State v. Pribble

100 N.E.3d 49, 2017 Ohio 8499
CourtCourt of Appeals of Ohio, Fourth District, Adams County
DecidedOctober 30, 2017
DocketNo. 17CA1041
StatusPublished
Cited by2 cases

This text of 100 N.E.3d 49 (State v. Pribble) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Fourth District, Adams County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pribble, 100 N.E.3d 49, 2017 Ohio 8499 (Ohio Super. Ct. 2017).

Opinion

ABELE, J.

{¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of conviction and sentence. Darian J. Pribble, defendant below and appellant herein, assigns the following error for review:

ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED WHEN IT SENTENCED DARIAN PRIBBLE TO FIVE YEARS IN PRISON FOR ILLEGAL ASSEMBLY, BECAUSE THE MAXIMUM ALLOWABLE SENTENCE FOR THAT CRIME IS THREE YEARS IN PRISON. STATE V. CLARK , 4TH DIST. HIGHLAND NO. 14CA20, 2015-OHIO-5003 [2015 WL 7777228] ; R.C. 2929.14(A)(3)(b) ; R.C. 2901.04(A) ; TR. 361-62; FEBRUARY 6, 2017, JOURNAL ENTRY."

{¶ 2} On February 7, 2016, Manchester Village Police Officer Jason Mallott received an email from the NPLEx data system that indicated that a person with whom the department had previous contact for manufacturing methamphetamine had just purchased Sudafedrin, a component used to make methamphetamine, from a local Kroger pharmacy. After receiving further information, Officer Mallott located and stopped the car in that appellant and his two co-defendants occupied. Officer Mallott also determined that appellant had an outstanding warrant.

{¶ 3} During a subsequent search incident to arrest, Officer Mallott found a pouch in appellant's coat pocket that contained "white powder crystal residue" along with small baggies, some ties, and two spoons with white powder residue. The Bureau of Criminal Investigation (BCI) Crime Lab later identified the residue as methamphetamine. Officer Mallott also found in appellant's pocket a severed lithium battery, that Mallott later testified is typically done to extract lithium to use in the manufacture of methamphetamine. After Officer Mallott obtained consent from *51the driver to search the vehicle, Mallott also found Kroger-brand Sudafedrin.

{¶ 4} The Adams County Grand Jury returned an indictment that charged appellant with one count of the illegal assembly of chemicals that may be used to manufacture a controlled substance in Schedule I or II, to wit: Sudafed and lithium, with the intent to manufacture a Schedule I or II controlled substance, to wit: Methamphetamine in violation of R.C. 2925.041(A), a third-degree felony. On February 3, 2017, a jury found appellant guilty as charged. The trial court sentenced appellant to serve a mandatory prison term of five years, subject to R.C. 2929.14(A). This appeal followed.

{¶ 5} In his sole assignment of error, appellant asserts that the trial court erred (1) in sentencing him to 60 months in prison under R.C. 2925.04(C)(1) rather than 36 months in prison under R.C. 2929.14(A)(3), and (2) in failing to follow the relevant precedent in this case, State v. Clark , 4th Dist. Highland No. 14CA20, 2015-Ohio-5003, 2015 WL 7777228.

{¶ 6} When the trial court sentenced appellant on February 3, 2017, R.C. 2929.14(A)(3), which governs prison terms for third-degree felonies, provided:

(a) For a felony of the third degree that is a violation of section 2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the Revised Code or that is a violation of section 2911.02 or 2911.12 of the Revised Code if the offender previously has been convicted of or pleaded guilty in two or more separate proceedings to two or more violations of section 2911.01, 2911.02, 2911.11, or 2911.12 of the Revised Code, the prison term shall be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.
(b) For a felony of the third degree that is not an offense for which division (A)(3)(a) of this section applies, the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.

The offenses listed in R.C. 2929.14(A)(3)(a) appear to refer to certain vehicular offenses, certain sexual offenses, and robbery and burglary. Notably, the illegal assembly of chemicals for the manufacture of drugs is not an offense listed in R.C. 2929.14(A)(3)(a). Therefore, pursuant to R.C. 2929.14(A)(3)(a) and (b), it appears that appellant's maximum sentence for violating R.C. 2925.041 is 36 months in prison.

{¶ 7} R.C. 2925.041 governs the assembly or possession of chemicals used to manufacture controlled substances and provides, in relevant part:

(C) Whoever violates this section is guilty of illegal assembly or possession of chemicals for the manufacture of drugs. Except as otherwise provided in this division, illegal assembly or possession of chemicals for the manufacture of drugs is a felony of the third degree, and * * * the court shall impose a mandatory prison term * * * as follows:
(1) Except as otherwise provided in this division, there is a presumption for a prison term for the offense. * * * If the offender two or more times previously has been convicted of or pleaded guilty to a felony drug abuse offense and if at least one of those previous convictions or guilty pleas was to a violation of division (A) of this section, a violation of [R.C.] 2929.22(B)(6), or a violation of [R.C.] 2925.04(A), the court shall impose as a mandatory prison term one of the prison terms described for a felony of the third degree that is not less than five years.

{¶ 8} In the case sub judice, the record indicates that appellant has previous methamphetamine related convictions for illegal manufacturing (2009) and aggravated possession (2015). Thus, it appears that appellant has the requisite prior convictions *52to trigger R.C. 2925.041(C)(1), and therefore, appellant's mandatory sentence for violating R.C. 2925.041 should be 60 months (5 years) in prison. However, while the language of R.C. 2925.041(C)(1) is unambiguous in isolation, ambiguity does exist because R.C. 2929.14(A)(3)(b) requires a different result.

{¶ 9} As appellant argues, this court recently considered the conflict between these two statutes in State v. Clark , 4th Dist. Highland No. 14CA20, 2015-Ohio-5003, 2015 WL 7777228, in which we cited the analysis in State v. Young , 2015-Ohio-1347, 31 N.E.3d 178. Young observed that R.C. 2925.041(C)(1) sets forth a specific sentencing scheme for third-degree felonies that involve felony drug abuse offenses and, thus, is specific, rather than general, in nature. Likewise, R.C. 2929.14(A)(3), which sets forth a two-tiered sentencing scheme for third-degree felonies, is specific, rather than general, in nature. However, the statutes conflict because the maximum sentence authorized for a third-degree felony drug offense under R.C.

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Related

State v. Pribble (Slip Opinion)
2019 Ohio 4808 (Ohio Supreme Court, 2019)

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Bluebook (online)
100 N.E.3d 49, 2017 Ohio 8499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pribble-ohctapp4adams-2017.