[Cite as State v. Cunningham,
2020-Ohio-3586.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 106109 and 108721
v. :
SELVIN R. CUNNINGHAM, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 2, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-614808-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Callista Plemel and Katherine E. Mullin,
Assistant Prosecuting Attorneys, for appellee.
Paul W. Flowers Co., L.P.A., and Louis E. Grube; Rachel A.
Kopec, for appellant.
MICHELLE J. SHEEHAN, J.:
In this reopened appeal pursuant to App.R. 26(B), Selvin Cunningham
appeals his conviction of a second-degree felony of corrupting another with drugs.
He contends that his second-degree felony conviction should be reduced to a fourth-
degree felony because the verdict form returned by the jury was defective pursuant
to R.C. 2945.75.
While his application to reopen State v. Cunningham, 8th Dist.
Cuyahoga No. 106109, 2018-Ohio-4022 (“Cunningham I”), was pending before this
court, Cunningham filed a “Motion [for] Revised/Corrective Judgment” at the trial
court. The trial court held a limited hearing on the motion and imposed a
mandatory fine for his second-degree felony. He filed an appeal from that judgment
in State v. Cunningham, 8th Dist. Cuyahoga No. 108721, which we consolidated
with the reopened appeal for disposition.
Background
On June 15, 2017, Cunningham was indicted with corrupting another
with drugs (Count 1) and promoting prostitution (Count 2). The facts leading to his
indictment was summarized by this court in his direct appeal as follows:
On February 23, 2017, Officer Stephen Krebs (“Krebs”) was
conducting surveillance on a Super 8 motel in Westlake, Ohio as part
of his duties as a patrolman for the Westlake Police Department.
Krebs learned that room 205 was rented and had been paid for in cash.
He also observed that the vehicle associated with room 205 was not
associated with the renter of the room. This led Krebs to continue
monitoring room 205.
When Krebs observed the vehicle associated with the room exit
the motel’s parking lot, he proceeded to follow the vehicle. Upon
observing a traffic violation, Krebs conducted a traffic stop. During
the stop, Krebs discovered that Cunningham, the driver of the vehicle,
was driving under a suspended license. Krebs also noticed a strong
odor of marijuana coming from the vehicle. Krebs detained
Cunningham and conducted a search of Cunningham and an
inventory search of the vehicle, which produced a Super 8 room key.
Krebs transported Cunningham back to the motel, where
officers observed Demetrius Brown (“Brown”) leaving room 205.
Officers questioned Brown, who stated that he had been alone in the
motel room. Krebs noticed that the door to room 205 was ajar and
proceeded to knock on the door. A woman later identified as J.M.
answered the door and provided Krebs with a false name. Krebs
testified that the room was in disarray and something he suspected to
be heroin was in plain sight on a table inside the room. Krebs testified
that he believed that J.M. was a heroin user based on her appearance
and demeanor. The officers proceeded to collect evidence from the
room, including the suspected heroin from the table and other
apparent drug paraphernalia located in J.M.’s purse. During a
subsequent interview, J.M. told police that she had been working as a
prostitute, primarily finding clients through ads posted on
Backpage.com.
Cunningham I at ¶ 2-4 (Stewart, J., concurring in part and dissenting in part).
After trial, the jury found Cunningham guilty on both counts. The trial
court sentenced him to four years for corrupting another with drugs, a second-
degree felony, and one year for promoting prostitution, a fourth-degree felony, to
run concurrently to each other.
Cunningham appealed his convictions, claiming his convictions were
not supported by sufficient evidence and were against the manifest weight of the
evidence. A majority of the panel affirmed his convictions.1
We divide this consolidated opinion into two parts: the first part
relates to the reopened appeal on the jury verdict form issue (Appeal No. 106109)
1 The dissent disagreed with the majority’s determination that the state presented
sufficient evidence of corrupting another with drugs as charged in the indictment, finding
there was an absence of evidence showing Cunningham provided the victim heroin with
the purpose of causing her serious physical harm or with the purpose to cause her to
become drug dependent.
and the second part relates to his appeal from the trial court’s judgment imposing a
mandatory fine after the resentencing hearing (Appeal No. 108721).
I. Reopened Appeal (Appeal No. 106109)
On December 28, 2018, Cunningham filed an application to reopen his
appeal pursuant to App.R. 26(B). He claimed his appellate counsel failed to raise
three additional errors for our review: the trial court erred in not finding his offenses
of corrupting another with drugs and promoting prostitution to be allied offenses;
the jury verdict forms for his convictions were defective in failing to state the degree
of the offenses and also failed to state the additional element or elements of the
charged offenses; and the trial court erred in failing to inform him of the required
registration requirements as to his Tier I sexual offender status.
This court rejected his assertion of ineffective assistance of appellate
counsel regarding the allied offenses claim and the sex offender registration
requirement issue. However, upon a review of the jury verdict form associated with
Count 1, corrupting another with drugs, we found there exists a question as to
whether the jury verdict form complied with R.C. 2945.75(A)(2) in light of State v.
Pelfrey, 112 Ohio St.3d 422,
2007-Ohio-256,
860 N.E.2d 735, and State v.
McDonald,
137 Ohio St.3d 517,
2013-Ohio-5042,
1 N.E.3d 374.2
2 With regard to Count 2, promoting prostitution, this court found no prejudice
existed because the trial court imposed a sentence based upon the least degree of the
charged offense — a felony of the fourth degree.
Consequently, we granted Cunningham’s application to reopen in
order to address whether Cunningham was prejudiced by the failure of appellate
counsel to argue that the jury verdict form associated with conviction of corrupting
another with drugs (Count 1) failed to comply with R.C. 2945.75(A)(2). State v.
Cunningham, 8th Dist. Cuyahoga No. 106109, 2019-Ohio-3269 (“Cunningham II”).
We assigned counsel to represent Cunningham in the reopened appeal and ordered
the parties to brief the issue.
Cunningham presents the following assignment of error in the
reopened appeal for our review:
Counsel provided constitutionally ineffective assistance and thereby
prejudiced the defendant by failing to raise as an assignment of error
that the trial court imposed a conviction of a higher degree and a
prison term far greater than was permitted pursuant to R.C. 2945.75
for the degree of felony authorized by the jury’s verdict forms.
Cunningham claims that the jury verdict form for his conviction of
corrupting another with drugs did not comply with R.C. 2945.75(A)(2), which
requires that a guilty verdict must state the degree of the offense or the additional
element that makes an offense a more serious degree. R.C. 2945.75 states:
(A) the presence of one or more additional elements makes an offense
one of more serious degree:
(1) The affidavit, complaint, indictment, or information either shall
state the degree of the offense which the accused is alleged to have
committed, or shall allege such additional element or elements.
Otherwise such affidavit, complaint, indictment, or information is
effective to charge only the least degree of the offense.
(2) 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.
(Emphasis added.)
Count 1 of the indictment (corrupting another with drugs)
alleged that Cunningham furnished “Heroin, a Schedule I drug” to another person
with the purpose to cause that individual harm or to become drug dependent. The
verdict form returned for Count 1 reads as follows:
We, the jury in this case being duly impaneled and sworn, do find the
Defendant, Selvin R. Cunningham, GUILTY of Corrupting Another
with Drugs in violation of §2925.02(A)(2) of the Ohio Revised Code,
as charged in Count One of the indictment.
The trial court’s entry regarding the verdict stated that the jury
had returned “a verdict of guilty of corrupting another with drugs 2925.02(A) F2 as
charged in Count(s) 1 of the indictment.”
Pelfrey and McDonald
R.C. 2945.75 requires that both the charging instruments, such
as a complaint or indictment, and the jury verdict form to either state the degree of
the offense or state the additional element(s) warranting a higher degree of the
offense. In Pelfrey, 112 Ohio St.3d 422,
2007-Ohio-256,
860 N.E.2d 735, the
Supreme Court of Ohio applied R.C. 2945.75 to the offense of tampering with
records. The offense of tampering with records is a first-degree misdemeanor
offense but elevated to a third-degree felony if the records involved are government
records. A jury found defendant Pelfrey guilty of the offense, and he was convicted
of the offense as a third-degree felony. The verdict form signed by the jury, however,
did not state either the degree of the offense or a finding that the records involved
were government records.
Although the verdict form mentioned the indictment, which
referenced the government records, and the jury instructions addressed the
government records issue, the court applied R.C. 2945.75(A)(2) and reduced
Pelfrey’s offense of tampering with evidence to a first-degree misdemeanor. The
court emphasized that “[b]ecause the language of R.C. 2945.75(A)(2) is clear, this
court will not excuse the failure to comply with the statute or uphold [a] conviction
based on ‘additional circumstances.’” Id. at ¶ 14. Specifically, the failure in
complying with the statute cannot be excused by showing that “the verdict
incorporates the language of the indictment, or by presenting evidence to show the
presence of the aggravated element at trial or the incorporation of the indictment
into the verdict form, or by showing that the defendant failed to raise the issue of the
inadequacy of the verdict form.” Id. The court held that “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.” Id.
Six years later, in McDonald, 137 Ohio St.3d 517,
2013-Ohio-5042,
1 N.E.3d 374, the Supreme Court of Ohio reaffirmed its holding in
Pelfrey,
112 Ohio St.3d 422,
2007-Ohio-256,
860 N.E.2d 735, stating that “Pelfrey
makes clear that in cases involving offenses for which the addition of an element or
elements can elevate the offense to a more serious degree, the verdict form itself is
the only relevant thing to consider in determining whether the dictates of R.C.
2945.75 have been followed.”
McDonald at ¶ 17.
McDonald involved the offense of failure to comply with an order
or signal of a police officer in violation of R.C. 2921.331.3 Under the statute, the
lowest degree of the offense is first-degree misdemeanor. The offense is a felony
only if the offender willfully eludes or flees a police officer: if he was fleeing
immediately after committing a felony, the offense is a fourth-degree felony; if his
operation of the vehicle caused a substantial risk of serious physical harm, the
offense is a third-degree felony. Defendant McDonald was indicted for a third-
degree felony count of the offense for willfully eluding or fleeing a police officer and
causing a substantial risk of serious physical harm by his operation of the vehicle.
The jury verdict form did not indicate the degree of the offense, and it only
mentioned his offense of failure to comply with an order or signal of a police officer
and his operation caused a substantial risk of serious harm. It did not mention the
element of “willfully eluding or fleeing a police officer.”
3 R.C. 2921.331 states, in part:
(A) No person shall fail to comply with any lawful order or direction of any police
officer invested with authority to direct, control, or regulate traffic.
(B) No person shall operate a motor vehicle so as willfully to elude or flee a police
officer after receiving a visible or audible signal from a police officer to bring the person’s
motor vehicle to a stop.
The Supreme Court of Ohio reasoned that the verdict form did
not properly indicate the element of willful elusion and, without it, McDonald can
only be convicted of a first-degree misdemeanor. In reaching this conclusion, the
court emphasized that we look only to the verdict form signed by the jury and not
“additional circumstances” such as the incorporation of the indictment into the
verdict form, the evidence presented at trial, or the fact that the defendant failed to
raise the inadequacy of the verdict form below, when determining whether the
defendant was properly convicted of an elevated offense. McDonald, 137 Ohio St.3d
517,
2013-Ohio-5042,
1 N.E.3d 374, at ¶ 17-18, citing Pelfrey,
112 Ohio St.3d 422,
2007-Ohio-256,
860 N.E.2d 735, at ¶ 14.
Corrupting Another with Drugs
Cunningham claims that, pursuant to Pelfrey and McDonald,
his conviction of corrupting another with drugs under R.C. 2925.02(A)(2) must be
reversed because the verdict form did not comply with the second prong of the
statutory requirement (stating “such additional element or elements [elevating the
degree of the offense] are present”). As we explain in the following, Cunningham
was convicted of the lowest degree of the offense and Pelfrey and McDonald are not
applicable in this case.
R.C. 2925.02(A)(2) makes it a crime to knowingly:
by any means, administer or furnish to another or induce or cause
another to use a controlled substance with the purpose to cause
serious physical harm to the other person, or with the purpose to
cause the other person to become drug dependent.
The degree of the offense of corrupting another with drugs depends on the drug
involved: the offense is a second-degree felony when the drug involved is a
schedule I, II, III, IV, or V drug, with the exception of marijuana.4
R.C. 2925.02(C)(1)-(2); and the degree of the offense is a fourth-degree felony if the
drug involved is marijuana. R.C. 2925.02(C)(3).
Thus, R.C. 2925.02 delineates the degree of the offense in
accordance with the drug involved. The drug involved is not an “additional
element” contemplated by R.C. 2945.75. Accordingly, Pelfrey and McDonald are
not applicable to R.C. 2925.02. Notably, although not pertinent in this case, there
is an aggravating element that makes the offense of corrupting another with drugs
a more serious degree: when the offense is committed in the vicinity of a school.
When the offense is committed in the vicinity of a school, the second-degree felony
(when the drug involved is a schedule I, II, III, IV, or V drug other than marijuana)
is elevated to a first-degree felony, R.C. 2925.02(C)(1)(b) and (C)(2)(b), and the
fourth-degree felony (when marijuana is involved) is elevated to a third-degree
felony. R.C. 2925.02(C)(3)(b).
Therefore, although the degree of the offense is not specified in
the verdict form returned by the jury, the verdict form does not run afoul of
R.C. 2945.75 because heroin is not an additional element contemplated by the
4 R.C. 2925.02 expressly mentions marijuana but refers to other drugs only as
schedule I, II, II, IV, or V drugs.
statute. As delineated in the statute, when a schedule I drug is involved, the degree
of the offense is a second-degree felony. Contrary to Cunningham’s claim, Pelfrey
and McDonald are not applicable in this case. Rather, this case is more akin to State
v. Eafford, 132 Ohio St.3d 159,
2012-Ohio-2224,
970 N.E.2d 891, a Supreme Court
of Ohio decision decided in 2012, after Pelfrey but before McDonald.
In Eafford, the defendant was indicted for possession of cocaine
(in an amount less than five grams) in violation of R.C. 2925.11(A). The state
produced evidence at trial to support its allegation, and the jury was instructed to
find the defendant guilty only if it found the defendant possessed cocaine.
Possession of cocaine in an amount less than five grams is a fifth-degree felony, and
defendant Eafford was convicted of a fifth-degree felony of the possession of cocaine.
However, the jury verdict form stated the defendant was guilty of possession of
drugs in violation of R.C. 2925.11(A) as charged in the indictment, without stating
the degree of the offense or that the drug Eafford possessed was cocaine. On appeal,
Eafford argued that because of the verdict form did not indicate the degree of the
offense or specified the defendant had possessed cocaine, he could only be convicted
of a minor misdemeanor, the lowest degree of the offense under R.C. 2925.11. The
Supreme Court of Ohio rejected Eafford’s claim.
R.C. 2925.11 (“Possession of Drugs”) states in division (A) that
“[n]o person shall knowingly obtain, possess, or use a controlled substance or a
controlled substance analog.” Division (C) provides for the different degrees of the
offense, depending on the drug involved and the amount possessed. Division (C)
has nine subdivisions; each relates to a drug. For example, subdivision (C)(3) relates
to marijuana. It provides that possession of marijuana less than 100 grams is a
minor misdemeanor, which is the lowest-degree of the offense for a violation of
R.C. 2925.11.
Instead of applying Pelfrey, the court in Eafford did not consider
the type of drug possessed by the defendant (cocaine) to be an additional or elevating
element contemplated in RC. 2945.75(A)(2). Rather, the court noted the statute
elevates the degree of the offense based on the amount of drug involved. The least
degree of the offense for possessing cocaine is a felony of the fifth degree (when the
amount of cocaine possessed in less than five grams). Eafford was convicted of a
fifth-degree felony, the least degree of the offense for possessing of cocaine.
Therefore, the court concluded there was no violation of the dictates of R.C. 2945.75.
The court noted that the indictment alleged that Eafford possessed cocaine, expert
testimony confirmed that the substance at issue tested positive for cocaine, and the
trial court instructed the jury that it could not find Eafford guilty of possession of
drugs as charged in the indictment unless it found the drug involved to be cocaine.
Accordingly, when the jury found Eafford guilty as charged in the indictment, its
finding necessarily related to possession of cocaine.
Similarly here, under R.C. 2925.02, when the drug involved in
the offense is a schedule I drug such as heroin, the offense is a second-degree felony
— the aggravating element of the commission of the offense in the vicinity of the
school is not present in this case. Although the jury verdict form did not specify
heroin, the jury’s finding that Cunningham was guilty of corrupting another with
drugs necessarily related to heroin: the indictment stated Cunningham furnished
“Heroin, a Schedule I drug” to the victim; at trial the state presented evidence to
prove its allegation that Cunningham supplied heroin to the victim; and the trial
court’s jury instruction repeatedly referenced heroin as the drug involved in this
case.
In State v. Emerson, 2016-Ohio-8509,
78 N.E.3d 1199 (2d Dist.),
the Second District was confronted with a similar claim that appellant could only be
convicted of a fourth-degree, instead of a second-degree, felony offense of
corrupting another with drugs because the verdict form did not contain the level of
the offense or state that the drug involved was fentanyl. In a dicta analysis, the court
expressed its belief that Pelfrey was inapplicable to the offense of corrupting another
with drugs, reasoning that under the corrupting-another-with-drugs statute, “it is
not an additional element that changes the degree of the offense; it is the statutorily
classified character of the drug involved. Fentanyl is the drug upon which the charge
was based.” Similarly here, heroin is the drug upon which the charge was based,
not an additional element contemplated in R.C. 2945.75.
For all the foregoing reasons, Cunningham’s claim in this
reopened appeal is without merit and we affirm his conviction of a second-degree
felony of corrupting another with drugs.
II. Appeal from Limited Resentencing (Appeal No. 108721)
A week before Cunningham made the instant application to
reopen his direct appeal, Cunningham filed a “Motion [for] Revised/Corrective
Judgment Entry of Conviction and Sentence.” He requested a de novo sentencing
hearing, claiming his sentencing was deficient because he was not advised of his duty
to register as a sex offender and the trial court also failed to either waive or impose
a mandatory fine pursuant R.C. 2929.18.
R.C. 2929.18 requires the trial court to impose a mandatory fine
for a first-, second-, and third-degree-felony violation of drug-related offenses.
However, it provides that if the offender files an affidavit of indigency prior to
sentencing and if the trial court determines the offender is unable to pay the fine,
the court shall not impose the fine. Cunningham alleged that no affidavit was filed,
and the trial court neither waived nor imposed a mandatory fine.
The state opposed the motion in part, arguing that Cunningham
was properly advised of his duty to register as a Tier I sex offender. The state,
however, agreed that the trial court should hold a limited resentencing hearing for
the imposition of the mandatory fine, citing State v. Moore, 135 Ohio St.3d 151,
2012-Ohio-5479,
985 N.E.2d 432 (a trial court’s failure to include the mandatory
fine required by R.C. 2929.18(B)(1) when an affidavit of indigency is not filed with
the court prior to the filing of the trial court’s journal entry of sentencing, renders
that part of the sentence void and resentencing is limited to the imposition of the
mandatory fine).
The trial court appointed Cunningham counsel and held a
limited resentencing hearing on April 9, 2019. Cunningham, represented by
counsel, appeared by videoconferencing. While the hearing was limited to the
imposition of the mandatory fine, Cunningham argued that his two offenses were
allied offenses. The trial court stated that the only issue being addressed was the
imposition of the mandatory fine. The prosecutor reported that the minimum
mandatory fine for a second-degree felony was $7,500, and the court imposed the
minimum mandatory fine of $7,500 for Cunningham’s felony of corrupting another
with drugs.
Cunningham appeals from that judgment, raising one
assignment of error for our review: “Appellant received ineffective assistance of
counsel.” Under the assignment of error, he claims that he received ineffective
assistance of counsel because his trial counsel failed to file an affidavit of indigency
to waive the mandatory fine and also failed to address the sex offender registration
issue.
In order to establish a claim of ineffective assistance of counsel,
the defendant must show that his trial counsel’s performance was deficient in some
aspect of his representation and that deficiency prejudiced his defense. Strickland
v. Washington, 466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). Our
assessment of an attorney’s representation must be highly deferential and we are to
indulge “a strong presumption that counsel’s conduct falls within the range of
reasonable professional assistance.”
Id. at 689.
Regarding the sex offender registration issue, Cunningham
raised the same ineffective assistance of trial counsel claim in the third proposed
assignment of error in his application to reopen, arguing his appellate counsel was
ineffective for failing to argue in his direct appeal that the trial court failed to notify
him of his registration requirement as a Tier I sex offender pursuant to
R.C. 2950.03. We have already addressed this claim in Cunningham II, and found
it to be without merit.
Regarding the issue of the mandatory fine, Cunningham argues
there is a reasonable probability that the trial court would have found him to be
indigent and unable to pay the mandatory fine if his trial counsel had filed an
affidavit of indigency.
This appeal is rather unique in that the trial court did not impose
a mandatory fine when it sentenced Cunningham for his conviction of corrupting
another with drugs. The limited resentencing and the resulting appeal stemmed
from Cunningham’s claim that the trial court failed to impose a mandatory fine
pursuant to R.C. 2929.18.5 Under the particular procedural posture of this case, we
are unable to find counsel’s performance deficient because filing an affidavit of
indigency would appear to be contrary to Cunningham’s own request. “[A] criminal
5 His “Motion [for] Revised/Corrective Judgment Entry” stated “[t]he record and
purported judgment entry in this case reveals that the trial court did not receive any
affidavit of indigency establishing that Cunningham could or could not pay the mandatory
fine for his alleged drug offense F2, nor does the record shows that the trial court had
waived the mandatory fine by entry in this case ….”
defendant may not make an affirmative, apparently strategic decision at trial and
then complain on appeal that the result of that decision constitutes reversible error.”
State v. Doss, 8th Dist. Cuyahoga No. 84433, 2005-Ohio-775, ¶ 7. Furthermore, a
failure to file the affidavit of indigency constitutes ineffective assistance of counsel
only if the record demonstrates that there exists a reasonable probability that the
defendant would have been found indigent. State v. Powell,
78 Ohio App.3d 784,
605 N.E.2d 1337 (3d Dist.1992). Cunningham’s claim that there is a reasonable
probability that the trial court would have found him indigent and unable to pay the
mandatory fine is speculative only. The assignment of error is without merit.
Judgment affirmed in both Appeal Nos. 106109 and 108721.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________
MICHELLE J. SHEEHAN, JUDGE
MARY J. BOYLE, P.J., and
RAYMOND C. HEADEN, J., CONCUR
