State v. Nguyen

2012 Ohio 304

• Court: Ohio Court of Appeals
• Decided: January 30, 2012
• Docket: 11CA0047-M
• Status: Published

Opinion

[Cite as State v. Nguyen, 2012-Ohio-304.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO C.A. No. 11CA0047-M

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE HUONG T. NGUYEN COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 06-CR-0367

DECISION AND JOURNAL ENTRY

Dated: January 30, 2012

WHITMORE, Presiding Judge.

{¶1} Defendant-Appellant, Huong Nguyen, appeals from her convictions in the Medina

County Court of Common Pleas. This Court affirms.

I

{¶2} A recitation of the facts underlying this matter is largely unnecessary to our

review of this appeal. In essence, Nguyen was arrested for her involvement in a Medina drug

ring conspiracy and charged with numerous offenses after the police confiscated over 23,000

grams of marijuana. A jury trial ensued, and Nguyen was found guilty of the following offenses:

(1) possessing marijuana, in violation of R.C. 2925.11(A)(C)(3)(f); (2) conspiracy to commit the

crime of possessing marijuana, in violation of R.C. 2923.01(A)(1) and 2925.11(A)(C)(3)(f); (3)

conspiracy to commit the crime of possessing marijuana, in violation of R.C. 2923.01(A)(2) and

2925.11(A)(C)(3)(f); (4) complicity to commit the crime of possessing marijuana, in violation of

R.C. 2923.03(A)(2) and 2925.11(A)(C)(3)(f); (5) illegal cultivation of marijuana, in violation of 2

R.C. 2925.04(A)(C)(5)(f); (6) conspiracy to commit the illegal cultivation of marijuana, in

violation of R.C. 2923.01(A)(1) and 2925.04(A)(C)(5)(f); (7) conspiracy to commit the illegal

cultivation of marijuana, in violation of R.C. 2923.01(A)(2) and 2925.04(A)(C)(5)(f); and (8)

complicity to commit the illegal cultivation of marijuana, in violation of R.C. 2923.03(A)(2) and

2925.04(A)(C)(5)(f). On September 7, 2007, the trial court issued a sentencing entry.

{¶3} Nguyen appealed from the trial court’s entry. This Court remanded the matter to

the trial court, as the court’s sentencing entry contained a defective post-release control

notification. State v. Vu, 9th Dist. Nos. 07CA0094-M, 07CA0095-M, 07CA0096-M,

07CA0107-M & 07CA0108-M, 2009-Ohio-2945. The trial court held a resentencing hearing

upon remand and issued another sentencing entry on August 12, 2009. Once again, Nguyen

appealed. This Court vacated the August 2009 entry by way of journal entry due to a post-

release control error. State v. Nguyen, 9th Dist. 09CA0063-M (Nov. 17, 2009). We noted in our

journal entry that, although we did not need to reach the issue due to the post-release control

error, it also appeared that the August 2009 entry contained a Crim.R. 32(C) defect, as it failed to

fully determine the forfeiture specifications. Id. We remanded the matter for purposes of a new

sentencing hearing. Id.

{¶4} The trial court held another sentencing hearing on December 21, 2009, and issued

another sentencing entry on March 17, 2010. For a third time, Nguyen appealed. Because the

sentencing entry did not fully determine the forfeiture specifications, however, this Court

determined that it was not final under Crim.R. 32(C) and dismissed the third appeal by way of

journal entry. State v. Nguyen, 9th Dist. No. 10CA0045-M (Mar. 9, 2011). 3

{¶5} On March 11, 2011, the trial court issued a sentencing entry that disposed of all

the forfeiture counts and sentenced Nguyen to eight years in prison. Nguyen now appeals from

the trial court’s sentencing entry and raises one assignment of error for our review.

II

Assignment of Error

“THE TRIAL COURT ERRED BY CONVICTING DEFENDANT OF ALL ALLIED OFFENSES WHICH MERGED INTO THE ONE OFFENSE OF COMPLICITY TO COMMIT ILLEGAL CULTIVATION OF MARIJUANA.”

{¶6} In her sole assignment of error, Nguyen argues that the trial court erred by

convicting her of allied offenses. Specifically, she argues that the court should have dismissed

her convictions on counts one through seven.

{¶7} “R.C. 2941.25(A) prohibits the imposition of multiple convictions for the same

conduct.” State v. Drake, 9th Dist. No. 25528, 2011-Ohio-3042, ¶ 15. The Ohio Supreme Court

has held, however, that “for purposes of R.C. 2941.25, a ‘conviction’ consists of a guilty verdict

and the imposition of a sentence or penalty.” (Emphasis sic.) State v. Whitfield, 124 Ohio St.3d

319, 2010-Ohio-2, ¶ 12. “Because R.C. 2941.25(A) protects a defendant only from being

punished for allied offenses, the determination of the defendant’s guilt for committing allied

offenses remains intact, both before and after the merger of allied offenses for sentencing.” Id. at

paragraph three of the syllabus.

{¶8} The State here elected to pursue sentencing on count eight, the count pertaining to

complicity to commit illegal cultivation. See id. at paragraph one of the syllabus (holding that

the State has the right to elect which allied offense to pursue). The trial court only sentenced

Nguyen on count eight and indicated that the remaining counts “shall merge into Count VIII for

the purpose of sentencing.” Because the trial court only sentenced Nguyen on count eight, it did 4

not “convict” her on the remaining counts. See Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, at ¶

12. Rather, it convicted Nguyen on one count (count eight) and properly left the remaining

guilty verdicts intact. Drake, 2011-Ohio-3042, ¶ 15. Nguyen’s argument that the court

erroneously convicted her of allied offenses is meritless. Her sole assignment of error is

overruled.

III

{¶9} Nguyen’s sole assignment of error is overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

Judgment affirmed.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT 5

CARR, J. DICKINSON, J. CONCUR

APPEARANCES:

WESLEY A. JOHNSTON, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting Attorney, for Appellee.