[Cite as State v. Sydnor, 2011-Ohio-3922.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
State of Ohio, : : Plaintiff-Appellee, : : Case No. 10CA3359 v. : : DECISION AND Mario A. Sydnor, : JUDGMENT ENTRY : Defendant-Appellant. : File-stamped date: 7-29-11 ________________________________________________________________
APPEARANCES:
Bryan Scott Hicks, Lebanon, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee. ________________________________________________________________
Kline, J.:
{¶1} Mario A. Sydnor appeals his four felony convictions, which originated from a
drug raid. On appeal, Sydnor contends that the trial court erred in denying his motion to
dismiss on speedy-trial grounds. Because the state brought Sydnor to trial within the
statutory time frame required by R.C. 2745.71(C)(2), we disagree. Sydnor also
contends that the trial court erred when it sentenced him for both trafficking in and
possession of crack cocaine. Because Sydnor’s trafficking and possession offenses are
allied offenses of similar import under R.C. 2941.25(A), and because the same offenses
were not committed separately or with a separate animus as to each under R.C.
2941.25(B), we agree. Accordingly, we affirm, in part, and reverse, in part, the
judgment of the trial court. We remand this cause to the trial court for further
proceedings consistent with this opinion. Scioto App. No. 10CA3359 2
I.
{¶2} On October 19, 2006, Kevin Lodwick informed the Portsmouth Police
Department that two individuals were selling drugs from his house. The police obtained
a warrant and conducted a raid on Lodwick’s home. The police discovered thirty-six
plastic baggies containing 33.67 grams of crack cocaine in the living room. In separate
rooms, the police found and arrested Sydnor and Stephan Banks. Sydnor had 2.8
grams of crack cocaine on his person, and the police found 13.48 grams of crack
cocaine in a toy box in the room where they arrested Banks.
{¶3} A Scioto County Grand Jury indicted Sydnor on October 23, 2006, which
resulted in Case No. 06CR001458 (hereinafter “Case I”). And the police arrested him
on October 24, 2006. The indictment contained six felony counts - two counts for
possession of crack cocaine (a first-degree felony count and a fourth-degree felony
count) and two counts for trafficking in crack cocaine (a first-degree felony count and a
fourth-degree felony count). The indictment also contained a weapon under a disability
charge and a possession of criminal tools charge. Sydnor posted bond on October 27.
The trial court scheduled a pre-trial hearing for December 13, 2006, but Sydnor failed to
appear.
{¶4} On December 21, 2006, a Scioto County Grand Jury returned another
indictment against Sydnor, which resulted in Case No. 06CR001692 (hereinafter “Case
II”). The indictment for Case II related to events that occurred on or about December 5,
2006. The indictment contained a fifth-degree felony possession of drugs charge, a
fifth-degree felony trafficking charge, a possession of criminal tools charge and an
escape charge. Scioto App. No. 10CA3359 3
{¶5} The Scioto County Sheriff eventually re-arrested Sydnor on the outstanding
bench warrant on September 15, 2009. At this point, the trial court conducted pre-trial
hearings together for Case I and Case II. Sydnor remained in jail from September 15,
until November 3, 2009, when he raised bond. Sydnor remained out of jail on bond
from November 4 until November 12. On November 12, Sydnor’s bondsman arrested
him, and the trial court granted the bondsman’s motion for release from the bond. On
January 11, 2010, Sydnor moved to continue his trial, and the trial court granted the
motion. Sydnor’s trial began on April 26, 2010.
{¶6} Prior to Sydnor’s trial for Case I, Sydnor moved to dismiss the case on
speedy-trial grounds. The trial court denied Sydnor’s motion because Sydnor had two
cases pending against him.
{¶7} Additionally, the state moved to amend the indictment in Case I prior to trial.
Consequently, the trial court amended the indictment in Case I to merge the possession
counts and trafficking counts. As a result, only four counts of the original six counts in
Case I remained – (1) first-degree felony possession of crack cocaine, (2) first-degree
felony trafficking in crack cocaine, (3) having a weapon under a disability, and (4)
possession of criminal tools.
{¶8} A jury heard Case I and found Sydnor guilty of all four counts. The trial court
sentenced Sydnor to nine years for possession of crack cocaine, nine years for
trafficking in crack cocaine, four years for the weapon under a disability, and four years
for the possession of criminal tools. The trial court found that Sydnor committed the
possession of crack cocaine and the trafficking in crack cocaine with a separate animus.
The trial court also ran the possession, trafficking, and criminal tools sentences Scioto App. No. 10CA3359 4
concurrently, and the weapon under a disability sentence consecutive to the other
sentences. Thus, the court sentenced Sydnor to an aggregate prison term of thirteen
years. In September 2010, the court dismissed Case II.
{¶9} Sydnor appeals the judgment in Case I and asserts the following assignments
of error: I. “THE TRIAL COURT ERRED BY BRINGING MR. SYDNOR TO TRIAL
AFTER THE 270 DAY DEADLINE FOR A SPEEDY TRIAL PURSUANT TO R.C.
2945.71 HAD PASSED.” And, II. “MR. SYDNOR WAS IMPROPERLY SENTENCED
ON BOTH THE POSSESSION AND THE TRAFFICKING OFFENSE WHEN HE
SHOULD HAVE ONLY BEEN SENTENCED ON THE STATE’S CHOICE OF ONE OF
THE CHARGES.”
II.
{¶10} In his first assignment of error, Sydnor contends that the trial court should
have dismissed this case because the state brought him to trial after Sydnor’s speedy-
trial deadline had expired.
{¶11} Our review of a trial court’s decision of a motion to dismiss alleging a speedy-
trial violation involves a mixed question of law and fact. State v. Eldridge, Scioto App.
No. 02CA2842, 2003-Ohio-1198, at ¶5; State v. Brown (1998), 131 Ohio App.3d 387,
391. We defer to the trial court’s findings of fact if supported by competent, credible
evidence. Eldridge at ¶5. We independently review whether the trial court properly
applied the law to the facts of the case. Id. “Furthermore, when reviewing the legal
issues presented in a speedy trial claim, we must strictly construe the relevant statutes
against the state.” Id. citing Brecksville v. Cook, 75 Ohio St.3d 53, 57, 1996-Ohio-171. Scioto App. No. 10CA3359 5
{¶12} Under R.C. 2745.71(C)(2), “[t]he state must bring a person arrested and
charged with a felony to trial within two hundred seventy days.” Eldridge at ¶6. If the
accused remains in jail in lieu of bail solely on the pending charge, each day in jail
counts as three days. See R.C. 2745.71(E). This is known as the “triple-count
provision.” See Eldridge at ¶6.
{¶13} “An accused presents a prima facie case for discharge based upon a violation
of speedy trial limitations by alleging in a motion to dismiss that the state held them
solely on the pending charges and for a time exceeding the R.C. 2945.71 limits. State
v. Butcher (1986), 27 Ohio St.3d 28, 30-31. The burden of proof then shifts to the state
to show that the R.C. 2945.71 limitations have not expired, either by demonstrating that
the time limit was extended by R.C. 2945.72 or by establishing that the accused is not
entitled to use the triple-count provision in R.C. 2945.71(E). The determination of
whether the state holds an accused solely on the pending charges is a legal conclusion
dependent upon the underlying facts. State v. Howard (Mar. 4, 1994), Scioto App. No.
93CA2136.” Eldridge at ¶6.
{¶14} First, we dispose of an inaccuracy in Sydnor’s speedy-trial-clock calculation.
The state arrested Sydnor on October 24, 2006, and the court released him on bond on
October 27, 2006. Sydnor did not appear for a pre-trial hearing scheduled for
December 13, 2006. The Scioto County Sheriff eventually re-arrested Sydnor on the
outstanding bench warrant on September 15, 2009. Sydnor counts non-tolled time from
his initial arrest until his re-arrest in his speedy-trial calculation.
{¶15} Sydnor, however, has waived his right to assert a violation of his speedy-trial
rights for this time period. “Generally, when computing how much time has run against Scioto App. No. 10CA3359 6
the state under R.C. 2945.71 we will begin with the date the state initially arrested the
accused. * * * However, if the accused fails to appear for a scheduled court appearance
he waives his right to assert a violation of his statutory speedy trial rights for the period
of time from his initial arrest to the date that he is rearrested.” Eldridge at ¶7 (citations
and internal quotation omitted). Thus, we only consider the time period following
Sydnor’s September 15, 2009 re-arrest to determine whether his speedy-trial rights
were violated.
{¶16} Sydnor contends that the triple-count provision applies to certain time periods
following his September 15, 2009 re-arrest. Specifically, there are three time periods to
consider: (1) the September 15, 2009 re-arrest until Sydnor was released on bond on
November 3, 2009 (forty-nine days); (2) the November 3, 2009 release until Sydnor’s
re-arrest on November 12, 2009 (nine days); and (3) the November 12, 2009 re-arrest
until Sydnor requested a continuance on January 11, 2010 (sixty days). There is no
dispute that all other relevant time periods are tolled for speedy-trial-calculation
purposes.
{¶17} Sydnor argues that the triple-count provision should apply to time periods (1)
and (3) above, which would count for one hundred forty-seven and one hundred eighty
days respectively. Under Sydnor’s calculation, three hundred thirty-six (non-tolled) days
should apply to his speedy-trial calculation (i.e., 147 + 9 + 180). Therefore, according to
Sydnor, the state failed to bring him to trial in the two hundred seventy days required by
R.C. 2745.71(C)(2), and his case should have been dismissed.
{¶18} The state contends that the triple-count provision does not apply. Under the
state’s straight-time calculations, only one hundred eighteen (non-tolled) days apply to Scioto App. No. 10CA3359 7
Sydnor’s speedy-trial calculation (i.e., 49 + 9 + 60). One hundred eighteen days is
within the two hundred seventy days mandated by R.C. 2745.71(C)(2). Thus, the state
asserts that the trial court correctly denied Sydnor’s motion to dismiss.
{¶19} The triple-count provision applies “only to those defendants held in jail in lieu
of bail solely on the pending charge.” State v. MacDonald (1976), 48 Ohio St.2d 66, at
paragraph one of the syllabus (emphasis added). Thus, when a defendant awaits trial
on separate unrelated cases, the triple-count provision does not apply. State v. Ladd
(1978), 56 Ohio St.2d 197, 203; State v. Kaiser (1978), 56 Ohio St.2d 29, 34; State v.
Dankworth, 172 Ohio App.3d 159, 2007-Ohio-2588, at ¶35; State v. Johnson,
Cuyahoga App. Nos. 81692 & 81693, 2003-Ohio-3241, at ¶14; State v. Allen (Oct. 6,
1997), Fayette App. No. CA97-02-004.
{¶20} Here, the state has shown that the triple-count provision does not apply.
Sydnor was held in jail with two cases pending. Case I relates to the events from
October 2006. And Case II relates to events that occurred on or about December 5,
2006. Thus, Sydnor was held on two different cases relating to the events of different
dates. Additionally, the court never consolidated the separate indictments for Case I
and Case II. Therefore, the triple-count provision does not apply.
{¶21} Sydnor argues that, even though he had two different cases pending against
him, the triple-count provision should apply. Sydnor relies on State v. Parker, 113 Ohio
St.3d 207, 2007-Ohio-1534. In Parker, the defendant was arrested and charged with
two felony drug charges and a misdemeanor charge for carrying a concealed weapon,
and the municipal court set bond on all three charges. Parker at ¶2-3. The felonies
were bound over to the common pleas court where the defendant’s bond was modified Scioto App. No. 10CA3359 8
to a personal recognizance bond. Id. at ¶4. However, the defendant remained jailed on
the misdemeanor charge, which required bail in the form of cash or a surety bond. Id.
The Court held that “when multiple charges arise from a criminal incident and share a
common litigation history, pretrial incarceration on the multiple charges constitutes
incarceration on the ‘pending charge’ for the purposes of the triple-count provision of the
speedy-trial statute, R.C. 2745.71(E).” Id. at ¶21. Consequently, the triple-count
provisions applied to the period in which the defendant was in jail prior to executing his
personal recognizance bond. Id. at ¶¶6, 25.
{¶22} Sydnor argues Case I and Case II share a common litigation history, and,
therefore, under Parker, the triple-count provision should apply. Sydnor notes that all
the pretrial hearings were conducted together. Sydnor states that “the behavior of all
parties involved shows that they proceeded and acted as if there was only one case
going to trial.” Appellant’s Brief at 14. Sydnor claims that it was unclear whether the
April 26, 2010 amendment of the indictment for Case I actually merged with the
indictment for Case II. And Sydnor asserts that trial was set for Case II on April 26,
2010, but “the State did not even bother to present evidence of the events which gave
rise to [Case II].” Id. Therefore, according to Sydnor, the triple-count provision should
apply because Case I and Case II share a common litigation history.
{¶23} Parker, however, is inapposite, and Sydnor’s arguments must fail. Parker
applies when “multiple charges arise from a criminal incident and share a common
litigation history[.]” Parker at ¶21 (emphasis added). The defendant in Parker was held
in jail because he faced charges in two jurisdictions (i.e., the Court of Common Pleas
and Municipal Court) arising from one incident. Here, by contrast, Sydnor’s charges Scioto App. No. 10CA3359 9
relate to different criminal incidents. There is nothing in the record demonstrating that
the charges in Case I, which occurred in October 2006, are related to the charges in
Case II, which occurred on or about December 5, 2006. Thus, the fact that the cases
appear to have shared a “common litigation history,” through common pretrial hearings,
does not mean that Parker applies.
{¶24} Additionally, the court did not consolidate the indictment for Case II with the
indictment for Case I. Neither party moved to consolidate the cases. And contrary to
Sydnor’s arguments, it is clear that the April 26, 2010 amendment did not merge the
indictments for Case I and Case II. The state moved to merge counts within the
indictment for Case I only. The judgment entry amending the indictment in Case I
makes no mention of Case II.
{¶25} Finally, Case II continued after the trial in Case I. The docket for Case II
reveals no entries for April 26, 2010, which was the trial date for Case I. Following the
trial for Case I, the docket for Case II shows multiple entries. A pretrial hearing was
scheduled for June 9, 2010. The docket reveals that a motion to permit Sydnor’s
counsel to withdraw was filed on June 1, 2010, and new counsel was appointed on
September 3, 2010. Another pretrial was scheduled for September 23, 2010. And on
September 24, 2010, Case II was dismissed without prejudice.
{¶26} Thus, contrary to Sydnor’s arguments on appeal, the alleged offenses from
Case II were not “done away with” by virtue of the trial in Case I. Case II continued and
was eventually dismissed on September 24, 2010. This is not a situation where multiple
charges arise from a single criminal incident and share a common litigation history.
Therefore, the triple-count provision does not apply. Scioto App. No. 10CA3359 10
{¶27} Under the speedy-trial calculation, the state brought Sydnor to trial after one
hundred eighteen (non-tolled) days. Thus, the state did not fail to bring Sydnor to trial
within the two hundred seventy days required by R.C. 2745.71(C)(2). And the trial court
properly denied Sydnor’s motion to dismiss.
{¶28} Accordingly, we overrule Sydnor’s first assignment of error.
III.
{¶29} In his second assignment of error, Sydnor contends that the trial court erred
when it sentenced him for both trafficking in and possession of crack cocaine. Sydnor
notes that, prior to trial, the state merged the two possession counts into one count and
the two trafficking counts into one count. Consequently, Sydnor argues that the state
could not show a separate animus for possession and trafficking based upon the
aggregate amount of drugs for which Sydnor was convicted.
{¶30} We review de novo whether a defendant’s offenses should have been
merged as allied offenses of similar import. State v. Buckta (Nov. 12, 1996), Pickaway
App. No. 96CA3; see, also, State v. Brown, Allen App. No. 1-10-31, 2011-Ohio-1461, at
¶36.
{¶31} “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.” R.C.
2941.25(A). But “[w]here 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 Scioto App. No. 10CA3359 11
or information may contain counts for all such offenses, and the defendant may be
convicted of all of them.” R.C. 2941.25(B).
{¶32} This statute “codified the judicial doctrine of merger” and “prohibited the
‘cumulative punishment of a defendant for the same criminal act where his conduct can
be construed to constitute two statutory offenses, when, in substance and effect, only
one offense has been committed.’” State v. Ware (1980), 63 Ohio St.2d 84, 86, quoting
State v. Roberts (1980), 62 Ohio St.2d 170, 172-73.
{¶33} Sydnor’s sentences for possession and trafficking run concurrently. And even
when sentences are served concurrently, the failure to merge sentences for allied
offenses of similar import prejudices a defendant. State v. Underwood, 124 Ohio St.3d
365, 2010-Ohio-1, at ¶31 (“[E]ven when the sentences are to be served concurrently, a
defendant is prejudiced by having more convictions than are authorized by law.”).
{¶34} The Supreme Court of Ohio has recently overruled its prior judgments in this
area of the law, and it articulated the proper analysis for determining whether merger is
appropriate. See State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, at ¶44. “In
determining whether offenses are allied offenses of similar import under R.C.
2941.25(A), the question is whether it is possible to commit one offense and commit the
other with the same conduct, not whether it is possible to commit one without
committing the other. [State v.] Blankenship, 38 Ohio St.3d [116,] 119[,] (Whiteside, J.,
concurring) (‘It is not necessary that both crimes are always committed by the same
conduct but, rather, it is sufficient if both offenses can be committed by the same
conduct. It is a matter of possibility, rather than certainty, that the same conduct will
constitute commission of both offenses.’ [Emphasis sic]). * * * Scioto App. No. 10CA3359 12
{¶35} “If the multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same conduct, i.e.,
‘a single act, committed with a single state of mind.’ [State v.] Brown, 119 Ohio St.3d
447, 2008-Ohio-4569[,] at ¶50 (Lanzinger, J., dissenting).
{¶36} “If the answer to both questions is yes, then the offenses are allied offenses
of similar import and will be merged.
{¶37} “Conversely, if the court determines that the commission of one offense will
never result in the commission of the other, or if the offenses are committed separately,
or if the defendant has separate animus for each offense, then, according to R.C.
2941.25(B), the offenses will not merge.” Johnson at ¶48-51 (emphasis sic).
{¶38} Sydnor was convicted of possession of crack cocaine under R.C. 2925.11(A)
and trafficking of crack cocaine under R.C. 2925.03(A)(2). We conclude that “it is
possible to commit [possession of crack cocaine under R.C. 2925.11(A)] and commit
[trafficking of crack cocaine under R.C. 2925.03(A)(2)] with the same conduct.”
Johnson at ¶48. Thus, we analyze whether Sydnor committed the offenses separately
or with a separate animus to justify being sentenced for both under R.C. 2941.25(B).
{¶39} “R.C. 2941.25(B), by its use of the term ‘animus,’ requires [courts] to examine
the defendant’s mental state in determining whether two or more offenses may be
chiseled from the same criminal conduct. In this sense, * * * the General Assembly
intended the term ‘animus’ to mean purpose or, more properly, immediate motive. Like
all mental states, animus is often difficult to prove directly, but must be inferred from the
surrounding circumstances.” State v. Logan (1979), 60 Ohio St.2d 126, 131 (citations
omitted). Scioto App. No. 10CA3359 13
{¶40} The state argues that Sydnor had a separate animus for his possession and
trafficking convictions. The state points to evidence that Sydnor possessed crack
cocaine for personal use. Indeed, there is testimony that Sydnor had been using crack
cocaine to get high throughout the night prior to the arrest. Additionally, Banks paid
Sydnor in drugs to package the crack cocaine for sale. And Sydnor had crack cocaine
on his person when he was arrested.
{¶41} The state, however, does not address the pre-trial amendment of the
indictment and the subsequent verdict finding Sydnor guilty of first-degree felony
possession of crack cocaine. The amended indictment merged Sydnor’s first-degree
and fourth-degree felony possession counts into one first-degree felony count of
possession. As a result, Sydnor was found guilty of possessing crack cocaine in an
amount of 25 grams or more and less than 100 grams. A conviction for possession of
25 grams or more of crack cocaine but less than 100 grams is a first-degree felony.
See R.C. 2925.11(C)(4)(e).
{¶42} There is insufficient evidence of Sydnor’s personal use of crack cocaine to
support a conviction for first-degree felony possession, which was committed separately
or with a separate animus from Sydnor's trafficking conviction. The police seized three
stashes of crack cocaine: (1) 33.67 grams found in 36 plastic baggies in the living room;
(2) 13.48 grams in a child’s toy box in the room where Banks was arrested; and (3) 2.84
grams found on Sydnor. Clearly, Sydnor possessed the 33.67 grams found in the thirty-
six plastic baggies for sale, and not personal use. Even assuming the crack cocaine
found on Sydnor’s person and in the toy box was for personal use, the aggregate
amount does not support a first-degree felony conviction. The total amount found on Scioto App. No. 10CA3359 14
Sydnor’s person and in the toy box was 16.32 grams. Thus, the state failed to present
evidence of Sydnor’s personal use of crack cocaine sufficient to support a first-degree
felony conviction for possession under R.C. 2925.11(A)/(C)(4)(e). Therefore, we
conclude that Sydnor did not commit his possession and trafficking offenses separately
or with a separate animus. And the trial court should have merged the possession and
trafficking convictions.
{¶43} Accordingly, we sustain Sydnor’s second assignment of error, and we vacate
Sydnor’s sentences for trafficking in and possession of crack cocaine. We remand for a
new sentencing hearing at which the state must elect to pursue punishment for Sydnor’s
violation of either R.C. 2925.03(A)(2) or R.C. 2925.11(A). See State v. Whitfield, 124
Ohio St.3d 319, 2010-Ohio-2, at ¶21.
IV.
{¶44} In conclusion, we overrule Sydnor’s first assignment of error and sustain his
second assignment of error. Accordingly, we remand this case for further proceedings
consistent with this opinion.
JUDGMENT AFFIRMED, IN PART, AND REVERSED, IN PART, AND CAUSE REMANDED. Scioto App. No. 10CA3359 15
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED, IN PART, REVERSED, IN PART, AND THIS CAUSE BE REMANDED to the trial court for further proceedings consistent with this opinion. Appellant and Appellee shall pay equally the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________ Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.