State v. Brunk ( 2021 )

[Cite as State v. Brunk, 2021-Ohio-4270.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2021 CA 0037
JOSEPH BRUNK
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2020 CR 0761
JUDGMENT: Affirmed in Part; Reversed in Part; and
Remanded
DATE OF JUDGMENT ENTRY: December 6, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP DARIN AVERY
PROSECUTING ATTORNEY 105 Sturges Avenue
JODIE SCHUMACHER Mansfield, Ohio 44903
ASSISTANT PROSECUTOR
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2021 CA 0037 2
Wise, J.
{¶1} Defendant-Appellant Joseph Brunk (“Appellant”) appeals his conviction in
the Richland County Court of Common Pleas for one count of Possession of a Fentanyl-
Related Compound in violation of R.C. 2925.11. Appellee is the state of Ohio. The
relevant facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 18, 2020, Appellee indicted Appellant on one count of
Possession of a Fentanyl Related Compound in violation of R.C. 2925.11, a fifth-degree
felony.
{¶3} On February 5, 2021, Appellant moved to suppress the evidence as fruits
of an illegal search and seizure.
{¶4} On February 24, 2021, the trial court held a hearing on Appellant’s Motion
to Suppress.
{¶5} During the hearing, Patrolman Travis Stantz testified he was watching 251
Sycamore Street in Mansfield, Ohio. The patrolman had made multiple drug arrests at
this address in the past. At twelve thirty in the morning on October 12, 2020, Patrolman
Stantz observed Appellant exit the residence and enter his vehicle. After following
Appellant, the patrolman witnessed Appellant turn onto Gray Court in Mansfield, Ohio.
Appellant immediately stopped the car on the street, blocking any traffic looking to use
Gray Court, a narrow street.
{¶6} Patrolman Stantz then approached the vehicle and made contact with
Appellant. Patrolman Stantz smelled the odor of raw marijuana. Patrolman Stantz asked
Richland County, Case No. 2021 CA 0037 3
Appellant to exit the vehicle, and observed a small baggie of suspected heroin on the
floor.
{¶7} On March 4, 2021, the trial court denied Appellant’s Motion to Suppress.
{¶8} On March 22, 2021, Appellant entered a plea of no contest, though the trial
court mistakenly noted a guilty plea on the Sentencing Entry.
{¶9} On April 30, 2021, the trial court sentenced Appellant to six months in
prison.
ASSIGNMENTS OF ERROR
{¶10} Appellant filed a timely notice of appeal. He herein raises the following two
Assignments of Error:
{¶11} “I. THE TRIAL COURT ERRED IN FINDING BRUNK’S NO-CONTEST
PLEA WAS A GUILTY PLEA.
{¶12} “THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
SUPPRESS EVIDENCE POLICE ILLEGALLY SEIZED DURING THE ILLEGAL
TRAFFIC STOP.”
I.
{¶13} In Appellant’s First Assignment of Error, Appellant argues the trial court
erred when issuing the Sentencing Entry indicating Appellant pled guilty instead of no
contest. The State concedes Appellant entered a no contest plea to the charge in
question, and that the plea recorded as guilty was in error. We agree.
{¶14} Upon a review of the transcript, Appellant entered a plea of no contest to
the charge in question. Accordingly, we sustain Appellant’s First Assignment of Error. On
remand, the trial court shall issue the necessary nunc pro tunc judgment entries to correct
Richland County, Case No. 2021 CA 0037 4
the clerical errors in the trial court’s applicable judgment entries to note Appellant pled no
contest.
II.
{¶15} In Appellant’s Second Assignment of Error, Appellant argues the trial court
erred in denying Appellant’s Motion to Suppress. We disagree.
{¶16} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibit the government from conducting unreasonable
searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565
N.E.2d 1271.
{¶17} Appellate review of a trial court’s decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713
N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role
of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 1996-Ohio-134, 661
N.E.2d 1030. A reviewing court is bound to accept the trial court’s findings of fact if they
are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,
145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court
must independently determine as a matter of law, without deference to the trial court’s
conclusion, whether the trial court’s decision meets the applicable legal standard. State
v. Williams, 86 Ohio App.3d 37, 41, 619 N.E.2d 1141 (4th Dist.1993), overruled on other
grounds, State v. Gunther, 4th Dist. Pickaway No.04CA25, 2005-Ohio-3492, ¶16.
Richland County, Case No. 2021 CA 0037 5
{¶18} Three methods exist to challenge a trial court’s ruling on a motion to
suppress. First, appellant may challenge the trial court’s findings of fact. State v. Fanning,
1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Second, appellant may argue the trial court
failed to apply the appropriate test or correct law of the findings of fact. In that case, the
appellate court can reverse the trial court for committing an error of law. Williams at 41.
Third, appellant may argue the trial court incorrectly decided the ultimate issue raised in
the motion to suppress. When addressing the third type of challenge, an appellate court
must independently determine, without deference to the trial court’s conclusion, whether
the facts meet the appropriate legal standard in the given case (Citation omitted). State
v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994).
{¶19} Appellant argues Patrolman Stantz had no legal basis for stopping
Appellant, and that Stantz illegally conducted a search of Appellant’s vehicle. We
disagree.
{¶20} “When police observe a traffic offense being committed, the initiation of a
traffic stop does not violate Fourth Amendment guarantees, even if the stop was
pretextual or the offense so minor that no reasonable officer would issue a citation for it.”
State v. Raleigh, 5th Dist. Licking No. 2007-CA-31, 2007-Ohio-5515, ¶20, citing Whren v.
United States (1996), 517 U.S. 806, 116 S.Ct. 1769, 1774-75.
{¶21} In the case sub judice, Appellant parked his car blocking traffic entering
Gray Court. Mansfield Codified Ordinance 351.11 provides:
(a) No person shall stop, stand or park any vehicle upon a street,
other than an alley, in such manner or under such conditions as to leave
available less than ten feet of width of the roadway for the free movement
Richland County, Case No. 2021 CA 0037 6
of vehicular traffic, except that a driver may stop temporarily during the
actual loading or unloading of passengers or when necessary in obedience
to traffic regulations or office traffic control devices or signals of a police
officer.
(b) No person shall park a vehicle within an alley in such a
manner or under such conditions as to leave available less than ten feet of
the width of the roadway for free movement of vehicular traffic.
{¶22} In the case sub judice, the patrolman’s testimony that Appellant parked his
car blocking traffic is sufficient to justify the initial stop of Appellant.
{¶23} “The smell of marijuana, alone, by a person qualified to recognize the odor,
is sufficient to establish probable cause to conduct a search.” State v. Moore, 90 Ohio
St.3d 47, 734 N.E.2d 804 (2000).
{¶24} In the case sub judice, the patrolman testified that as he made contact with
Appellant, he smelled the odor of raw marijuana. He then asked Appellant out of the
vehicle. As Appellant was exiting the vehicle, Patrolman Stantz saw a small bag of what
he believed to be heroin. The substance was later identified as containing fentanyl.
Therefore, the patrolman’s smell of raw marijuana prior to the search of Appellant’s
vehicle is sufficient to establish probable cause to conduct a search.
{¶25} Appellant’s Second Assignment of Error is overruled.
{¶26} For the foregoing reasons, the judgment of the Court of Common Pleas of
Richland County, Ohio, is affirmed in part, reversed in part, and remanded to the trial
court to issue the necessary nunc pro tunc judgment entries to correct the clerical error
Richland County, Case No. 2021 CA 0037 7
in its applicable judgment entries of plea and sentence to note Brunk entered a plea of no
contest and not a plea of guilty.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
JWW/br 1201
Richland County, Case No. 2021 CA 0037 8
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