State v. Dammons ( 2011 )

[Cite as State v. Dammons, 2011-Ohio-2908.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 94878 and 94879
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEMOND DAMMONS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-531013 and CR-523498
BEFORE: Sweeney, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: June 16, 2011
ATTORNEY FOR APPELLANT
Margaret Amer Robey, Esq.
Robey & Robey
14402 Granger Road
Maple Heights, Ohio 44137
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Maxwell M. Martin, Esq.
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} Defendant-appellant Demond Dammons appeals his sentence and
the denial of his motion to suppress. For the reasons that follow, we affirm in
part, vacate in part and remand for resentencing.
{¶ 2} In CR-523498, defendant was charged with drug trafficking, drug
possession, and possession of criminal tools, which allegedly took place on or
about April 11, 2009. All counts included forfeiture specifications. The
criminal tools were identified as being money and/or cell phone and the
indictment alleged that defendant possessed or had under his control “with
purpose to use it criminally in the commission of a felony.”
{¶ 3} On September 15, 2009, the trial court held a hearing on
defendant’s motion to suppress evidence. The trial court denied that motion
the same day. Subsequently, defendant entered a plea of no contest to all
counts of the indictment, which involved two fourth degree felonies and one
felony of the fifth degree. He also pled no contest to the forfeiture
specifications relating to $287 in U.S. currency and a cell phone.
{¶ 4} In addition to facts elicited at the suppression hearing, the state
set forth the factual basis of the allegations as follows: police received an
anonymous tip regarding a male who had a stash of drugs in a Honda bearing
a specific license plate number. Police received a second anonymous tip in
person that provided the same information. Police later observed defendant
leaning on the subject Honda. Upon observing the officers, defendant opened
his door, tossed an item inside, then shut and locked the door. Det.
McCandless was able to observe a bag of crack cocaine on the front passenger
seat of the car, which later tested positive as 3.82 grams of crack. Defendant
was arrested and charged with trafficking “in that it was allegedly prepared
for shipment or sale and as well as drug possession and possession of criminal
tools, because he had $287 and a cell phone on him.”
{¶ 5} The trial court found defendant guilty and referred the matter for
a pre-sentence investigation report. On October 14, 2009, the trial court held
a sentencing hearing where defendant personally accepted “full responsibility
of [his] charges” and said he said he was guilty. Defendant asked the trial
court to impose probation. The defense acknowledged that defendant has
sold drugs and emphasized defendant’s acceptance of responsibility. The trial
court imposed fines, costs, and 18 month prison terms on the felonies of the
fourth degree along with a 12 month prison term for the fifth degree felony; all
terms to be served consecutively. However, the court suspended the sentence
and imposed a two year term of community control sanctions, among other
non-prison penalties. The trial court advised defendant that if he violated
community control sanctions, it would order the suspended consecutive prison
sentence into effect.
{¶ 6} In November 2009, defendant was indicted in case number
CR-531013 and charged with drug trafficking, drug possession, possession of
criminal tools and domestic violence. Each count carried forfeiture
specifications relating to $3,000.00 in U.S. currency and a cell phone allegedly
used in the commission of the offenses. On February 24, 2010, defendant pled
guilty to an amended drug trafficking charge that deleted a schoolyard
specification and rendered it a third degree felony. Defendant further agreed
to the forfeiture of property and acknowledged that the guilty plea would
constitute a violation of his community control sanctions in CR-523498. In
exchange, the remaining charges were dismissed. The trial court imposed a
three year prison term, suspended defendant’s driver’s license and ordered
forfeiture of the cell phone and currency. The court found defendant in
violation of his community control sanctions in CR-523498 and terminated it.
Defendant’s suspended sentence was ordered into execution. The court
ordered defendant to serve the sentence in each case consecutively, which
resulted in a total prison term of seven years.
{¶ 7} Defendant maintains that the facts of case number CR-531013 are
not pertinent to this appeal.
{¶ 8} Defendant commenced an appeal in each case on March 24, 2010
and the matters were consolidated for appeal. Defendant presents four
assignments of error for our review:
{¶ 9} The First Assignment of Error: “The trial court erred and violated
appellant’s Fifth Amendment right to be free from double jeopardy when it
ordered consecutive service for allied offenses.”
{¶ 10} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061, the Ohio Supreme Court established the current analysis for
assessing whether multiple offenses are allied and of similar import such that
they should be merged for purposes of sentencing:
{¶ 11} “In determining whether offenses are allied offenses of similar
import under R.C. 2941.25(A), the question is whether it is possible to commit
one offense and commit the other with the same conduct, not whether it is
possible to commit one without committing the other. [State v.]Blankenship [
(1988) ], 38 Ohio St.3d [116] at 119 (Whiteside, J., concurring) (‘It is not
necessary that both crimes are always committed by the same conduct but,
rather, it is sufficient if both offenses can be committed by the same conduct.
It is a matter of possibility, rather than certainty, that the same conduct will
constitute commission of both offenses.’ [Emphasis sic] ). If the offenses
correspond to such a degree that the conduct of the defendant constituting
commission of one offense constitutes commission of the other, then the
offenses are of similar import.
{¶ 12} “If the multiple offenses can be committed by the same conduct,
then the court must determine whether the offenses were committed by the
same conduct, i.e., ‘a single act, committed with a single state of mind.’ [State
v.] Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶50 (Lanzinger, J.,
dissenting).” Id. at ¶48-49.
{¶ 13} Defendant argues that all of his convictions in CR-523498
constitute allied offenses of similar import, which include convictions for drug
trafficking in violation of R.C. 2925.03(A)(2), drug possession in violation of
R.C. 2925.11(A), and possession of criminal tools in violation of R.C.
2923.24(A). The state generally responds that defendant waived this issue
and, alternatively maintains that possessing criminal tools is not an allied
offense to the possession and trafficking offenses and, therefore, it believes the
trial court did not abuse its discretion in sentencing defendant on all counts.
{¶ 14} The Ohio Supreme Court has held that a trial court commits plain
error when it imposes multiple sentences for allied offenses of similar import.
State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶31.
Therefore, we find that despite defendant’s failure to object in the court below,
this issue survives under a plain error analysis.
{¶ 15} In this case, defendant was convicted of both drug trafficking (R.C.
2925.03(A)(2)) and drug possession (R.C. 2925.11(A)); which the Ohio Supreme
Court has previously declared to be allied offense of similar import. State v.
Cabrales, 118 Ohio St.3d 206, 2008-Ohio-1625, 553 N.E.2d 181, paragraph two
of the syllabus. To the extent Johnson overruled the analysis the Court
employed in Cabrales, we still find defendant’s convictions of these offenses
constitute allied offenses of similar import under the new test enunciated in
Johnson. Both convictions arose out of the same transaction, involved the
same amount of contraband, and were committed by a single state of mind.
However, we cannot reach the same conclusion with respect to defendant’s
conviction for possessing criminal tools.
{¶ 16} The elements of defendant’s drug trafficking conviction provide:
{¶ 17} “(A) No person shall knowingly do any of the following:
{¶ 18} “* * *
{¶ 19} “(2) Prepare for shipment, ship, transport, deliver, prepare for
distribution, or distribute a controlled substance, when the offender knows or
has reasonable cause to believe that the controlled substance is intended for
sale or resale by the offender or another person.”
{¶ 20} The elements of drug possession are:
{¶ 21} “(A) No person shall knowingly obtain, possess, or use a controlled
substance.”
{¶ 22} And, the elements of possessing criminal tools provide:
{¶ 23} “(A) No person shall possess or have under the person’s control
any substance, device, instrument, or article, with purpose to use it
criminally.”
{¶ 24} Here, defendant was charged with possessing money and a cell
phone “with purpose to use it criminally in the commission of a felony.”
Accordingly, it was not possible for defendant’s possession of these items alone
to result in a conviction for either drug trafficking or drug possession.
Similarly, his possession of drugs did not establish a possession of criminal
tools charge; despite his convictions for drug trafficking and drug possession.
E.g., State v. Byers, Cuyahoga App. No. 94922, 2011-Ohio-342, ¶9 (“The
ubiquitousness of cell phones is such that the mere possession of a cell phone
is not ipso facto proof that it was used in drug trafficking.”) Defendant pled
no contest to each charge. “A plea of no contest constitutes an admission of
the facts alleged in an indictment, as well as the facts set forth by the state in
its explanation of the circumstances surrounding the charge, but does not
admit that those facts lead to a legal conclusion of guilt.” State v. Perry
(1998), 83 Ohio St.3d 41, 697 N.E.2d 624. Defendant admitted that he was
trafficking in drugs, in possession of drugs, and that he possessed the money
and cell phone with a purpose to use them criminally.
{¶ 25} This assignment of error is sustained in part and overruled in
part. Defendant’s convictions for drug trafficking and drug possession are
allied offenses and the trial court erred by failing to merge them at sentencing.
On remand, the state will elect which of these offenses to pursue against
defendant at sentencing. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2,
922 N.E.2d 182. Defendant’s conviction for possessing criminal tools is not an
allied offense of similar import and the trial court did not err by imposing a
separate sentence on this count. Our disposition of this assignment of error
requires resentencing and therefore renders the second assignment of error
moot.1
{¶ 26} The Third Assignment of Error: “The Appellant was denied his
The Second Assignment of Error provides: “The trial court erred and abused
1
its discretion by imposing a disproportionately harsh sentence that was grossly
inconsistent with sentences imposed on similar offenders for similar crimes, and that
was also unreasonable in that it was not supported by the record.”
right under the Sixth and Fourteenth Amendments to the effective assistance
of counsel when the defense attorneys failed to protect his rights at either
sentencing hearing.”
{¶ 27} “To substantiate a claim of ineffective assistance of counsel, a
defendant must demonstrate that (1) the performance of defense counsel was
seriously flawed and deficient, and (2) the result of defendant’s trial or legal
proceeding would have been different had defense counsel provided proper
representation. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674; State v. Brooks (1986), 25 Ohio St.3d 144, 495 N.E.2d 407. In
State v. Bradley, the Ohio Supreme Court truncated this standard, holding
that reviewing courts need not examine counsel’s performance if the defendant
fails to prove the second prong of prejudicial effect. State v. Bradley (1989),
42 Ohio St.3d 136, 538 N.E.2d 373. “The object of an ineffectiveness claim is
not to grade counsel’s performance.” Id. at 143, 538 N.E.2d 373.
{¶ 28} Defendant contends his trial attorneys were ineffective for failing
to object to the imposition of consecutive sentences at his original sentence
and then later when the sentence was imposed upon his probation violation.
Because defendant will be resentenced pursuant to the first assignment of
error, this assignment of error is moot.
{¶ 29} Fourth Assignment of Error: “The trial court both denied
Appellant a full and fair suppression hearing and erred and abused its
discretion in denying Appellant’s Motion to Suppress.”
{¶ 30} Defendant did not timely appeal the denial of his suppression
motion following the final judgment in CR-523498. For that reason, this
assignment of error is not properly before us. However, even if it was timely
raised, we would find the trial court did not err.
{¶ 31} “Appellate review of a trial court’s ruling on a motion to suppress
presents mixed questions of law and fact. An appellate court is to accept the
trial court’s factual findings unless they are clearly erroneous. We are
therefore required to accept the factual determinations of a trial court if they
are supported by competent and credible evidence. The application of the law
to those facts, however, is subject to de novo review.” State v. Polk, Cuyahoga
App. No. 84361, 2005-Ohio-774, at ¶ 2 (internal citations omitted).
{¶ 32} The trial court conducted an evidentiary hearing on defendant’s
motion to suppress and the record does not support defendant’s contention
that he did not receive a full and fair hearing. Also, the record does not
support his contention that the trial court’s findings were an abuse of
discretion.
{¶ 33} Warrantless searches are presumptively unconstitutional, subject
to a limited number of specific exceptions. The plain view doctrine is an
exception to the warrant requirement. Further, the state maintains that
defendant was not stopped nor did they conduct an investigatory stop but
rather pursued a “consensual encounter” when they observed defendant
leaning against the car and appear to throw something inside of it. See State
v. Petty, Cuyahoga App. No. 93234, 2010-Ohio-4107, ¶36 (“Consensual
encounters are those that involve no coercion or restraint on liberty.”) Id.,citing, State v. Morris (1988), 48 Ohio App.3d 137, 138, 548 N.E.2d 969.
{¶ 34} In this case, Officer Martin testified that they received a telephone
tip that a male was keeping a stash of drugs in a Honda parked in the lot of a
bar. The caller wished to remain anonymous. The caller provided a license
plate number for the vehicle. Another officer was stopped by a female who
reported the same information. The officers went to the parking lot and
noticed the subject vehicle, which was unoccupied. The officers left and
returned later to find defendant leaning against the trunk of the Honda.
When defendant saw the officers, he opened the driver door and threw
something inside. He then locked the vehicle.
{¶ 35} The officers parked and Det. McCandless walked to the passenger
side of the vehicle. Officer Martin has participated in over a thousand drug
arrests. Det. McCandless notified Officer Martin that he had observed
something in the car. Defendant was arrested and the officers recovered the
drugs that had been observed in plain view on the passenger seat. The drugs,
which were suspected crack cocaine, were logged into evidence by Det.
McCandless. Officer Martin testified that they “had been receiving multiple
calls in connection with that parking lot, in connection with drug sales.” In
his experience that particular lot is known for people drinking in their cars,
“there are drug users who approach the parking lot, buy their drugs and leave,
people coming in and out of the bar.” Due to defendant’s actions, Officer
Martin “believed very strongly” that defendant tossed something into the
Honda. When defendant was searched incident to his arrest, police found
$278.00.
{¶ 36} Det. McCandless confirmed receipt of a phone call reporting a
male stashing drugs inside a Honda in the parking lot of Johnny and
Company Bar and Grill. At that time, Sgt. Purcell received information from
a female reporting the same information. They saw the Honda in the lot and
later saw defendant on the hood of the vehicle. He was the only person they
saw outside. The officers matched the Honda license plate numbers to the
plate reported by the citizen complainants. Det. McCandless approached the
car, looked inside and saw a plastic bag on the passenger seat containing some
white objects that he immediately recognized as cocaine. Det. McCandless
had a flashlight with him, which was his habit. The drugs were in plain view
on the seat. Det. McCandless testified that the drugs were visible to anyone
passing by. Before that time, the officers had not detained defendant and he
had been free to leave. However, upon observing the contraband in plain
view inside defendant’s car, he was arrested. After defendant was arrested,
the cocaine was recovered from inside the car.
{¶ 37} Defendant testified at the suppression hearing. He arrived at the
bar around 10:30 p.m. While inside having drinks, he observed officers
conducting their liquor inspection. He recognized them as law enforcement
officers because he saw their identification. After the officers left, defendant
went outside to have a cigarette and was leaning against his car. According
to him, four or five other people were outside when the officers entered the
bar’s parking lot. The officers took his keys, unlocked his car door, and went
inside. Defendant claimed this was done without any communication among
them. The other people just watched as the officers went through defendant’s
vehicle and trunk. Still nothing was said to the defendant. Drugs were
found in the car. According to defendant, the tint on the Honda’s windows
are such that “you can’t see through them at all.” Defendant maintained that
the detectives were lying. Defendant conceded that on at least one
photograph he took of the Honda you can see inside the vehicle from outside.
The pictures were taken on the same night of the incident and without the aid
of a flashlight. Defendant denied throwing anything in the car that night.
He did not know where the officers found the drugs in the car. Defendant
admits that he did lock the car. Defendant then said he was getting out of his
car when police arrived in the parking lot. Contradicting his earlier
testimony, defendant later said that the officers told him to “get up against the
car” before they took the keys.
{¶ 38} Defendant also presented the testimony of Tomiko Grant. She
saw defendant come outside and smoke a cigarette outside of the car on the
night in question. Grant was sitting in her car and could not hear anything.
Defendant grabbed the cigarette from inside his vehicle. Grant observed
defendant’s friend and another female also present. Grant saw two vice cars
pull up in the parking lot and approach defendant. The officers searched
defendant and his car. The lighting in the parking lot was good enough for her
to be able to see the incident pretty clearly from a distance of three to four car
lengths. However, she wasn’t paying close enough attention to be able to
describe the officers. Defendant is Grant’s friend.
{¶ 39} The trial court found that a citizen informant provided
information to police concerning a Honda involved in drug activity. It is
irrelevant to the suppression analysis that the two complainants reported that
the male was “stashing” drugs in the Honda rather than selling them. Either
is unlawful criminal activity. The court found that the police were given a
specific license plate, that they identified the car, and saw defendant open the
door and throw something inside. Based on the totality of the circumstances,
the police approached the vehicle and saw a bag of crack cocaine in plain view.
Based on the record evidence, we cannot say that the trial court abused its
discretion in its findings or by denying defendant’s motion to suppress. This
assignment of error is overruled.
Convictions affirmed, sentence vacated in CR-523498 and the matter is
remanded for resentencing.
It is ordered that appellee and appellant split the 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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR