was arrested. The second 177-dose

quantity was not found until months later and was found hidden in appellant’s

underwear. Thus, the two offenses with which appellant was charged arose from two

separate and distinct acts of possession. Therefore, the trial court properly overruled

appellant’s motion to dismiss.

{¶20} Accordingly, appellant’s first assignment of error is without merit.

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

APPELLANT’S MOTION TO DISMISS WAS ERROR BECAUSE OF

THE DOUBLE JEOPARDY CLAUSE’S ANCILLARY PRINCIPLE OF

COLLATERAL ESTOPPEL, OR ISSUE PRECLUSION.

{¶22} Here appellant argues he is entitled to the ancillary protection provided

by principles of collateral estoppel and issue preclusion. He contends the state is

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attempting to re-litigate the same facts that were present in the first indictment.

Appellant asserts: there was a final judgment in the first case; the issue in both

cases is the same, the possession of heroin; he admitted in the first case that the

allegation of possession of heroin was true; the issue was decided in the first case;

and there is privity between the parties in both cases. For these reasons, appellant

argues, collateral estoppel bars his prosecution in the second case.

{¶23} The doctrine of collateral estoppel prevents the re-litigation of an

ultimate fact or issue once it has been determined by a final judgment. The Fifth

Amendment’s Double Jeopardy Clause incorporates the doctrine of collateral

estoppel in criminal proceedings. State v. Dorsey, 5th Dist. No. 11 CA 39, 2012-

Ohio-611, ¶32, citing Schiro v. Farley, 510 U.S. 222, 232, 114 S.Ct. 783 (1994); Ashe

v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189 (1970).

{¶24} Pursuant to the doctrine of collateral estoppel, successive prosecutions

will be barred in some circumstances where the second prosecution requires re-

litigation of factual issues already resolved by the first prosecution. State v. Tolbert,

60 Ohio St.3d 89, 91, 573 N.E.2d 617 (1991), citing Brown v. Ohio, 432 U.S. 161,

166-167, 97 S.Ct. 2221, fn.6 (1977), and Grady v. Corbin, 495 U.S. 508, 110

S.Ct.2084 (1990). But “a mere overlap in proof between two prosecutions does not

establish a double jeopardy violation.” In re Burton, 160 Ohio App.3d 750, 2005-

Ohio-2210, 828 N.E.2d 719, ¶10, quoting United States v. Felix, 503 U.S. 378, 386,

112 S.Ct. 1377 (1992).

{¶25} Here, the ultimate issue in the first case was whether appellant

possessed the 17 unit doses of heroin. The ultimate issue in the present case is

whether appellant possessed the 177 unit doses of heroin allegedly found in his

underwear. As the trial court pointed out, there is no way the 177 doses could have

been contained in the 17 doses. Appellant was charged with and convicted of two

separate acts of possession of heroin. Had the matter gone to trial in this case, there

would have been no need to re-litigate whether appellant possessed the 17 doses of

heroin. The trial court would have focused on whether appellant possessed the 177

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doses of heroin. Thus, the doctrine of collateral estoppel did not bar appellant’s

prosecution in this case.

{¶26} Accordingly, appellant’s second assignment of error is without merit.

{¶27} For the reasons stated above, the trial court’s judgment is hereby

affirmed.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.