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11th District reverses marijuana grow operation sentence
TRACEY BLAIR
Legal News Reporter
Published: November 7, 2018
A Trumbull County trial court erred by failing to merge convictions at sentencing in a marijuana grow operation case, the 11th District Court of Appeals recently ruled.
Liberty Township police were dispatched to the home of Michael A. Lawrence Jr. in August 2015 after a 911 hang up call. A male and female could be heard yelling on the call, according to court records.
Officer David Rankin knocked on the door. The officer testified at a suppression hearing that Lawrence answered, looking “distraught, upset, and his chest was going up and down.” In addition, Lawrence had fresh scrapes on his hands and was sweating.
Lawrence, who did not explain why he was upset or what caused the scratches, declined to let officers search the home. Rankin told Lawrence they needed to search his home to make sure nobody was injured or dead inside.
Lawrence told the officers his girlfriend was working, went inside to put his dog in the house and then locked the front door. After the fire department was contacted to break down the door, Lawrence let the officers inside.
Nobody was found inside the home. However, police did find a “moderately sized” marijuana grow operation.
Lawrence and his girlfriend testified for the defense.
Lawrence said he answered the door half asleep and denied being nervous or sweaty. He claimed his scratches were from working on his car a few days before. He also testified the 911 call could not have come from his home because he does not have a landline.
Lawrence gave his phone to the officers to show them that the call was not made from his phone. He also called his girlfriend to come home and show the officers that she was OK. He claimed his girlfriend came home and left again before officers entered his home.
He was not arrested at that point, but was detained in the back seat of the police car because the officers told him someone else could still be inside needing assistance.
Lawrence learned the 911 call came from his neighbor’s cell phone.
His girlfriend testified an officer got on the phone and asked her to identify herself and if she was hurt.
On appeal, Lawrence argued his 4th Amendment rights against warrantless searches and seizures were violated.
However, the appellate court found the officer’s testimony shows the police were justified to enter the house based on their belief that a domestic violence situation had occurred there. Therefore, the officer’s discovery of Lawrence’s marijuana plants in plain view found during their protective sweep of the home was not improper, 11th District Judge Thomas R. Wright wrote in his opinion.
But the panel agreed resentencing is warranted on the merger argument.
The state agreed to a merger of his sentences if he pleaded guilty to both illegal cultivation of marijuana and possession of marijuana, both third-degree felonies, for having more than 1,000 grams but less than 5,000 grams of the drug. Yet Lawrence ended up pleading no contest, and no promises were made to obtain that plea.
He was sentenced to 30 days in jail and given a mandatory $5,000 fine for each offense. If he violated community control, he faced three years in prison on each count.
Since the defendant did not object to the lack of merger at sentencing, he waived all but plain error. Judge Wright cited State v. Ruff (143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E. 3d 892) which sets out a three-part test under R.C. 2941.25 to determine whether a defendant can be convicted of multiple offenses.
“The state concedes error and explains that the amount of marijuana in Lawrence’s possession supports a finding of guilt on both offenses,” the appellate opinion stated. “However, the same marijuana is used to support both findings and none of the Ruff findings are `true.’ Accordingly, merger is required under R.C. 2941.25(A).”
The trial court’s decision was remanded for resentencing.
Eleventh District judges Timothy P. Cannon and Colleen Mary O’Toole concurred.
The case is cited State v. Lawrence, 2018-Ohio-3844.