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State v. Sowards

Court of Appeals of Ohio, Fourth District

July 18, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
WILLIAM S. SOWARDS, Defendant-Appellant.

CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 7-18-13

COUNSEL FOR APPELLANT: Kerry M. Donahue.

COUNSEL FOR APPELLEE: C. Jeffrey Adkins, Gallia County Prosecuting Attorney, and Eric R. Mulford, Gallia County Assistant Prosecuting Attorney

DECISION AND JUDGMENT ENTRY

Peter B. Abele, Judge

{¶ 1} This matter comes on for consideration of a re-opened appeal. William S. Sowards, defendant below and appellant herein, assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT FINDING AND SENTENCE VIOLATED O.RC. §2945.75 AND STATE OF OHIO V. PELFREY."
SECOND ASSIGNMENT OF ERROR:
"THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL"

{¶ 2} A jury found appellant guilty of drug possession in violation of R.C. 2925.11(A). We affirmed that judgment. See State v. Sowards, 4th Dist. No. 06CA13, 2007-Ohio- 4863 (Sowards I). Thereafter, the Ohio Supreme Court declined to hear further appeal, as did the United States Supreme Court. See State v. Sowards, 116 Ohio St.3d 1508, 2008-Ohio-381, 880 N.E.2d 484(Sowards IA), and Sowards v. State, 555 U.S. 816, 129 S.Ct. 69, 172 L.Ed.2d 26 (2008) (Sowards IB).

{¶ 3} On November 12, 2008, appellant filed a motion to vacate his sentence on grounds of R.C. 2945.75(A)(2) and State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735. Appellant argued that the 2006 verdict did not properly set out the degree of the offense. The trial court denied his motion and we affirmed that judgment. See State v. Sowards, 4th Dist. No. 09CA8, 2011-Ohio-1660 (Sowards II). In so doing, we noted that, to the extent appellant argued appellate counsel's constitutionally ineffectiveness for failing to raise this issue in Sowards I, an App.R. 26(B) application to reopen appeal is the proper vehicle to raise that argument. Such application was filed on May 14, 2012. We granted that application in State v. Sowards, 4th Dist. No. 06CA13 (Sowards IIA) and the matter is before on the re-opened appeal.

{¶ 4} We jointly consider the two assignments of error because they both relate to the same issue. Appellant argues that his conviction and sentence violates R.C. 2945.75 and the Ohio Supreme Court's decision in State v. Pelfrey, 112 Ohio St.3d 422, 2007- Ohio-256, 860 N.E.2d 735. We begin our analysis with a review of the statute and Pelfrey. R.C. 2945.75 specifies that, when "the presence of one or more additional elements makes an offense one of more serious degree" the verdict must "state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present." Otherwise, the guilty verdict constitutes only a finding of guilt for the least degree of the offense charged. The Ohio Supreme Court held in Pelfrey that the statute's language is clear and must be strictly applied. 2007-Ohio-256, at ¶11&14.

{¶ 5} Turning now to the facts in the case sub judice, the October 27, 2006 verdict form stated that the jury found appellant guilty of possession of drugs. However, the form neither specified the degree of the offense nor any additional elements. Thus, the form appears to violate R.C. 2945.75 and Pelfrey. The question now is whether this matter must be remanded for re-sentencing on the basis that appellant violated the least degree of the offense charged.

{¶ 6} The appellee, however, cites a more recent Ohio Supreme Court decision wherein the Court appears to make an exception to Pelfrey under certain circumstances. See State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891. The facts in Eafford reveal that the Cuyahoga County Grand Jury returned indictments on three different charges - one for the possession of cocaine in violation of R.C. 2925.11(A). Id . at ¶4. A guilty verdict was returned on that charge, but the verdict did not specify the drug, the degree of the offense or any other additional element. Id . at ¶6. Appellant was later sentenced for a fifth degree felony on the cocaine possession charge. Id . However, the Eighth District vacated the sentence on grounds ...


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