STATE OF OHIO, Plаintiff-Appellee, v. DELVONTE PHILPOTTS, Defendant-Appellant.
No. 107374
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
July 18, 2019
2019-Ohio-2911
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-619945-A
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 18, 2019
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Kevin R. Filiatraut and Christopher D. Schroeder, Assistant Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, Robert Blanshard McCaleb, Assistant Public Defender, for appellant.
MICHELLE J. SHEEHAN, J.:
{¶ 1} Delvonte Philpotts appeals from his conviction of having weapons while under disability.
- Automatic criminalization of the possession of firearms by indictees violates the Second Amendment on its face.
- Automatic criminalization of the possession of firearms by indictees violates the Second Amendment as applied.
- Automatic criminalization of the possession of firearms by indictees violates the right to procedural due process, both on its face and as applied.
{¶ 2} Upon review, we conclude
Background
{¶ 3} On March 10, 2017, Philpotts was indicted by the grand jury for rape, kidnapping, and assault. The rape and kidnapping counts were accompanied with one- and three-year firearm specifications. On March 15, 2017, Philpotts appeared for arraignment and pleaded not guilty. The court subsequently set a bond for $25,000, and as a condition of his bond, he was subject to GPS electronic home detention monitoring. On April 17, 2017, Philpotts posted the bond and was released from the county jail.
{¶ 5} Based on the discovery, the police prepared a warrant to search his home. During the search, the police found an operable Taurus PT111 Pro 9 mm handgun with ammunition - the same gun displayed in his social media pictures. Philpotts subsequently admitted to the police that he possessed the firearm discovered by the police.
{¶ 6} On August 4, 2017, Philpotts was indicted by the grand jury for having a weapon while under a disability pursuant tо
{¶ 7} Thereafter, on January 3, 2018, Philpotts moved to dismiss the indictment in the weapons-while-under-disability case, arguing
{¶ 8} The record also reflects that, sometime after the March 14, 2018 hearing, Philpotts was arrested for having a loaded handgun in a vehicle, in violation of
{¶ 9} We review de novo a trial court‘s decision concerning a defendant‘s motion to dismiss an indictment based on a constitutional challenge to the statute under which the defendant is indicted. State v. Wheatley, 2018-Ohio-464, 94 N.E.3d 578, ¶ 5 (4th Dist.)
{¶ 10} On appeal, Philpotts argues
The Second Amendment and District of Columbia v. Heller
{¶ 11} The
{¶ 12} Long before Heller and McDonald, Ohio courts have recognized the right to bear arms under the Ohio Constitution.
{¶ 13} Thus, we review the constitutionality of
R.C. 2923.13: Weapons-While-Under-Disability Statute
(A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:
(1) The person is a fugitive from justice.
(2) The person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.
(3) The person is under indictment for or has been convicted of any felony offense involving the illegal possessiоn, use, sale, administration, distribution, or trafficking in any drug of abuse or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.
(4) The person is drug dependent, in danger of drug dependence, or a chronic alcoholic.
(5) The person is under adjudication of mental incompetence, has been adjudicated as a mental defective, has been committed to a mental institution, has been found by a court to be a mentally ill person subject to court order, or is an involuntary patient other than one who is a patient only for purposes of observation. As used in this division, “mentally ill person subject to court order” and “patient” have the same meanings as in section 5122.01 of the Revised Code.
(Emphasis added.)
Presumption of Constitutionality
{¶ 16} When considering the constitutionality of a statute, we bear in mind that statutes enjoy a strong presumption of constitutionality. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 36, citing State v. Thompkins, 75 Ohio St.3d 558, 560, 1996-Ohio-264, 664 N.E.2d 926, and Sorrell v. Thevenir, 69 Ohio St.3d 415, 418-419, 633 N.E.2d 504 (1994). The party challenging the
Facial and As-Applied Challenges
{¶ 17} A party may challenge a statute as unconstitutional either on its face or as applied to a particular set of facts. State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 17. In a facial challenge, the party challenging a statute must demonstrate that there is no set of facts under which the statute would be valid, i.e., that the law is unconstitutional in all of its applications. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). In an as-applied challenge, the challenger claims the application of the statute in the particular context in which he or she has acted is unconstitutional. Lowe at ¶ 17. Here, Philpotts argues
Whether R.C. 2923.13(A)(2) Is Unconstitutional on Its Face
{¶ 18} We address Philpotts‘s facial challenge first. He claims
a. The Right of Firearm Ownership Is Not Absolute Under Heller
{¶ 19} Our analysis begins with a recognition that Heller does not confer an absolute right to own arms under the Second Amendment. The Heller court itself cautioned that the right secured by the Second Amendment is not unlimited. Heller at paragraph two of the syllabus. “[T]he right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626. This also has always been the view held by the courts in Ohio when interpreting
{¶ 20} Heller recognizes that an individual‘s right under the Second Amendment is qualified and the government retains an ability to regulate the gun ownership of those who pose a risk to public safety. The Court cautioned that its opinion “should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller at 626-627. Furthermore, the Court specifically noted that “these presumptively lawful regulatory measures [serve] only as examples; our list does not purport to be
{¶ 21} Citing Heller‘s reference to “long-standing prohibitions,” Philpotts argues that, unlike the time-honored prohibitions on the possession of weapons by convicted felons, Ohio‘s ban on possession of firearms by one who is under indictment is hardly “longstanding.” He points out that Ohio, Washington, and Hawaii are the only three states in the country that criminalize the possession of firearms by one who is under indictment.
{¶ 22} Although Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637, did not fully explоre the scope of limitations on the Second Amendment right, federal court decisions subsequent to Heller have concluded that the Second Amendment does not prohibit the government from criminalizing a “non-law-abiding” individual‘s possession of a weapon. Wheatley, 2018-Ohio-464, 94 N.E.3d 578, at ¶ 14. These courts have considered the Second Amendment‘s core protection under Heller to be the right of self-defense by “law-abiding, responsible citizens.” Id., citing United States v. Carpio-Leon, 701 F.3d 974, 979 (4th Cir.2012).
{¶ 23} Being under indictment arguably places a person outside of the “law-abiding” class identified in Heller. Before Heller, the Supreme Court of Ohio, in State v. Taniguchi, 74 Ohio St.3d 154, 1995-Ohio-163, 656 N.E.2d 1286, considered a defendant‘s claim that his conviction under
“It is basic hornbook law that the state under its police powers may impose restrictions on who may possess firearms.” State v. Taniguchi, 74 Ohio St.3d 154, 157, 656 N.E.2d 1286 (1995). In crafting
R.C. 2923.13 , the General Assembly set forth several broad categories of disabling conditions as an element of the crime; notably, “a legal disability can arise from far less than a jury-eligible criminal conviction.” [State v. Barfield, 2017-Ohio-8243, 87 N.E.3d 233, ¶ 8 (1st Dist.) at ¶ 10.] For example, a person under indictment for any felony offense of violence or certain felony drug offenses is not permitted to carry a firearm.R.C. 2923.13(A)(2) and(3) . And the mere fact of such an indictment-regardless of whether a trial is held оr a conviction issubsequently obtained-is sufficient to create a disability; a conviction under R.C. 2923.13(A)(2) or(3) may stand even “when there is an acquittal on, or dismissal of, the indictment which had formed the basis for the charge of having a weapon while under disability.” Taniguchi at syllabus.
Carnes at ¶ 11.
{¶ 24} With approval, the court cited Taniguchi‘s analysis of the disabling condition involving persons under indictment for felony offenses of violence or drug offenses. The court in addition reasoned that
b. Intermediate Scrutiny
{¶ 25} Having determined that the right of firearm ownership is not absolute under Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637, and that the risk assessment by the legislature should be accorded a degree of deference, we note that the Heller court did not set forth the level of scrutiny to be applied to laws restricting the right to bear arms under the Second Amendment. The Heller court only decided that the lesser levels of scrutiny such as the “rational basis” or “interest-balancing” test were inappropriate. Heller at 634-635. Subsequent to Heller, courts in Ohio
{¶ 26} “Intermediate scrutiny does not demand that the challenged law ‘be the least intrusive means of achieving the relevant governmental objective, or that there be no burden whatsoever on the individual right in question.‘” United States v. Masciandaro, 638 F.3d 458, 474 (4th Cir.2011). Rather, under an intermediate level of scrutiny, we examine the statute to determine if the statute (1) is narrowly tailored to serve a significant government interest, and (2) leaves open alternative means of exercising the right. Wheatley at ¶ 17, citing Perry Edn. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). See also Henderson at ¶ 52.
c. Application of Intermediate Scrutiny to R.C. 2923.13(A)(2)
{¶ 27} “No one seriously disputes that the state possesses a strong interest in maintaining public safety and preventing gun violence.” Wheatley at ¶ 21, citing Tyler v. Hillsdale Cty. Sheriff‘s Dept., 837 F.3d 678, 693 (6th Cir.2016) (stаting “protecting the community from crime” is a “compelling governmental interest“). The only question for us to resolve here is whether the regulation embodied in
{¶ 28} Under the statute, the restriction on gun ownership only applies to those under indictment for a felony offense of violence,1 reflecting the restriction is appropriately fashioned to minimize the potential risk of guns in the hands of individuals that may use firearms to facilitate conduct of violence. Furthermore, the statute uses the present tense in describing the disabling condition (“[t]he person is under indictment“), indicating the restriction is temporary аnd only exists during the time the person is under indictment. The disability ends once the person is no longer under indictment.2 As such, we find the statute‘s temporary restriction on gun ownership by one who is currently under indictment for a felony offense of violence narrowly tailored to carry out a significant, in fact, compelling government interest.
{¶ 29} Furthermore, the statute leaves open alternative means of exercising one‘s right under the Second Amendment. In conjunction with the weapons-while-under-disability statute, Ohio‘s legislature created a process whereby a person may
{¶ 31} Our decision is consistent with other courts in Ohio called upon to review the constitutionality of various gun-regulating statutes post Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637. The courts have invariably found the challenged gun legislation passing constitutional muster. State v. Weber, 12th Dist. Clermont No. CA2018-06-040, 2019-Ohio-916, (
{¶ 32} Philpotts argues that the prohibition of gun ownership while one is under indictment infringes on the Second Amendment right because it is “widely acknowledged” that the grand jury system is deeply flawed. He claims the system provides a person under the grand jury proceeding very little procedural safeguards, citing the inapplicability of the rules of evidence, the absence of the right of confrontation, and the lack of obligation by the prosecutor to disclose exculpatory evidence. Philpotts also argues the grand jury has become little more than “a tool оf the Executive,” and therefore, a finding of probable cause by the grand jury that a person has committed a felony offense of violence should not be conclusive proof of that person‘s danger to society. Philpotts contends that a person who is indicted is innocent until proven guilty beyond a reasonable doubt and, therefore, an indictee should be treated as a “law-abiding citizen” as contemplated in Heller until convicted. He argues that the assumption that an indictee is more likely to commit crimes than other members of the public, without an individualized determination to that effect, is contradicted by the notion of the presumption of innocence. He cites certain federal statistics from 2004 to show that fewer than two percent of federal felony defendants violated the terms of their pretrial release by committing crimes.
{¶ 33} In addressing Philpotts‘s argument regarding the grand jury system and the notion of the presumption of innocence, we find the reasoning put forth by the federal court in United States v. Laurent, 861 F.Supp.2d 71 (E.D.N.Y.2011)
{¶ 34} We find the reasoning in Laurent persuasive. The notion of the presumption of innocence is important in our judicial system primarily to ensure an indicted person his or her rights to a fair trial. A person indicted by a grand jury loses certain rights even though such a person is yet to be found guilty beyond all reasonable doubt; a pretrial detention upon indictment, which involves a complete deprivation of freedom, is constitutionally permissible. In other words, the notion of presumption of innocence, which is essential to ensure a fair trial, has limited applicability in the context of restrictions of an indictee‘s rights before trial.
{¶ 35} Philpotts argues that the automatic ban on an indictee‘s firearm ownership cannot be compared to pretrial detention because a person indicted can be detained only before trial after an adversarial hearing for an individualized determination of risk. Philpotts‘s argument is unpersuasive. The hearing before pretrial detention is mandatory because a detention involves a complete loss of freedom. Firearm ownership, although a fundamental right, is not an absolute right pursuant to the United States Supreme Court‘s interpretation of the Second
{¶ 36} For the same reason, we find unpersuasive Philpotts‘s claim that because the grand jury system is flawed, an indictment does not always reflect one‘s danger to society and therefore cannot be a disabling condition. Under the statutory scheme, the finding of probable cause that an individual has committed a felony offense of violence is not conclusive proof of one‘s dangerousness to society but an inference only, rebuttable by way of an individualized judicial assessment through a hearing upon request.
Whether R.C. 2923.13(A)(2) Is Unconstitutional as Applied to Appellant
{¶ 37} Philpotts also argues
{¶ 38} Philpotts alleges he lived in a crime-ridden and dangerous neighborhood and he needed a weapon to protect his sister and himself. He cites an investigation by Cleveland News 5 that showed that it takes the Cleveland police an average of 17 minutes to respond to priority 1 and 2 calls. He also cites data from the Cleveland Police Department‘s crime analysis showing the houses around his address were often shot at. Also, there were 220 reports of gunshots fired in his neighborhood since January 2016 as well as 70 reports of felonious assault, nine reports of rape, and 24 reports of robberies.
{¶ 40} Furthermore, notable from the record before us is the manner in which the police were alerted to Philpotts‘s ownership of firearms. Philpotts was not found to carry a gun while defending himself or his home. Rather, the Cleveland Police Department‘s Gang Impact Unit discovered that, while hе was out on bond in the rape case, he posted several pictures of himself on his social media page. Those pictures were attached to the affidavit for the search warrant that led to the discovery of a gun in Philpotts‘s house. In one of these social media pictures, which garnered 166 “likes,” Philpotts stood outside of his home and pointed a gun directly at the viewer and the picture was accompanied by the caption “Everything dead in dem trenches nigga.” Another picture, which had 95 “likes,” depicted him in what appeared to be his driveway, and it was accompanied with the caption: “Dey told me ‘no weapons’ around da house but yоu kno I‘m hard headed af.” (Quotation marks sic.) His GPS home monitoring ankle bracelet was visible in several of these pictures, indicating the pictures were taken while he was out on bond.
{¶ 41} The Second Amendment‘s core protection is the right of citizens to use arms “in defense of hearth and home.” Heller, 554 U.S. at 635, 128 S.Ct. 2783,
Due Process
{¶ 42} Under the third assignment of error, Philpotts claims automatic criminalization of firearm possession by one who is under indictment violates his procedural due process right. He argues the Due Process Clause of the
{¶ 43} The fundamental requirements of due prоcess are notice and the opportunity to be heard. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), and the analysis of a procedural due process claim begins with an examination of whether there exists a liberty interest of which a person has been deprived. Wheatley, 2018-Ohio-464, 94 N.E.3d 578, at ¶ 31, citing Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). Here, Philpotts
{¶ 44} In the criminal context, the requirement of notice concerns “the accused‘s right to fair notice of the proscribed conduct.” Wheatley at ¶ 33, quoting Connally v. Gen. Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). This refers to the principle that due process requires criminal statutes to be written clearly so that that individuals are provided with a fair warning that a certain conduct is within the statute‘s prohibition. See Wheatley at ¶ 33, citing Screws v. United States, 325 U.S. 91, 103-104, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Connally at 391 (“a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law“), and State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 23 (due process requires law to be written so that the public can adequately inform itself before acting).
{¶ 45} However, as the Fourth District noted in Wheatley, preindictment notice has never been required before one can be punished for conduct falling within a criminal statute. Wheatley at ¶ 32. Instead, it is well established that “a statute‘s presence on the books constitute fair warning of the prohibited conduct.” Wheatley at ¶ 35, citing Dobbert v. Florida, 432 U.S. 282, 297, 97 S.Ct. 2290, 53 L.Ed. 344. Ignorance of the law is no defense to criminal prosecution. Id. at ¶ 36, citing Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). Otherwise
{¶ 46} Furthermore,
{¶ 47} Regardless of whether or not a defendant such as Philpotts should have knowledge of his indictment before criminal liability can attach, Philpotts had notice of his indictment because of his arraignment on March 15, 2017. The ankle monitor device he wore as part of the bail condition reflects his knowledge of his indictment. In fact, Philpotts appears to be flaunting his knowledge of his disability in one of the picture captions (“Dey told me ‘no weapons’ * * *“). His conviction under the statute does not violate the notice requirement under due process.
Conclusion
{¶ 49} Ohio‘s General Assembly acted within the constitutional parameters set forth by the United States Supreme Court in District of Columbia v. Heller in prohibiting individuals under indictment for a felony offense of violence from ownership of firearms.
{¶ 50} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
MICHELLE J. SHEEHAN, JUDGE
MARY EILEEN KILBANE, A.J., and EILEEN A. GALLAGHER, J., CONCUR