ANTHONY F. SALGADO v. MONTGOMERY COUNTY SHERIFF
Appellate Case Nos. 26502, 26572
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
August 21, 2015
[Cite as Salgado v. Montgomery Cty. Sheriff, 2015-Ohio-3387.]
Trial Court Case No. 2014-CV-2959 (Civil Appeal from Common Pleas Court)
MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorney for Defendant-Appellee
OPINION
Rendered on the 21st day of August, 2015.
FAIN, J.
{¶ 1} Anthony Salgado appeals from a judgment of the Montgomery County
{¶ 2} We agree with the trial court that the offense of possession of drug paraphernalia necessarily involves the use or possession of a drug of abuse. However, we conclude that the trial court erred by finding that Salgado‘s ineligibility to obtain a concealed handgun license could be based on a prior conviction of an offense that was classified as a minor misdemeanor at the time of the license application. The statute prohibits granting a license to an applicant who was previously convicted of an offense involving the illegal use of a drug of abuse, as long as the offense is not classified as a minor misdemeanor. Ten years prior to his application for the handgun license, Salgado was convicted of Possession of Drug Paraphernalia in violation of
{¶ 3} Therefore, the court abused its discretion by failing to apply
I. The Course of Proceedings
{¶ 4} In 2004, Salgado was stopped for Speeding in Franklin, Ohio, and admitted to possession of marijuana and drug paraphernalia. He was cited for Speeding, in violation of Section 333.03 of the Franklin Municipal Code and charged with Drug Abuse, a minor misdemeanor, in violation of Section 513.03 of the Franklin Municipal Code, and Possession of Drug Paraphernalia, in violation of
Upon approach to the vehicle, I could smell the aroma of green vegetation and that through training and experience lead me to believe that it was marijuana. I identified myself and asked the driver for his license and proof of insurance. He advised me that he did not have his license on him. I asked him if there was anything illegal in his vehicle and he looked around his vehicle and said, “not that I know of.” I advised him that I could smell an aroma and asked him again if there was anything illegal in the car. Again he advised me that he didn‘t know of anything. I asked him for consent to
search and he advised me that he was not going to lie to me, that he had a baggie of weed in his door. I got the driver out, did an officer safety pat down and put him into the back seat of the cruiser. He advised me that there might be a pipe in the glove box. I located a baggie of green marijuana in the drivers door, a glass smoking pipe in the glove box along with two packs of rolling papers.
{¶ 5} The record does not reflect any disposition of the Speeding charge. The minor misdemeanor charge for Drug Abuse was dismissed, and Salgado pled no contest to, and was found guilty of, Possession of Drug Paraphernalia. At the time of the conviction, this offense was classified as a misdemeanor of the fourth degree, which carried a sentence of up to 30 days in jail.
{¶ 6} On May 5, 2014, Salgado applied to the Montgomery County Sheriff for a License to Carry a Concealed Weapon. In processing the application for the license, the Montgomery County Sheriff ran a criminal records check on Salgado and found the Drug Paraphernalia conviction from the City of Franklin in 2004. On May 6, 2014, the Montgomery County Sheriff denied the application for a license to carry a concealed weapon “due to a 2004 Drug Paraphernalia conviction through Franklin Municipal Court.” On May 20, 2014, Salgado filed an administrative appeal of the license denial in the Montgomery County Common Pleas Court, alleging that the decision was not based on reliable, substantial and probative evidence, and was contrary to law. The trial court affirmed the administrative decision denying Salgado‘s application for a license, interpreting the statute to exclude licenses for applicants with a conviction for Possession of Drug Paraphernalia because that offense necessarily involves the use or
{¶ 7} Salgado moved for relief for judgment, pursuant to Civ. R. 60(B)(1), on the basis of “surprise,” because the trial court referred to an unreported common pleas decision as support for the court‘s legal analysis of the licensing statute. We agreed to a limited remand, which allowed the trial court to rule on the 60(B) motion. The trial court overruled the 60(B) motion, explaining that the court‘s statutory interpretation was made independently, without reliance on the unreported case. Salgado appeals from the judgment rendered against him affirming the denial of his application for a concealed carry license.
II. Standard of Review
{¶ 8} Pursuant to
The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and any additional evidence the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of this finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law.
{¶ 9} As discussed by the Supreme Court of Ohio in Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826, 897 N.E.2d 1096,
III. The Statutory Scheme for Obtaining a Concealed Carry License
{¶ 10} The process of obtaining a concealed handgun license is outlined in
Except as otherwise provided in division (D)(4) or (5) of this section, the applicant has not been convicted of or pleaded guilty to a felony or an offense under Chapter 2925., 3719., or 4729. of the Revised Code that involves the illegal possession, use, sale, administration, or distribution of or trafficking in a drug of abuse; * * * any other offense that is not previously described in this division that is a misdemeanor punishable by imprisonment for a term exceeding one year.
{¶ 11}
{¶ 12}
{¶ 13}
If an applicant has been convicted of or pleaded guilty to a minor misdemeanor offense or has been adjudicated a delinquent child for committing an act or violation that is a minor misdemeanor offense, the sheriff with whom the application was submitted shall not consider the conviction, guilty plea, or adjudication in making a determination under division (D)(1) or (F) of this section or, in relation to an application for a concealed handgun license on a temporary basis submitted under section 2923.1213 of the Revised Code, in making a determination under division (B)(2) of that section.
IV. The Court Erred in Interpreting the Licensing Statute
{¶ 14} Salgado‘s First Assignment of Error states as follows:
{¶ 15} A court‘s paramount concern in construing a statute is legislative intent. Ohio Neighborhood Fin., Inc. v. Scott, 139 Ohio St. 3d 536, 2014-Ohio-2440, 13 N.E.3d 1115. In Ohio, the intention of the legislature in enacting a statute is primarily determined from the language of the statute. In re Foreclosure of Liens for Delinquent Land Taxes v. Parcels of Land Encumbered with Delinquent Tax Liens, 140 Ohio St. 3d 346, 2014-Ohio-3656, 18 N.E.3d 1151. As explained by the Sixth District Court of Appeals:
The entire enactment should be considered in determining the spirit or meaning, and intent must be gathered from the entire statute. 50 Ohio Jurisprudence (2d), 129, 140. Sections and acts in pari materia, that is, “in relation to the same matter, subject or object,” should be construed together. Stated differently, it is the rule that statutes relating to the same or similar subject matter or subject of law should, where a case calling for the application of both is presented, be read together as if they were a single statute, and both should be reconciled, harmonized, and made to apply, and give meaning and effect, so as to render their contents operative and valid. Thus the various statutory provisions affecting a particular subject should be construed and applied so as to accomplish the manifest purpose of their enactment and give full force and effect to the legislative intent. Suez Co. v. Young, 118 Ohio App. 415, 423, 195 N.E.2d 117 (6th Dist.1963).
{¶ 17} The elements of Possession of Drug Paraphernalia are succinctly described in OJI CR 541.14(C), which states that the jury can find the defendant guilty, if it finds beyond a reasonable doubt, that the defendant “knowingly (used) (possessed with purpose to use) drug paraphernalia.” One of the definitions of drug paraphernalia, pertinent to the case before us, is found in
{¶ 18} In the case before us, the trial court construed the term “involves” in the licensing statute to include the offense of Possession of Drug Paraphernalia because the element of intent to use the paraphernalia necessarily implies that the offender has already used drugs or intends to be involved in drugs. The trial court reasoned that a broad reading of the statute was necessary based on the intent of the legislature to prevent granting a concealed carry license to citizens whose past criminal activity is deemed to pose a higher risk to public safety. However, this interpretation is overly broad, and would encompass any conduct involving the potential for any drug related activity. The trial court did not consider that the legislature intended to exclude some drug related offenses because the language in
{¶ 19} Based on the language of the drug paraphernalia statutes in effect at the time Salgado applied for a license, the Possession of Drug Paraphernalia intended to be used for smoking marijuana was a minor misdemeanor. Based on the language of
V. Any Alleged Error Regarding Denial of Salgado‘s 60(B) Motion is Moot
{¶ 20} Salgado‘s Second Assignment of Error alleges as follows:
THE TRIAL COURT ERRED WHEN IT DENIED SALGADO‘S MOTION FOR RELIEF FROM JUDGMENT.
{¶ 21} In view of our disposition of Salgado‘s First Assignment of Error, we conclude that his Second Assignment of Error is moot. Accordingly, the Second Assignment of Error is overruled as moot.
VI. Conclusion
{¶ 22} Salgado‘s First Assignment of Error having been sustained, and his Second Assignment of Error having been overruled as moot, the judgment of the trial court is Reversed, and this cause is Remanded for further proceedings consistent with
FROELICH, P.J., and WELBAUM, J., concur.
Copies mailed to:
Mathias H. Heck
R. Lynn Nothstine
Erik R. Blaine
Hon. Mary L. Wiseman