State v. Terrell ( 2013 )

[Cite as State v. Terrell, 2013-Ohio-5577.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99625
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
HARRY J. TERRELL
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-521919
BEFORE: S. Gallagher, J., Jones, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 19, 2013
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
By: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Jeffrey S. Schnatter
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Defendant-appellant Harry Terrell appeals his conviction for fifth-degree
felonies of drug trafficking and possession of criminal tools, following a no contest plea,
challenging pretrial rulings in Cuyahoga C.P. No. CR-521919. For the following
reasons, we affirm Terrell’s conviction.
{¶2} This is Terrell’s second appeal. In State v. Terrell, 8th Dist. Cuyahoga
No. 97458, 2012-Ohio-3361 (“Terrell I”), Terrell, upon a single assignment of error,
appealed the effectiveness of his waiver of counsel. The state conceded his waiver was
insufficient, and we reversed Terrell’s conviction for the fifth-degree felonies of drug
trafficking and possession of criminal tools, following a no contest plea. Upon remand,
Terrell chose to be represented by counsel when he pleaded no contest to the charges
again. At the time of his sentencing, Terrell was serving ten years in the federal system
on unrelated charges. On remand, Terrell sought reconsideration of the trial court’s
decision to deny his motion to suppress evidence emanating from a traffic stop. The only
difference was that Terrell’s sentence upon the no contest plea was reduced from 12 to 6
months. The trial court, with approval from both parties, reconsidered its decision based
upon the evidence adduced at the suppression hearing held prior to Terrell’s first no
contest plea.
{¶3} The trial court reviewed the transcript of that hearing. On the record before
this panel, and before Terrell’s second no contest plea, the trial court again denied the
motion to suppress, stating:
Regarding the motion to suppress the evidence, the Court has reviewed the
transcript from the prior proceeding and adopts it herein pursuant to the
stipulation of the parties, and that hearing was on June 20, 2011. [The
court] stated at the time * * * that the relevant state ordinance is Revised
Code Section 4513.23, that it mirrored the City of Cleveland ordinance
437.21. The city ordinance reads that every motor vehicle shall be
equipped with a mirror, dot, dot, dot, so located as to reflect to the operator
a view of the street to the rear of such vehicle or motorcycle. Operators of
vehicles shall have a clear and unobstructed view to the front and to both
sides of their vehicles. [The police officer] testified that they were
following this van, and they were northbound on Martin Luther King,
between Union and Kinsman. There was a white van, and they saw the
passenger side mirror was broken. Only a little part of the mirror was left
remaining where it should have been on the passenger side. A traffic stop
was initiated based upon the potential violation of that city ordinance. I
find that the traffic stop was made with sufficient probable cause. When
the officer approached the side of the car, the smell of marijuana, a strong
smell of marijuana was noticeable to the olfactory senses. As a result, a
search was conducted. It is clear under case law that a warrantless search
is appropriate in those circumstances.
(Emphasis added.) Tr. 7:23–9:5. The original transcript was not provided in the record
for the current appeal. Thus, according to the trial court, the officer stopped Terrell
under the belief that Terrell violated the city ordinance, which required the operator to
have a clear and unobstructed view of both sides of the vehicle. In light of the trial
court’s decision, Terrell pleaded no contest, and this timely appeal follows.
{¶4} In Terrell’s first assignment of error, he claims, “the trial court erred when it
overruled the motion to suppress because there was an insufficient basis to stop Terrell’s
vehicle.” Terrell’s argument is without merit.1
It appears that Terrell may have forfeited his right to challenge the trial court’s decision on
1
the suppression issue by failing to raise that in Terrell I, similar to our res judicata analysis employed
disposing of his second assignment of error. The trial court, however, allowed Terrell to seek
reconsideration of the suppression issue on remand. The state did not challenge Terrell’s ability to
{¶5} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶
8, the Ohio Supreme Court set forth the following review standard for a motion to
suppress:
Appellate review of a motion to suppress presents a mixed question
of law and fact. When considering a motion to suppress, the trial court
assumes the role of trier of fact and is therefore in the best position to
resolve factual questions and evaluate the credibility of witnesses. State v.
Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. Consequently, an
appellate court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Fanning (1982), 1
Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583. Accepting these facts as true,
the appellate court must then independently determine, without deference to
the conclusion of the trial court, whether the facts satisfy the applicable
legal standard. State v. McNamara (1997), 124 Ohio App.3d 706, 707
N.E.2d 539.
Cleveland Codified Ordinances (“CCO”) 437.21 in turn provides:
Every motor vehicle and motorcycle shall be equipped with a mirror so
located as to reflect to the operator a view of the street to the rear of such
vehicle or motorcycle. Operators of vehicles and motorcycles shall have a
clear and unobstructed view to the front and to both sides of their vehicles
or motorcycles and shall have a clear view to the rear of their vehicles or
motorcycles by mirror.
According to the trial court, the police officer believed that the broken mirror impeded
Terrell’s ability to see to the side of the panel van and therefore violated the ordinance.
{¶6} Terrell’s sole argument regarding the motion to suppress is that a mirror is
not required, and even if required, the traffic stop was not warranted because there was a
portion of the mirror that could allow the defendant to see the side of his van. First,
relitigate the suppression issue even though it would have been dispositive in Terrell I. Regardless,
in light of the fact that the state failed to raise this and the trial court revisited its earlier decision upon
remand, we will address the suppression issue on its merits.
Terrell concedes he only had a view out of the front seat windows, and therefore, it
logically follows that a mirror may have been required to view the side of the van behind
the front seat. This case, as presented, is not about whether a mirror is required by the
ordinance inasmuch as it is about whether a mirror was necessary to provide Terrell a
view of the side of his vehicle. This raises the question of what constitutes a “view of
the side of the vehicle” for the purposes of traffic enforcement.
{¶7} As discussed in State v. Travis, 8th Dist. Cuyahoga No. 98420,
2013-Ohio-581 (S. Gallagher, J., concurring), these interpretive-type statutes, such as a
marked-lane violation statute, present factual issues regarding whether the police officers
have a reasonable, articulable suspicion of a violation to justify the traffic stop. Id. at ¶
33. In light of the fact, however, that the record only includes the trial court’s findings,
we are limited to reviewing whether the findings support the legal conclusion that the
officers had a reasonable, articulable suspicion to justify the traffic stop based on their
belief that Terrell violated CCO 437.21, which includes a requirement that the operator of
a vehicle have an unobstructed view of the side of the vehicle.
{¶8} In this regard, Terrell misconstrues Ohio law.
[T]he question of whether appellant might have a possible defense to a
charge of violating [a statutory provision] is irrelevant in [a court’s] analysis
of whether an officer has a reasonable and articulable suspicion to initiate a
traffic stop. An officer is not required to determine whether someone who
has been observed committing a crime might have a legal defense to the
charge.
State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 17. Whether
the sliver of glass remaining in Terrell’s side-view mirror was sufficient to give him a
view of the side of his vehicle would be a defense to any citation for failure to have an
unobstructed view of the side of the panel van. Accordingly, the officers provided a
reasonable and articulable suspicion of a traffic violation justifying the initiation of the
traffic stop that led to the discovery of drugs. Terrell’s first assignment of error is
without merit.
{¶9} In his second and third assignments of error, Terrell claims his rights to a
speedy trial pursuant to R.C. 2941.401 and R.C. 2945.71 were violated prior to his first
no contest plea and appeal. Terrell’s claims are barred by the doctrine of res judicata
and, therefore, are without merit.
{¶10} In Terrell I, Terrell’s sole assignment of error was based on an ineffective
waiver of counsel. We agreed and remanded the case for further proceedings. Inherent
in Terrell’s arguments in the current case is the question of whether Terrell can relitigate
the alleged statutory speedy trial violation premised on the trial court’s denial of a pretrial
motion that could have been appealed in Terrell I. Prior to Terrell I, the trial court
denied Terrell’s motion to dismiss, grounded in a speedy trial violation. Because this
issue could have been addressed in Terrell I, we must answer that question in the
negative.
{¶11} Generally, the doctrine of “[r]es judicata bars the assertion of claims against
a valid, final judgment of conviction that have been raised or could have been raised on
appeal.” State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59,
citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the
syllabus. More specific, Terrell could have raised the speedy trial issues in his first
appeal, which would have been dispositive. See State v. Jordan, 9th Dist. Summit No.
20453, 2001 Ohio App. LEXIS 2612 (June 13, 2001) (defendant’s failure to perfect an
appeal on a motion to suppress issue precludes a subsequent attempt to raise the issue for
appellate review in a second appeal due to the application of the res judicata doctrine); In
re T.G., K.G. & S.G., 9th Dist. Wayne No. 04CA0040, 2004-Ohio-5173 (the defendant
failed to challenge any action by the trial court on remand, instead challenging decisions
that could have been challenged in the first appeal). As a result, Terrell is limited to
challenging the speed at which the trial court disposed of his case upon remand.
{¶12} After a remand from the appellate court, however, the statutory speedy trial
provisions no longer apply to the proceedings. State v. Triplett, 8th Dist. Cuyahoga No.
97522, 2012-Ohio-3804, ¶ 11 (“Triplett II”), citing State v. Fanning, 1 Ohio St.3d 19, 437
N.E.2d 583 (1982); State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706(“[t]he time limit for bringing a person to trial whose conviction has been overturned on
appeal is governed by the Sixth Amendment to the United States Constitution and Section
10, Article I of the Ohio Constitution”). In State v. Triplett, 192 Ohio App.3d 600,
2011-Ohio-816, 949 N.E.2d 1058 (8th Dist.) (“Triplett I”), this court reversed that
defendant’s conviction on the grounds of faulty jury instructions and remanded the case.
In Triplett I, Triplett unsuccessfully attempted to challenge the conviction on speedy trial
grounds. The Triplett I court dismissed the argument because the defendant failed to
preserve the issue in the trial court. On remand, the defendant again sought dismissal of
the case based on the statutory right to a speedy trial with the trial court.
{¶13} In Triplett II, the defendant’s second appeal, this court again overruled the
assignment of error relating to the alleged statutory speedy trial violation, holding that
upon remand defendant only had a constitutional right to be brought to trial within a
reasonable time, in that case one year from the date of the appellate reversal, not a
statutory one. Id. at ¶ 10-11. This court dismissed the idea that the speedy trial days
from before the appeal could be added to the post-remand days. Id.
{¶14} In this case, even if we were to construe Terrell’s second and third
assignments of error as involving the constitutional right to a speedy trial, upon remand,
Terrell’s plea occurred six months from when the case was remanded. Further, because
only the constitutional speedy trial rights are recognized after an appellate court reverses a
conviction, Terrell is precluded from raising his statutory right to a speedy trial on
remand. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706, paragraph two of
the syllabus; Triplett II, 8th Dist. Cuyahoga No. 97522, 2012-Ohio-3804.
{¶15} In light of the foregoing, Terrell’s second and third assignments of error are
without merit. The trial court did not err in denying his motion to suppress, and Terrell’s
attempt to challenge the trial court’s denial of his motion to dismiss for a violation of his
statutory right to a speedy trial before his first appeal are prohibited by the doctrine of res
judicata. Terrell should have appealed the trial court’s decision denying his motion to
dismiss on statutory speedy trial grounds in Terrell I.
{¶16} Terrell’s conviction is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR