State v. PayneState v. Payne
JUDGMENT: APPLICATION DENIED
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney and Katherine E. Mullin, Assistant Prosecuting Attorney, for appellee.
Patituce & Associates, L.L.C., and Kimberly Kendall Corral, for appellant.
MICHELLE J. SHEEHAN, J.:
{¶ 1} Appellant, James Payne, timely seeks to reopen his appeal in State v. Payne, 8th Dist. Cuyahoga No. 107825, 2019-Ohio-4158. He asserts three potential assignments of error that appellate counsel should have raised on appeal:
Appellate counsel was ineffective for failing to request a dismissal [of] Payne’s appeal for lack of a final appealable order. - Appellate counsel was ineffective in failing to raise ineffective assistance of counsel for [trial] counsel’s fail[ure] to proffer.
- Appellate counsel was ineffective in failing to raise ineffective assistance of counsel for [trial] counsel’s failure to challenge [the] state’s nondisclosure of [the] confidential informant’s identity.
The application is denied for the reasons that follow.
Procedural History
{¶ 2} Payne appealed his convictions in two criminal cases and assigned the following errors for review:
- The trial court erred in denying the Defendant’s Motion to Suppress, in violation of Defendant’s rights under the 4th Amendment to the United States Constitution.
- The trial court erred in its аdmission of certain evidence, in violation of Defendant’s Right of Confrontation and to Due Process of Law under the 6th and 14th Amendments of the United States Constitution.
- The trial court erred in denying Defendant’s Motion for Mistrial, in violation of Defendant’s right to Due Process of Law under the 14th Amendment to the United States Constitution.
- The trial court erred in entering a judgment of conviction in Case No. 625534, which was based upon insufficient evidence, in violation of Defendant’s right to Due Process of Law under the 14th Amendment to the United States Constitution.
- The trial court erred in denying Defendant’s Motion to sever Case No. 619409 from Case No. 625534, allowing the State to proceed to trial on both, in violation of Defendant’s right to Due Process of Law under the 14th amendment to the United States Constitution.
- The trial court erred in sentencing Defendant as a Major Drug Offender in Case No. 619409.
{¶ 3} On January 8, 2020, Payne filed a timely application to reopen his appeal, claiming appellate counsel was ineffective for the three reasons set forth above. The state did not timely respond in opposition, but was granted leave to oppose the application. On February 14, 2020, Payne filed motions to supplement the application with an additional proposed assignment of error and a motion to supplement the record. Both motions were denied.
Application to Reopen
I. Standard Applicable to an Application for Reopening
{¶ 4} An application for reopening under
II. Jurisdiction to Hear the Appeal
{¶ 5} First, Payne argues that appellate counsel was ineffective for not arguing that the appeal should have been dismissed for lack of a final, appealable order.
{¶ 6} A court of appeals is a court of limited jurisdiction. The
{¶ 7} Payne first argues that the failure to resolve major drug offender (“MDO”) specifications in the sentencing entry for CR-17-619409-B constitutes a jurisdictional impediment that deprives this court of jurisdiction to hear the appeal. This argument is contrary to an assignment of error raised in the direct appeal where Payne argued that the trial court еrred in imposing sentence pursuant to the MDO specification. Payne at ¶ 69.
{¶ 8} Assuming that the trial court did fail to resolve one or more of these MDO specifications, this does not mean that we lacked jurisdiction to hear the appeal. This is because the failure to resolve a specification does not result in an order incapable of invoking appellate jurisdiction. Some cases do support Payne’s argument that the failure to resolve a specification leads to a lack of jurisdiction. See, e.g., State v. Claren, 9th Dist. Wayne No. 17AP0030, 2019-Ohio-260, ¶ 11, citing State v. Heavilin, 9th Dist. Medina No. 15CA0034-M, 2016-Ohio-1284, ¶ 9, citing State v. Hayes, 9th Dist. Lorain No. 99CA007416, 2000 Ohio App. LEXIS 2198, 1 (May 24, 2000) (“This requirement applies to the offenses and specifications charged in each count.”). However, these cases do not address a contrary holding from a superior court: State ex rel. Jones v. Ansted, 131 Ohio St.3d 125, 2012-Ohio-109, 961 N.E.2d 192. There, the Supreme Court of Ohio held that the failure to
{¶ 9} This conclusion results from the nature of a specification. “A ‘firearm specification is merely a sentence enhancement, not a separate criminal offense.’ State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶ 17. Thus, a trial court’s failure to address a specification does not affect the finality of the order because a specification is not a conviction for purposes of
{¶ 10} Payne further argues that the sentencing entry is not capable of invoking appellate jurisdiction because the order does not state the manner of conviction for the MDO specification. The sentencing entry in this case indicates that the jury found Payne guilty of certain counts with attendant MDO specifications. Therefore, this argument appears to be contradicted by the record. Even if this is inaccurate, and the court failed to actually resolve the MDO specifications as Payne indicates, that is an issue that could have been raised on appeal. It does not constitute an impediment tо jurisdiction. Any error in the failure to resolve or impose a certain sanction for the MDO specification is not jurisdictional.
{¶ 11} Payne separately argues that the sentencing entry in CR-17-619409-B is not a final, appealable order because Count 14 was not resolved. Payne asserts, “the judgment in this matter indicates that ‘Count(s) 14 was/were dismissed.’ However, there is no separate journal entry which indicates what Count 14 chаrged and when it was dismissed.” (Brief in support of application for reopening at unnumbered page 5.) In support, Payne cites to “State v. Crist”’.1 (Brief in Support of Application for Reopening at unnumbered page 5). A review of State v. Crist, 4th
{¶ 12} In Crist, the Fourth District dismissed an appeal for lack of a final, appealable order when three counts from a multicount indictment were not resolved at all. No journal entry in thе entire record included a resolution of those counts. The Crist court found that because there remained pending charges, the sentencing order did not qualify as a final order under
{¶ 13} Contrary to Payne’s argument, the August 30, 2018 journal entry memorializing the jury’s findings of Payne’s guilt indicates that Count 14 was dismissed without prejudice. This constitutes a resolution of this count memorialized in a journal entry on the record. That is all that is required. The Supreme Court of Ohio has held many times that a sentencing entry is final and appealable when it fully resolves all counts “for which there were convictions.” (Emphasis sic.) State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas, 127 Ohio St.3d 29, 2010-Ohio-4728, 936 N.E.2d 41, ¶ 2. See also State v. Jackson, 151 Ohio St.3d 239, 2017-Ohio-7469, 87 N.E.3d 1227, ¶ 11, quoting Davis at ¶ 2. Where a count in an indictment is undisposed and remains pending, then an entry that disposes of some, but not all of the charges, is not a final, appealable order. Craig at ¶ 21. That is not the case here.
{¶ 14} The journal entry of sentence, journalized on September 27, 2018, carried the disposition of Count 14 forward from the order setting forth the jury’s
Although the court stated at the sentencing hearing: “On a previous date, Mr. Brewer did in fact enter a plea of guilty to one count of burglary, a felony of the second degree. All other charges herein were dismissed,” this is not reflected in the sentencing entry or any other journal entry. And because “[a] court speaks through its journal entry and not its oral pronouncements,” this statement cannot be viewed as disposing of that charge in a manner that complies with
R.C. 2505.02 andCrim.R. 32(C) .
(Emphasis added.) Brewer at ¶ 8.
{¶ 15} Further, contrary to Payne’s arguments, the sentencing entry does not need to state what charge Count 14 encompassed because the indictment indicates that Count 14 was a charge of having weapons while under disability. There was no renumbering of counts or other event that would lead to confusion as to what Count 14 encompassed. Even if there were, the count was previously resolved, and
{¶ 16} All counts were resolved in the journal entry of sentence in compliance with
III. Ineffective Assistance of Trial Counsel
{¶ 17} Payne next claims that appellate counsel was ineffective for not arguing two instances of trial counsel’s ineffectiveness.
{¶ 18} As stated above, the standard for ineffective assistance of counsel in Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, governs this claim. A successful claimant must show that trial counsel’s performance fell below an objective standard of reasonableness, and this defiсient performance resulted in prejudice. Id. at 687-688. Prejudice is generally demonstrated with a showing that but for counsel’s errors, there is a reasonable probability the result of trial would have been different. Id. at 694. Further, a properly licensed attorney is presumed to be competent. Therefore, it is the defendant’s burden to overcome this presumption. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).
{¶ 19} Payne claims he was prejudiced by trial counsel’s fаilure to secure the testimony of Detective Michael Rinkus at a suppression hearing. Det. Rinkus was the affiant for one of the search warrant affidavits that were used to secure search warrants for a building owned by Payne’s father, Terrence Payne.
{¶ 20} To begin the suppression hearing, trial counsel provided an opening statement that ended with, “[t]he bottom line is, they had a search warrant for 5243. They searched 5245. They found drugs and guns in 5245 and nothing in 5243, which was the only suite that they were permitted to search. And that, your honor, is what we expect the suppression evidence is going to show.” (Tr. 30.) Payne claims that the separate dwellings within the structure had separate mailing addresses and this rendered the search improper. Payne goes on to argue that the trial testimony of Det. Rinkus shows that his testimony at the suppression hearing was necessary.
{¶ 21} The failure to secure Det. Rinkus’s testimony at the suppression hearing and the testimony Payne points to as necessary is duplicative of other testimony adduced at the suppression hearing. Calling Det. Rinkus, who was the affiant for the July 11, 2017 search warrant, in addition to Sergeant Alfred Johnson, who was the affiant for the July 12, 2017 search warrant, would add nothing to the analysis of whether the search warrants obtained to search the entire structure were valid. The testimony of Lawrence Payne, the owner of the building, established that there were separate mailing addresses for units 5245 and 5243 Broadway contained in a single structure with an interior door separating the two. He also testified that
{¶ 22} Further, this court has already determined that the warrants were valid and the search of the entire building did not exceed the scope of the warrants. Payne, 8th Dist. Cuyahoga No. 107825, 2019-Ohio-4158, at ¶ 23-26. Appellate counsel was not ineffective for arguing an assignment of error that was addressed in a different form in the appeal. Whether the building had separate entrances or mailing addresses is not determinative of the validity of the search given the facts of this case where testimony established that Payne had access to the entire structure and the search warrants were for permission to search that structure. See Payne at ¶ 27. The failure to allege ineffective аssistance of trial counsel for counsel’s decision not to call Det. Rinkus during the suppression hearing does not present a colorable claim of ineffective assistance of appellate counsel.
{¶ 23} Finally, Payne argues that the state was required to disclose the identity of the confidential informant and appellate counsel was ineffective for not arguing the issue of trial counsel’s ineffectiveness when trial counsel did not secure the identity of the informant.
{¶ 24} The disclosure of the name of a confidential informant is not required in all cases. The Supreme Court of Ohio has held, “when the degree of participation of the informant is such that the informant virtually becomes a state’s witness, the balance swings in favor of requiring disclosure of the informant’s identity. Conversely, where disclosure would not be helpful or beneficial to the accused, the identity of the informant need not be revealed.” State v. Williams, 4 Ohio St.3d 74, 76, 446 N.E.2d 779 (1983). “When an informant has acted merely as a tipster or where the informant’s involvement is limited to providing information relevant to a probable cause determination, disclosure is generally not required.” State v. Parsons, 64 Ohio App.3d 63, 67-69, 580 N.E.2d 800 (4th Dist.1989).
{¶ 25} Prior to trial, defense counsel filed a motion in limine seeking disclosure of the identity of the informant and to exclude any hearsay statements by any confidential informant. Defense counsel and the state reached an agreement regarding any testimony related to the informant. (Tr. 107-108.) While the identity of the confidential informant was not disclosed, testimony of the informant, including any hearsay statements were excluded. Even though the matter was partially resolved by agreement of the parties, Payne still objeсted to the lack of
It’s about a confidential informant that the state has not disclosed, and apparently is not going to disclose no matter what we do. And they’re not going to call that confidential informant to trial.
Wе motioned the court for it. The court respectfully reviewed that and gave an opinion that it wasn’t going to be required. There is nothing I can do except make an objection and deal with it in the court of appeals if that time becomes ripe.
(Tr. 127-128.)
{¶ 26} Trial counsel was aware of the issue, having asserted it twice prior to trial. Both times, the trial court denied the motions for pretrial disclosure.
{¶ 27} Further, defense counsel moved for a mistrial at the close of the state’s case. Defense counsel asserted that Det. Rinkus was allowed to testify that Payne sold drugs to the confidential informant when Det. Rinkus did not witness the sale. Defense counsel argued this was a hearsay statement that had to come from the confidential informant, who was not subject to cross-examination. That motion was denied. Defense сounsel took steps to reveal the identity of the confidential informant prior to trial, and when that was unsuccessful, argued for a mistrial when he perceived testimony that violated Payne’s right to confront the witnesses against him. That motion, like the pretrial motions, was denied by the trial court. It is unclear what else defense counsel could have done to secure the disclosure of the identity of the confidential informant, nor does Payne suggest any further action.
Our review of the transcript also shows that when the detectives testified about the use of a confidential reliable informant and the two instances of controlled buys conducted by the police, the prosecutor carefully limited the testimony to the detectives’ own conduct and their personal observation during the controlled buy. The detectives’ observation during the controlled buy was probative to whether Payne was involved in illegal drug activity and at no time did the detectives testify to any hearsay statement made by the informant.
{¶ 29} Trial counsel preserved any error for appellate review, which, in fact, was raised by appellate counsel. Therefore, Payne has not asserted a colorable claim of ineffective assistance of counsel in this regard.
{¶ 30} Payne’s application for reopening is denied.
MICHELLE J. SHEEHAN, JUDGE
SEAN C. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR