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State v. Pribble

Court of Appeals of Ohio, Fourth District, Adams

October 30, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
DARIAN J. PRIBBLE, Defendant-Appellant.

         CRIMINAL APPEAL FROM COMMON PLEAS COURT

          Timothy Young, Ohio Public Defender, and Allen Vender, Assistant Public Defender, Columbus, Ohio, for appellant.

          David C. Kelley, Adams County Prosecutor, and Kristofer Blanton, Assistant Adams County Prosecutor, West Union, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          Peter B. Abele, Judge

         {¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of conviction and sentence. Darian J. Pribble, defendant below and appellant herein, assigns the following error for review:

ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED WHEN IT SENTENCED DARIAN PRIBBLE TO FIVE YEARS IN PRISON FOR ILLEGAL ASSEMBLY, BECAUSE THE MAXIMUM ALLOWABLE SENTENCE FOR THAT CRIME IS THREE YEARS IN PRISON. STATE V. CLARK, 4TH DIST. HIGHLAND NO. 14CA20, 2015-OHIO -5003; R.C. 2929.14(A)(3)(b); R.C. 2901.04(A); TR. 361-62; FEBRUARY 6, 2017, JOURNAL ENTRY."

         {¶ 2} On February 7, 2016, Manchester Village Police Officer Jason Mallott received an email from the NPLEx data system that indicated that a person with whom the department had previous contact for manufacturing methamphetamine had just purchased Sudafedrin, a component used to make methamphetamine, from a local Kroger pharmacy. After receiving further information, Officer Mallott located and stopped the car in that appellant and his two co-defendants occupied. Officer Mallott also determined that appellant had an outstanding warrant.

         {¶ 3} During a subsequent search incident to arrest, Officer Mallott found a pouch in appellant's coat pocket that contained "white powder crystal residue" along with small baggies, some ties, and two spoons with white powder residue. The Bureau of Criminal Investigation (BCI) Crime Lab later identified the residue as methamphetamine. Officer Mallott also found in appellant's pocket a severed lithium battery, that Mallott later testified is typically done to extract lithium to use in the manufacture of methamphetamine. After Officer Mallott obtained consent from the driver to search the vehicle, Mallott also found Kroger-brand Sudafedrin.

         {¶ 4} The Adams County Grand Jury returned an indictment that charged appellant with one count of the illegal assembly of chemicals that may be used to manufacture a controlled substance in Schedule I or II, to wit: Sudafed and lithium, with the intent to manufacture a Schedule I or II controlled substance, to wit: Methamphetamine in violation of R.C. 2925.041(A), a third-degree felony. On February 3, 2017, a jury found appellant guilty as charged. The trial court sentenced appellant to serve a mandatory prison term of five years, subject to R.C. 2929.14(A). This appeal followed.

         {¶ 5} In his sole assignment of error, appellant asserts that the trial court erred (1) in sentencing him to 60 months in prison under R.C. 2925.04(C)(1) rather than 36 months in prison under R.C. 2929.14(A)(3), and (2) in failing to follow the relevant precedent in this case, State v. Clark, 4th Dist. Highland No. 14CA20, 2015-Ohio-5003.

         {¶ 6} When the trial court sentenced appellant on February 3, 2017, R.C. 2929.14(A)(3), which governs prison terms for third-degree felonies, provided:

(a) For a felony of the third degree that is a violation of section 2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the Revised Code or that is a violation of section 2911.02 or 2911.12 of the Revised Code if the offender previously has been convicted of or pleaded guilty in two or more separate proceedings to two or more violations of section 2911.01, 2911.02, 2911.11, or 2911.12 of the Revised Code, the prison term shall be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.
(b) For a felony of the third degree that is not an offense for which division (A)(3)(a) of this section applies, the prison term shall be nine, twelve, eighteen, ...

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