STATE OF OHIO, Plaintiff-Appellee, v. LEDARYLE J. WILLIS, Defendant-Appellant.
CASE NO. CA2012-08-155
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
6/10/2013
[Cite as State v. Willis, 2013-Ohio-2391.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2012-01-0075
John T. Willard, P.O. Box 35, Hamilton, Ohio 45012, for defendant-appellant
O P I N I O N
S. POWELL, J.
{¶ 1} Defendant-appellant, Ledaryle J. Willis, appeals his convictions in the Butler County Court of Common Pleas for carrying a concealed weapon, having a weapon while under disability, and obstructing official business. For the reasons stated below, we affirm in part and reverse in part the decision of the trial court.
{¶ 2} On January 4, 2012, Middletown Police Officer James Wilcox was patrolling the downtown area of Middletown. Around 12:30 a.m., Officer Wilcox observed appellant riding
{¶ 3} After appellant fell to the ground, Officer Wilcox placed appellant in handcuffs. As he handcuffed appellant, Officer Wilcox asked him if he had any weapons on him and appellant did not respond. Officer Wilcox searched appellant‘s front pocket and found a loaded handgun magazine. Officer Wilcox also found a 9 mm handgun concealed inside a blue sock tucked in the back of appellant‘s waistband.
{¶ 4} On March 7, 2012, the Butler County Grand Jury indicted appellant for carrying a concealed weapon, having a weapon while under disability, and obstructing official business. Thereafter, appellant‘s counsel filed a motion to suppress the evidence. Subsequently, the trial court held a hearing and overruled the motion. On May 3, 2012, appellant entered a plea of “no contest” to each charged offense. Appellant was sentenced to an aggregate community control term for five years, a 90-day jail sentence with credit for 92 days served, and a fine of $500. Appellant was also ordered to pay the costs of prosecution.
{¶ 5} Appellant now appeals, asserting four assignments of error.
Assignment of Error No. 1:
{¶ 7} IT WAS ERROR FOR THE JUDGMENT ENTRY IN THE INSTANT CASE TO REFLECT THAT THE APPELLANT PLED GUILTY TO THE CHARGES WHEN THE PLEA SIGNED AT THE PLEA HEARING CLEARLY STATES THAT THE APPELLANT PLED NO
{¶ 8} Appellant argues that his judgment of conviction entry inaccurately reflects the type of plea he made to the charges. After the motion to suppress, appellant pled “no contest” to carrying a concealed weapon, having a weapon while under disability, and obstructing official business. While appellant pled “no contest” to these charges, the judgment entry states that appellant entered a guilty plea. The state concedes that this was in error and suggests that this court should order the trial court to issue a nunc pro tunc judgment of conviction entry correcting the mistake.
{¶ 9} It is well settled that courts possess the authority to correct errors in judgment entries so that the record speaks the truth. State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 163-164 (1995);
{¶ 10} In this case, the trial court committed a clerical error by stating that appellant pled “guilty” to the charges when the record reflects that he pled “no contest.” It is clear that the trial court actually decided that appellant pled “no contest” and the error in the judgment entry is purely clerical. Consequently, the trial court erred in stating that appellant pled “guilty” to the charges and this matter is remanded to the trial court so that the court may issue a nunc pro tunc entry to accurately reflect appellant‘s plea.
{¶ 11} Appellant‘s first assignment of error is sustained.
Assignment of Error No. 2:
{¶ 13} IT WAS ERROR FOR THE TRIAL COURT NOT TO SUPPRESS ANY OR ALL
{¶ 14} Appellant challenges the trial court‘s denial of his motion to suppress the evidence on two bases. Appellant argues that Officer Wilcox had no authority to attempt to stop him when he observed appellant riding a bicycle without a proper light because he only committed a minor misdemeanor. Appellant also maintains that Officer Wilcox‘s actions were unconstitutional because the officer had no basis to arrest and search him.
{¶ 15} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in order to resolve factual questions and evaluate witness credibility. State v. Eyer, 12th Dist. No. CA2007-06-071, 2008-Ohio-1193, ¶ 8. In turn, the appellate court must accept the trial court‘s findings of fact so long as they are supported by competent, credible evidence. State v. Lange, 12th Dist. No. CA2007-09-232, 2008-Ohio-3595, ¶ 4. After accepting the trial court‘s factual findings as true, the appellate court must then determine, as a matter of law, and without deferring to the trial court‘s conclusions, whether the trial court applied the appropriate legal standard. State v. Forbes, 12th Dist. No. CA2007-01-001, 2007-Ohio-6412, ¶ 29.
Traffic Stop
{¶ 16} We begin by addressing whether Officer Wilcox‘s attempts to stop appellant for violating a traffic ordinance were constitutional. Initially, we note that appellant has waived the constitutionality of Officer Wilcox‘s ability to stop appellant for violating a traffic ordinance. While appellant‘s written motion to suppress argued that Officer Wilcox‘s stop was not based on reasonable articulable suspicion, during the suppression hearing, appellant conceded that
{¶ 17} In State v. McMullen, 12th Dist. No. CA2009-09-235, 2010-Ohio-3369, this court found that a defendant waives a suppression argument on appeal when the defendant raised it in his written motion to suppress but then concedes that it is not an issue during the oral suppression hearing. In so holding, this court reasoned that a defendant must clearly state the grounds on which he is challenging the submission of the evidence because, “[t]he prosecutor must know the grounds of the challenge in order to prepare his case, and the court must know the grounds of the challenge in order to rule on evidentiary issues at the hearing and properly dispose of the merits.” Id. at ¶ 24, citing Xenia v. Wallace, 37 Ohio St.3d 216, 218 (1988). Consequently, in light of appellant‘s counsel‘s deliberate statements and acquiescence to the trial court‘s recognition of waiver, appellant waived this issue.
{¶ 18} Notwithstanding the wavier, Officer Wilcox was able to stop appellant when appellant violated a traffic ordinance. The Fourth Amendment to the United States Constitution insulates individuals from unreasonable searches and seizures. United States v. Hensley, 469 U.S. 221, 226 (1985). A traffic stop initiated by a law enforcement officer implicates the Fourth Amendment and must comply with the Fourth Amendment‘s general reasonableness requirement. Whren v. United States, 517 U.S. 806, 809 (1996).
{¶ 19} One type of traffic stop that is permissible under the Fourth Amendment is where a police officer stops a vehicle based on probable cause that a traffic violation has occurred. State v. Moeller, 12th Dist. No. CA99-07-128, 2000 WL 1577287, *2 (Oct. 23, 2000), citing Whren at 810. Probable cause that a traffic violation has occurred arises where the officer witnesses the traffic violation. Moeller at *2. Even a de minimus traffic violation
{¶ 20} Section 474.05 of the City of Middletown Traffic Ordinances provides:
(a) Every bicycle when in use at the times specified in Ohio R.C. 4513.03 or a substantially similar municipal ordinance shall be equipped with the following:
(1) A lamp mounted on the front of either the bicycle or the operator * * *.
(2) A red reflector on the rear * * *.
(3) A lamp emitting either flashing or steady red light * * * in addition to the red reflector. If the red lamp performs as a reflector in that it is visible as specified in division (A)(2) of this section, the red lamp may serve as the reflector and a separate reflector is not required.
{¶ 21}
{¶ 22} We find that Officer Wilcox was able to stop appellant because he had probable cause that appellant committed a traffic violation. Officer Wilcox testified that he observed appellant riding a bicycle that did not have a headlight or a rear light and that this was in violation of Section 474.05 of Middletown Traffic Ordinances. Additionally, any insinuation by appellant that the stop was not justified because riding a bicycle without lights is “only a minor misdemeanor” is meritless since even a de minimus traffic violation provides probable cause
Arrest and Search
{¶ 23} Next, we address the arrest and search of appellant. Appellant argues that Officer Wilcox did not have probable cause to arrest and search him because he only violated a traffic ordinance. The state advances many arguments as to why the arrest and search of appellant was permissible. We will only address the constitutionality of the arrest and search under the law regarding search incident to arrest because this analysis is determinative.
{¶ 24} Generally, warrantless searches are per se unreasonable subject to “a few specifically established and well-delineated exceptions.” State v. Oglesby, 12th Dist. No. CA2004-12-027, 2005-Ohio-6556, ¶ 17, quoting Katz v. United States, 389 U.S. 347, 357 (1967). One such exception is a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752 (1969). In order for a search to be conducted pursuant to this exception, the arrest must be lawful. Id.
{¶ 25} For a warrantless arrest to be lawful, the arresting officer must have probable cause that the individual had committed an offense. Beck v. Ohio, 379 U.S. 89, 91 (1964). Probable cause is not subjective. State v. Abrams, 12th Dist. No. CA2007-03-040, 2008-Ohio-94, ¶ 12. Rather, probable cause is viewed under an objective standard and is present where, under the facts and circumstances within an officer‘s knowledge, a reasonably prudent person would believe that the arrestee has committed a crime. Id. In making this determination, we examine the totality of the facts and circumstances. State v. Christopher, 12th Dist. No. CA2009-08-041, 2010-Ohio-1816, ¶ 16, citing Illinois v. Gates, 462 U.S. 213, 238 (1982).
{¶ 26} The surrounding facts and circumstances provided Officer Wilcox with probable
{¶ 27} We note that while appellant was initially charged with resisting arrest but later indicted for obstructing official business, this fact is of no consequence to our determination. On appeal, our inquiry is whether a reasonably prudent person would have believed that appellant committed an offense. This court has noted, “[t]he arresting officer‘s subjective belief or motivation in the detention of an individual is not material to the legality of the detention; the correct test is whether there was objective justification for the detention or arrest.” Oglesby, 12th Dist. No. CA2004-12-027, 2005-Ohio-6556, ¶ 20, citing State v. Robinette, 80 Ohio St.3d 234, 236 (1997). Therefore, while Officer Wilcox might have believed that appellant committed the offense of resisting arrest, the evidence shows that probable cause existed to arrest appellant for obstructing official business.
{¶ 28} We also find that Officer Wilcox‘s search of appellant was lawful. To be a valid search incident to a lawful arrest, the search must be limited to the offender‘s person and the area within his immediate control. State v. Gagaris, 12th Dist. No. CA2007-06-142, 2008-Ohio-5418, ¶ 16, citing Chimel, 395 U.S. at 762-763. In this case, Officer
{¶ 29} The trial court did not err in denying appellant‘s motion to suppress the evidence. The initial stop, arrest, and search of appellant were lawful. Appellant‘s second assignment of error is overruled.
Assignment of Error No. 3:
{¶ 31} THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE THE OFFENSES OF CARRYING A CONCEALED WEAPON AND HAVING WEAPONS UNDER DISABILITY FOR SENTENCING.
{¶ 32} Appellant argues his convictions for having a weapon while under disability and carrying a concealed weapon are allied offenses of similar import. Therefore, he maintains that the trial court erred when it failed to merge these offenses. The state responds by arguing that the offenses were not allied as they were committed with separate conduct. The state also requests us to apply a plain error standard as appellant failed to object at trial.
{¶ 33} We begin by addressing the standard of review. At trial, appellant conceded that his convictions were not allied offenses. In its brief, the state points to a recent Ohio Supreme Court case which addressed the appellate standard of review regarding a trial court‘s
{¶ 34} We agree with the state that an appellate court conducts a de novo review of a trial court‘s allied offenses determination only where a defendant raises this issue at trial. In Williams, the state was appealing a court of appeals decision that found that two of the defendant‘s convictions were allied offenses. Id. at ¶ 9-10. Importantly, the defendant had raised this issue of allied offenses in the trial court. Id. at ¶ 7. Therefore, the only issue before the Supreme Court in Williams was the standard of review regarding allied offenses when that issue had been initially raised in the trial court and properly preserved for appellate review.
{¶ 35} Therefore, this court will review appellant‘s allied offense argument for plain error. See State v. Luong, 12th Dist. No. CA2011-06-101, 2012-Ohio-4519, ¶ 47. Plain error exists where there is an obvious deviation from a legal rule that affected the outcome of the proceeding.
{¶ 36} Next, we address whether appellant‘s convictions for carrying a concealed weapon and having a weapon while under disability are allied offenses.
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 37} The Ohio Supreme Court established a new two-part test for determining whether offenses are allied offenses of similar import under
{¶ 38} If it is possible to commit both offenses with the same conduct, the court must next determine whether the offenses were in fact committed by a single act, performed with a single state of mind. Johnson at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50. If so, the offenses are allied offenses of similar import and must be merged. Johnson at ¶ 50. On the other hand, if the offenses are committed separately or with a separate animus, the offenses will not merge. Id. at ¶ 51.
{¶ 39} “Animus” is defined for purposes of
{¶ 41} We must now determine whether appellant committed the offenses with the same conduct, i.e., a single act and a single state of mind. In a pre-Johnson decision, the Supreme Court found that carrying a concealed weapon and having weapons while under disability have different animi. State v. Rice, 69 Ohio St.2d 422, 427 (1982). We note that while Johnson altered the analysis as to the first prong of the allied offenses test, the second prong has consistently remained the same. Lung at ¶ 15. See State v. Young, 2d Dist. No. 23642, 2011-Ohio-747, ¶ 46. Therefore, this analysis is instructive.
{¶ 42} The Court reasoned:
The intent, or animus, necessary to commit the crime of carrying a concealed weapon, is to carry or conceal, on the person, or ready at hand, a deadly weapon or dangerous ordnance. The gist of the offense is concealment. The gravamen of the offense of having a weapon while under disability is to ‘knowingly * * * acquire have, carry, or use’ a weapon while under a legal disability.” Id. It maybe be concluded that there is a difference in the mental state required for both crimes. Id.
(Citations omitted.) Rice at 427.
{¶ 43} Accordingly, we find that the carrying a concealed weapon and having a
{¶ 44} Appellant‘s third assignment of error is overruled.
Assignment of Error No. 4:
{¶ 46} IT WAS ERROR FOR THE TRIAL COURT TO NEGLECT TO ADVISE THE DEFENDANT/APPELLANT THAT WHEN COURT COSTS WERE IMPOSED THAT THE FAILURE TO PAY SUCH COSTS COULD RESULT IN THE IMPOSITION OF COMMUNITY SERVICE TO PAY THE SAME AT THE RATE NOT TO EXCEED 40 HOURS PER MONTH.
{¶ 47} Appellant argues the trial court erred when it imposed courts costs without notifying him that if he should fail to pay court costs, he could be ordered to perform community service.
{¶ 48} Appellant was sentenced in June 2012. At the time of his sentencing,
{¶ 49} If a trial court fails to notify the defendant of the possibility of court-ordered community service if he fails to pay court costs, the proper remedy is to vacate the imposition of costs and remand the case for proper community-service notification. State v. Weathers,
{¶ 50} In the present case, the trial court imposed court costs during the sentencing hearing but did not advise appellant that should he fail to pay the costs, he could be ordered to perform community service. Therefore, the court erred when it failed to notify appellant as required under
{¶ 51} Appellant‘s fourth assignment of error is sustained.
{¶ 52} Judgment affirmed in part, reversed in part, and remanded.
RINGLAND, P.J. and M. POWELL, J., concur.
Notes
{¶b} Additionally, we observe that while our decision in Weathers was interpreting a former version of