[Cite as State v. Stuckey, 2018-Ohio-4435.]

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgments Appealed From Are: Affirmed 

Date of Judgment Entry on Appeal: November 2, 2018 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

 

Roger W. Kirk, and Robinson & Brandt, PSC, and Jeffrey M. Brandt, for DefendantAppellant. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

BRANDON STUCKEY, 

 Defendant-Appellant. 

: 

: 

: 

: 

: 

APPEAL NO. C-170285 

TRIAL NOS. B-1501501 

 B-1604595(A) 

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

2 

MOCK, Presiding Judge. 

{¶1} In two assignments of error, defendant-appellant Brandon Stuckey 

claims that the trial court improperly sentenced him in two separate cases. We 

affirm the trial court’s judgments. 

The Case Numbered B-1501501 

{¶2} Stuckey was charged with one count of trafficking in cocaine, one 

count of possession of cocaine, one count of aggravated trafficking in fentanyl, and 

one count of aggravated possession of fentanyl. Pursuant to a plea agreement, 

Stuckey pleaded guilty to possession of cocaine and aggravated possession of 

fentanyl. The remaining two counts were dismissed. The state related the following 

facts, to which Stuckey agreed: 

[T]he officer saw the defendant engaged in numerous hand-to-hand 

drug sales from his motor vehicle. In that motor vehicle, the 

defendant was in the driver’s seat. Officers searched the car and found 

a digital scale and marijuana in the driver’s-side door where the 

defendant was seated. They also found a bag of powder cocaine, 

[prepared] for distribution, above the sun visor on the driver’s side of 

the car where he was seated in the driver’s seat. He also had U.S. 

currency on his person. The weight of the cocaine was 1.641 grams. As 

far as the fentanyl, the weight was 4.21 grams. 

After the appropriate colloquy with the trial court, Stuckey entered guilty pleas to the 

two counts, and the matter was then continued for sentencing. During the 

sentencing hearing, new counsel for Stuckey raised the issue of whether the two 

counts were allied offenses of similar import, and therefore, subject to merger. The 

following exchange took place: 
OHIO FIRST DISTRICT COURT OF APPEALS

3 

DEFENSE COUNSEL: Your honor, I believe these two F5s are allied 

offenses. 

THE COURT: One is trafficking in cocaine. The other is possession 

of fentanyl. 

DEFENSE COUNSEL: I would argue it was probably - - he was 

arrested at the same time for those. I wasn’t here for Mr. Stuckey to 

take the plea. I haven’t had a chance to tell Mr. Stuckey this. I 

understand the Court wants to proceed on the sentencing today for 

that matter, which was already pled. 

{¶3} At the conclusion of the sentencing hearing, the trial court sentenced 

Stuckey to 12 months in prison on each count, with the sentences to be served 

concurrently. 

The Case Numbered B-1604595(A) 

{¶4} Stuckey was indicted on two counts of trafficking in heroin, two 

counts of possession of heroin, two counts of felonious assault on a police officer, 

having a weapon while under a disability, aggravated trafficking in drugs, and 

aggravated possession of drugs. Pursuant to a plea agreement, Stuckey pleaded 

guilty to two counts of trafficking in heroin, one count of felonious assault, and 

having a weapon while under a disability. The remaining counts were dismissed. 

After finding Stuckey guilty of those counts, the trial court proceeded immediately to 

sentencing. 

{¶5} On the issue of sentencing, the state had previously indicated that “we 

agreed to have the defendant plead to the counts he is and dismiss, in exchange for 

those pleas, the remaining counts, and discuss with the officers a proposed sentence 

of five years in the Ohio Department of Corrections.” Counsel for Stuckey asked the 

trial court to “impose the five years that was discussed.” The trial court then said, 
OHIO FIRST DISTRICT COURT OF APPEALS

4 

“Mr. Stuckey, it took a while to get you here, but you are here now. And I think based 

upon everything that’s before me, having considered the sentencing factors under 

2929 of the Ohio Revised Code, I find, obviously, you are not amenable to 

community control.” The trial court then sentenced Stuckey to 12 months in prison 

on each count of trafficking in heroin, five years in prison for felonious assault, and 

36 months for having a weapon while under a disability. Each term was ordered to 

be served concurrently with the others and concurrently with the sentence in another 

case, for a total of five years in prison. 

{¶6} In two assignments of error, Stuckey claims that the trial court erred 

when it sentenced him in these two cases. He first argues that the trial court erred 

when it refused to merge his cocaine-trafficking and fentanyl-possession charges in 

the case numbered B-1501501. He then argues that the trial court failed to consider 

the appropriate sentencing factors when it sentenced him to an aggregate term of 

five years in prison in the case numbered B-1604595(A). 

Allied Offenses in B-1501501 

{¶7} In his first assignment of error, Stuckey claims that the trial court 

should have merged his convictions for trafficking in cocaine and possession of 

fentanyl. The Double Jeopardy Clauses of the Fifth Amendment to the United States 

Constitution, and the Ohio Constitution, Article I, Section 10, protect a defendant 

against multiple punishments for the same offense. State v. Martello, 97 Ohio St.3d 

398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 7; North Carolina v. Pearce, 395 U.S. 711, 

717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This constitutional protection is codified 

in R.C. 2941.25. See State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 

N.E.2d 181, ¶ 23. R.C. 2941.25 provides: 

(A) Where the same conduct by defendant can be construed to 

constitute two or more allied offenses of similar import, the indictment 
OHIO FIRST DISTRICT COURT OF APPEALS

5 

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. 

{¶8} The Ohio Supreme Court set forth the test to determine if two 

offenses are allied offenses of similar import in State v. Ruff, 143 Ohio St.3d 114, 

2015-Ohio-995, 34 N.E.3d 892. It explained: 

 Rather than compare the elements of two offenses to 

determine whether they are allied offenses of similar import, the 

analysis must focus on the defendant's conduct to determine whether 

one or more convictions may result because an offense may be 

committed in a variety of ways and the offenses committed may have 

different import. No bright-line rule can govern every situation. 

 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. 

Id. at ¶ 30-31. 
OHIO FIRST DISTRICT COURT OF APPEALS

6 

{¶9} While the state has the burden of proof regarding the elements of an 

offense, Stuckey bears the burden to demonstrate that he is entitled to the protection 

of R.C. 2941.25. State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 

N.E.2d 661, ¶ 18, citing State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d 870 

(1987). Our review of an allied-offenses question is de novo. State v. Williams, 134 

Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12. 

{¶10} On appeal, Stuckey argues that “it appears that the cocaine and 

fentanyl were a mixture contained in a single bag.” But that is not a fair reading of 

the record. The record does not indicate that the cocaine and fentanyl were mixed. 

If anything, the fact that the two drugs were listed as having been weighed 

separately, and that only the cocaine was described as having been prepared for 

distribution, indicates that the two drugs were not combined. Stuckey failed to prove 

that the two drugs had been combined into one substance. 

{¶11} At trial, counsel’s only argument that the two charges were allied 

offenses was that “he was arrested at the same time for those.” This court has not 

addressed the question of whether separate charges relating to two different drugs 

are allied offenses of similar import. But most appellate districts have affirmatively 

held that they are not. As the Second Appellate District noted, 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.’ ” State v. Huber, 2d Dist. Clark No.2010-CA-83, 2011-Ohio-6175, 

¶ 7, quoting State v. Delfino, 22 Ohio St.3d 270, 274, 490 N.E.2d 884 (1986). The 

Fourth Appellate District concluded that the legislature clearly intended that 

possession of different drug groups constitutes different offenses. See State v. 

Deckard, 2017-Ohio-8469, 100 N.E.3d 53, ¶ 52 (4th Dist.). The Fifth Appellate 

District has also held that counts of possession of different drug groups are not of 
OHIO FIRST DISTRICT COURT OF APPEALS

7 

similar import. See State v. Rice, 5th Dist. Licking No. 2016 CR 00085, 2017-Ohio1504, ¶ 12 (“It would thus defeat the legislature's intent to merge the drug possession 

offenses for different drugs into a single offense for purposes of sentencing.”). The 

Sixth Appellate District agrees. See State v. Ratliff, 6th Dist. Lucas No. L-16-1187, 

2017-Ohio-2816, ¶ 10-11. The Eighth Appellate District has also found that such 

counts do not merge. State v. Perry, 8th Dist. Cuyahoga No. 105501, 2018-Ohio487, ¶ 32-34. The Ninth Appellate District has also held so. See State v. Helmick, 

9th Dist. Summit No. 27179, 2014-Ohio-4187, ¶ 27. The Twelfth Appellate District 

has likewise concluded that “the simultaneous possession of two types of drugs 

constitutes two separate offenses that do not merge as allied offenses of similar 

import under R.C. 2925.11.” State v. Woodard, 12th Dist. Warren No. CA2016-09-

084, 2017-Ohio-6941, ¶ 34. The Woodard court further noted that the fact that “the 

two controlled substances were found in the same baggie is of no consequence” 

because “[e]ach possession offense required proof as to the specific drug involved 

and could not be supported by possession of a different controlled substance.” Id. at 

¶ 35. No appellate district has held that counts for simultaneous possession of two 

different controlled substances are subject to merger. 

{¶12} Having considered the analysis of our sister districts, we conclude 

that convictions relating to two different controlled substances are not allied offenses 

of similar import, and consequently, do not merge. We overrule Stuckey’s first 

assignment of error. 

Sentencing Factors in B-1604595(A) 

{¶13} In his second assignment of error, Stuckey argues the court failed to 

consider the principles and purposes of sentencing when it sentenced him to five 

years in prison in the case numbered B-1604595(A), alleging that the trial court only 
OHIO FIRST DISTRICT COURT OF APPEALS

8 

made “a vague conclusory statement that it had considered the Ohio Revised Code 

§2929 sentencing factors.” 

{¶14} The trial court must consider the purposes and principles of 

sentencing before imposing sentence, in accordance with the sentencing statutes, 

including R.C. 2929.11 and 2929.12. State v. Arnett, 88 Ohio St.3d 208, 215, 724 

N.E.2d 793 (2000). While a trial court is required to consider the purposes and 

principles of sentencing, it need not make specific findings. See State v. Hendrix, 1st 

Dist. Hamilton Nos. C-150194 and C-150200, 2016-Ohio-2697, ¶ 51. We can 

presume from a silent record that the trial court considered the appropriate factors 

unless the defendant affirmatively shows that the court has failed to do so. Id. 

Stuckey does not make a showing that the trial court failed to consider the statutory 

factors, and the trial court expressly stated it had considered them. Absent a showing 

to the contrary, we assume that the trial court considered the appropriate statutory 

factors. We overrule his second assignment of error. 

 Conclusion 

{¶15} Having considered each of Stuckey’s assignments of error and 

overruled both, we affirm the judgments of the trial court. 

Judgments affirmed. 

ZAYAS and MYERS, JJ., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.