[Cite as State v. Sturgis,
2016-Ohio-3388.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
STATE OF OHIO,
CASE NO. 10-15-17
PLAINTIFF-APPELLEE,
v.
JUDGMENT
JOHN T. STURGIS, ENTRY
DEFENDANT-APPELLANT.
Appeal from Mercer County Common Pleas Court
Criminal Division
Trial Court No. 15-CRM-081
Judgment Affirmed
Date of Decision: June 13, 2016
APPEARANCES:
Bryan Scott Hicks for Appellant
Matthew K. Fox and Joshua A. Muhlenkamp for Appellee
Case No. 10-15-17
WILLAMOWSKI, J.
{¶1} Defendant-appellant, John T. Sturgis (“Sturgis”), brings this appeal
from the judgment of the Common Pleas Court of Mercer County, Ohio, which
imposed his sentence upon finding him guilty of attempted illegal manufacture of
drugs and illegal assembly or possession of chemicals for the manufacture of
drugs. For the reasons that follow, we affirm the trial court’s judgment.
Procedural Background
{¶2} On May 21, 2015, the Mercer County Prosecuting Attorney filed a
three-count indictment against Sturgis. Count one of the indictment charged
Sturgis with illegal manufacture of drugs, a felony of the second degree in
violation of R.C. 2925.04(A), (C)(3)(a). Count two charged Sturgis with
aggravated possession of drugs, a felony of the fifth degree in violation of R.C.
2925.11(A), (C)(1)(a). Count three charged him with illegal assembly or
possession of chemicals for the manufacture of drugs, a felony of the third degree
in violation of R.C. 2925.041(A), (C). (R. at 1.) Sturgis initially pled not guilty.
(R. at 17.)
{¶3} On September 11, 2015, Sturgis entered a plea of guilty to an
amended count one: attempted illegal manufacture of drugs, a felony of the third
degree, in violation of R.C. 2923.02 and R.C. 2925.04(A), (C)(3)(a); and to count
three: illegal assembly or possession of chemicals for the manufacture of drugs, a
felony of the third degree in violation of R.C. 2925.041(A), (C). Count two was
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dismissed. (R. at 33; Tr. of Proceedings, Sept. 11, 2015.) The plea agreement
indicated that count one carried a mandatory prison term and that the State would
not make any recommendations with respect to sentencing. (R. at 33.)
Additionally, at the change of plea hearing, the trial court advised Sturgis that
count one carried a mandatory sentence that was between nine and thirty-six
months. (Tr. of Proceedings at 10-11, Sept. 11, 2015.) The trial court ordered a
presentence investigation report and continued the matter for sentencing. (Id. at
15.)
{¶4} At the sentencing hearing, Sturgis raised an objection to the
mandatory nature of his sentence for attempted illegal manufacture of drugs. (Tr.
of Proceedings at 5, Oct. 20, 2015.) The trial court noted that the mandatory
nature of the plea was consistent with the plea agreement entered by Sturgis and
approved by the trial court. (Id. at 9, 12.) It further noted that the mandatory
sentence was consistent with the statutory sections on attempt, R.C. 2923.02. (Id.
at 10.) The trial court explained that “the reduction in the amount of time does not
change the specificity of that sentence that the Court could impose.” (Id. at 10-
11.) It thus sentenced Sturgis to a mandatory sentence of twenty-four months in
prison on the amended count one: attempted illegal manufacture of drugs, a felony
of the third degree. (Id. at 11-12; R. at 55.) It also sentenced Sturgis to a definite
period of twenty-four months in prison on count three: illegal assembly or
possession of chemicals for the manufacture of drugs, a felony of the third degree.
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(Id.) The trial court ordered the sentences to run consecutively. (Id.) In the nunc
pr tunc judgment entry issued on November 9, 2015, the trial court indicated that
“Defense counsel objected to the court’s ruling.” (R. at 55.)
{¶5} Sturgis filed this timely appeal in which he challenges his sentence for
count one by raising the following assignment of error.
Assignment of Error
THE TRIAL COURT ERRED IN FINDING A MANDATORY
SENTENCE.
Standard of Review
{¶6} A trial court has discretion to impose a prison sentence that is within
the statutory range. State v. Mathis, 109 Ohio St.3d 54,
2006-Ohio-855,
846
N.E.2d 1, ¶ 37; State v. Noble, 3d Dist. Logan No. 8-14-06,
2014-Ohio-5485, ¶ 9.
But in exercising that discretion, the trial court must “carefully consider” the
statutory sentencing guidelines set forth in R.C. 2929.11 and R.C. 2929.12, as well
as the “statutes that are specific to the case itself.” Matthis at ¶ 38. We will
reverse the sentence only if we determine “by clear and convincing evidence that
the record does not support the trial court’s findings under relevant statutes or that
the sentence is otherwise contrary to law.” State v. Marcum, Slip Opinion No.
2016-Ohio-1002, ¶1 (March 15, 2016).
Analysis
{¶7} Sturgis alleges that his sentence was contrary to law because the trial
court improperly applied the statute for a completed offense of illegal manufacture
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of drugs, R.C. 2925.04, instead of the attempt statute, R.C. 2923.02. The State
responds, arguing that the sanctions prescribed by R.C. 2925.04 are more specific
than the general provisions of R.C. 2923.02 and therefore, the more specific
statute controls, making the sentence supported by law. Both parties rely on the
same case from the Ohio Supreme Court, State v. Taylor, 113 Ohio St.3d 297,
2007-Ohio-1950,
865 N.E.2d 37 (2007).
{¶8} In Taylor, the defendant pled guilty to “attempted possession of crack
cocaine in an amount greater than 25 grams but less than 100 grams, a felony of
the second degree.” Id. at ¶ 2. The defendant was sentenced under the attempt
statute, which states
(A) No person, purposely or knowingly, and when purpose or
knowledge is sufficient culpability for the commission of an offense,
shall engage in conduct that, if successful, would constitute or result
in the offense.
…
(E)(1) Whoever violates this section is guilty of an attempt to
commit an offense. … An attempt to commit a drug abuse offense
for which the penalty is determined by the amount or number of unit
doses of the controlled substance involved in the drug abuse offense
is an offense of the same degree as the drug abuse offense attempted
would be if that drug abuse offense had been committed and had
involved an amount or number of unit doses of the controlled
substance that is within the next lower range of controlled substance
amounts than was involved in the attempt. An attempt to commit any
other offense is an offense of the next lesser degree than the offense
attempted.
R.C. 2923.02; Taylor at ¶ 5-8, quoting R.C. 2923.02.
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{¶9} The parties disagreed over which statute should determine penalties
for the attempted offense: the attempt statute, R.C. 2923.02, or the drug possession
statute, R.C. 2925.11. See Taylor at ¶ 4, 10. Analyzing the issue, the Ohio
Supreme Court reasoned,
“It is a well settled rule of statutory construction that where a statute
couched in general terms conflicts with a specific statute on the same
subject, the latter must control.” Humphrys v. Winous Co. (1956),
165 Ohio St. 45, 48,
59 O.O. 65,
133 N.E.2d 780; see also Bellian v.
Bicron Corp. (1994), 69 Ohio St.3d 517, 519,
634 N.E.2d 608.
R.C. 2923.02, the attempt statute, is the general statute. It describes
the elements of an attempt to commit a crime—any crime—and
generally describes how an attempt is to be punished in comparison
to a completed crime of the same import.
R.C. 2925.11 is a specific drug-offense statute. It describes the
elements of a drug-possession offense and, unlike most statutes in
the criminal code, prescribes specific punishments, including
mandatory sentences, for subcategories of crimes depending on the
type and amount of illegal substance upon which a criminal charge
could be made. Thus, R.C. 2925.11 is a specific statute that controls
over the general statute, and Taylor was subject to the more specific
mandatory-sentencing requirements of R.C. 2925.11.
Id. at ¶ 12-14.
{¶10} Applying the same reasoning to the case at issue, we observe that
R.C. 2925.04, the statute under which Sturgis pled and was found guilty of
attempted illegal manufacture of drugs, is also “a specific drug-offense statute”
and “unlike most statutes in the criminal code, prescribes specific punishments,
including mandatory sentences, for subcategories of crimes.” Id. at ¶ 14. It states
that
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(A) No person shall knowingly cultivate marihuana or knowingly
manufacture or otherwise engage in any part of the production of a
controlled substance.
…
(C)(1) Whoever commits a violation of division (A) of this section
that involves any drug other than marihuana is guilty of illegal
manufacture of drugs, and whoever commits a violation of division
(A) of this section that involves marihuana is guilty of illegal
cultivation of marihuana.
…
(3) If the drug involved in the violation of division (A) of this
section is methamphetamine, the penalty for the violation shall be
determined as follows:
(a) Except as otherwise provided in division (C)(3)(b) of this section,
if the drug involved in the violation is methamphetamine, illegal
manufacture of drugs is a felony of the second degree, and, subject
to division (E) of this section, the court shall impose a mandatory
prison term on the offender determined in accordance with this
division. Except as otherwise provided in this division, the court
shall impose as a mandatory prison term one of the prison terms
prescribed for a felony of the second degree that is not less than
three years.
(Emphasis added.) R.C. 2925.04. Although the penalties in R.C. 2925.04 do not
depend on the amount of illegal substance, they do depend “on the type” of drug,
like the penalties in the statute at issue in Taylor, 113 Ohio St.3d 297, 2007-Ohio-
1950,
865 N.E.2d 37, at ¶ 14. Therefore, as a specific statute, R.C. 2925.04
controls over the general statute, R.C. 2923.02. As a result, the “specific
mandatory-sentencing requirements” of R.C. 2925.04 apply.
Id.
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{¶11} In further support of this reasoning, the Ohio Supreme Court
recognized that an attempted drug abuse offense “is not a separate and distinct
crime,” but is incorporated into the drug abuse offense, and therefore, while the
defendant will benefit from a reduced prison term, he or she will still be subject to
the mandatory sentencing provisions of the drug-abuse statute. Id. at ¶ 16-17,
citing State v. Hall, 8th Dist. Cuyahoga No. 76374, 2000 WL 868478, *5 (June 29,
2000) (recognizing that the attempt statute “was incorporated into” the offense
statute by the plea agreement and that “[t]here was never any agreement to amend
the indictment to delete R.C. 2925.11 so that the penalties provided for violations
of that section would not apply”); see also Kempf v. Scott, 10th Dist. Franklin No.
12AP-937,
2013-Ohio-1153, ¶ 6-7 (holding that “[o]n its face, a violation of an
offense under R.C. Chapter 2923 is not an offense under R.C. Chapter 2925,” but
the Ohio Supreme Court’s reasoning in Taylor “indicates that we must interpret
attempted trafficking in drugs as a drug offense under R.C. Chapter 2925”); R.C.
2925.01(G)(4) (defining a “drug abuse offense” as one that includes an attempt to
commit a violation of R.C. 2925.04).
{¶12} In conclusion, we hold that the trial court properly determined that
under the general attempt statute, it was required to lower the degree of the offense
to a felony of the third degree. See R.C. 2923.04(E)(1). But because the general
attempt statute does not prescribe specific penalties for the offense of illegal
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manufacturing of drugs,1 the trial court properly used the more-specific illegal
manufacture statute to impose a mandatory prison term. Therefore, we hold that
the mandatory sentence is not contrary to law and we overrule the assignment of
error.
Conclusion
{¶13} Having reviewed the arguments, the briefs, and the record in this
case, we find no error prejudicial to Appellant in the particulars assigned and
argued. The judgment of the Common Pleas Court of Mercer County, Ohio is
therefore affirmed.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/hls
1
We observe that the attempt statute does prescribe specific penalties for some categories of crimes. See
R.C. 2923.02(E)(1) (prescribing a specific penalty for “an attempt to commit a violation of any provision of
Chapter 3734. of the Revised Code, other than section 3734.18 of the Revised Code, that relates to
hazardous wastes”); (E)(2) (prescribing a specific penalty for “attempted rape” with “a specification of the
type described in section 2941.1418, 2941.1419, or 2941.1420 of the Revised Code”); see also R.C.
2923.04(E)(3) (prescribing specific additional penalty for “an attempt to commit aggravated murder or
murder in violation of division (A) of this section”).
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