State v. AriosState v. Arios
JOURNAL ENTRY AND OPINION
PLAINTIFF-APPELLEE vs. DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART; REVERSED AND VACATED IN PART; REMANDED FOR RESENTENCING
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-500492
JOURNALIZED:
ATTORNEY FOR APPELLANT
Patricia J. Smith
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Allan T. Regas
Assistant Prosecuting Attorney
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court‘s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court‘s announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. II, Section 2(A)(1).
JAMES J. SWEENEY, J.:
{¶ 2} On August 21, 2007, Cleveland Police Detective Scott Moran arranged for a confidential informant named Luis to purchase 25 grams of heroin from co-defendant Felix Quinones (“Quinones“). Defendant was with Quinones at the time of the sale, which took place at 3267 West 86th Street, in Cleveland, and defendant handed the drugs to Luis. After the sale, defendant and Quinones went back to an apartment at 8513 Madison Avenue that police had under surveillance. Det. Moran prepared a search warrant for the green Mercury that defendant and Quinones were seen in that day. In the meantime, Luis set up another buy for 60 grams of heroin.
{¶ 3} On August 22, 2007, the second heroin sale took place at the West 86th Street address, and defendant again arrived with Quinones. After the buy, Luis made arrangements for the delivery of 40 pounds of marijuana, and police followed Quinones and defendant to a house at 3451 West 135th Street, which was also under surveillance. Quinones and defendant went inside and came out with a large black plastic garbage bag that Quinones put in the trunk of the Mercury.
{¶ 4} Police followed Quinones and defendant for a few blocks, stopped their vehicle on West 117th Street, executed the search warrant, and seized the
{¶ 5} On August 31, 2007, defendant and Quinones were indicted for 14 counts of drug related offenses. Defendant filed three motions to suppress and on February 19, 2008, after an evidentiary hearing, the court denied defendant‘s motions. On May 2, 2008, a jury found defendant guilty of the following counts:
{¶ 6} (1) drug trafficking of between ten and 50 grams of heroin in violation of
{¶ 7} (2) drug trafficking of between ten and 50 grams of heroin in violation of
{¶ 8} (3) drug possession of between ten and 50 grams of heroin in violation of
{¶ 9} (4) drug trafficking of between 50 and 250 grams of heroin in violation of
{¶ 10} (5) drug trafficking of between 50 and 250 grams of heroin in violation of
{¶ 11} (6) * * *
{¶ 13} (8) drug possession of between 5,000 and 20,000 grams of marijuana in violation of
{¶ 14} (9) drug trafficking of 250 or more grams of heroin with a major drug offender specification in violation of
{¶ 15} (10) * * *
{¶ 16} (11) * * *
{¶ 17} (12) drug trafficking of between 5,000 and 20,000 grams of marijuana in violation of
{¶ 18} (13) drug possession of between 5,000 and 20,000 grams of marijuana in violation of
{¶ 19} (14) possessing criminal tools in violation of
{¶ 20} The court sentenced defendant to an aggregate of 47 years in prison: eight years each on counts one, two, and three; ten years each on counts four, five, and nine; five years each on counts seven, eight, 12, and 13; and one year on count 14, with the sentences for counts one, two, four, seven, nine, 12, and 14 to run consecutively.
{¶ 21} Defendant appeals and raises four assignments of error for our review.
{¶ 22} “I. The trial judge violated the appellant‘s right to due process when it sentenced the appellant to maximum consecutive prison terms and erred by
{¶ 23} Specifically, defendant argues that the court failed to consider sentencing criteria, such as mitigating factors, failed to conduct a proportionality analysis, and failed to order a presentence investigation report.
{¶ 24} State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, addresses the standard for reviewing felony sentencing decisions, and holds that appellate courts must apply a two-step approach when analyzing alleged error in a trial court‘s sentencing. “First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision shall be reviewed under an abuse-of-discretion standard.” Kalish, supra, at ¶4.
{¶ 25} In determining whether defendant‘s sentence is contrary to law, we look to
{¶ 26} We also find that the court properly included postrelease control as part of defendant‘s sentence, stating that at the conclusion of his prison term, he is required to serve five years of postrelease control. See State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085.
{¶ 27} Next, we must determine whether the trial court considered the purpose and principles of felony sentencing found in
{¶ 28} The record shows that, through defense counsel‘s argument for a minimum sentence, the court considered that defendant did not have a history of criminal convictions, that he was not the primary target in this investigation, that he did not actively participate in all the drug transactions that took place, and that “[h]e‘s still a young man [who] won‘t be seeing his daughters for the next, at least minimum of ten years.” The court asked defendant if he wished “to make a statement or present any evidence in mitigation of punishment,” to which defendant replied, through an interpreter, that he did not feel that he was guilty. The court then stated that defendant was involved in “major drug dealing * * * [of] a lot of heroin.” The court took into consideration that defendant entered the United States with a bad passport on April 14, 2007, was “sent back,” and re-entered the United States illegally the next day “to continue * * * drug dealing
{¶ 29} The court found that defendant was not eligible for community control sanctions, and that “a minimum sentence will demean the seriousness of the offense, because of the amount of drugs involved, and the length of time that this was going on.” Because trial courts “are no longer required to make findings and give reasons for imposing maximum, consecutive or more than the minimum sentences,” we find that defendant‘s sentence in the instant case is not contrary to law. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at ¶7 of the syllabus. See, also, Kalish, supra, at Fn. 4 (noting that “where the trial court does not put on the record its consideration of
{¶ 30} We now review the trial court‘s sentencing decision for an abuse of discretion under the second prong of Kalish. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 32} Although defendant argues that the court erred by failing to order a presentence investigation report and failing to conduct a sentencing proportionality analysis, Ohio law does not require the court to do these two things when sentencing a felon.
{¶ 33} Pursuant to
{¶ 34} Accordingly, defendant‘s first assignment of error is overruled.
{¶ 35} In defendant‘s second assignment of error, he argues as follows:
{¶ 37} Specifically, defendant argues that he was unaware of Quinones‘s drug trafficking as he was just a guest in the West 135th Street home and he was just a passenger in Quinones‘s car. Additionally, defendant argues that the only evidence of his involvement in the transactions came from Luis, whose testimony cannot be relied upon.
{¶ 38} The standard of review for a claim that an appellant‘s convictions are against the manifest weight of the evidence is as follows: “The appellate court sits as the ‘thirteenth juror’ and, reviewing the entire record, weighs all the reasonable inferences, considers the credibility of witnesses and determines whether, in resolving conflicts in evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Thompkins (1997), 78 Ohio St.3d 380, 387.
{¶ 39} Defendant was convicted of multiple counts of drug trafficking and possession, and one count of possession of criminal tools. Pursuant to
{¶ 40} Det. Moran testified that during surveillance of the August 21, 2007 transaction, he observed a hand-to-hand exchange between the defendant and Luis. Det. Moran also testified that on the audio tapes of the August 21, 2007 transaction recorded from the wire Luis wore, defendant is heard correcting Quinones “as to how many grams of heroin were sold just then to Luis.” Cleveland Police Detective Thomas Klamert testified that during part of the August 21, 2007 transaction, defendant was driving the Mercury and Quinones was in the passenger seat. Furthermore, all the Cleveland police officers who were part of the surveillance crew testified consistently that defendant was with Quinones in the Mercury and together they entered the Madison Avenue apartment building and the house on West 135th Street during the transactions.
{¶ 41} Luis testified as follows: Defendant was with him and Quinones when they “discussed business” at a local restaurant called Johnny Mangos. He had seen defendant with Quinones before this meeting, as “they always rode together.” Typically, defendant would hand him the drugs and he would hand defendant the money. Quinones was in charge of the operation but Quinones would never touch the drugs; rather, Quinones would pay someone, usually defendant or a person named “Chantos,” to ride with him and handle the drugs.
{¶ 43} It was in the province of the jury whether to believe Luis‘s testimony that defendant participated in the drug sales, which was bolstered by Det. Moran‘s witnessing the defendant and Luis engage in a hand-to-hand transaction, and the defendant‘s voice, which was captured on the audio tape of the wire Luis was wearing. Accordingly, nothing in the record shows that the jury lost its way in finding defendant guilty of multiple drug related offenses and his second assignment of error is overruled.
{¶ 44} In defendant‘s third assignment of error, he argues as follows:
{¶ 45} “III. The trial court erred when it quashed defense subpoenas thereby not allowing the appellant a full[,] fair and impartial hearing and when it failed to suppress evidence seized at the appellant[‘]s residence when the officers did not posses[s] a search warrant at the time of entry and provide it to the occupant.”
{¶ 47} In Quinones, supra, at ¶27-28, this Court held that the “duty logs requested by appellant were part of an official criminal investigation and prepared in anticipation of the prosecution of appellant for drug offenses. Thus, appellant was excluded from discovery pursuant to
{¶ 48} “Additionally,
{¶ 49} Defendant next argues that the police officers did not physically have the search warrant upon entering the house on West 135th Street. Therefore, they were unable to show the warrant to the home‘s occupant, and the court erred when it failed to suppress the evidence seized during this search.
{¶ 50} This argument was also raised by Quinones and overruled by this Court on appeal. “There is no requirement * * * that the executing officer present the occupant of the premises with a copy of the warrant prior to performing the
{¶ 51} Det. Moran testified that he arrived at the West 135th house at approximately 8:10 p.m. with the warrant while the search was still in progress. Although the occupant of the house testified that Det. Moran did not arrive with the warrant until almost 9:00 p.m., the court chose to believe Det. Moran, whose testimony was consistent with other officers’ accounts of the events that night. The Quinones court held that this was a reasonable amount of time within which to present the occupant with a copy of the warrant and that the trial court did not err in denying the motion to suppress.
{¶ 52} Accordingly, in following our holdings in co-defendant Quinones‘s case, we overrule defendant‘s third assignment of error.
{¶ 53} In defendant‘s fourth and final assignment of error, he argues as follows:
{¶ 54} “IV. The appellant‘s convictions in pertinent part should be reversed and remanded to the trial court for application of
{¶ 55} In Quinones, this Court held that the trial court failed to merge Quinones‘s trafficking convictions in violation of
{¶ 56} In the instant case, defendant‘s convictions for drug trafficking in violation of
Judgment affirmed in part; reversed and vacated in part. Case remanded to the trial court for resentencing consistent with this opinion.
It is ordered that appellant and appellee shall each pay their respective costs herein taxed.
It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. Case remanded to the trial court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
KENNETH A. ROCCO, P.J., and
LARRY A. JONES, J., CONCUR