[Cite as State v. Lee, 2018-Ohio-4376.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO STATE OF OHIO, : OPINION Plaintiff-Appellee, : CASE NO. 2018-A-0009 - vs - : KYSEAN CORDELL LEE, : Defendant-Appellant. : Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016 CR 00504. Judgment: Reversed and remanded. Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047. (For Plaintiff-Appellee). Marie Lane, Ashtabula County Public Defender, Inc., 4817 State Road, Suite 202, Ashtabula, OH 44004 (For Defendant-Appellant). CYNTHIA WESTCOTT RICE, J. {¶1} Appellant, Kysean Cordell Lee, appeals his sentence, following his guilty plea, to possession of heroin and aggravated possession of drugs (fentanyl). At issue is whether the trial court erred in not merging these offenses for purposes of sentencing. For the reasons that follow, we reverse and remand. {¶2} On or about May 16, 2016, appellant was found to be in possession of a plastic bag containing a powdery-solid material with a total weight of .566 gram, which tested positive for both heroin and fentanyl. {¶3} On November 9, 2016, appellant was indicted in a three-count indictment charging him with tampering with evidence, a felony-three; possession of heroin, a schedule I controlled substance, in an amount less than one gram, a felony-five; and aggravated possession of drugs (fentanyl), a schedule II controlled substance, in an amount less than bulk, a felony-five. Appellant pled not guilty. {¶4} On April 13, 2017, pursuant to a plea bargain, appellant withdrew his previously-entered not guilty plea and pled guilty to possession of heroin and aggravated possession of drugs as charged in the indictment, in exchange for which the state dismissed the tampering-with-evidence charge. {¶5} On January 9, 2018, the case came on for sentencing. Appellant filed a sentencing memorandum in which he argued the two offenses to which he pled guilty should merge for sentencing purposes. The state filed a brief in opposition. The trial court found the offenses were not allied offenses of similar import and sentenced appellant on both. The court sentenced him to ten months for possession of heroin and ten months for aggravated possession of drugs. The two terms were to be served concurrently to each other and concurrently to appellant’s sentence in an unrelated case filed in the Lake County Common Pleas Court, in which he was sentenced to 13 years in prison for aggravated burglary and related offenses. This court recently affirmed appellant’s Lake County conviction in State v. Lee, 11th Dist. Lake No. 2017-L- 148, 2018-Ohio-2252. 2 {¶6} Appellant appeals his sentence and asserts the following for his sole assignment of error: {¶7} “The trial court erred when failing to merge the counts of possession of heroin and aggravated possession of drugs.” {¶8} Appellant argues the offenses should have merged because both drugs were in the same bag and the lab provided only their combined weight. {¶9} R.C. 2941.25 reflects the General Assembly’s intent to prohibit ...
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