State v. Gibbons , 2018 Ohio 3307 ( 2018 )

[Cite as State v. Gibbons, 2018-Ohio-3307.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 17 CA 108
ERIC GIBBONS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 17 CR 448
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 17, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP JEFFEREY R. STIFFLER
PROSECUTING ATTORNEY BADNELL & DICK CO., LPA
JOSEPH C. SNYDER 21 North Walnut Street
ASSISTANT PROSECUTOR Mansfield, Ohio 44902
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 17 CA 108 2
Wise, John, P. J.
{¶1} Appellant Eric Gibbons appeals his conviction and sentence entered in the
Richland County Court of Common Pleas following a guilty plea to one count of
Aggravated Possession of Drugs.
{¶2} Appellee is State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} Appellant Eric Gibbons was an inmate at Richland Correctional Institution,
(RICI), serving a sentence for unrelated charges when buprenorphine (suboxone), a
Schedule III controlled substance, was found on his person.
{¶4} On July 11, 2017, Appellant was indicted on one count of Aggravated
Possession of Drugs, in violation of R.C. §2925.11(A) and (C)(2)(a), a fifth-degree felony.
{¶5} On August 8, 2017, Appellant's trial counsel filed a "Motion for Discovery
and Notice of Reciprocal Discovery Compliance," requesting discovery from the State.
{¶6} On August 10, 2017, the State filed a "Rule 16 Discovery Compliance."
{¶7} The matter was originally set for trial on November 6, 2017, but was
subsequently continued by the trial court to December 4, 2017.
{¶8} On December 1, 2017, Appellant filed a motion in limine, seeking the
exclusion of evidence he claimed was provided to him by the prosecutor's office on or
about December 1, 2017. Counsel for Appellant argued that the newly provided discovery
contained additional documentation regarding the controlled substance allegedly found
on Appellant's person, as well as disclosing potential new witnesses, information that he
claimed he had not been provided previously. In his motion, Appellant's counsel averred
that had the information been provided in a timely fashion, (not the Friday prior to the trial
Richland County, Case No. 17 CA 108 3
starting that following Monday), his client may have been persuaded to accept a plea deal
in exchange for a lesser sentence; or he may have had the opportunity to, after further
investigation, potentially file a motion to suppress said evidence.
{¶9} On December 4, 2017, prior to commencement of the jury trial, the trial court
held a brief hearing outside of the jury's presence to consider Appellant's motion in limine.
The prosecutor conceded that the supplemental discovery had only been provided to
Appellant's trial counsel on the Thursday afternoon before trial, but advised the trial court
that the only information contained in the supplemental discovery that he intended to use
at trial was an updated chain-of-evidence/contraband slip, and a missing chain-of-
evidence slip from the state trooper involved in the investigation. (T. at 3). The prosecutor
further indicated to the court that while there was additional information provided in the
supplemental discovery, he did not intend to use any other newly provided evidence, or
call any previously undisclosed witnesses, including the person whose name Appellant's
counsel claimed was illegible on the original discovery. (T. at 4).
{¶10} Appellant's trial counsel argued that the chain-of-evidence documents were
necessary to prove an essential element of the crime, and because they were not
provided in a timely fashion, that evidence should be excluded. (T. at 5). Trial counsel
pointed out that the alleged conduct for which Appellant was indicted occurred in
September, 2016, over a year before the original trial date and, therefore, the prosecutor
had ample time to provide the discovery they intended to introduce at trial. He also alleged
that the newly provided chain-of-evidence slip appeared altered. (T. at 4).
{¶11} The trial court overruled Appellant's motion that the newly provided
evidence be excluded, finding the State had not violated Crim.R. 16 in failing to timely
Richland County, Case No. 17 CA 108 4
provide Appellant and his counsel with discovery. The court held that because the newly
provided evidence only related to the chain-of-evidence slips "that shows how it got to
where it went", it did not prejudice Appellant to allow the evidence into trial. (T. at 5).
{¶12} Subsequent to the trial court overruling Appellant's Motion in Limine and
after discussing the matter with his attorney, Appellant opted to change his plea to the
indicted offense.
{¶13} Prior to changing his plea, Appellant's trial counsel inquired of the trial
judge, asking if he intended to sentence Appellant to six (6) months consecutive to his
current sentence or if the sentence would be increased because the Court had to call in
a jury. (T. at 6). The court indicated that on drug possession charges occurring while the
defendant is incarcerated at a correctional institution, the sentence would typically be six
(6) months consecutive to the current sentence being served. (T. at 5). However, in this
case, the trial judge further stated, "what I don't like to do is bring an entire jury in and
then have a change of plea." (T. at 6). The court continued, "(I)t wouldn't be a year, but I
think it should be a little more than six months. Probably eight months as of right now
consecutive." (T. at 6).
{¶14} Appellant then withdrew his previously entered plea of not guilty and
entered a plea of no contest.
{¶15} The trial court then proceeded to review Appellant's constitutional rights and
other requirements of Crim.R. 11. The trial court sentenced Appellant to eight (8) months
incarceration, to be served consecutively to his current sentence.
{¶16} Appellant now appeals, raising the following errors for review:
Richland County, Case No. 17 CA 108 5
ASSIGNMENTS OF ERROR
{¶17} “I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S
MOTION IN LIMINE, WHICH REQUESTED THAT CERTAIN EVIDENCE BE EXCLUDED
DUE TO THE STATE'S FAILURE TO COMPLY WITH CRIM. R. 16.
{¶18} "II. THE SENTENCE IMPOSED BY THE TRIAL COURT IS CONTRARY
TO LAW.”
I.
{¶19} In his first assignment of error, Appellant argues that the trial court erred in
overruling his motion in limine. We disagree.
{¶20} It is well settled law that a decision in limine is tentative, interlocutory and in
anticipation of the court's ruling during trial. See McCabe/Marra Co. v. Dover (1995), 100
Ohio App. 3d 139, 160, 652 N.E.2d 236; Collins v. Storer Communications, Inc. (1989),
65 Ohio App. 3d 443, 446, 584 N.E.2d 766. A grant or denial of a motion in limine does
not preserve error for appellate review. State v. Hill (1996), 75 Ohio St. 3d 195, 202-203,
661 N.E.2d 1068. In order to preserve the matter for appeal, the parties must renew their
motions or objections at the appropriate time during trial. See State v. Brown (1988), 38
Ohio St. 3d 305, 528 N.E.2d 523, paragraph three of the syllabus; State v. Grubb (1986),
28 Ohio St. 3d 199, 503 N.E.2d 142, paragraph two of the syllabus. There was no trial in
this case because appellant pled “no contest.” Therefore, we must determine whether
Appellant has the right to appeal the trial court's ruling on the motion in limine.
{¶21} Appellant recognizes that generally “no contest” pleas preclude appellate
review of pretrial motions in limine, see State v. Engle (1996), 74 Ohio St. 3d 525, 660
N.E.2d 450 (Robie Resnick, J., concurring). However, Appellant argues that his Motion
Richland County, Case No. 17 CA 108 6
in Limine was actually a motion for sanctions pursuant to Crim.R. 16, requesting exclusion
of evidence because same had not been provided timely. Appellate courts can review a
trial court's ruling on a pre-trial motion seeking exclusion of evidence as a sanction for
discovery violations after a no contest plea. See Crim.R. 12(H).
{¶22} In State v. Wiles (1991), 59 Ohio St. 3d 71, 78–79, 571 N.E.2d 97, the
Supreme Court stated a trial court has discretion under Crim.R. 16(E)(3) to determine the
appropriate response for failure of a party to disclose material subject to a valid discovery
request. See also State v. Parson (1983), 6 Ohio St. 3d 442, 6 OBR 485, 453 N.E.2d 689.
To determine whether a trial court has abused its discretion in dealing with Crim.R. 16
violations, we look to whether (1) the violation was willful, (2) foreknowledge would have
benefited the defendant, and (3) the defendant suffered prejudice as a result of the state's
failure to disclose the information. Wiles, supra. See, State v. Jones, 2009-Ohio-2381, ¶
14, 183 Ohio App. 3d 189, 193–94, 916 N.E.2d 828, 831 abrogated by State v. Darmond,
2013-Ohio-966, ¶ 14, 135 Ohio St. 3d 343, 986 N.E.2d 971.
{¶23} Upon review we find, as did the trial court, Appellant has not shown that he
suffered any prejudice as a result of the late discovery or the trial court's ruling. The trial
court found that the no discovery rule violation had taken place as the late discovery
related only to chain of custody slip which showed how the evidence got to where it was
going, and that Appellant’s counsel had been aware of the name of the person at the lab
and the name of the State Trooper. (T. at 5). The court found that the content of the late
discovery was not anything that would prejudice Appellant in any way. (T. at 5). Further,
because Appellant entered a plea of no contest rather than proceeding to trial, any
argument as to prejudice would be entirely speculative.
Richland County, Case No. 17 CA 108 7
{¶24} Based on the foregoing, we find Appellant's first assignment of error not
well-taken and hereby overrule same.
II.
{¶25} In his second assignment of error, Appellant argues his sentence is contrary
to law. We disagree.
{¶26} It is axiomatic that “a defendant is guaranteed the right to a trial and should
never be punished for exercising that right [.]” State v. O'Dell, 45 Ohio St. 3d 140, 147,
543 N.E.2d 1220, 1227(1989). Thus, the augmentation of sentence based upon a
defendant's decision to stand on his right to put the government to its proof rather than
plead guilty is improper. United States v. Araujo, 539 F.2d 287 (2nd Cir. 1976), certiorari
denied sub. nom. Rivera v. United States, 429 U.S. 983, 97 S. Ct. 498, 50 L. Ed. 2d 593
(1979); United States v. Hutchings, 757 F.2d 11, 14 (2nd Cir. 1985); United States v.
Derrick, 519 F.2d 1, 3 (6th Cir. 1975); State v. Howard, 5th Dist. Stark No. 2012CA00061,
2013–Ohio–2884, ¶ 81.
{¶27} Moreover, courts must not create the appearance that it has enhanced a
defendant's sentence because he has elected to put the government to its proof. United
States v. Hutchings, supra; United States v. Stockwell, 472 F.2d 1186, 1187 (9th Cir.
1973). The chilling effect of such a practice upon standing trial would be as real as the
chilling effect upon taking an appeal that arises when a defendant appeals, is reconvicted
on remand, and receives a greater punishment. State v. Morris, 159 Ohio App. 3d 775,
2005–Ohio–962, 825 N.E.2d 637 (8th 2005), ¶ 12 citing State v. Scalf, 126 Ohio App. 3d
614, 621, 710 N.E.2d 1206 (1998) and North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct.
2072, 23 L. Ed. 2d 656 (1969); Howard, 2013–Ohio–2884, ¶ 82.
Richland County, Case No. 17 CA 108 8
{¶28} However, when a defendant receives a harsher sentence following his
rejection of a plea offer, there is not a “reasonable likelihood” that the sentence was based
on actual vindictiveness. The Ohio Supreme Court has declined to apply a presumption
of vindictiveness, and instead has held that the appellant must prove actual
vindictiveness. See United States v. Wasman, 468 U.S. 559, 569, 104 S. Ct. 3217, 82
L. Ed. 2d 424 (1984); State v. Rahab, 150 Ohio St. 3d 152, 2017–Ohio–1401, 80 N.E.2d
431, ¶ 16.
{¶29} Having declined to presume that the trial court acted with vindictiveness,
we begin our review of Appellant's sentence as we do in any other appeal—with the
presumption that the trial court considered the appropriate sentencing criteria. State v.
O'Dell, 45 Ohio St. 3d 140,147, 543 N.E.2d 1220(1989); State v. Rahab, 150 Ohio St. 3d
152 at ¶ 9. We then review the entire record—the trial court's statements, the evidence
adduced at trial, and the information presented during the sentencing hearing—to
determine whether there is evidence of actual vindictiveness. We will reverse the
sentence only if we clearly and convincingly find the sentence is contrary to law because
it was imposed as a result of actual vindictiveness on the part of the trial court. See R.C.
2953.08(G)(2); State v. Marcum, 146 Ohio St. 3d 516, 2016–Ohio–1002, 59 N.E.3d 1231,
¶ 1; State v. Rahab, 150 Ohio St. 3d 152 at ¶ 33.
{¶30} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St. 3d 361 (1985). “Where the
degree of proof required sustaining an issue must be clear and convincing, a reviewing
Richland County, Case No. 17 CA 108 9
court will examine the record to determine whether the trier of fact had sufficient evidence
before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477 120 N.E.2d
118.
{¶31} We review the entire record to determine whether there is evidence of
“actual” vindictiveness and can reverse only if we clearly and convincingly find the
sentence is contrary to law because it was imposed as a result of actual vindictiveness.
{¶32} Here, Appellant entered his plea of no contest prior to proceeding to a jury
trial. Appellant argues that the trial court's sentence was longer than one normally
imposed in similar cases and that such was based on actual vindictiveness for Appellant's
failure to enter his plea before a jury was called in to report.
Court: "... typically, what we do in these cases is, I offer six
months consecutive to what they're already doing if they're still in prison."
(T. at 5).
...
Court: "What I don't like to do is bring an entire jury in and then
have a change of plea."
...
Counsel: "As of now, I would ask this question first, if he pleads
right now, is he still looking at six months consecutive or looking at a full
year because the jury is already here?
Court: "It wouldn't be a year, but I think it would be a little more
than six months. Probably eight months as of right now consecutive." (T.
at 6)
Richland County, Case No. 17 CA 108 10
{¶33} Initially, we note that Appellant’s sentence of eight (8) months is within the
statutory range of seven, eight, nine, ten, eleven, or twelve months for a felony of the fifth
degree, and it is not contrary to law. R.C. §2929.14(A)(5).
{¶34} Further, upon review, we find the court's comments cannot be read in
isolation from other remarks it made at sentencing. Prior to accepting Appellant’s plea,
the trial court advised Appellant, more than once, that he could have a trial, by judge or
jury. (T. at 8-9). The trial court also advised Appellant, prior to accepting his plea of no
contest, that he would be imposing an eight month sentence. (T. at 12). The court also
explained the reason for the sentence wherein it stated that the crime occurred in the
prison where Appellant was serving time on a prior offense, that it was consecutive to
protect the public and punish the offender, and that it was not disproportionate to the
seriousness of the conduct or the danger posed. The court also referenced Appellant’s
criminal history which included possession, safecracking and illegal conveyance. (T. at
15).
{¶35} Based on the record as a whole, we find no evidence of vindictiveness in
the trial court’s imposition of an eight month sentence in this matter.
Richland County, Case No. 17 CA 108 11
{¶36} Appellant's second assignment of error is overruled.
{¶37} Accordingly the judgment of the Richland County Court of Common Pleas
is affirmed.
By: Wise, John, P. J.
Delaney, J., and
Wise, Earle, J., concur.
JWW/d 0808