State v. Setty

2017 Ohio 9059

• Court: Ohio Court of Appeals
• Decided: December 15, 2017
• Docket: 2017-CA-28
• Status: Published

Opinion

[Cite as State v. Setty, 2017-Ohio-9059.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2017-CA-28 : v. : Trial Court Case No. 16-CR-274 : 16-CR-330 JOSEPH SETTY : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :

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OPINION

Rendered on the 15th day of December, 2017.

D. ANDREW WILSON., by ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, 4th Floor, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449 Attorney for Defendant-Appellant

............. -2-

FROELICH, J.

{¶ 1} Joseph Setty pled no contest in the Clark County Court of Common Pleas to

endangering children, a third-degree felony, and aggravated possession of drugs, a

second-degree felony. The trial court found him guilty and sentenced him to consecutive

sentences of 24 months for endangering children and three years for aggravated

possession of drugs, plus a $7,500 fine and court costs. Setty appeals from his

conviction, challenging his sentence. For the following reasons, the trial court’s

judgment will be affirmed.

I. Background and Procedural History

{¶ 2} According to the presentence investigation report, on February 1, 2016, a

truant officer went to Setty’s home, looking for Setty’s 14-year-old daughter, who had

been absent from school for a long period of time. The truant officer spoke with Setty’s

brother-in-law, Anthony Straight, who owned the home. Straight indicated that Setty had

been “cooking” something in the basement of the home. Based on this information and

observations at the home, the truant officer informed law enforcement that he believed

there was a possible meth lab at the residence.

{¶ 3} Detective Collins and Sergeant Bennett of the Springfield Police Department

went to the residence to investigate. They observed numerous discarded cut-open

lithium batteries in the yard; according to Collins, lithium batteries are commonly used to

cook methamphetamine. The discarded batteries led to a locked cellar.

{¶ 4} Inside the residence, the officers made contact with Setty’s wife, Bridget, and

her 14-year-old daughter. After Bridget told the officers that items used to cook

methamphetamine were in the bedroom, the officers recovered from the bedroom -3-

numerous items related to the manufacture of methamphetamine, including plastic

bottles, rubber hoses, digital scales, empty boxes of nasal decongestant, and hand

syringes. Three plastic bottles of clear liquid were also located in the cellar; the bottles

were found to contain 214.9 grams of methamphetamine and pseudoephedrine, 116.7

grams of methamphetamine, and 119.4 grams of methamphetamine.

{¶ 5} Upon checking on Setty’s purchases of pseudoephedrine on a national

database (NPLEX), Detective Collins learned that since March 2015, Setty had

purchased 45 packages (95.52 grams) of pseudoephedrine and was stopped from

purchasing another 52 (104.88 grams) of pseudoephedrine. The detective further found

that other individuals associated with Setty had made purchases of pseudoephedrine and

that their purchases stopped after Setty’s arrest.

{¶ 6} Subsequent interviews of the daughter by social workers revealed that the

daughter had been exposed to methamphetamines. The daughter stated that her father

cooked meth in his bedroom and, for the past three weeks, he had been making meth

daily and sometimes twice a day. The daughter could describe how to make meth,

because she had observed her father making it, and she had been exposed to the

chemicals, which had made her nose burn. At one point, the daughter went to Dayton

Childrens because school officials believed that she may be exhibiting symptoms of being

exposed to meth.

{¶ 7} The procedural history of Setty’s case is somewhat complicated. In May

2016, Setty was charged in Case No. 2016 CR 217 with illegal manufacture of a controlled

substance (R.C. 2925.04), a first-degree felony; assembly or possession of chemicals

used to manufacture controlled substance with intent to manufacture controlled -4-

substance (R.C. 2925.041), a second-degree felony; and child endangerment (R.C.

2919.22(B)(6)), a third-degree felony. In June 2016, Setty was indicted in Case No. 2016

CR 274 with aggravated possession of drugs (R.C. 2925.11(A)), a first-degree felony.

The two cases were consolidated.

{¶ 8} In July 2016, Setty was reindicted in Case No. 2016 CR 330 for the same

three charges as in Case No. 2016 CR 217. In August 2016, the trial court severed Case

Nos. 2016 CR 217 and 2016 CR 274, dismissed Case No. 2016 CR 217 (the original

case), and consolidated Case No. 2016 CR 274 with Case No. 2016 CR 330 (the

reindicted case). The court ordered that the aggravated possession of drugs charge (the

sole count in Case No. 2016 CR 274) be referred to as Count Four of Case No. 2016 CR

330.

{¶ 9} On January 30, 2017, Setty pled no contest to aggravated possession of

drugs, amended from a first-degree felony to a second-degree felony, and to endangering

children, a third-degree felony. In exchange for the plea, the State agreed to dismiss the

additional charges, to recommend a presentence investigation, and not to prosecute

Setty’s wife related to the investigation (Springfield Police Department Investigation No.

16SPD5024). The trial court found Setty guilty and ordered a PSI.

{¶ 10} The trial court conducted a sentencing hearing on February 21, 2017. The

prosecutor argued that Setty was “in denial of the facts and the evidence” in this case,

and the prosecutor described the knowledge and exposure Setty’s daughter had

regarding the manufacturing of methamphetamine. The prosecutor told the court that

Setty had falsely stated to the PSI investigator that another individual was manufacturing

meth, and that he (Setty) was only using the drug. The prosecutor noted that Setty -5-

lacked a prior felony record, but asked the court to impose a prison sentence based on

the facts of the case.

{¶ 11} In contrast, defense counsel argued that Setty was remorseful for letting his

addiction to meth “take over his life” and for placing his wife and daughter in jeopardy.

Counsel emphasized that Setty had no felony record and a “pretty minimal prior

misdemeanor record,” and that “the fact that he is an addict is very, very clear in this

case.” Speaking on his own behalf, Setty apologized to his family, particularly to his

daughters (he has an older daughter, as well), and stated that addiction had taken over

all of their lives.

{¶ 12} The trial court sentenced Setty to 24 months in prison for child endangering

and to three years in prison for aggravated possession of drugs. In ordering the

sentences to run consecutively, the trial court found, in part, that the offenses were

committed as part of one or more courses of conduct and that no single prison term

adequately reflected the seriousness of the conduct. The court stated:

Making meth in your house is one thing. It puts the house in danger, puts

the neighbors’ homes in danger; but to have your family in the house,

including a minor child while you’re doing that, takes this to a whole ‘nother

level.

Finally, the trial court imposed the mandatory minimum fine of $7,500 and ordered Setty

to pay court costs.

{¶ 13} On appeal, Setty’s sole assignment of error states: “Setty’s sentence is

contrary to law because the trial court failed to consider the sentencing guidelines and

also failed to merge his counts/convictions[.]” In his appellate brief, he articulates three -6-

arguments: (1) his sentence is contrary to law, because the trial court failed to properly

consider and apply R.C. 2929.11 and R.C. 2929.12; (2) the record does not support the

trial court’s findings in support of consecutive sentences; and (3) the trial court erred in

failing to merge the two offenses as allied offenses of similar import. We will address

Setty’s arguments in an order that facilitates our analysis.

II. Allied Offenses of Similar Import

{¶ 14} Ohio’s allied offense statute, R.C. 2941.25, provides that:

(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.

{¶ 15} “ ‘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, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d -7-

266, ¶ 12, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶

31. The Supreme Court has further explained:

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 or during a plea or sentencing hearing 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. Also, a

defendant’s conduct that constitutes two or more offenses against a single

victim can support multiple convictions if the harm that results from each

offense is separate and identifiable from the harm of the other offense. We

therefore hold that two or more offenses of dissimilar import exist within the

meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes

offenses involving separate victims or if the harm that results from each

offense is separate and identifiable.

Ruff at ¶ 26.

{¶ 16} At the outset, Setty did not object to the trial court’s failure to merge his

offenses as allied offenses of similar import. Accordingly, we review Setty’s claim for

plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3;

State v. Trigg, 2d Dist. Montgomery No. 26757, 2016-Ohio-2752, ¶ 12. Under this

review, the trial court’s judgment is not reversible “unless [the error] affected the outcome

of the proceeding and reversal is necessary to correct a manifest miscarriage of justice.”

Rogers at ¶ 3. -8-

{¶ 17} R.C. 2919.22(B)(6), the relevant portion of the endangering children statute,

provides:

(B) No person shall do any of the following to a child under eighteen years

of age * * *:

(6) Allow the child to be on the same parcel of real property and within one

hundred feet of * * * any act in violation of section 2925.04 [illegal

manufacture of controlled substance] or 2925.041 [ assembly or possession

of chemicals used to manufacture controlled substance with intent to

manufacture controlled substance] of the Revised Code when the person

knows that the act is occurring, whether or not any person is prosecuted for

or convicted of the violation of section 2925.04 or 2925.041 of the Revised

Code that is the basis of the violation of this division.

Setty was also convicted of aggravated possession of drugs, which prohibits individuals

from knowingly obtaining, possessing, or using a controlled substance or controlled

substance analog. R.C. 2925.11(A).

{¶ 18} Setty argues that, in this case, the two offenses were both based on the

finding that he engaged in the manufacturing of methamphetamine within 100 feet of his

14-year-old daughter. We disagree with Setty’s assertion that the two offenses were

committed by the same conduct, and we find that they have different import.

{¶ 19} The offense of aggravated possession of drugs is directed to Setty’s

possession of methamphetamine. In setting forth the circumstances of the offenses at

the plea hearing, the prosecutor stated – and Setty agreed – that Setty “possessed three

plastic bottles of clear liquid in the cellar attached to Anthony Strait’s house, and the -9-

bottles were found to contain 214.9 grams of methamphetamine and pseudoephedrine

and 116.7 grams found containing methamphetamine and 119.4 grams found to contain

methamphetamine.” This act of possession constituted the basis for the aggravated

possession of drug conviction.

{¶ 20} In contrast, Setty’s conviction for endangering children was based on his

manufacturing of methamphetamine and his allowing his 14-year-old daughter to be on

the same property and within 100 feet of his manufacturing activities and possession of

chemicals for the manufacturing of methamphetamine. The prosecutor described at the

plea hearing that leaking batteries were located throughout the yard, that additional items

used to cook methamphetamines were located in the bedroom, and that there were other

indicia that Setty was manufacturing methamphetamine in the cellar. The prosecutor

stated that Setty had allowed his minor child to be on the same parcel of real estate and

within 100 feet of his manufacturing of drugs and illegal assembly and possession of

chemicals for the manufacture of those drugs. Moreover, the focus of the endangering

children statute is the harm to the child, not the drug offense. Accordingly, we find that

Setty’s conviction for endangering children was based on different conduct and had a

different import than the aggravated possession of drugs conviction. Accord State v.

Salyer, 2d Dist. Champaign No. 2013 CA 60, 2015-Ohio-2431 (illegal manufacture of

drugs (methamphetamine) and endangering children (R.C. 2919.22(B)(6)) were

committed by separate conduct and did not merge).

III. Setty’s Individual Sentences

{¶ 21} Setty next claims that his individual sentences are contrary to law, because

the trial court failed to properly consider and apply R.C. 2929.11 and R.C. 2929.12. Setty -10-

asserts that he should have received “probation for the Endangering charge and the

minimum sentence of two (2) years for Agg. Possession of Drugs.”

{¶ 22} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may

increase, reduce, or modify a sentence, or it may vacate the sentence and remand for

resentencing, only if it “clearly and convincingly” finds either (1) that the record does not

support certain specified findings or (2) that the sentence imposed is contrary to law.

{¶ 23} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-

Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial

court must consider the statutory criteria that apply to every felony offense, including

those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d

500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio

St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

{¶ 24} R.C. 2929.11 requires trial courts to be guided by the overriding purposes

of felony sentencing. Those purposes are “to protect the public from future crime by the

offender and others and to punish the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). The court must “consider the need

for incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public, -11-

or both.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony

shall be reasonably calculated to achieve the two overriding purposes of felony

sentencing * * *, commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact upon the victim, and consistent with sentences imposed

for similar crimes committed by similar offenders.”

{¶ 25} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct

is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth

four factors indicating that an offender’s conduct is less serious than conduct normally

constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that trial courts

are to consider regarding the offender’s likelihood of committing future crimes. Finally,

R.C. 2929.12(F) requires the sentencing court to consider the offender’s military service

record. (Setty did not serve in the military.)

{¶ 26} At the outset, the trial court was required to impose a prison term for both

aggravated possession of drugs and endangering children, and this fact was reflected on

Setty’s plea form. Setty pled to aggravated possession of drugs (methamphetamine) in

an amount equal to or exceeding five times the bulk amount, but less than fifty times the

bulk amount, a felony of the second degree. Accordingly, the trial court was required to

impose “as a mandatory prison term one of the prison terms prescribed for a felony of the

second degree.” R.C. 2925.11(C)(1)(c). The possible prison terms for a second-

degree felony are two, three, four, five, six, seven, or eight years. R.C. 2929.14(A)(2).

{¶ 27} In addition, R.C. 2919.22(E)(3) provides, in relevant part:

If the offender violates division (B)(6) of this section and the drug involved

is methamphetamine, the court shall impose a mandatory prison term on -12-

the offender as follows:

(a) If the violation is a violation of division (B)(6) of this section that is a

felony of the third degree under division (E)(3) of this section and the drug

involved is methamphetamine, except as otherwise provided in this division,

the court shall impose as a mandatory prison term one of the prison terms

prescribed for a felony of the third degree that is not less than two years. *

* *.

(Emphasis added.) For third-degree felony offenses not listed in R.C. 2929.14(A)(3)(a),

the possible prison term is generally nine, twelve, eighteen, twenty-four, thirty, or thirty-

six months. R.C. 2929.14(A)(3)(b).

{¶ 28} In imposing sentence, the trial court stated that it had considered the facts

presented at the time of the plea and the PSI, and that it applied those facts to the

statutory factors in R.C. 2929.12; the trial court commented on R.C. 2929.12(C) and (D).

The court also noted that mandatory sentences were required, and it imposed 24 months

in prison for child endangering and three years in prison for aggravated possession of

drugs. In other words, Setty received the minimum sentence for endangering children

and close to the minimum sentence for aggravated possession of drugs. Upon review

of the record, the trial court’s sentences are not clearly and unconvincingly unsupported

by the record.

IV. Imposition of Consecutive Sentences

{¶ 29} Setty further claims that the trial court’s findings in support of consecutive

sentencing are clearly and convincingly unsupported by the record.

{¶ 30} After determining the sentence for a particular crime, a sentencing judge -13-

has discretion to order an offender to serve individual counts of a sentence consecutively

to each other or to sentences imposed by other courts. Pursuant to R.C. 2929.14(C)(4),

a trial court may impose consecutive sentences if it determines that: (1) consecutive

service is necessary to protect the public from future crime or to punish the offender; (2)

consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public; and (3) one or more of the

following three findings are satisfied:

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

offender.

{¶ 31} In imposing consecutive sentences, the trial court must make the statutory

findings and incorporate them into its sentencing entry, but the trial court is not required

to state reasons to support its findings. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-

3177, 16 N.E.3d 659, ¶ 37. -14-

{¶ 32} In imposing consecutive sentences, the trial court made the required

statutory findings, using the language of R.C. 2929.14(C)(4). The court found that

“consecutive sentencing is necessary to protect the public from future crime and to punish

the Defendant, and that the consecutive sentences are not disproportionate to the

seriousness of his conduct and to the danger that he poses to the public.” The court

further found that “these two multiple offenses were committed as part of one or more

courses of conduct and the harm caused by the two or more multiple offenses so

committed was so great or unusual that no single prison term for any of the offenses

committed during this course of conduct adequately reflects the seriousness of his

conduct.”

{¶ 33} Setty points out that the trial court imposed consecutive sentences, stating

that “to have your family in the house, including a minor child while you’re doing that

[making meth], takes this to a whole ‘nother level.” Setty argues that the fact that his

daughter was in the home was already considered and received its own punishment

under the endangering children charge.

{¶ 34} Considering the facts underlying both offenses, which are discussed

extensively in the PSI, we cannot find that the trial court’s findings are clearly and

convincingly unsupported by the record. For example, the record reflects that Setty not

only possessed and manufactured methamphetamine within 100 feet of his daughter, but

he did so to the extent that his daughter was able to describe, in great detail, how to make

meth. In addition, the PSI indicates that Setty would use battery acid, Drano, and

ammonia, and would place them in 20 ounce plastic bottles; Setty then put the bottles in

the sink of the bathroom that his daughter used. His daughter indicated that she could -15-

smell the chemicals, which were strong, and they would burn her nose. Considering all

of the information before us, Setty’s consecutive sentencing argument is without merit.

{¶ 35} Setty’s assignment of error is overruled.

V. Conclusion

{¶ 36} The trial court’s judgment will be affirmed.

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HALL, P. J. and DONOVAN, J., concur.

Copies mailed to:

D. Andrew Wilson Andrew P. Pickering Ben M. Swift Hon. Richard J. O’Neill