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State of Ohio v. Daniel Bowling

October 13, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DANIEL BOWLING DEFENDANT-APPELLANT



Criminal Appeal from the Cuyahoga County Court of Common Pleas Case CR-502781

The opinion of the court was delivered by: Mary J. Boyle, P.J.:

Cite as State v. Bowling,

JOURNAL ENTRY AND OPINION

JUDGMENT:

AFFIRMED

BEFORE: Boyle, P.J., Rocco, J., and Keough, J.

{¶1} Defendant-appellant, Daniel Bowling, appeals his sentence. He argues that the trial court failed to properly merge his drug trafficking and drug possession convictions upon remand from this court. We find no merit to his arguments and affirm.

{¶2} In March 2009, the trial court sentenced Bowling to two years of community control sanctions. As part of the conditions of his community control, Bowling was to perform 40 hours of community work service, submit to random drug testing, attend two AA meetings per week, maintain part-time employment or apply for employment weekly, and resolve child support arrearages.

{¶3} Bowling appealed his convictions and sentence. This court upheld his convictions, but reversed his sentence because the trial court failed to merge his convictions. See State v. Bowling, 8th Dist. No. 93052, 2010-Ohio-3595.

{¶4} The trial court held a resentencing hearing. It determined that Bowling had complied with all of the conditions of his previously ordered community control sanctions. It then resentenced him to two years of community control sanctions, gave him credit for time served, and concluded that he had completed his sentence. The trial court also found Bowling indigent and waived costs and supervision fees.

{¶5} Bowling now argues that the trial court "used a concurrent sentencing strategy," sentencing him to two six-month prison terms for drug possession and drug trafficking. We agree with Bowling that it is plain error for a trial court to sentence a defendant to concurrent sentences rather than merge them as allied offenses. But that is not what the trial court did here.

{¶6} At the sentencing hearing, following this court's decision in State v. White, 8th Dist. No. 92972, 2010-Ohio-2342, the trial court sentenced Bowling to six months on drug possession, and then ordered that it be merged into the sentence for drug trafficking, which was two years of community-control sanctions.

{¶7} In White, this court explained:

{ΒΆ8} "When there has been a guilty finding on an allied offense, the sentencing judge must comply with Crim.R. 32(C) by announcing a sentence on all counts for which the defendant has been found guilty, including the allied offense. It must then allow the state to elect on which of the two allied offenses it wishes to proceed. The court must clearly note the election both in court at the time of sentencing and in its judgment of conviction. It must further state that the sentence on the non-elected count has been 'merged' into the elected count pursuant to R.C. 2941.25. By announcing a sentence for the allied offense, the ...


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