[Cite as State v. Harshman, 2012-Ohio-3901.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 13-12-02 

 v. 

DONALD L. HARSHMAN, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 13-12-03 

 v. 

DONALD L. HARSHMAN, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 13-12-04 

 v. 

DONALD L. HARSHMAN, O P I N I O N 

 DEFENDANT-APPELLANT. 

 
Case Nos. 13-12-02, 13-12-03, 13-12-04 

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Appeals from Seneca County Common Pleas Court 

Trial Court Nos. 11CR0023, 11CR0075, and 11CR0076 

Appeal Dismissed in Case No. 13-12-02 

Judgments Affirmed in Case Nos. 13-12-03, 13-12-04 

Date of Decision: August 27, 2012 

 

APPEARANCES: 

Mary F. Snyder for Appellant 

Derek W. DeVine and Rhonda L. Best for Appellee 

PRESTON, J. 

{¶1} Defendant-appellant, Donald L. Harshman, appeals the Seneca County 

Court of Common Pleas’ judgment entries of sentence. For the reasons stated 

herein, we dismiss appellate case no. 13-12-02 (trial court case no. 11CR0023) 

and affirm the trial court’s judgments in appellate case nos. 13-12-03 (trial court 

case no. 11CR0075) and 13-12-04 (trial court case no. 11CR0076). 

{¶2} On March 16, 2011, the Seneca County Grand Jury indicted 

Harshman on one count of receiving stolen property in violation of R.C. 

2913.51(A), (C), a fourth degree felony, which was assigned trial court case no. 
Case Nos. 13-12-02, 13-12-03, 13-12-04 

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11CR0023. (Doc. No. 3). The bill of particulars alleged that, on or about February 

4, 2011 at 107 Clinton Ave. and 44 1⁄2 W. Market St., in the City of Tiffin, Seneca 

County, Ohio, Harshman did recklessly receive, retain, or dispose of property of 

another knowing it was obtained through a theft offense. (Doc. No. 10). 

Discovery in the case indicates that the stolen property consisted of computers and 

computer-related electronics and computer components owned by Diverse 

Technology Solutions of Tiffin, Ohio. (Doc. No. 20). 

{¶3} On April 14, 2011, the Seneca County Grand Jury indicted Harshman 

on two counts of illegal manufacture of drugs in violation of R.C. 2925.04(A), 

(C)(3)(b), first degree felonies, in two separate indictments assigned trial court 

cases nos. 11CR0075 and 11CR0076. In case no. 11CR0075, the bill of 

particulars alleged that, on or about February 4, 2011 at 107 Clinton Ave., in the 

City of Tiffin, Seneca County, Ohio, Harshman did knowingly manufacture or 

otherwise engage in the production of methamphetamine, a controlled substance, 

within the vicinity of a school. (Doc. No. 10). In case no. 11CR0076, the bill of 

particulars alleged that, on or about March 23, 2011 at 115 Coe St. in the City of 

Tiffin, Seneca County, Ohio, Harshman did knowingly manufacture or otherwise 

engage in the production of a controlled substance, namely methamphetamine, 

within the vicinity of a school. (Doc. No. 10). 
Case Nos. 13-12-02, 13-12-03, 13-12-04 

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{¶4} On December 5, 2011, pursuant to a written plea agreement, 

Harshman entered a plea of guilty to one count of receiving stolen property, a 

fourth degree felony, in case no. 11CR0023; a plea of guilty to the lesser-included 

offense of illegal manufacture of drugs in violation of R.C. 2925.04(A),(C)(3)(a), 

a second degree felony, in case no. 11CR0075; and, a plea of guilty to one count 

of illegal manufacture of drugs, a first degree felony, in case no. 11CR0076. 

(Doc. Nos. 44, 56, 55). Pursuant to the plea agreement, the parties jointlyrecommended a sentence of 15 months in case no. 11CR0023, a mandatory threeyear sentence in case no. 11CR0075, and a mandatory four-year sentence in case 

no. 11CR0076. (Case No. 11CR0023, Doc. No. 43). The trial court sentenced 

Harshman to the jointly-recommended sentences. (Doc. Nos. 45, 59, 57). 

{¶5} On January 4, 2012, Harshman filed notices of appeal in each case. 

(Doc. Nos. 50, 64, 63). Trial court case no. 11CR0023 was assigned appellate 

case no. 13-12-02; trial court case no. 11CR0075 was assigned appellate case no. 

13-12-03; and, trial court case no. 11CR0076 was assigned appellate case no. 13-

12-04. This Court consolidated the appeals for purposes of review. 

{¶6} Harshman now appeals raising two assignments of error. Both 

assignments of error relate to Harshman’s sentences in trial court case nos. 

11CR0075 and 11CR0076 (appellate case nos. 13-12-03 and 13-12-04, 

respectively). Since Harshman has raised no assignments of error related to his 
Case Nos. 13-12-02, 13-12-03, 13-12-04 

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conviction and sentence in trial court case no. 11CR0023 (appellate case no. 13-

12-02) as required under App.R. 16(A)(3), we dismiss the appeal for want of 

prosecution. State v. Matthieu, 3d Dist. Nos. 10-02-04, 10-02-05, 2003-Ohio3430, ¶ 10. We now turn to Harshman’s assignments of error in the two 

remaining appellate cases. 

Assignment of Error No. I 

The trial court erred by imposing separate convictions and 

prison sentences for Illegal Manufacture of Drugs, ORC 

2925.04(A), (C)(3)(a), a Felony of the Second Degree; and Illegal 

Manufacture of Drugs, ORC 2925.04(A), (C)(3)(b), a Felony of 

the First Degree. 

{¶7} In his first assignment of error, Harshman argues that the trial court 

committed plain error by sentencing him on both illegal manufacture of drug 

convictions since they were allied offenses. We disagree. 

{¶8} “Where the defendant’s conduct * * * results in two or more offenses 

of the same or similar kind committed separately * * * the indictment * * * may 

contain counts for all such offenses, and the defendant may be convicted of all of 

them.” R.C. 2941.25(B). As the Ohio Supreme Court recently observed, “if the 

offenses are committed separately * * * then, according to R.C. 2941.25(B), the 

offenses will not merge.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 

¶ 51. 
Case Nos. 13-12-02, 13-12-03, 13-12-04 

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{¶9} The record indicates that Harshman committed two separate acts of 

illegally manufacturing drugs at two separate places—on or about February 4, 

2011 at 107 Clinton Avenue and on or about March 23, 2011 at 115 Coe Street. 

(Bill of Particulars, Doc. Nos. 10, 10). Consequently, these two offenses are not 

allied offenses of similar import under R.C. 2941.25(B), and the trial court did not 

commit plain error by sentencing Harshman on both offenses. Johnson, 2010-

Ohio-6314, at ¶ 51. 

{¶10} Harshman’s first assignment of error is, therefore, overruled. 

Assignment of Error No. II 

The Appllant’s [sic] trial counsel was ineffective in failing to 

raise any allied offense objection, thereby prejudicing the 

Appellant. 

{¶11} In his second assignment of error, Harshman argues that his trial 

counsel was ineffective for failing to raise the issue of allied offenses at 

sentencing. We disagree. 

{¶12} A defendant asserting a claim of ineffective assistance of counsel 

must establish: (1) the counsel’s performance was deficient or unreasonable under 

the circumstances; and (2) the deficient performance prejudiced the defendant. 

State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 

U.S. 668, 687, 104 S.Ct. 2052 (1984). 
Case Nos. 13-12-02, 13-12-03, 13-12-04 

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{¶13} As we have already stated, Harshman’s offenses are not allied under 

R.C. 2941.25(B) and Johnson, 2010-Ohio-6314. Therefore, trial counsel was not 

ineffective by failing to raise an allied offense argument at sentencing. 

{¶14} Harshman’s second assignment of error is, therefore, overruled. 

{¶15} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgments of the trial court in case 

nos. 11CR0075 and 11CR0076 (appellate case nos. 13-12-03 and 13-12-04, 

respectively). Having failed to raise any assignments of error related to trial court 

case no. 11CR0023 (appellate case no. 13-12-02), we dismiss the appeal for want 

of prosecution. 

Appeal Dismissed in 

Case No. 13-12-02 

Judgments Affirmed in Case 

Nos. 13-12-03 and 13-12-04 

WILLAMOWSKI and ROGERS, J.J., concur. 

/jlr