[Cite as State v. Brooks,
2011-Ohio-2282.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95395
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JEFFREY BROOKS
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND VACATED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-511876
BEFORE: Blackmon, P.J., Boyle, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: May 12, 2011
2
-i-
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square, Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Patrick J. Lavelle
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PER CURIAM:
{¶ 1} Appellant Jeffrey Brooks appeals his convictions and sentence
and assigns twelve errors for our review.1 Having reviewed the record and
pertinent law, we reverse Brooks’s convictions, vacate his sentences, and
order him discharged. The apposite facts follow.
{¶ 2} On June 12, 2008, a Cuyahoga County Grand Jury indicted
Brooks, along with codefendants Thomas Yankowski and Alfred Robinson, on
one count each of drug possession and drug trafficking, both second degree
1
See appendix.
3
felonies. On June 26, 2008, Brooks pleaded not guilty at his arraignment.
Numerous pretrials followed and on March 30, 2010, a jury trial commenced.
{¶ 3} At the trial, the state presented six witnesses, including four
police officers, whose testimonies established that Brooks arranged for the
shipment of approximately 600 pounds of marijuana from California to the
business establishment of his codefendant, Yankowski, in Cleveland, Ohio.
The testimonies further established that Brooks arrived at Yankowski’s
establishment shortly after a controlled delivery was completed and was
caught on surveillance camera directing the loading of the boxes containing
the drugs into the van of his second codefendant.
{¶ 4} The jury found Brooks guilty of both charges. On June 14,
2010, the trial court sentenced Brooks to eight-year concurrent prison terms.
Brooks now appeals.
Verdict Form
{¶ 5} In the first assigned error, Brooks argues he was denied due
process of law when he was convicted and sentenced for two second degree
felonies without a jury’s determination of the amount of a controlled
substance. Specifically, Brooks asserts that the verdicts only support
convictions for minor misdemeanors. The state concedes that the trial court
failed to provide the jury with the proper verdict forms.
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{¶ 6} Pursuant to R.C. 2945.75(A)(2):
“When the presence of one or more additional elements
makes an offense one of more serious degree: … A guilty
verdict shall state either the degree of the offense of
which the offender is found guilty, or that such additional
element or elements are present. Otherwise, a guilty
verdict constitutes a finding of guilty of the least degree of
the offense charged.”
{¶ 7} Pursuant to the clear language of R.C. 2945.75, a verdict form
signed by a jury must include either the degree of the offense of which the
defendant is convicted or a statement that an aggravating element has been
found to justify convicting a defendant of a greater degree of a criminal
offense. State v. Bryant, 7th Dist. No. 10-MA-11, 2010-Ohio-4401, citing
State v. Pelfrey,
112 Ohio St.3d 422,
2007-Ohio-256,
860 N.E.2d 735, syllabus.
{¶ 8} In the instant case, the respective jury verdict forms, containing a
single page each, state in pertinent part as follows:
“We, the Jury in this case, being duly empaneled and
sworn, do find Defendant, Jeffrey Brooks, guilty of Drug
Trafficking, in violation of §2925.03(A)(2) of the Ohio
Revised Code, as charged in Count One of the indictment.”
“We, the Jury in this case, being duly empaneled and
sworn, do find Defendant, Jeffrey Brooks, guilty of
Possession of Drugs, in violation of §2925.11(A) of the Ohio
Revised Code, as charged in Count Two of the
indictment.”
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{¶ 9} Here, neither verdict includes a statement indicating either the
degree of the offense charged or that an aggravating circumstance existed to
justify a conviction on the greater offense, specifically that the amount of
marijuana involved was equal to or exceeded 20,000 grams. The verdict
forms simply stated that Brooks was guilty of drug trafficking and drug
possession in violation of the Ohio Revised Code as “charged in the
indictment.” This is insufficient under Pelfrey supra.
{¶ 10} Furthermore, the “as charged in the indictment” language in the
verdict form in the case at bar does not cure the defect, even though the
degrees of the offense were included in the indictment. State v. Eafford,
Cuyahoga App. No. 94718, 2011-Ohio-927, citing State v. Moore,
188 Ohio
App.3d 726,
2010-Ohio-1848,
936 N.E.2d 981.
{¶ 11} Consequently, Brooks was incorrectly sentenced. As such, a
felony of the fifth degree is the least degree for a conviction for trafficking in
drugs. State v. Huckleberry, 4th Dist. No. 07CA3142, 2008-Ohio-1007. See,
also, R.C. 2925.03(C)(2)(a). Likewise, a misdemeanor of the third degree is
the least degree for a conviction for possession of drugs.
Id. See, also R.C.
2925.11(C)(2)(a). Accordingly, we sustain Brooks’s first assigned error,
reverse his convictions, and vacate his 8 year sentence.
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{¶ 12} However, the range of sentence for the crimes for which Brooks
was convicted is six-to-twelve months and 60 days in jail, respectively. The
record indicates that Brooks has been incarcerated for more than twelve
months, the maximum period of incarceration for a felony of the fifth degree.
As such, we order Brooks discharged.
{¶ 13} Our disposition of the first assigned error renders the remaining
assigned errors moot. App.R. 12(A)(1)(C).
Judgment reversed.
It is ordered that appellant recover of appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution. Case remanded to the trial court for further
proceedings.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
MARY J. BOYLE, JUDGE
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EILEEN A. GALLAGHER, JUDGE
APPENDIX
Assignments of Error
“I. Defendant was denied due process of law when he was
sentenced to an eight year sentence when there was no
determination by the jury as to the amount of the
controlled substance.”
“II. Defendant was denied due process of law when the
court overruled his motion for judgment of acquittal.”
“III. Defendant was denied a fair trial when Det. Jamal
Ansari gave his opinion of defendant’s guilt.”
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“IV. Defendant was denied his right of confrontation and
cross-examination when the court refused to allow
defense counsel to question co-defendant Thomas
Yankowski as to the amount of time he was subject to.”
“V. Defendant was denied his right of confrontation and
cross-examination when the court allowed hearsay
testimony from Det. Jamal Ansari.”
“VI. Defendant was denied his right to present a defense
and his right to cross-examination when the court limited
cross-examination of Det. Jamal Ansari.”
“VII. Defendant was denied due process of law when the
prosecutor expressed his personal opinion of defendant’s
guilt.”
“VIII. Defendant was denied due process of law when the
court instructed the jury on flight.”
“IX. Defendant was denied due process of law concerning
the court’s instruction on a presumption.”
“X. Defendant was denied due process of law when the
court misinstructed the jury concerning Count One.”
“XI. Defendant was denied due process of law when he
was separately sentenced for trafficking and possession of
the same controlled substance.”
“XII. Defendant was denied the effective assistance of
counsel.”
