[Cite as State v. Gutierrez,
2017-Ohio-1147.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
OMAR OSUALDO GUTIERREZ : Case No. 16 CAA 07 0030
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 12 CRI 10 0376
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 28, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRIAN J. WALTER FRANCISCO E. LÜTTECKE
140 North Sandusky Street 250 East Broad Street
Delaware, OH 43015 Suite 1400
Columbus, OH 43215
Delaware County, Case No. 16 CAA 07 0030 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Omar Osualdo Gutierrez, appeals the June 14, 2016
judgment of the Court of Common Pleas of Delaware County, Ohio, denying his motion
to dismiss his criminal charges. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On November 8, 2011, appellant was charged in federal court with
conspiracy to distribute and possess with intent to distribute heroin and cocaine in
violation of 21 U.S.C. 846 and 841(a)(1) and (b)(1)(C). Specifically, appellant was
charged with conspiring to distribute and possess with intent to distribute heroin and
cocaine within the southern district of Ohio and elsewhere between January 1, 2006, and
September 12, 2011. Appellant pled guilty on the same day pursuant to a cooperation
agreement with the federal government, wherein appellant would exchange information
and become a witness for a lesser sentence. Appellant was released on bond.
{¶ 3} On October 5, 2012, the Delaware County Grand Jury indicted appellant on
one count of possession of cocaine and one count of complicity to trafficking in cocaine
in violation of R.C. 2925.11 and R.C. 2925.03/2923.03, both with major drug offender
specifications. The indictment alleged appellant committed the offenses on or about
September 27, 2012. The major drug offender specification carried a mandatory
maximum sentence of eleven years.
{¶ 4} Over the next two and one-half years as appellant cooperated with the
federal government, both federal and state agents worked on resolving both cases to
everyone's satisfaction. Several defense attorneys and federal and state prosecutors and
judges were involved in the ongoing negotiations. Purportedly, the state of Ohio was
Delaware County, Case No. 16 CAA 07 0030 3
under the belief that appellant would cooperate with the federal government and then
receive a lengthy federal sentence and face deportation.
{¶ 5} On May 15, 2015, the federal court formally accepted appellant's November
8, 2011 plea.1 Following a change of defense counsel, the assignment of a new judge,
and several continuances, appellant withdrew his guilty plea and pled to a lesser included
offense on January 7, 2016. According to his superseding plea agreement, appellant
agreed that his advisory guideline sentence should be calculated on 3 kilograms of heroin
and 15 kilograms of cocaine with a base offense level of 34. According to a second
revised presentence investigation report dated February 1, 2016, appellant was
accountable for 1 kilogram of heroin and 12.5 kilograms of cocaine which is the equivalent
of 3,500 kilograms of marijuana for sentencing purposes. Under the federal sentencing
guidelines, offenses involving at least 3,000 but less than 10,000 kilograms of marijuana
have a base offense level of 32. Based on a total offense level of 32, without mitigating
factors, the advisory guideline provision on sentencing was between 135 and 168 months
in prison.
{¶ 6} A sentencing hearing was held in federal court on February 26, 2016. By
the Judgment in a Criminal Case filed March 2, 2016, the federal court sentenced
appellant to time served as of February 29, 2016 (41 months), as well as five years of
supervised release.
1Appellant’s brief indicates the plea was not accepted by the federal court until May of
2015. We find nothing in the record to support the date. Appellee does not dispute the
time frame. We accept the date. The filing in May 2015 of the November 8, 2011 plea
has no bearing on the issues presented.
Delaware County, Case No. 16 CAA 07 0030 4
{¶ 7} On May 25, 2016, appellant filed a motion to dismiss with the state court,
claiming R.C. 2925.50 barred his prosecution in the state of Ohio. By judgment entry filed
June 14, 2016, the trial court denied the motion, first stating it was unable to grant a
pretrial dismissal of criminal charges, but then finding R.C. 2925.50 did not apply because
appellant in his federal case was not prosecuted for, convicted of, or sentenced for the
offenses in the state case.
{¶ 8} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 9} "THE TRIAL COURT ERRED WHEN IT RULED THAT IT WAS
PROCEDURALLY BARRED FROM RULING ON MR. GUTIERREZ'S MOTION TO
DISMISS."
II
{¶ 10} "REVISED CODE 2925.50 BARS THE STATE OF OHIO FROM
PROSECUTING A DEFENDANT FOR CONDUCT WHICH FORMED PART OF A
FEDERAL CONVICTION AND SENTENCE."
I
{¶ 11} In his first assignment of error, appellant claims the trial court erred when it
ruled it was procedurally barred from ruling on the motion to dismiss. We disagree.
{¶ 12} In its judgment entry filed June 14, 2016, the trial court began by saying it
was unable to grant the motion to dismiss because "Ohio law does not allow accused
persons to seek dismissal of criminal charges before trial," and cited a long list of cases
in support, none of which refer to a double jeopardy issue and/or the application of R.C.
Delaware County, Case No. 16 CAA 07 0030 5
2925.50. However, the trial court then proceeded to address the merits of the motion and
denied the motion to dismiss.
{¶ 13} Appellant argues the trial court's initial assertion that it could not address
the motion is incorrect because trial courts may grant pretrial motions to dismiss on double
jeopardy grounds and in support, cites the case of State v. Anderson, 138 Ohio St.3d
264,
2014-Ohio-542,
6 N.E.3d 23. In
Anderson at ¶ 60, the Supreme Court of Ohio
unanimously held the following:
Having determined that an order denying a motion to dismiss on
double-jeopardy grounds denies a "provisional remedy" as that term is
defined in the statute, that the order in effect determines the action with
respect to the provisional remedy, and that the appealing party would not
be afforded a meaningful review of the decision if that party had to wait for
final judgment as to all proceedings in the action, we hold that the order is
a final, appealable order.
{¶ 14} In its brief at 3, appellee agrees, as do we, that the trial court's dismissal of
appellant's motion to dismiss is a final appealable order and Anderson controls.
{¶ 15} The trial court first posits that it was unable to grant the motion to dismiss
on procedural grounds. We find the trial court did deny the motion to dismiss when after
a discussion of the merits, it stated: "For the reasons explained above, the defendant's
motion to dismiss is denied."
Delaware County, Case No. 16 CAA 07 0030 6
{¶ 16} Based upon this conclusion, we find the trial court ruled on the substantive
issues which are properly before this court for review on a final appealable order pursuant
to Anderson.
{¶ 17} Assignment of Error I is denied.
II
{¶ 18} In the second assignment of error, appellant claims the trial court erred in
denying the motion to dismiss because R.C. 2925.50 bars the state from prosecuting him
for conduct which formed part of a federal conviction and sentence. We disagree.
{¶ 19} R.C. 2925.50 states: "If a violation of this chapter is a violation of the federal
drug abuse control laws, as defined in section 3719.01 of the Revised Code, a conviction
or acquittal under the federal drug abuse control laws for the same act is a bar to
prosecution in this state." " 'Federal drug abuse control laws' means the 'Comprehensive
Drug Abuse Prevention and Control Act of 1970,' 84 Stat. 1242, 21 U.S.C. 801, as
amended." R.C. 3719.01(I). It is undisputed that appellant was convicted under the
federal drug abuse control laws.
{¶ 20} Appellant argues R.C. 2925.50 is applicable in this case because he was
convicted under federal drug abuse control laws for the same act as charged in the state
of Ohio. He argues the federal conspiracy charge included his September 27, 2012 acts
in Delaware County. In support, he cites "Sealed Exhibit A" filed June 14, 2016, and
urges this court to compare the federal charge with the state charges. This exhibit is a
"Second Revised Presentence Investigation Report" prepared by a senior United States
probation officer. Under "Part A, The Offense, Charge(s) and Conviction(s)," the report
Delaware County, Case No. 16 CAA 07 0030 7
indicates appellant pled guilty to a lesser included offense of Count One of a one-count
indictment, and continues as follows:
Count One charges that between January 1, 2006 and September
14, 2011, within the Southern District of Ohio and elsewhere, Omar
Guitierrez, together with others, did conspire to distribute and possess with
intent to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(C). Notably, according to the Government, the
period of time stated in the indictment should actually read "between
January 1, 2006 and September 12, 2011."
{¶ 21} By the Judgment in a Criminal Case filed March 2, 2016, attached to
defendant's May 25, 2016 motion to dismiss, the federal court noted appellant pled guilty
to a lesser included offense of a single-count information. The federal court sentenced
him on the charge of conspiracy to distribute and possess with intent to distribute heroin
and cocaine in violation of 21 U.S.C. 846 and 841(a)(1) and (b)(1)(C). The judgment
specifically states the offense ended on November 8, 2011.
{¶ 22} In comparison, the October 5, 2012 indictment in the state case alleged in
Count One in part that on or about September 27, 2012, appellant "did knowingly obtain,
possess, or use Cocaine, a Schedule II controlled substance, in an amount equaling or
exceeding 100 grams but less than 2000 grams, to wit: 1988 grams" in violation of R.C.
2925.11(A), Possession of Cocaine. Count Two alleged in part on or about September
27, 2012, appellant,
Delaware County, Case No. 16 CAA 07 0030 8
acting with the kind of culpability required for the commission of an offense,
did aid or abet another in committing the offense of Trafficking in Cocaine,
to wit: did knowingly prepare for shipment, ship, transport, deliver, prepare
for distribution, or distribute Cocaine, a schedule II controlled substance,
when OMAR OSUALDO GUTIERREZ, knew or had reasonable cause to
believe that the controlled substance was intended for sale or resale by
himself or another person, the amount of Cocaine involved equaled or
exceeded 100 grams but less than 2000 grams, to wit: 1988 grams
…
this being in violation of Section 2923.03(A)(2) as it relates to 2925.03(A)(2)
of the Ohio Revised Code, Complicity To Trafficking In Cocaine***.
{¶ 23} Although the second revised presentence investigation report discusses,
"Re-Arrest of Gutierrez on September 27, 2012," and the underlying facts, the May 2,
2016 Judgment in a Criminal Case very clearly states the offense ended on November 8,
2011. There is no indication in the record that appellant was convicted in federal court
under the federal drug abuse control laws for the same acts as those charged in the state
of Ohio. The state offenses resulted from acts that took place on or about September 27,
2012, one year after the latest date covered by the federal indictment (January 1, 2006,
to September 14, 2011) and ten months after the "offense ended date" (November 8,
2011) listed in the federal court's Judgment in a Criminal Case.
Delaware County, Case No. 16 CAA 07 0030 9
{¶ 24} In his June 13, 2016 reply memorandum in support of his motion to dismiss,
appellant argued his federal plea agreement "took into account not only the time frame
set forth in the indictment," but also his acts committed "in or about September 2012."
Attached to the reply memorandum is appellant's "Superseding Plea Agreement." 2
Appellant argued in the agreement at ¶ 5(a)(1) and (2), the United States Attorney for the
Eastern District of New York ("Office") agreed to the following:
5. The Office agrees that:
a. no further criminal charges will be brought against the defendant
for:
1. conspiracy to possess with intent to distribute heroin and cocaine
and possession with intent to distribute heroin and cocaine, all from the
period between January 1, 2007 and September 14, 2011;
2. conspiracy to possess with intent to distribute cocaine and
possession with intent to distribute cocaine, in or about September 2012;
{¶ 25} We find this paragraph does not establish that appellant was "convicted"
under the federal drug abuse control laws for the "same act" because the language can
2
We note this agreement is not dated and is unsigned because appellant likely retrieved
the document via the electronic federal court docket (PACER). Appellant's Brief at 1.
Appellant urges this court to take judicial notice of the document under Evid.R. 201(A)-
(C) and (F), and appellee has not objected. We will take judicial notice of this document,
although we find the better practice would have been to obtain a certified copy of the
document or file an affidavit along with the document attesting to its origination. We also
note the transcript of the January 7, 2016 plea hearing in federal court has not been
provided for our review, which renders us unable to review the agreement within the
context of a discussion between the parties.
Delaware County, Case No. 16 CAA 07 0030 10
be read as the U.S. Attorney agreeing not to bring criminal charges against appellant for
his state acts under the dual sovereignty doctrine: "[A] defendant may be subjected to
successive trials at both the state and federal levels for the same act or offense." State
v. McKinney, 80 Ohio App.3d 470, 473,
609 N.E.2d 613 (2d Dist.1992). We note ¶ 7 of
the Superseding Plea Agreement states: "This agreement does not bind any federal,
state, or local prosecuting authority other than the Office* …."
{¶ 26} Appellant argues the following in his brief at 15:
In using the 2012 Delaware transaction as relevant conduct in
sentencing, the federal court found by a preponderance of the evidence that
Mr. Gutierrez was responsible, and thus guilty of, the criminal conduct that
took place in Delaware County in 2012. Because that conduct was used to
sentence Mr. Gutierrez, he was sentenced for that conduct, fulfilling the
definition of "conviction" in Ohio: a finding of guilt and an accompanying
sentence.
{¶ 27} Although "preponderance of the evidence" may be the applicable degree of
proof for purposes of determining "relevant conduct," it has no bearing on criminal liability
because "beyond a reasonable doubt" is the applicable degree of proof to establish guilt
in criminal cases.
{¶ 28} "Conviction" is defined as: "In a general sense, the result of a criminal trial
which ends in a judgment or sentence that the accused is guilty as charged." Black's Law
Dictionary 333 (6th Ed.1990). Fed.R.Crim.P. 32(k) governs judgment and states in
Delaware County, Case No. 16 CAA 07 0030 11
pertinent part: "In the judgment of conviction, the court must set forth the plea, the jury
verdict or the court's findings, the adjudication, and the sentence.… *The judge must sign
the judgment, and the clerk must enter it." Similarly, Ohio Crim.R. 32(C) governs
judgment and states in pertinent part: "A judgment of conviction shall set forth the fact of
conviction and the sentence.… *The judge shall sign the judgment and the clerk shall
enter it on the journal. A judgment is effective only when entered on the journal by the
clerk." In State v. Lester, 130 Ohio St.3d 303,
2011-Ohio-5204,
958 N.E.2d 142,
paragraph one the syllabus, the Supreme Court of Ohio held:
A judgment of conviction is a final order subject to appeal under R.C.
2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence,
(3) the judge's signature, and (4) the time stamp indicating the entry upon
the journal by the clerk. (Crim.R.32(C), explained; State v. Baker, 119 Ohio
St.3d 197,
2008-Ohio-3330,
893 N.E.2d 163, modified.)
{¶ 29} "Relevant conduct" is defined in 18 U.S.C.S. app. 1B1.3 as follows:
(a) Chapters Two (Offense Conduct) and Three (Adjustments).
Unless otherwise specified, (i) the base offense level where the guideline
specifies more than one base offense level, (ii) specific offense
characteristics and (iii) cross references in Chapter Two, and (iv)
adjustments in Chapter Three, shall be determined on the basis of the
following:
Delaware County, Case No. 16 CAA 07 0030 12
(1)(A) all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal
plan, scheme, endeavor, or enterprise undertaken by the defendant in
concert with others, whether or not charged as a conspiracy), all acts and
omissions of others that were- -
(i) within the scope of the jointly undertaken criminal activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that criminal activity;
that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection
or responsibility for that offense;
(2) solely with respect to offenses of a character for which § 3D1.2(d)
would require grouping of multiple counts, all acts and omissions described
in subdivisions (1)(A) and (1)(B) above that were part of the same course
of conduct or common scheme or plan as the offense of conviction;
(3) all harm that resulted from the acts and omissions specified in
subsections (a)(1) and (a)(2) above, and all harm that was the object of
such acts and omissions; and
(4) any other information specified in the applicable guideline.
{¶ 30} Commentary Application Note 1 to the statute states the following:
Delaware County, Case No. 16 CAA 07 0030 13
1. Sentencing Accountability and Criminal Liability.--The
principles and limits of sentencing accountability under this guideline are
not always the same as the principles and limits of criminal liability. Under
subsections (a)(1) and (a)(2), the focus is on the specific acts and omissions
for which the defendant is to be held accountable in determining the
applicable guideline range, rather than on whether the defendant is
criminally liable for an offense as a principal, accomplice, or conspirator.
{¶ 31} Based upon this application note, it would seem the U.S. Congress, in
enacting 18 U.S.C.S. app. 1B1.3, intended for sentencing accountability to be broader in
scope than criminal liability. The use of "relevant conduct" in sentencing appellant in
federal court is not synonymous with "convicting" him of the September 2012 state acts
in federal court. Although the federal court included the September 2012 cocaine amount
in its offense level computation as set forth in Sealed Exhibit A at ¶ 9, 10, and 31, the
added amount did not affect the base offense level of 32.3 Subtracting the 2.5 kilograms
of cocaine associated with the state's case would leave the equivalent of 3,000 kilograms
of marijuana which is the minimum amount for a base offense level of 32. Sealed Exhibit
A, ¶ 9, 10, and 16. See, Witte v. United States, 515 U.S. 389, 398 and 406,
115 S.Ct.
2199,
132 L.Ed.2d 351 (1995) ("we specifically have rejected the claim that double
jeopardy principles bar a later prosecution or punishment for criminal activity where that
activity has been considered at sentencing for a separate crime" and "consideration of
3
We note ¶ 9 mentions "Illinois" and we accept appellant's argument in his brief at 9 that
it should read "Ohio."
Delaware County, Case No. 16 CAA 07 0030 14
relevant conduct in determining a defendant's sentence within the legislatively authorized
punishment range does not constitute punishment for that conduct.)4
{¶ 32} Based on the definition of "conviction" in relation to the use of relevant
conduct for federal sentencing purposes, we do not find appellant was "convicted" under
the federal drug abuse control laws for the "same act" committed in Ohio in September
2012 under the facts of this case. We find appellant's acts in Ohio were committed
separately and with a different motivation than his 2011 charged acts in federal court.
{¶ 33} As appellant succinctly states in his brief at 17: "Its [R.C. 2925.50]
application hinges on whether the federal sentencing practice of considering 'relevant
conduct' uncharged in an information or indictment, but used to calculate a final sentence,
fulfills the 'conviction or acquittal' and 'same act' requirements of the statute." For the
reasons cited above, we find R.C. 2925.50 does not apply to the facts of this case.
{¶ 34} Upon review, we find the trial court did not err in denying appellant's motion
to dismiss.
{¶ 35} Assignment of Error II is denied.
4
We acknowledge the Witte case involved a pure double jeopardy analysis, but find it is
relevant to the analysis sub judice.
Delaware County, Case No. 16 CAA 07 0030 15
{¶ 36} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby affirmed.
By Wise, Earle J.
Delaney, P.J. and
Wise, John, J. concur.
EEW/sg
