[Cite as State v. Dodson, 2017-Ohio-350.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF MEDINA ) 

STATE OF OHIO 

 Appellee 

 v. 

JESSICA E. DODSON 

 Appellant 

C.A. No. 16CA0020-M 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF MEDINA, OHIO 

CASE No. 14CR0342 

DECISION AND JOURNAL ENTRY 

Dated: January 31, 2017 

 

SCHAFER, Judge. 

{¶1} Defendant-Appellant, Jessica E. Dodson, appeals the judgment of the Medina 

County Court of Common Pleas sentencing her to a prison term of eighteen months. For the 

reasons that follow, this Court affirms. 

I. 

{¶2} The Medina County grand jury issued an indictment charging Dodson with one 

count of possession of heroin in violation of R.C. 2925.11(A)/(C)(6)(a), one count of possession 

of cocaine in violation of R.C. 2925.11(A)/(C)(3)(a), and one count of aggravated possession of 

drugs (methadone) in violation of R.C. 2925.11(A)/(C)(4)(a). At arraignment, Dodson entered a 

plea of not guilty and the matter proceeded through the pretrial process. 

{¶3} The trial court ultimately found that Dodson met the criteria for intervention in 

lieu of conviction (“IILC”). Consequently, Dodson entered a guilty plea to all three counts in the 

indictment and the trial court stayed the criminal proceedings without entering a finding of guilt. 
2 

 

The trial court then ordered Dodson to comply with the terms and conditions of the IILC 

program. However, after several violations, the trial court found Dodson guilty of violating the 

conditions of IILC and accepted Dodson’s earlier pleas of guilty to possession of heroin, 

possession of cocaine, and aggravated possession of drugs. After a presentence investigation, the 

trial court sentenced Dodson to 180 days of incarceration at the Medina County Jail with a credit 

for 68 days already served. The trial court also imposed a number of non-residential community 

control sanctions, including three years of probation under intensive supervision. While 

incarcerated at the Medina County Jail, the trial court also ordered that Dodson be assessed for 

placement at the Lorain/Medina County Community Based Correctional Facility (“CBCF”). 

{¶4} Although Dodson was eventually placed at CBCF, she was unsuccessfully 

terminated a short time later. At a hearing, the trial court accepted Dodson’s plea of admission 

and found her guilty of violating the terms and conditions of her probation. The trial court 

sentenced Dodson to a jail sentence of an additional thirty days and continued Dodson on 

probation. 

{¶5} However, Dodson again violated her probation. At a subsequent hearing, the trial 

court accepted Dodson’s plea of admission and again found her guilty of violating the terms and 

conditions of her probation. The trial court then imposed a prison sentence on Dodson of six 

months incarceration on each of the three counts of possession to run consecutively with a credit 

of 206 days for time already served. 

{¶6} Dodson now brings this timely appeal and raises one assignment of error for our 

review. 
3 

 

II. 

Assignment of Error 

The trial court committed plain error and erred as a matter of law in 

sentencing Appellant to consecutive sentences for allied offenses that arose 

from the same conduct and were not committed separately or with separate 

animus. 

{¶7} In her sole assignment of error, Dodson contends that the trial court committed 

plain error when it imposed consecutive prison sentences because her convictions were allied 

offenses arising from the same conduct and were not committed separately or with separate 

animus. We disagree.

{¶8} In this case, Dodson did not seek to merge her charges prior to entering her guilty 

pleas to possession of heroin, possession of cocaine, and aggravated possession of drugs and the 

trial court’s subsequent acceptance of those guilty pleas. Consequently, Dodson states that her 

separate convictions were proper “since the merger process was waived below.” Dodson 

contends that regardless of this waiver, her convictions for possession of heroin, possession of 

cocaine, and aggravated possession of drugs are allied offenses which arose from the same 

conduct and, therefore, the trial court committed plain error when it did not merge her 

convictions for sentencing purposes. 

{¶9} Crim.R. 52(B) allows an appellate court to take notice of a plain error affecting a 

substantial right even though the error was not first brought to the trial court’s attention. 

However, a plain error review is only proper for instances of forfeiture rather than for waiver. 

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 23. Waiver is the intentional 

relinquishment or abandonment of a right, and the waiver of a right “cannot form the basis of any 

claimed error under Crim.R. 52(B).” Id., quoting State v. McKee, 91 Ohio St.3d 292, 299, fn. 3 

(Cook, J., dissenting). However, “[i]n contrast to waiver, forfeiture is the failure to timely assert 
4 

 

a right or object to an error.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 21. 

Although Dodson uses the term waiver, in the body of her brief Dodson treats her failure to seek 

the merger of her charges in the court below as a forfeiture of the argument and not as a waiver. 

We recognize that “[i]t is possible for an accused to expressly waive the protection afforded by 

R.C. 2941.25, such as by ‘stipulating in the plea agreement that the offenses were committed 

with separate animus.’” Id. at ¶ 20, quoting Underwood at ¶ 29. However, after a thorough 

review, we conclude that nothing in the record indicates that by pleading guilty Dodson intended 

to relinquish the opportunity to argue that her offenses should have merged for the purposes of 

sentencing. Additionally, “an allied offenses claim is consistent with an admission of guilt and 

therefore is not waived by pleading guilty to offenses that might be allied offenses of similar 

import.” Rogers at ¶ 19. Accordingly, we will analyze Dodson’s failure to raise the issue of the 

possible merger of her charges before the trial court as a forfeiture of the argument. 

{¶10} As we stated previously, Crim.R. 52(B) allows an appellate court to take notice of 

a plain error affecting a substantial right even though the error was not first brought to the trial 

court’s attention. The Supreme Court of Ohio has held that “[a]n accused’s failure to raise the 

issue of allied offenses of similar import in the trial court forfeits all but plain error, and a 

forfeited error is not reversible unless it affected the outcome of the proceedings and reversal is 

necessary to correct a manifest miscarriage of justice.” Id. at ¶ 3. “Accordingly, an accused has 

the burden to demonstrate a reasonable probability that the convictions are for allied offenses of 

similar import committed with the same conduct and without separate animus; absent that 

showing, the accused cannot demonstrate that the trial court’s failure to inquire whether the 

convictions merge for purposes of sentence was plain error.” Id.
5 

 

{¶11} “Whether multiple punishments imposed in the same proceeding are permissible 

is a question of legislative intent.” State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, ¶ 

10. “Absent a more specific legislative statement, R.C. 2941.25 is the primary indication of the 

General Assembly’s intent to prohibit or allow multiple punishments for two or more offenses 

resulting from the same conduct.” Id. at ¶ 11. “R.C. 2941.25 codifies the protections of the 

Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 

10, Article I of the Ohio Constitution, which prohibits multiple punishments for the same 

offenses.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 23. The statute provides as 

follows: 

(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. 

Accordingly, R.C. 2941.25(B) provides “that the same conduct can be separately punished if that 

conduct constitutes offenses of dissimilar import. (Emphasis sic.) State v. Ruff, 143 Ohio St.3d 

114, 2015-Ohio-995, ¶ 20. Offenses are of dissimilar import if they involve separate victims or 

if the harm that results from each offense is separate and identifiable. Id. at paragraph 2 of the 

syllabus. 

{¶12} Dodson contends that her convictions for possession of heroin, possession of 

cocaine, and aggravated possession of drugs are allied offenses of similar import because they 

were committed on the same day and arose from the same conduct. However, in State v. 
6 

 

Helmick, 9th Dist. Summit No. 27179, 2014-Ohio-4187, this Court previously recognized the 

following: 

Generally, crimes relating to different controlled substances are of dissimilar 

import and do not merge. Under R.C. 2628.11(C), drug possession offenses are 

classified and penalized based on the type and quantity of the controlled substance 

involved. Where each violation of R.C. 2925.11 requires proof of the identity of a 

different drug that was possessed * * * the legislature intended the possession of 

the different drug groups to constitute different offenses. 

(Internal quotations and citations omitted.) Id. at ¶ 26. Other Ohio courts have also concluded 

that the legislature intended the possession of different drugs to constitute different offenses and 

thus, crimes relating to different controlled substances are of dissimilar import. See State v. 

Huber, 2d Dist. Clark No. 2010-CA-83, 2011-Ohio-6175, ¶ 7 (“[T]he fact each violation of R.C. 

2925.11 requires proof of the identity of a different drug that was possessed demonstrates ‘that 

the legislature intended the possession of the different drug groups to constitute different 

offenses.’”) quoting State v. Delfino, 22 Ohio St.3d 270, 274 (1986); State v. Heflin, 6th Dist. 

Lucas No. L-11-1173, 2012-Ohio-3988, ¶ 14 (holding that convictions for simultaneous 

possession of cocaine and heroin were not subject to merger as allied offenses of similar import 

since possession of either would never support a conviction for possession of the other); State v. 

Santiago, 8th Dist. Cuyahoga No. 101601, 2015-Ohio-1300, ¶ 12 (concluding that possession of 

heroin and possession of cocaine do not constitute allied offenses of similar import since they are 

recognized as separate offenses under R.C. 2925.11); State v. Hughes, 5th Dist. Coshocton No. 

15CA0008, 2016-Ohio-880, ¶ 24-25 (concluding that convictions for possession of cocaine, 

heroin and other controlled substances did not merge for purposes of sentencing). 

{¶13} In this case, Dodson was convicted of possession of heroin in violation of R.C. 

2925.11(A)/(C)(6)(a), possession of cocaine in violation of R.C. 2925.11(A)/(C)(4)(a), and 

aggravated possession of drugs (methadone) in violation of R.C. 2925.11 (A)/(C)(1)(a). 
7 

 

Although it is undisputed that Dodson’s possession of heroin, cocaine, and methadone occurred 

simultaneously, each is recognized as a separate offense under R.C.2925.11. Therefore, we 

conclude that Dodson has failed to meet her burden to show a reasonable probability that her 

offenses were allied offenses and subject to merger. 

{¶14} Accordingly, Dodson’s sole assignment of error is overruled. 

III. 

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

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 

 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(C). 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. 

 

 JULIE A. SCHAFER 

 FOR THE COURT 
8 

 

WHITMORE, P. J. 

HENSAL, J. 

CONCUR. 

APPEARANCES: 

PAUL E. MEYER, Attorney at Law, for Appellant. 

DEAN HOLMAN, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting 

Attorney, for Appellee.