State v. Richardson ( 2021 )

[Cite as State v. Richardson, 2021-Ohio-3362.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-200288
C-200289
Plaintiff-Appellee, : TRIAL NOS. B-1803045
B-1805949
vs. :
DAVID RICHARDSON, :
O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: September 24, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Rubenstein & Thurman, L.P.A., and Scott A. Rubenstein, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} David Richardson appeals from the judgment of the Hamilton County
Court of Common Pleas finding him guilty of community-control violations in the
cases numbered B-1803045 and B-1805949, revoking his community control, and
sentencing him to a prison term of 12 months in each case to be served concurrently.
For the following reasons, we affirm the trial court’s judgment.
Procedural and Factual Background
{¶2} In November 2018, David Richardson pled guilty to two counts of
trafficking in cocaine in the cases numbered B-1803045 and B-1805949, both
felonies of the fourth degree. At the sentencing hearing, Richardson admitted to
regularly using cocaine and agreed to participate in a drug treatment program. The
trial court placed him on two years of community control that included intensive
supervision and drug treatment. The court notified Richardson that if he violated
the terms of his community control, he would be incarcerated for 18 months on each
case for a maximum potential aggregate sentence of 36 months.
{¶3} On July 15, 2019, Richardson was indicted for trafficking in and
possession of cocaine, trafficking in and possession of heroin, and aggravated
possession of drugs in the case numbered B-1903959. The drugs were found in
Richardson’s bedroom when his probation officer Kelly Winter conducted a search of
his home. Winter also filed community-control violations in the cases numbered B-
1803045 and B-1805949. Ultimately, the new drug charges against Richardson were
dismissed after the trial court granted his motion to suppress the drugs, concluding
that there was no reasonable suspicion to conduct the search. The state did not
appeal that decision.
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{¶4} After the charges were dismissed, Richardson’s counsel requested a
continuance on the community-control-violation hearing to review the cases the
prosecutor had given him before scheduling a hearing. Counsel also requested that
Richardson’s phones be returned to him. The court determined that the phones
would be returned after the completion of the proceedings on the violations because
the phones were relevant to one of the violations.
Hearing on the Violations
{¶5} Probation officer Kelly Winter testified that she went to Richardson’s
home to conduct a home visit. At the time, Winter was considering terminating his
intensive probation and recommending him for regular probation. Winter and her
partner knocked on the door, but no one answered. After some time had passed,
they left. While driving up the street, Winter saw Richardson standing on the porch
waving them down. Winter and her partner returned and entered the home.
Richardson’s girlfriend and his girlfriend’s mother were also present.
{¶6} Winter searched Richardson’s bedroom. She found Richardson’s
wallet and identification in the bedroom. In a dresser drawer that contained men’s
clothing, she found a locked box and a key. Winter opened the box and found a
significant amount of drugs. Winter handcuffed Richardson and called the
Cincinnati Police Department. Winter testified that the Probation Department’s
policy is to call the police when contraband is found in a home, and have them take
custody of the contraband and determine whether to file charges.
{¶7} Winter also found two cell phones, one in a red case that she had seen
Richardson use and a second one that she believed was found on his person. Winter
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asked Richardson for the passcodes to the phones, and he refused to give them to
her. Richardson did not deny that the phones were his.
{¶8} After Richardson’s arrest, Winter determined that criminal drug
charges had been filed against him. He had been indicted for trafficking in and
possession of cocaine, trafficking in and possession of heroin, and aggravated
possession of drugs for amphetamine. The crime laboratory report results
determined that the box contained cocaine, heroin, fentanyl, amphetamine, and
marijuana.
{¶9} At that point, Winter filed community-control violations for the police
contact, testing positive for marijuana on April 30, 2019, refusing to provide the
passcodes to the phones so she could search them, and failing to make any payments
to probation, in addition to his arrests on the new charges. Winter admitted that the
positive marijuana test result alone was an insufficient reason to file a violation.
{¶10} Richardson’s girlfriend, Jennifer Greenlea, testified on his behalf.
Greenlea confirmed that she and her mother had been staying with Richardson, and
that she was present during the search. Greenlea and her mother were asleep when
Winter arrived. Winter woke her up and told her to go into the living room. Winter
went into the bedroom and returned with the locked box. According to Greenlea,
Winter asked Richardson if he had seen the box before, and he responded, “No.”
After Winter opened the box, she handcuffed Richardson and called the police.
Greenlea testified that the drugs did not belong to her.
{¶11} The trial court found Richardson guilty on the probation violations.
After discussing the relevant sentencing factors, the court imposed a prison term of
12 months in each case, to be served concurrently.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} Richardson appealed, presenting five assignments of error.
Admissibility of the Illegally-Obtained Evidence
{¶13} For ease of discussion, we will address the first, second, and fourth
assignments of error together.
{¶14} Richardson first argues that the court erred in considering the drugs as
a basis for a violation because the exclusionary rule prohibits the admission of
illegally-seized evidence at a revocation hearing. Richardson cites to State v.
Burkholder in support of his argument. State v. Burkholder, 2d Dist. Montgomery
No. 8256, 1983 WL 2505 (October 18, 1983). In Burkholder, the Second District
Court of Appeals held that evidence obtained through an unlawful search was
inadmissible in a probation-revocation hearing. Id. at *3. On appeal, the Ohio
Supreme Court affirmed, concluding that “the application of the exclusionary rule to
probation revocation proceedings furthers the universally accepted purpose to deter
police misconduct by removing the incentive to disregard it.” State v. Burkholder, 12
Ohio St.3d 205, 207, 466 N.E.2d 176 (1984).
{¶15} However, the Ohio Supreme Court reexamined the issue and overruled
Burkholder in State ex rel. Wright v. Ohio Adult Parole Auth., 75 Ohio St.3d 82, 91,
661 N.E.2d 728 (1996). The court concluded that “when the admissibility of relevant
evidence in parole revocation proceedings is weighed against application of the
exclusionary rule, the balance clearly falls on the side of admissibility.” Id. at 92.
The court held that “evidence obtained through an unreasonable or unlawful search
and seizure is generally admissible in probation and/or parole revocation
proceedings.” Id. at 91. See Pennsylvania Bd. of Probation & Parole v. Scott, 524
U.S. 357, 364, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) (holding “that the federal
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exclusionary rule does not bar the introduction at parole revocation hearings of
evidence seized in violation of parolees’ Fourth Amendment rights.”).
{¶16} Therefore, the trial court did not err in considering the drugs at the
revocation hearing, and we overrule the first assignment of error.
{¶17} Next, Richardson contends that his due-process rights were violated
when his counsel failed to object to the admission of the illegally-obtained evidence.
{¶18} As previously discussed, the drugs were admissible for purposes of the
revocation hearing. Consequently, counsel’s failure to object did not deprive
Richardson of his due-process rights, and we overrule the second assignment of
error.
{¶19} In his fourth assignment of error, Richardson argues that he was
denied the effective assistance of counsel due to counsel’s failure to object to the
admission of illegally-obtained evidence.
{¶20} Because the drugs were admissible for purposes of the revocation
hearing, counsel’s failure to object did not deprive Richardson of the effective
assistance of counsel. We overrule the fourth assignment of error.
The Manifest Weight of the Evidence
{¶21} In his third assignment of error, Richardson claims that the judgments
of the trial court were contrary to the manifest weight of the evidence.
{¶22} A community-control-revocation hearing is not a criminal trial, and
the state is not required to establish a violation of the terms of community control
beyond a reasonable doubt. State v. Messer, 12th Dist. Butler No. CA2014-02-056,
2014-Ohio-5741, ¶ 12. To establish a violation, the state must present “substantial”
evidence. Id. Therefore, we must apply the “some competent, credible evidence”
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standard established in C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376
N.E.2d 578 (1978). State v. Huitt, 5th Dist. Stark No. 2007 CA 0060, 2007-Ohio-
5816, ¶ 17. “This highly deferential standard is akin to a preponderance of evidence
burden of proof.” Id. Absent an abuse of discretion, the decision to revoke probation
will not be disturbed on appeal. Id. at ¶ 18.
{¶23} Richardson first contends that he was unaware that the drugs were in
the dresser. However, there is nothing in this record to support that claim.
Additionally, the drugs were found in a dresser drawer that contained male clothing
in Richardson’s bedroom.
{¶24} Richardson next argues that the state failed to establish that the two
cell phones belonged to him, and that he had the passcodes. Winter testified that she
had seen Richardson using the cell phone with the red case and knew that it was his.
She further testified that she believed the second phone was found on his person.
When she requested the passcodes, Richardson refused to provide them. Moreover,
Richardson asked the court to return his phones prior to the revocation hearing.
{¶25} With respect to the positive marijuana test and failure to pay his
probation fees, Richardson contends these violations were de minimus and
insufficient standing alone to justify a revocation. But these were not the only
violations underlying the revocation.
{¶26} Based on this record, there was substantial evidence that Richardson
violated the conditions of community control, and the trial court acted within its
discretion to revoke Richardson’s community control. We find no merit to the third
assignment of error, and we overrule it.
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The Sentence
{¶27} Richardson next contends that the trial court erred by imposing a
sentence that is not supported by the findings in the record.
{¶28} “In reviewing felony sentences, an appellate court may increase,
reduce, or modify a sentence, or it may vacate the sentence and remand for
resentencing, only if it ‘clearly and convincingly’ finds either (1) that the record does
not support certain specified findings or (2) that the sentence imposed is contrary to
law.” State v. Reynolds, 1st Dist. Hamilton No. C-190055, 2020-Ohio-942, ¶ 6.
“Following a community control violation, the trial court conducts a second
sentencing hearing. At this second hearing, the court sentences the offender anew
and must comply with the relevant sentencing statutes.” State v. Fraley, 105 Ohio
St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17.
{¶29} Richardson argues that the trial court failed to follow R.C. 2929.11 and
2929.12 because the 12-month sentence was not necessary to protect the public and
did not represent the minimum sanctions adequate to accomplish the purposes of
felony sentencing.
{¶30} At the original sentencing hearing, the trial court notified Richardson
that if he violated his community control, he would be incarcerated for 18 months on
each case for a maximum potential aggregate sentence of 36 months. Prior to
imposing sentence, the trial court noted that the violations were not technical
violations and further specified that it had considered the principles and purposes of
felony sentencing before imposing the sentence, and the record supports the
sentence.
{¶31} Accordingly, we overrule his fifth assignment of error.
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Conclusion
{¶32} Having overruled Richardson’s five assignments of error, we affirm the
judgments of the trial court.
Judgments affirmed.
CROUSE and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry this date.
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