[Cite as State v. Little, 2011-Ohio-3286.]
IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO
: STATE OF OHIO Plaintiff-Appellee : C.A. CASE NO. 2010-CA-38
vs. : T.C. CASE NO. 2007-CR-867
: (Criminal Appeal from ADRIAN LITTLE Common Pleas Court) Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 30th day of June, 2011.
Stephen K. Haller, Atty. Reg. No. 0009172, Stephanie Hayden, Atty. Reg. No. 0082881, Assistant Prosecutor, 55 Greene Street, Xenia, OH 45385 Attorneys for Plaintiff-Appellee
Adrian Little, DCI, 4104 Germantown Street, P.O. Box 17249, Dayton, OH 45417 Defendant-Appellant, Pro Se
GRADY, P.J.:
{¶ 1} Defendant, Adrian Little, appeals from a final judgment
that merged some but not all multiple conspiracy offenses to which
he pled guilty, and imposed separate, consecutive sentences for
the unmerged offenses. 2
{¶ 2} The facts of this case were set forth in our prior
decision in Defendant’s direct appeal in State v. Little, Greene
App. No. 2008-CA-76, 2009-Ohio-4328, at ¶4-5, 41-43:
{¶ 3} “Little was charged by indictment with one count of
Engaging in a Pattern of Corrupt Activity, in violation of R.C.
2923.01(A)(1); with one count of Conspiracy to Commit the Offense
of Engaging in a Pattern of Corrupt Activity, in violation of R.C.
2923.01(A)(2); with two counts of Conspiracy to Commit the Offense
of Trafficking in Cocaine, in violation of R.C. 2923.01(A)(1) and
R.C. 2925.03(A)(1); and with two counts of Conspiracy to Commit
the Offense of Trafficking in Heroin, in violation of R.C.
2923.01(A)(1) and R.C. 2925.03(A)(1). One of the Conspiracy to
Commit the Offense of Trafficking in Cocaine counts, being Count
5 of the indictment, included four forfeiture specifications,
alleging that various items were used or intended to be used in
the commission of the offense, so that they were subject to
forfeiture.
{¶ 4} “In April, 2008, Little appeared in open court, and
entered pleas of guilty to the four counts of Conspiracy to Commit
Trafficking, and to the forfeiture specifications. Pursuant to
a plea bargain, the State dismissed the other two counts, and both
parties informed the trial court that there was an agreed sentence
of twelve years. The maximum possible sentence on each count was 3
eight years, and the trial court informed Little that the maximum
possible sentence on the counts to which he was tendering his plea
was 32 years.
{¶ 5} “* * *
{¶ 6} “After a full plea colloquy, Little’s guilty pleas to
the four conspiracy counts were accepted, and the matter was set
for hearing at a later date. No pre-sentence investigation was
ordered. At no point did Little, the State, or the trial court,
raise the issue of any possible merger of the four conspiracy counts
to which Little pled guilty.
{¶ 7} “At the sentencing hearing, Little was sentenced to six
years on each count. The sentences on Counts III and VI, which
involved Conspiracy to Commit Trafficking in Heroin, but over
different periods of time, were ordered to be served concurrently.
And the sentences on Counts IV and V, which involved Conspiracy
to Commit Trafficking in Cocaine, but over different periods of
time, were also ordered to be served concurrently. But the two
pairs of concurrent six-year sentences were ordered to be served
consecutively, making an aggregate sentence of twelve years, as
agreed. The time periods specified in Counts III and IV of the
indictment, while involving different drugs, were the same; and
the time periods specified in Counts V and VI of the indictment,
while involving different drugs, were the same, although different 4
from the time periods specified in Counts III and IV.
{¶ 8} “The trial court ordered the property forfeited, as
previously agreed. No fine was imposed.”
{¶ 9} Defendant timely appealed to this court from his
conviction and sentence. On direct appeal we concluded that the
trial court committed plain error when it entered convictions on
all four conspiracy counts without first determining whether those
counts must be merged pursuant to R.C. 2923.01(F). Id. at ¶3,
47-53. We reversed the judgment of the trial court and remanded
the matter for further proceedings. We stated: “Upon remand, the
trial court is directed to hold a hearing on the issue of whether
any two or more of the conspiracy offenses to which Little has
pled guilty must be merged.” Id. at ¶53.
{¶ 10} On April 2, 2010, the trial court held the merger hearing
pursuant to our remand. The parties stipulated that Counts III
and IV are part of the same conspiracy and must merge with each
other, and that Counts V and VI are part of the same conspiracy
and must merge with each other. The only remaining issue to be
decided was whether the conspiracy at issue in Counts III and IV
must merge with the conspiracy at issue in Counts V and VI. One
witness testified at that hearing, Detective Craig Polston, of
the Greene County ACE Drug Task Force. Defendant presented no
witnesses. 5
{¶ 11} After considering the testimony and the arguments of
counsel, the trial court concluded that Counts III and IV are not
part of the same agreement or conspiratorial relationship in Counts
V and VI. Accordingly, they are not required to be merged pursuant
to R.C. 2923.01(F). State v. Childs, 88 Ohio St.3d 558,
2000-Ohio-425. The court sentenced Defendant to consecutive six
year prison terms on Counts III and V, for a total sentence of
twelve years, which is consistent with the parties’ plea agreement.
No sentences were imposed on Count IV or Count VI.
{¶ 12} Defendant has once again appealed to this court from
the trial court’s judgment.
FIRST ASSIGNMENT OF ERROR
{¶ 13} “WITH STIPULATION OF MERGING COUNTS PRIOR TO MERGER
HEARING, TRIAL COURT ERRED BY INFORMING APPELLANT AT CHANGE OF
PLEA HEARING THE MAXIUM [SIC] SENTENCE WOULD BE 32 YEARS CREATING
U.S. AND STATE CONSTITUTION VIOLATIONS WHEREFORE MAKING SENTENCE
NULLITY & VOID & AT ODD WITH CRIMINAL RULE 11(C)(2) MORELESS
INVOLUNTARY PLEA VIA ACTUAL PREJUDICE.”
{¶ 14} Defendant complains that the trial court incorrectly
advised him at the time he entered his guilty pleas that the
aggregate maximum sentence he faced was thirty two years, the
maximum sentence on each of the four counts being eight years,
when the merger of two of those offenses permitted a maximum term 6
of but sixteen years. This claim was previously raised by
Defendant in his direct appeal and was rejected by this court.
Little, at ¶60. Res judicata bars Defendant from now relitigating
that issue in a subsequent appeal. State v. Perry (1967), 10 Ohio
St.2d 175.
{¶ 15} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 16} “TRIAL COURT ERRED BY NOT MERGING CONSPIRACY COUNTS IN
SINGLE INDICTMENT PURSUANT TO STATE V. CHILDS (200) [SIC], 88 Ohio
St.3d 528 & OHIO R.C. 2941.09 WHEN THE SAME OBJECT AGREEMENT WAS
THE FORECAST.”
{¶ 17} R.C. 2923.01(F) imposes limitations upon multiple
punishments for related conspiracy offenses. In State v. Childs,
88 Ohio St.3d 558, 2000-Ohio-425, the Supreme Court stated, at
562:
{¶ 18} “R.C. 2923.01(F) prohibits multiple convictions for
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[Cite as State v. Little, 2011-Ohio-3286.]
IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO
: STATE OF OHIO Plaintiff-Appellee : C.A. CASE NO. 2010-CA-38
vs. : T.C. CASE NO. 2007-CR-867
: (Criminal Appeal from ADRIAN LITTLE Common Pleas Court) Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 30th day of June, 2011.
Stephen K. Haller, Atty. Reg. No. 0009172, Stephanie Hayden, Atty. Reg. No. 0082881, Assistant Prosecutor, 55 Greene Street, Xenia, OH 45385 Attorneys for Plaintiff-Appellee
Adrian Little, DCI, 4104 Germantown Street, P.O. Box 17249, Dayton, OH 45417 Defendant-Appellant, Pro Se
GRADY, P.J.:
{¶ 1} Defendant, Adrian Little, appeals from a final judgment
that merged some but not all multiple conspiracy offenses to which
he pled guilty, and imposed separate, consecutive sentences for
the unmerged offenses. 2
{¶ 2} The facts of this case were set forth in our prior
decision in Defendant’s direct appeal in State v. Little, Greene
App. No. 2008-CA-76, 2009-Ohio-4328, at ¶4-5, 41-43:
{¶ 3} “Little was charged by indictment with one count of
Engaging in a Pattern of Corrupt Activity, in violation of R.C.
2923.01(A)(1); with one count of Conspiracy to Commit the Offense
of Engaging in a Pattern of Corrupt Activity, in violation of R.C.
2923.01(A)(2); with two counts of Conspiracy to Commit the Offense
of Trafficking in Cocaine, in violation of R.C. 2923.01(A)(1) and
R.C. 2925.03(A)(1); and with two counts of Conspiracy to Commit
the Offense of Trafficking in Heroin, in violation of R.C.
2923.01(A)(1) and R.C. 2925.03(A)(1). One of the Conspiracy to
Commit the Offense of Trafficking in Cocaine counts, being Count
5 of the indictment, included four forfeiture specifications,
alleging that various items were used or intended to be used in
the commission of the offense, so that they were subject to
forfeiture.
{¶ 4} “In April, 2008, Little appeared in open court, and
entered pleas of guilty to the four counts of Conspiracy to Commit
Trafficking, and to the forfeiture specifications. Pursuant to
a plea bargain, the State dismissed the other two counts, and both
parties informed the trial court that there was an agreed sentence
of twelve years. The maximum possible sentence on each count was 3
eight years, and the trial court informed Little that the maximum
possible sentence on the counts to which he was tendering his plea
was 32 years.
{¶ 5} “* * *
{¶ 6} “After a full plea colloquy, Little’s guilty pleas to
the four conspiracy counts were accepted, and the matter was set
for hearing at a later date. No pre-sentence investigation was
ordered. At no point did Little, the State, or the trial court,
raise the issue of any possible merger of the four conspiracy counts
to which Little pled guilty.
{¶ 7} “At the sentencing hearing, Little was sentenced to six
years on each count. The sentences on Counts III and VI, which
involved Conspiracy to Commit Trafficking in Heroin, but over
different periods of time, were ordered to be served concurrently.
And the sentences on Counts IV and V, which involved Conspiracy
to Commit Trafficking in Cocaine, but over different periods of
time, were also ordered to be served concurrently. But the two
pairs of concurrent six-year sentences were ordered to be served
consecutively, making an aggregate sentence of twelve years, as
agreed. The time periods specified in Counts III and IV of the
indictment, while involving different drugs, were the same; and
the time periods specified in Counts V and VI of the indictment,
while involving different drugs, were the same, although different 4
from the time periods specified in Counts III and IV.
{¶ 8} “The trial court ordered the property forfeited, as
previously agreed. No fine was imposed.”
{¶ 9} Defendant timely appealed to this court from his
conviction and sentence. On direct appeal we concluded that the
trial court committed plain error when it entered convictions on
all four conspiracy counts without first determining whether those
counts must be merged pursuant to R.C. 2923.01(F). Id. at ¶3,
47-53. We reversed the judgment of the trial court and remanded
the matter for further proceedings. We stated: “Upon remand, the
trial court is directed to hold a hearing on the issue of whether
any two or more of the conspiracy offenses to which Little has
pled guilty must be merged.” Id. at ¶53.
{¶ 10} On April 2, 2010, the trial court held the merger hearing
pursuant to our remand. The parties stipulated that Counts III
and IV are part of the same conspiracy and must merge with each
other, and that Counts V and VI are part of the same conspiracy
and must merge with each other. The only remaining issue to be
decided was whether the conspiracy at issue in Counts III and IV
must merge with the conspiracy at issue in Counts V and VI. One
witness testified at that hearing, Detective Craig Polston, of
the Greene County ACE Drug Task Force. Defendant presented no
witnesses. 5
{¶ 11} After considering the testimony and the arguments of
counsel, the trial court concluded that Counts III and IV are not
part of the same agreement or conspiratorial relationship in Counts
V and VI. Accordingly, they are not required to be merged pursuant
to R.C. 2923.01(F). State v. Childs, 88 Ohio St.3d 558,
2000-Ohio-425. The court sentenced Defendant to consecutive six
year prison terms on Counts III and V, for a total sentence of
twelve years, which is consistent with the parties’ plea agreement.
No sentences were imposed on Count IV or Count VI.
{¶ 12} Defendant has once again appealed to this court from
the trial court’s judgment.
FIRST ASSIGNMENT OF ERROR
{¶ 13} “WITH STIPULATION OF MERGING COUNTS PRIOR TO MERGER
HEARING, TRIAL COURT ERRED BY INFORMING APPELLANT AT CHANGE OF
PLEA HEARING THE MAXIUM [SIC] SENTENCE WOULD BE 32 YEARS CREATING
U.S. AND STATE CONSTITUTION VIOLATIONS WHEREFORE MAKING SENTENCE
NULLITY & VOID & AT ODD WITH CRIMINAL RULE 11(C)(2) MORELESS
INVOLUNTARY PLEA VIA ACTUAL PREJUDICE.”
{¶ 14} Defendant complains that the trial court incorrectly
advised him at the time he entered his guilty pleas that the
aggregate maximum sentence he faced was thirty two years, the
maximum sentence on each of the four counts being eight years,
when the merger of two of those offenses permitted a maximum term 6
of but sixteen years. This claim was previously raised by
Defendant in his direct appeal and was rejected by this court.
Little, at ¶60. Res judicata bars Defendant from now relitigating
that issue in a subsequent appeal. State v. Perry (1967), 10 Ohio
St.2d 175.
{¶ 15} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 16} “TRIAL COURT ERRED BY NOT MERGING CONSPIRACY COUNTS IN
SINGLE INDICTMENT PURSUANT TO STATE V. CHILDS (200) [SIC], 88 Ohio
St.3d 528 & OHIO R.C. 2941.09 WHEN THE SAME OBJECT AGREEMENT WAS
THE FORECAST.”
{¶ 17} R.C. 2923.01(F) imposes limitations upon multiple
punishments for related conspiracy offenses. In State v. Childs,
88 Ohio St.3d 558, 2000-Ohio-425, the Supreme Court stated, at
562:
{¶ 18} “R.C. 2923.01(F) prohibits multiple convictions for
single conspiracies. That section provides: ‘A person who
conspires to commit more than one offense is guilty of only one
conspiracy, when the offenses are the object of the same agreement
or continuous conspiratorial relationship.’
{¶ 19} “Pursuant to this statute, analysis of whether
conspiracy offenses are separately punishable under R.C.
2923.01(F) requires a determination as to (1) whether the offenses 7
are the object of the same agreement, and (2) whether the offenses
are part of a continuous conspiratorial relationship. If either
circumstance exists, the offenses constitute one conspiracy and
may not be separately punished.”
{¶ 20} Defendant argues that the trial court erred in finding
that the conspiracy at issue in Counts III and IV was not part
of the same conspiratorial relationship at issue in counts V and
VI, and in failing to merge those offenses into a single conspiracy
conviction pursuant to R.C. 2923.01(F).
{¶ 21} The conspiracy offenses in Counts III and IV occurred
during the time from frame September 1, 2006 through April 17,
2007. The conspiracy offenses in Counts V and VI occurred during
the time frame from December 1, 2007 through December 19, 2007.
While Defendant remained a drug dealer throughout the relevant
time periods, and his purpose was the same, to obtain large
quantities of heroin and cocaine to sell, his conspiratorial
relationships changed during that time period.
{¶ 22} Between September 1, 2006 and April 17, 2007, there
existed an agreement between Defendant and Caesar Lopez-Ruiz for
the distribution of heroin and cocaine.
{¶ 23} On or about April 17, 2007, Lopez-Ruiz was arrested by
the Greene County ACE Task Force, and he remained incarcerated
thereafter. Defendant was forced in December 2007 to seek out 8
a new drug supplier. As a result, on December 19, 2007, Defendant
attempted to purchase large quantities of heroin and cocaine in
what turned out to be an undercover drug sting by the ACE Task
Force. Defendant’s involvement was the product of his
relationship with another drug dealer and a confidential informant,
neither of whom were connected to or working for Lopez-Ruiz’s
enterprise.
{¶ 24} We agree with the trial court that the agreement and
events that occurred in December 2007 and involved Defendant and
the ACE Task Force, Counts V and VI, are separate and distinct
from and have no nexus to the agreement and events between Defendant
and Lopez-Ruiz and others from that enterprise between September
2006 and April 2007, Counts III and IV. As the trial court found,
this was not the same continuous conspiratorial relationship.
Because the conspiracy offenses in Counts III and V, on which
sentences were imposed, are not the object or part of the same
agreement or the same continuous conspiratorial relationship, they
may be separately punished. R.C. 2923.01(F); Childs. The trial
court did not err in imposing separate sentences on Counts III
and V.
{¶ 25} Defendant’s second assignment of error is overruled.
{¶ 26} In a document titled “Amended Assignments of Error,”
Defendant complains that the trial court erred by denying his 9
request for grand jury transcripts. Defendant first requested
such material in a motion filed October 21, 2008, six months after
he was convicted and sentenced. The trial court denied Defendant’s
request for grand jury transcripts on July 14, 2010. This issue,
which could have been raised by Defendant at trial or on direct
appeal, but was not, is now barred by res judicata. State v. Perry
(1967), 10 Ohio St.2d 175. In any event, Defendant has failed
to demonstrate a particularized need for the grand jury transcripts
required for disclosure. State v. Greer (1981), 66 Ohio St.2d
139, at syllabus.
{¶ 27} This assignment of error is overruled. The judgment
of the trial court will be affirmed.
HALL, J. and DONOFRIO, J. concur.
(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Stephanie R. Hayden, Esq. Adrian Little Hon. Stephen A. Wolaver