2005 Ohio 1585 | Ohio Ct. App. | 2005
{¶ 2} After independently reviewing the record, we disagree with counsel's assessment because the record contains a meritorious claim. Specifically, we find that the trial court erred in sentencing Appellant to the maximum sentences available without making the requisite findings or stating its reasons for those findings. Because the error is clear from the record, we grant appellate counsel's motion to withdraw and reverse and remand this matter to the trial court for re-sentencing.
{¶ 3} In October 2003, the Lawrence County Drug Task Force executed a search warrant on the apartment Appellant shared with his girlfriend. The Task Force discovered cocaine, crack cocaine, marijuana, a gun, bullets, a scale, and a C-clamp or vice, while executing the warrant. The grand jury indicted Appellant on seven charges; however, the grand jury later issued a second indictment based on the same factual basis, modifying the charges brought against Appellant. The State dismissed the original indictment.
{¶ 4} A jury found Appellant guilty of all charges in the second indictment and the trial court sentenced Appellant to a total of sixteen years imprisonment, suspended his driver's license for five years, and fined him $75,000. The trial court appointed new counsel for Appellant after sentencing. Newly appointed counsel filed a motion to withdraw as counsel, notifying this Court that he could discern no meritorious issues for appeal, and filed an Anders brief.
{¶ 5} In Anders, the United States Supreme Court held that if counsel determines after a conscientious examination of the record that the case is wholly frivolous, counsel should so advise the court and request permission to withdraw. Id. at 744. Counsel must accompany the request with a brief identifying anything in the record that could arguably support the appeal. Id. Counsel also must furnish the client with a copy of the brief and request to withdraw and allow the client sufficient time to raise any matters that the client chooses. Id. Once these requirements have been satisfied, the appellate court must then fully examine the proceedings below to determine if meritorious issues exist. If the appellate court determines that the appeal is frivolous, it may grant counsel's request to withdraw and dismiss the appeal without violating constitutional requirements or may proceed to a decision on the merits if state law so requires. Id. Alternatively, if the appellate court concludes that any of the legal points are arguable on their merits, it must afford the appellant the assistance of counsel to argue the appeal. Id.
{¶ 6} Here, Appellant's counsel satisfied the requirements set forth in Anders. Additionally, Appellant has filed a pro se brief setting forth additional proposed assignments of error. Accordingly, we will examine appointed counsel's proposed assignments of error, the proposed assignments of error raised by Appellant, and the entire record to determine if this appeal lacks merit. Appointed counsel raises the following proposed assignments of error: "I. Counts One and Two, and Counts Three and Four of the Indictment are allied offenses of similar import, and therefore Mr. McGhee's convictions were in violation of his rights against double jeopardy, and he should not have been convicted and/or sentenced on all of the charges. II. Mr. McGhee's trial counsel had a conflict of interest that resulted in ineffective assistance of counsel. III. The trial court erred by not suppressing Mr. McGhee's statement to law enforcement officers, as it was not knowingly and voluntarily given. IV. Failure to request findings of fact as to trial court's denial of Appellant's motion to dismiss was ineffective assistance of trial counsel, and therefore Appellant should be entitled to a new trial. V. The trial court erred by not granting Mr. McGhee's Motion to Dismiss on speedy trial grounds. VI. The trial judge failed to make the proper findings upon which to impose maximum sentences and consecutive sentences, and therefore the sentence should be vacated and the matter remanded to the trial court for re-sentencing. VII. The cumulative effect of errors in the trial court deprived Mr. McGhee of a fair trial."
{¶ 7} Appellant assigns the following proposed errors in his pro se brief: "I. Reversal of the conviction is warranted when the accused is deprived of a fair trial as guaranteed by the United States and Ohio Constitutions and the resulting convictions are not supported by sufficient evidence and are against the manifest weight of the evidence. II. Appellant was denied effective assistance of counsel as guaranteed by the United States and Ohio Constitutions when counsel failed to file a motion to discharge jury after amendment to cure a variance in the evidence. III. The trial court erred by ordering a consecutive sentence when it failed to make all the necessary findings required by law under R.C.
{¶ 9} The double jeopardy protections afforded by the federal and state Constitutions guard citizens against successive prosecutions and cumulative punishments for the "same offense." State v. Moss (1982),
{¶ 10} In State v. Rance,
{¶ 11} R.C.
{¶ 12} Therefore, under Rance, the first step is to determine whether the offenses are "allied offenses of similar import" within the meaning of R.C.
{¶ 13} When undertaking the first step of the analysis, Rance expressly held that the court must compare the elements of the offenses in the abstract. Id., paragraph one of the syllabus. In other words, the court must simply examine the statutory elements of the involved crimes without considering the particular facts of the case. Id. at 636-638.
{¶ 14} Counsel suggests that trafficking in crack cocaine in violation of R.C.
{¶ 15} In comparing the elements of these crimes in the abstract, we conclude that the elements of R.C.
{¶ 17} The
{¶ 18} When considering whether trial counsel's representation amounts to a deficient performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland at 689. Thus, "the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. The United States Supreme Court has noted that "there can be no such thing as an error-free, perfect trial, and * * * the Constitution does not guarantee such a trial." United States v. Hasting (1983),
{¶ 20} Trial counsel filed a "Motion to Resign" based on his prior representation of Simmons and Appellant's displeasure with that representation. The trial court concluded that there was no conflict because trial counsel no longer represented Simmons and counsel was free to assign ownership of the drugs and other illegal items to Simmons at trial. Therefore, the court denied the motion to withdraw.
{¶ 21} When a right to counsel exists, the
{¶ 22} Joint representation of conflicting interests is "suspect because of what it tends to prevent an attorney from doing." Holloway v.Arkansas (1978),
{¶ 23} In order for a defendant to demonstrate an actual conflict of interest, he must first show that "some plausible alternative defense strategy or tactic might have been pursued. He need not show that the alternative defense would necessarily have been successful * * * but that it possessed sufficient substance to be a viable alternative." State v.Gillard,
{¶ 24} Appellant contends that trial counsel may have had a conflict of interest because he previously represented Cameron Simmons and, therefore, could not vigorously argue that Simmons owned the drugs discovered during the search rather than Appellant. We disagree. Trial counsel stated at the motion hearing that he no longer represented Simmons. Therefore, he was able to argue at trial that Simmons was the actual owner of the drugs found in the apartment. In fact, trial counsel actually pursued this strategy at trial. He argued that several individuals, including Simmons, resided in the apartment while Appellant was in jail and that one of those individuals left the drugs when he vacated. We find no conflict of interest in trial counsel's representation of Appellant. Counsel's second proposed assignment of error has no merit.
{¶ 26} Crim.R. 12(F) mandates that a trial court state its essential findings on the record when factual issues are involved in determining a motion. However, in order to invoke this provision, trial counsel must request that the trial court state its findings of fact on the record.State v. Benner (1988),
{¶ 27} Although the better practice would have been for trial counsel to request findings of fact on the record, here the record is sufficient to allow a full review of Appellant's claims regarding the alleged violation of his right to a speedy trial. Therefore, Appellant suffered no prejudice as a result of counsel's failure to request findings of fact. See State v. Sapp, Clark App. No. 99CA84, 2002-Ohio-6863, at ¶ 59. Moreover, a request for findings of fact would not have changed the outcome of the motion. See State v. Clark, Pike App. No. 02CA684, 2003-Ohio-1707, at ¶ 21. Counsel's fourth proposed assignment of error has no merit.
{¶ 30} Appellate review of a trial court's decision regarding a motion to suppress involves mixed questions of law and fact. State v.Featherstone,
{¶ 31} The
{¶ 32} At the outset of his interview with Appellant, David Marcum, an investigator with the Lawrence County Drug Task Force, advised Appellant of his constitutional rights and Appellant executed a written Miranda waiver. Investigator Marcum then proceeded to interview Appellant. Unbeknownst to Appellant, Investigator Marcum was tape recording the interview. Towards the end of their discussion, Investigator Marcum asked Appellant if he could record his statement and Appellant refused. According to Investigator Marcum, he did not ask Appellant for permission to record the statement before the interview began.
{¶ 33} Appellant disputes Investigator Marcum's testimony. Appellant testified that Investigator Marcum asked him at the beginning of the interview if Marcum could record their discussion and Appellant denied permission. Appellant argues that his statement was coerced because he did not know he was being recorded and would not have spoken with Investigator Marcum if he had known.
{¶ 34} The trial court concluded that Appellant voluntarily made his statement to Investigator Marcum. The court determined that Investigator Marcum was not required to inform Appellant that he was being recorded and that Appellant first objected to the recording near the end of the interview. Based on these findings, the trial court denied Appellant's motion to suppress.
{¶ 35} We have found no case law supporting counsel's argument that Appellant's statement may have been rendered involuntary simply because it was recorded without his knowledge. In fact, in State v. Aguirre, Gallia App. No. 03CA5, 2003-Ohio-4909, at fn. 1, we recommended that law enforcement electronically record confessions so that challenges to the confessions can be more easily resolved. It is clear from the record that Appellant was informed of his Miranda rights and waived them following his arrest. He then voluntarily made a statement to law enforcement officers. There is no evidence, even based on Appellant's own testimony, that Investigator Marcum coerced him in any way. We find no error in the court's denial of Appellant's motion to suppress. Therefore, counsel's third proposed assignment of error is without merit.
{¶ 37} Appellant moved to dismiss the second indictment, arguing that the speedy trial "three for one" provision of R.C.
{¶ 38} A person arrested and charged with a felony must be brought to trial within two hundred and seventy days. R.C.
{¶ 39} An accused presents a prima facie case for discharge based upon a violation of speedy trial limitations by alleging in a motion to dismiss that he or she was held solely on the pending charges and for a period of time exceeding the R.C.
{¶ 40} Appellant made a prima facie case for discharge when he alleged that he was being held solely on the pending charges and that he had been held in excess of ninety days. The State then had the burden to demonstrate that Appellant was not held solely on the pending charges so the triple-count provision did not apply.
{¶ 41} To meet its burden, the State introduced the testimony of two witnesses. Jeff Lawless testified that he is the Jail Administrator for the Lawrence County Sheriff's Office. Deputy Lawless testified that he possessed Appellant's file and that it included a probation holder from Community Control Corrections Officer Janet Hieroniumus. Thus, even if Appellant posted bond in this case, he would not be released from the jail.
{¶ 42} Janet Hieronimus testified that she is a Project Director and Corrections Officer with the Lawrence County Intensive Supervised Probation Department. She placed a holder on Appellant when the initial indictment was filed against him based on his criminal activity.
{¶ 43} After hearing this testimony, the trial court denied Appellant's motion to dismiss. Although, as discussed previously, trial counsel did not request findings of fact from the trial court, it is apparent that the court determined that Appellant was being held on a valid probation holder in addition to the bond in this case. Therefore, the triple-count provision was inapplicable and the State was required to try Appellant within two hundred and seventy days. Since two hundred and seventy days had not yet passed, the State had not violated Appellant's speedy trial rights.
{¶ 44} Here, the State introduced testimony that the Lawrence County Probation Department issued a parole holder and that it was received by the jail holding Appellant. Trooper Lawless testified that Appellant was being held on that holder in addition to the pending charges and would not be released even if he posted bail. Although it would have been helpful for the State to introduce a copy of the holder into the record, we conclude that the State carried its burden by introducing the testimony of the two witnesses. See State v. Brown,
{¶ 45} We also reject counsel's contention that the triplecount provision may apply because the holder was based solely on the pending charges in this case. In State v. Martin (1978),
{¶ 46} We find no merit in counsel's fifth proposed assignment of error.
{¶ 48} When an appellate court reviews a trial court's sentencing decision, the reviewing court will not overturn the trial court's sentence unless the court "clearly and convincingly" finds that: (1) the sentence is not supported by the record; (2) the trial court imposed a prison sentence without following the appropriate statutory procedures; or (3) the sentence imposed was contrary to law. See R.C.
{¶ 49} R.C.
{¶ 50} The court sentenced Appellant to the maximum sentence for each of his six convictions. After careful review of the sentencing transcript, we conclude that the court erred in sentencing Appellant to the maximum sentence without making any of the necessary findings. Although the court outlined Appellant's extensive criminal history, opined that Appellant lied during his trial testimony, and observed that Appellant expressed no remorse for his actions, the court never found that Appellant committed the worst forms of the offenses or that he posed the greatest likelihood of committing future crimes. Appellant does not meet the statutory definition of a major drug offender or a repeat violent offender so those provisions are inapplicable here. And, as the court never made any of the requisite findings before imposing the maximum sentence, reasons to support them are also nonexistent. Therefore, counsel's sixth proposed assignment of error has merit.
{¶ 51} Generally, trial courts in Ohio must impose concurrent prison sentences. R.C.
{¶ 52} The court did make the requisite findings and give its reasons for imposing consecutive sentences. The court found that, based on Appellant's extensive record, he is a "career person" and consecutive sentences are necessary to protect the public from "future claims or crimes" and to punish the offender. The court found that, despite numerous incarcerations, Appellant "just hasn't gotten the message." The court also found that consecutive sentences were not disproportionate to the seriousness of Appellant's conduct. The court found that Appellant was involved in a "major, major drug outlet" which posed a danger to the public and that Appellant possessed a gun. Finally, the court found that Appellant was under community control sanctions and probation at the time he committed the multiple offenses and that no single prison term could adequately reflect the seriousness of Appellant's acts. The court noted that Appellant had been released from jail for only a short time when he began distributing drugs.
{¶ 53} We find merit in counsel's sixth proposed assignment of error to the extent it challenges the trial court's imposition of the maximum sentences without making the requisite statutory findings or stating its reasons for those findings. However, we overrule Appellant's third proposed assignment of error because the court made the requisite findings before imposing consecutive sentences.
{¶ 55} Before we consider whether "cumulative error" is present, we must find that the trial court committed multiple errors. State v. Goff
(1998),
{¶ 57} When reviewing the sufficiency of the evidence, an appellate court examines the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991),
{¶ 58} Appellant was convicted of one count of trafficking in crack cocaine and one count of trafficking in cocaine in violation of R.C.
{¶ 59} The evidence presented at trial demonstrated that the Lawrence County Drug Task Force executed a search warrant on the apartment Appellant shared with his girlfriend Michelle Lewis, aka Deanna Saxton. The officers discovered a pill bottle containing forty-eight tablets and eight pieces of crack cocaine in the closet, a spray can with a false bottom that contained crack cocaine under the kitchen sink, and a potato stick can with a false bottom that contained crack cocaine in the bedroom on top of a dresser built into the headboard of the bed. Captain Chris Bowman testified that the drugs were packaged in small plastic bags, which is typical for re-sale in the community. The officers also found weight control formula powder, a product which is commonly mixed with cocaine to cut the product for resale, and recovered $1,233 in cash from Appellant, including two twenty dollar bills used in a controlled purchase a few days prior to the execution of the search warrant.
{¶ 60} Following Appellant's arrest, Investigator David Marcum interviewed him. During this interview, Appellant acknowledged that he sold crack cocaine in the community "thousands" of times. He stated that he would purchase cocaine in Columbus, "cut it" with weight control powder to increase the amount of product, and re-sell the drugs. Appellant told Marcum he'd made approximately $10,000 selling drugs since his release from jail approximately a month earlier. Appellant admitted that the drugs found in the apartment belonged to him. Additionally, Deputies Amanda Efaw and Michael Brown, corrections officers for the Lawrence County Sheriff's Department, both testified that Appellant admitted "they had got him good this time" and that he "had got busted with a lot of stuff."
{¶ 61} Appellant also challenges the sufficiency of the evidence as to the weight of the drugs. The jury found that Appellant trafficked in and possessed ten to less than twentyfive grams of crack cocaine, that Appellant trafficked in ten to less than one hundred grams of cocaine, and that Appellant possessed twenty-five to less than one hundred grams of cocaine.
{¶ 62} Appellant argues that these findings are not supported by sufficient evidence because the initial weight of the drugs as recorded by the officers varies somewhat from the weight of the drugs as determined by the forensic scientist who tested the drugs. However, the evidence demonstrated that the officers provided only an estimated weight as determined by the scale found in Appellant's apartment and that some of the drugs were used in the testing process. Further, there appeared to be some initial confusion as the quantity of crack cocaine versus the quantity of powder cocaine. The report prepared by the forensic scientist reveals that the police recovered 16.81 grams of crack cocaine and 34.58 grams of cocaine from Appellant's apartment. Therefore, the jury's findings are supported by sufficient evidence.
{¶ 63} We conclude that the State presented sufficient evidence that Appellant trafficked in crack cocaine and cocaine, and possessed crack cocaine and cocaine, and the amounts of drugs present. Appellant's convictions are supported by sufficient evidence.
{¶ 64} Appellant was also convicted of possession of criminal tools in violation of R.C.
{¶ 65} Captain Chris Bowman testified that the officers discovered a C-clamp or a vice, which is used to press together powder cocaine and various other ingredients in order to increase the weight of the drug for sale, in a kitchen cabinet during the search of Appellant's apartment. During his interview with Investigator Marcum, Appellant admitted he used the C-clamp to "rock up" the cocaine himself, i.e. to turn cocaine into crack cocaine. There is sufficient evidence to support the jury's guilty verdict on the charge of possession of criminal tools.
{¶ 66} Appellant was also convicted of having weapons while under a disability in violation of R.C.
{¶ 67} Finally, we note that the jury also found that Appellant possessed a firearm while committing a felony in violation of R.C.
{¶ 68} Having concluded that there is sufficient evidence to support Appellant's convictions, we now consider whether the convictions are against the manifest weight of the evidence. Our function when reviewing the weight of the evidence is to determine whether the greater amount of credible evidence supports the verdict. State v. Thompkins,
{¶ 69} First, Appellant argues that because there was no probable cause to support the search warrant, the fruits of that search should not have been admitted. He contends that he was in jail when most of the events forming the basis for the search warrant occurred, including drug sales by Lewis. Appellant's trial counsel filed a motion to suppress the results of the search warrant, arguing that there was no probable cause to search. The court denied this motion and, after reviewing the record, we find no error in the court's decision. The affidavit supporting the application for the search warrant established that there was evidence of drug activity in the apartment to be searched and that at least one occupant of the apartment had sold drugs. Because the court properly denied the motion, the evidence discovered during the search was admissible.
{¶ 70} Appellant also argues that he admitted ownership of the drugs and other items found in the apartment solely to protect Lewis from being prosecuted for possession of the items. He testified at trial that the statements he made to Investigator Marcum were not true and that the gun belonged to Lewis. Both he and Lewis testified that they did not know the drugs were in the apartment and that they likely belonged to Cameron Simmons or other individuals who resided in the apartment while Appellant was in jail. Lewis testified that Simmons gave her the gun for protection after the police arrested Appellant for breaking in her door.
{¶ 71} Appellant admitted that he testified at his preliminary hearing and that he stated then that the gun and ammunition were his and that the statements he made to Investigator Marcum were truthful. Given his last minute denial of these statements, the jury was free to disbelieve Appellant's testimony. Likewise, Lewis was not a credible witness. Therefore, we conclude that Appellant's convictions are not against the manifest weight of the evidence.
{¶ 72} Appellant's first and fourth proposed assignments of error are overruled.
{¶ 74} The judgment of the trial court is affirmed in part and reversed in part, and this matter is remanded to the trial court.
Judgment affirmed in part, reversed in part and cause remanded.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, J. McFarland, J.: Concur in Judgment and Opinion.
