State v. DaltonState v. Dalton
Dated: December 30, 2009
MOORE, Presiding Judge.
{¶1} Appellant, John Dalton, appeals from the decision of the Lorain County Court of Common Pleas. This Court affirms in part, reverses in part, and remands for proceedings consistent with this opinion.
I.
{¶2} On March 2, 2006, Dalton was indicted on two counts of receiving stolen property, in violation of
{¶3} Dalton timely appealed his sеntence and convictions, and has raised five assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
“[DALTON] WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF OFFENSES FOR WHICH NO CULPABLE MENTAL STATE WAS ALLEGED.”
{¶4} In his first assignment of error, Dalton contends that he was denied due process of law when he was convicted of offenses for which no culpable mental state was alleged. We do not agree.
{¶5} Upon review of the indictments in this case we conclude that each charge contains a culpable mental state. Dalton does not explain to this Court where he believes the errors to exist in his indictments. He does not inform this Court whether he contends that the mental states listed in the indictment are incorrect or are incomplete. He simply cites case law that does not appear to be relevant to the case at hand. We have consistently held that we will not create an argument for an appellant. Cardone v. Cardone, (May 6, 1998), 9th Dist. No. 18349, at *8
{¶6} Further, we find Dalton’s reliance upon the Ohio Supreme Court’s decision in State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, (“Colon I”), is misplaced. We have explained that
“In Colon I, the Supreme Court permitted a defendant to raise the issue of a defective indictment for the first time on appeal and concluded that the absence of a mens rea in the indictment, in conjunction with significant errors throughout the trial, warranted a reversal of the defendant’s convictiоn for structural error. Colon I at ¶28-32. Recently, however, the Supreme Court readdressed the issue in Colon I on a motion for reconsideration. See State v. Colon (‘Colon II’), [119 Ohio St.3d 204,] 2008-Ohio-3749. The Court clarified that ‘when a defendant fails to object to an indictment that is defective because the indictment did not include an essential element of the charged offense, a plain-error analysis is appropriatе.’ Id. at ¶7[]. ‘Applying structural-error analysis to a defective indictment is appropriate only in rare cases, such as Colon I, in which multiple errors at the trial follow the defective indictment.’ Id. at ¶8[].” State v. Sandoval, 9th Dist. No. 07CA009276, 2008-Ohio-4402, at ¶19.
{¶7} Dalton contends that the indictments in this case are void and therefore his convictions are invalid. Thus, it appears Dalton believes that, pursuant to Colon I, a structural error occurred below. A review of the record indicates that Dalton did not object in the trial court to any alleged defect in the indictments. Further, he ignores the Ohio Supreme Court’s explanation in Colon II that structural error would only apply in the rarest of cases where multiple errors at trial fоllowed the defective indictment. In this case, Dalton did not proceed to trial, instead electing to plead no contest. Therefore, a structural error analysis does not apply in this case. Finally, Dalton does not allege nor do we conclude that plain error occurred. Accordingly, Dalton’s first assignmеnt of error is overruled.
ASSIGNMENT OF ERROR II
“[DALTON] WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT FULLY INFORM [HIM] CONCERNING WHICH
CONSTITUTIONAL RIGHTS HE WAS WAIVING BY ENTERING A PLEA OF NO-CONTEST.”
{¶8} In his second assignment of error, Dalton contends that he was denied due process of law when the trial court failed to fully inform him of the constitutional rights he waived by pleading no contest. We agree.
{¶9} Pursuant to
“A trial court must strictly comply with
Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony plea that the plea waives (1) the right to a jury trial, (2) the right to confront one’s accusers, (3) the right to compulsory process to obtain witnesses, (4) the right to require the state to prove guilt beyond a rеasonable doubt, and (5) the privilege against compulsory self-incrimination. When a trial court fails to strictly comply with this duty, the defendant’s plea is invalid. (Crim.R. 11(C)(2)(c) , applied.)” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, at syllabus.
{¶10} A review of the record reveals that during his plea colloquy, the trial court failed to inform Dalton that by pleading no contest he was waiving his right against compulsory self-incriminatiоn. The State concedes this error and agrees that we must vacate Dalton’s plea and remand. Accordingly, Dalton’s second assignment of error is sustained. The plea is vacated and the matter is remanded for proceedings consistent with this opinion.
ASSIGNMENT OF ERROR III
“[DALTON] WAS DENIED DUE PROCESS OF LAW WHEN THE COURT FAILED TO INFORM [HIM] THE EFFECT OF A PLEA OF NO-CONTEST AND DID NOT ACCEPT THE PLEA PERSONALLY FROM [HIM].”
{¶11} In his third assignment of error, Dalton contends that he was denied due рrocess of law when the trial court failed to inform him of the effect of a plea of no contest and did not accept the plea personally from him. Our decision regarding Dalton’s second assignment of error renders his third assignment of error moot.
“[DALTON] WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED [HIS] MOTION TO SUPPRESS.”
{¶12} In his fourth assignment of error, Dalton contends that he was denied due process of law when the trial court overruled his motion to suppress. We agree.
{¶13} In making its ruling on a motion to suppress, the trial court makes both legal and factual findings. State v. Jones (Mar. 13, 2002), 9th Dist. No. 20810, at *1. It follows that this Court’s review of a denial of a motion to suppress involves questions of both law and fact. State v. Long (1998), 127 Ohio App.3d 328, 332. As such, this Court will accept the factual findings of the triаl court if they are supported by some competent and credible evidence. State v. Searls (1997), 118 Ohio App.3d 739, 741. However, the application of the law to those facts will be reviewed de novo. Id.
{¶14} In its entry denying Dalton’s motion to suppress, the trial court noted that the hearing on the motion had been continued six times. The trial court stated that because “the motion does not call any facts into question and is simply a question of law,” the previously scheduled hearing was cancelled. The trial court denied the motion on the grounds that
“GPS tracking devices are specifically excluded from the warrant requirement under
R.C. 2933.51 et seq. Furthermore, the Supreme Court of the United States held that the use of a radio transmitter to monitor an automobile’s progress on public roads is not a search within the meaning of the Fourth Amendment. United States v. Knotts (1983), 460 U.S. 276, 281[.]”
A careful reading of Dalton’s motion to suppress, however, reveals that the motion does in fact call into question matters of fact requiring determination by thе trial court.
{¶15} In his motion to suppress, Dalton argued that he had a reasonable expectation of privacy in the electrical system of his vehicle and that his “right to be free from unreasonable search and seizure was violated when police wired the GPS tracking device into his vehicle’s
{¶16} In Knotts, 460 U.S. 276, the United States Supreme Court concluded that the use of a radio transmitter to monitor the progress of an automobile on public roads was not a search for purposes of the Fourth Amendment. However, the Court specifically declined to address the issue that Dalton raised in his motion, stating that “Respondent does not challenge the warrantless installation of the beeper in the chloroform container ***. We note that while several Courts of Appeals have approved warrantless installations, we have not before and do not now pass on the issue.” (Internal citations omitted.) Knotts, 460 U.S. at FN 1. Therefore, the trial court’s reliance on this case does not, as a matter of law, dispose of Dalton’s contention that the warrantless installation of the GPS device on his vehicle violated the Fourth Amendment.
{¶17} Further, the trial court’s reliance on
{¶18} We are without authority to determine for the first time on appeal whether a warrant was necessary to place the GPS device on Dalton’s car, or whether the warrantless placement of the device was constitutional. “It is elementary that questions not raised or passed upon by the lower courts will not be ruled upon by [this Court].” Mills-Jennings of Ohio, Inc. v. Dept. of Liquor Control (1982), 70 Ohio St.2d 95, 99. Accordingly, we reverse and remand to the trial court to hold a hearing to determine the facts necessary to properly pass upon this issue.
“[DALTON] WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED [HIS] MOTION TO DISMISS FOR LACK OF A SPEEDY TRIAL.”
{¶19} In his fifth assignment of еrror, Dalton contends that he was denied due process of law when the trial court overruled his motion to dismiss for lack of a speedy trial. We do not agree.
{¶20} Both the United States Constitution and
{¶21}
{¶22}
{¶23} At the hearing on Dalton’s motion to dismiss on speedy trial grounds, Dalton conceded that this motion was not based upon the statutory provisions for speedy trial. He acknowledged that he signed over 19 waivers prior to filing his motion to dismiss. On appeal, Dalton contends that at the hearing on this motion he “protested the coerced waiver of his right to a speedy trial. The prosecutor acknowledged that defendant claimed thаt he was under duress the last couple of months and had filed a written formal withdrawal of any time waiver.” The transcript of the hearing of Dalton’s motion is only eight pages long and reveals that Dalton did not allege that his waivers were involuntary. Instead, Dalton’s co-defendant made these arguments. The prosecutor’s acknowledgment relatеd to the co-defendant’s statements of coercion. Therefore, to the extent that Dalton’s fifth assignment of error alleges violations of the statutory speedy trial provisions, it is overruled.
{¶24} Finally, Dalton contends that his right to a speedy trial under the United States and Ohio constitutions was violated. While he presents casе law to this Court explaining the constitutional requirement for a speedy trial and the factors the trial court was required to consider to find a violation under the constitution, he has not provided this Court with any analysis applying the case law to his facts. Dalton fails to support any contention that a time waiver pursuant to the statutory provisions is not a time waiver pursuant to the constitution. Therefore, we do not decide this issue here.
{¶25} Finally, a review of the record before this Court reveals that Dalton’s motion to dismiss on speedy trial grounds, while noted on the docket, is missing from the record. Pursuant to
III.
{¶26} Dalton’s first and fifth assignments of error are overruled. His second and fourth assignments of error are sustained. Dalton’s third assignment of error is rendered moot. The judgment of the Lorain County Court of Common Pleas is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
CARLA MOORE
FOR THE COURT
CARR, J.
DICKINSON, J.
CONCUR
APPEARANCES:
PAUL MANCINO, JR., Attorney at Law, for Appellant.
DENNIS P. WILL, Attorney at Law, for Appellee.