State v. Springer , 2011 Ohio 4724 ( 2011 )

[Cite as State v. Springer, 2011-Ohio-4724.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24353
Plaintiff-Appellee :
: Trial Court Case No. 10-CR-1796
v. :
:
LEVAUGHN SPRINGER, JR. : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 16th day of September, 2011.
...........
MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
SEAN J. VALLONE, Atty. Reg. #0064053, 5 Irongate Park Drive, Suite A. Centerville, Ohio
45459
and
RICHARD A. NYSTROM, Atty. Reg. #0040615, 120 West Second Street, Suite 1502,
Dayton, Ohio 45402
Attorneys for Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant Levaughn Springer, Jr. appeals from his conviction and
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sentence, following a no-contest plea, for Possession of Crack Cocaine in an amount less than
one gram, in violation of R.C. 2925.11(A), a felony of the fifth degree. Springer’s appellate
counsel has filed a brief under the authority of Anders v. California (1967), 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493, indicating that he was unable to find any assignments of error
having arguable merit.
{¶ 2} By entry filed herein on April 18, 2011, Springer was accorded the right to file
his own pro se brief within sixty days thereof; he has not done so.
{¶ 3} Springer’s trial counsel has filed a motion for leave to submit a brief as amicus
curiae, in support of Springer’s appeal. By entry filed herein on June 8, 2011, we deferred
ruling on that motion until submission of this appeal to a panel of judges of this court. Trial
counsel’s amicus curiae brief is filed in this court, and is part of our record.
{¶ 4} Pursuant to Anders v. California, we have performed our duty of independently
reviewing the record.
I
{¶ 5} At the conclusion of a hearing on Springer’s motion to suppress evidence upon
the ground that it was obtained as the result of an unlawful search and seizure, the trial court
made the following findings of fact, from the bench, and upon the record:
{¶ 6} “I believe the facts in this case reveal that on June the 5th of 2010, at about 3:15
p.m. in the City of Dayton, Ohio, in Montgomery County, that Officer [Joseph] Setty, who is a
sworn officer of the Dayton Police Department with four years’ experience with that
department and prior experience with others, was working overtime at the Stratford
apartments.
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{¶ 7} “And Officer said he was in uniform, utilizing a marked police cruiser. At
about 3:15 p.m. he saw an individual in a red and white shirt, later identified as the defendant,
Levaughn Springer, on Dugger Road at the Stratford apartments.
{¶ 8} “Officer said he saw Mr. Springer, recognized at least the cruiser as he entered a
drive or some type of roadway in the apartment. I presume it’s somewhat of an apartment
complex, although I’m not entirely specific on that. But at any rate, the defendant, Mr.
Springer, put his head down and turned right when the cruiser was in his general vicinity,
turned right to walk away.
{¶ 9} “Officer said he then drove up toward Mr. Springer but did not drive right
immediately adjacent to him, rather stopped the vehicle and got out. That is, Officer said he
got out of the vehicle and walked over to where Levaughn Springer was, the officer being on
foot. So both gentlemen being on foot at that eventual time.
{¶ 10} “The fact is that – and there was only one witness in the case [Officer Setty].
The Court finds that Officer Setty – based on his reasonableness of his answers, the logic of it,
his appearance on the stand, his demeanor – the Court finds Officer Setty to be credible.
{¶ 11} “Officer Setty did not order Mr. Springer to stop. He did not draw his service
revolver rather he just approached Mr. Springer there in the complex, the apartment complex.
{¶ 12} “Officer said he asked Mr. Springer what his name was. Mr. Springer,
generally in this transaction, was cooperative. An indication of that was that Mr. Springer
gave Officer Setty his name upon request.
{¶ 13} “Officer Setty then asked Mr. Springer if he lived there, I presume meaning the
apartments. Mr. Springer said he did not but that his father lived there that he was there for a
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birthday party for his father on that particular day.
{¶ 14} “And I’m not sure of the exact order of these questions but I think the next
question was can I see your identification. Officer Springer [sic]1 asked that – I should say
Officer Setty asked that. Mr. Springer cooperated, gave his driver’s – or gave some type of
ID.{¶ 15} “I then believe the next question was whether or not Mr. Springer had any guns
or drugs on his person. And Mr. Springer responded he did not. Then Officer Setty asked
Mr. Springer if he could search him. He – I presume to be sure there were no guns. And Mr.
Springer said yes, he consented to that.
{¶ 16} “Officer Setty engaged in a pat-down. This being summertime, I don’t think
there was all that much clothing but a pat-down of the outer clothing. And then during that –
well, initially there was some hesitation or movement by Mr. Springer. The officer then said
to Mr. Springer, turn back. I think Mr. Springer had turned away a little bit. Setty told him
to turn back. Mr. Springer complied with that request or order, I don’t know exactly how it’d
be categorized or characterized.
{¶ 17} “At that point then, a pat-down of the shorts or pants of Mr. Springer, Officer
felt a substance which he recognized as crack cocaine in the I believe it was the left rear
pocket of the shorts or pants.
{¶ 18} “There was a question by Officer Setty to Mr. Springer about what was that or
maybe even an indication that Officer felt it was crack cocaine. There was a response. I
think it was an unsolicited response that Mr. Springer had found that object in his friend’s car.
1
“[sic]” in original transcript.
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{¶ 19} “The officer tested the substance that he had found in the left rear pocket with a
cobalt reagent, tested positive for crack cocaine.
{¶ 20} “And then at that point, there was an arrest made for possession of cocaine.”
{¶ 21} With one exception, the evidence in the record, consisting solely of the
testimony of Officer Setty, supports the trial court’s findings. That exception concerns the
trial court’s finding that Springer’s statement concerning the origin of the crack cocaine
followed a question by Officer Setty. Officer Setty clearly testified to the contrary:
{¶ 22} “Q. Okay. When you retrieved the crack cocaine from his pocket, did he
make any statements?
{¶ 23} “A. Yes.
{¶ 24} “Q. What did he state to you?
{¶ 25} “A. He stated that he just found that getting out of his friend’s car.
{¶ 26} “Q. Was that in response to any question that you had posed to him?
{¶ 27} “A. No, I did not ask him any question at that time.
{¶ 28} “Q. It was – as you pulled out the crack cocaine, he then volunteered that
statement?
{¶ 29} “A. That is correct.”
{¶ 30} The trial court overruled Springer’s motion to suppress. Thereafter, Springer
pled no contest, was found guilty, and was sentenced to community control sanctions, a
(mandatory) six-month driver’s license suspension, and was ordered to pay court costs and
attorney’s fees in the amount of $130.
{¶ 31} From his conviction and sentence, Springer appeals.
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II
{¶ 32} Springer’s assigned appellate counsel has filed a brief under the authority of
Anders v. California, supra, reflecting that counsel was unable to find any potential
assignments of error having arguable merit. Counsel identified the possible error of the trial
court in having overruled Springer’s motion to suppress as one potential assignment of error
that counsel considered, but found to be without any arguable merit.
{¶ 33} Coincidentally, Springer’s trial counsel’s proposed brief as amicus curiae
asserts as the sole assignment of error the trial court’s overruling of Springer’s motion to
suppress. The argument in the proposed amicus brief is predicated upon the following factual
predicate: “The officer then asked to search Springer but began his pat-down and search
without hearing any reply.”
{¶ 34} We find no arguable merit to the factual proposition upon which the assignment
of error in the proposed amicus brief is predicated. When this subject was first brought up in
direct examination, Setty testified: “I asked him if he had any guns or drugs on him and he
stated no. I then asked him if I could search him. He stated sure and put his hands up in the
air.”
{¶ 35} One transcript page later, still during Setty’s direct examination, he testified as
follows:
{¶ 36} “Q. Okay. And when you asked if you could search him, what was his
response?
{¶ 37} “A. He stated sure and put his hands up in the air.
{¶ 38} “Q. And when he did that what did you do?
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{¶ 39} “A. I then conducted a pat-down on him and then I started patting him down
for weapons and for drugs, contraband.”
{¶ 40} During cross-examination, in response to a leading question, Setty testified in a
way that seemingly brought into question this sequence of events:
{¶ 41} “Q. I thought you said you asked him to search.
{¶ 42} “A. I asked him for a search for – originally, I asked him if he had any guns or
drugs on him. He stated no. Then I asked him if I could search him. He stated sure.
{¶ 43} “Q. And at that point, he had his hands up; right?
{¶ 44} “A. Yes. He placed his hands up on his own.”
{¶ 45} But later in the cross-examination, the following colloquy occurred:
{¶ 46} “Q. Now, you said that you asked if you could search but you had already
started to feel him down; did you not?
{¶ 47} “A. No, I did not.”
{¶ 48} During re-direct, the sequence of events was clarified:
{¶ 49} “Q. I just want to make sure of a couple of things.
{¶ 50} “First one, you asked him for permission to search; is that correct?
{¶ 51} “A. That is correct.
{¶ 52} “Q. And prior to you asking him for permission to search his person, you
didn’t do any pat-down or anything like that; is that correct?
{¶ 53} “A. That’s correct. I had not touched him.
{¶ 54} “Q. It was after you asked for permission then – and he gave you permission
to search – that you then did a pat-down; is that correct?
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{¶ 55} “A. Correct.
{¶ 56} “Q. Okay.
{¶ 57} “And then the other thing I want to make sure is clear. When you asked for
permission to search, there was testimony he put his hands up. Did you order him to put his
hands up?
{¶ 58} “A. No.
{¶ 59} “Q. Did you kick his legs and spread them apart, at all?
{¶ 60} “A. No.
{¶ 61} “Q. When you asked for permission to search, is the only thing that you did
then was pat him down?
{¶ 62} “A. That is correct.”
{¶ 63} The evidence in the record clearly supports the trial court’s finding that Officer
Setty sought, and obtained, Springer’s consent to the search of his person before the pat-down
search that resulted in the discovery of the crack cocaine. No reasonable argument can be
made that the evidence in the record does not support that finding.
{¶ 64} Furthermore, the transaction preceding the consent to search was clearly a
consensual encounter. Officer Setty did nothing that would cause a reasonable person in
Springer’s position to believe that he was not free to leave. In State v. Thomas, Montgomery
App. No. 23979, 2011-Ohio-1292, “several” police officers from a ten-officer “gang
interdiction squad,” of whom three were specifically named in the opinion, left their cruisers
and approached a group of persons who appeared to be gambling. We held that the defendant
in that case, who was one of the persons in the group, was never in detention before he was
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asked for his consent to a search. (The defendant responded to the request by producing
money and a plastic bag of crack cocaine from his pocket, thereby obviating the need for a
search.)
{¶ 65} In the case before us, just one officer, Setty, approached Springer. Setty asked
Springer some questions, culminating in the request for consent to search. We see no
reasonable argument that can be made that this transaction was anything other than a
consensual encounter until the crack cocaine was found.
{¶ 66} In short, we find no arguable merit in the potential assignment of error that the
trial court erred in overruling Springer’s motion to suppress.
{¶ 67} We have independently reviewed the record, as required by Anders v.
California, supra, and find no potential assignments of error having arguable merit. Springer
was fully advised of the potential penalties to which his no-contest plea would expose him; he
indicated that he understood the nature of the offense after the prosecutor recited the charge;
he indicated that he was not under the influence of drugs or alcohol; and he indicated that he
understood each constitutional right that he would be surrendering as a result of his plea, after
each right was explained by the trial court.
{¶ 68} At the sentencing hearing, both Springer and his trial counsel were afforded the
opportunity to address the court. The sentence – the imposition of standard community
control sanctions – was within the trial court’s discretion. The trial court explained the
sentence, including each of the requirements of the community control sanctions imposed.
{¶ 69} We find no potential assignments having arguable merit, and we conclude that
this appeal is wholly frivolous. Therefore, we see no need for the filing of an amicus brief by
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Springer’s trial counsel, and the motion for leave to file an amicus brief is overruled. Of
course, as we have noted above, we read the proposed amicus brief in the course of
considering whether the assignment of error proposed therein – that the trial court erred in
overruling Springer’s motion to suppress – has any arguable merit.
III
{¶ 70} This court having found that there are no potential assignments of error having
arguable merit, and that this appeal is wholly frivolous, the judgment of the trial court is
Affirmed.
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GRADY, P.J., and FROELICH, J., concur.
Copies mailed to:
Mathias H. Heck
Carley J. Ingram
Sean J. Vallone
Richard A. Nystrom
Levaughn Springer, Jr.
Timothy N. O’Connell