State v. Newman ( 2017 )

[Cite as State v. Newman, 2017-Ohio-4047.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 16 CA 15
REGINALD JEVON NEWMAN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 15 CR 80
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 30, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOEL BLUE TERRENCE K. SCOTT
PROSECUTING ATTORNEY ASSISTANT PUBLIC DEFENDER
JASON R. FARLEY 250 East Broad Street
ASSISTANT PROSECUTOR Suite 1400
139 West 8th Street, P.O. Box 640 Columbus, Ohio 43215
Cambridge, Ohio 43725
Guernsey County, Case No. 16 CA 15 2
Wise, John, J.
{¶1} Appellant Reginald Jevon Newman appeals his conviction, in the Court of
Common Pleas, Guernsey County, on several felony counts, including cocaine trafficking
and possession. Appellee is the State of Ohio. The relevant procedural facts leading to
this appeal are as follows.
{¶2} The State’s criminal case against appellant developed out of a series of
controlled drug purchases through a confidential police informant in February, March, and
April 2015, and the subsequent execution of a search warrant at a residence on
Fairground Road in Lore City, Ohio. The search warrant in question was signed by
Guernsey County’s probate/juvenile judge on April 16, 2015, although the form utilized
the heading "Cambridge Municipal Court, Guernsey County, Ohio."
{¶3} On August 7, 2015, appellant was indicted by the Guernsey County Grand
Jury on two counts of trafficking in cocaine (R.C. 2925.03(C)(4)(d)), one count of
trafficking in cocaine (R.C. 2925.03(C)(4)(e)), three counts of conspiracy to commit
trafficking in cocaine (R.C. 2923.01), one count of illegal manufacture of drugs (R.C.
2925.04), one count of possession of cocaine (R.C. 2925.11(C)(4)(e)), two counts of
possession of cocaine (R.C. 2925.11(C)(4)(a)), one count of possession of drugs
(suboxone) (R.C. 2925.11(C)(2)(a)), and one count of possession of drugs (alprazolam)
(R.C. 2925.11 (C)(2)(a)).
{¶4} On September 4, 2015, appellant filed a motion to suppress evidence. The
motion raised several grounds, including the argument that the probate/juvenile judge did
not have authority or jurisdiction to sign the search warrant, particularly when labeled with
Guernsey County, Case No. 16 CA 15 3
a municipal court heading. A hearing on the motion to suppress was conducted on
September 29, 2015.
{¶5} On October 2, 2015, the trial court issued a judgment entry, with findings of
facts and conclusions of law, denying appellant’s motion to suppress.
{¶6} The court subsequently dismissed the count of possession of suboxone and
the count of possession of alprazolam. A jury trial commenced on April 14, 2016, following
which appellant was found guilty of all remaining counts in the indictment except count
one (trafficking in cocaine (R.C. 2925.03(C)(4)(d)) and count two (conspiracy to commit
trafficking in cocaine (R.C. 2923.01)).
{¶7} On June 27, 2016, the trial court sentenced appellant to a total sentence of
sixteen years in prison.
{¶8} On July 28, 2016, appellant filed a notice of appeal.1 He herein raises the
following two Assignments of Error:
{¶9} “I. THE TRIAL COURT ERRED WHEN IT CONVICTED MR. NEWMAN OF
ENHANCED-DEGREE FELONIES FOR TRAFFICKING OR POSSESSION OF
COCAINE BASED ON GROSS WEIGHT THAT INCLUDED OTHER MATERIAL,
INSTEAD OF THE WEIGHT OF ACTUAL COCAINE, IN VIOLATION OF HIS RIGHT TO
DUE PROCESS. FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.
1Appellant’s notice of appeal appears to be untimely. However, in the interest of justice,
we hereby grant leave, sua sponte, for a delayed criminal appeal under App.R. 5.
Guernsey County, Case No. 16 CA 15 4
{¶10} “II. THE TRIAL COURT VIOLATED MR. NEWMAN'S RIGHTS TO DUE
PROCESS AND A FAIR TRIAL WHEN THE COURT DENIED THE MOTION TO
SUPPRESS, WHEN THE SEARCH WARRANTS WERE CAPTIONED ‘CAMBRIDGE
MUNICIPAL COURT’ AND ISSUED BY A PROBATE/JUVENILE JUDGE, IN VIOLATION
OF THE FOURTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE I, SECTIONS 5, 10, AND 16 OF THE OHIO
CONSTITUTION.”
I.
{¶11} In his First Assignment of Error, appellant contends his conviction for
cocaine trafficking and possession based on the gross weight of the substances seized
by law enforcement was a violation of his right to due process of law. We disagree.
{¶12} Appellant directs us to State v. Gonzales, 6th Dist. Wood No. WD–13–086,
2015–Ohio–461, which was initially affirmed by the Ohio Supreme Court on December
23, 2016, in a certified conflict appeal. See State v. Gonzales, ––– N.E. 3d ––––, 2016–
Ohio–8319. The Supreme Court therein held that the State, in prosecuting cocaine
possession offenses involving mixed substances under R.C. 2925.11(C)(4)(b) through (f),
must prove that the weight of the cocaine meets the statutory threshold, excluding the
weight of any filler materials used in the mixture. Three Justices signed the lead opinion
and one Justice concurred in the judgment only, with a separate opinion.
{¶13} However, on March 6, 2017, subsequent to the filing of the briefs in the case
sub judice, the Ohio Supreme Court, upon reconsideration, instead held as follows:
“Giving effect to the statute as a whole and to the intent of the legislature as expressed in
the words of the statute, we conclude that the applicable offense level for cocaine
Guernsey County, Case No. 16 CA 15 5
possession under R.C. 2925.11(C)(4) is determined by the total weight of the drug
involved, including any fillers that are part of the usable drug.” State v. Gonzales, ----
N.E.3d ----, 2017-Ohio-777, ¶ 18 (“Gonzales II”).
{¶14} Accordingly, appellant's First Assignment of Error must be overruled.
II.
{¶15} In his Second Assignment of Error, appellant contends the trial court erred
in admitting evidence seized from the Fairground Road residence pursuant to the search
warrant obtained by law enforcement officers. We disagree.
{¶16} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's finding of fact.
Second, an appellant may argue the trial court failed to apply the appropriate test or
correct law to the findings of fact. Finally, an appellant may argue the trial court has
incorrectly decided the ultimate or final issue raised in the motion to suppress. When
reviewing this third type of claim, 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. See State v. Fanning (1982), 1 Ohio St.3d 19, 437
N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; State v. Curry
(1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d
623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d
726. The United States Supreme Court has held that as a general matter determinations
of reasonable suspicion and probable cause should be reviewed de novo on appeal. See
Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d
911.
Guernsey County, Case No. 16 CA 15 6
{¶17} When issuing a search warrant, a trial judge or magistrate must make a
practical, common-sense decision whether, given all the circumstances set forth in the
affidavit, including the veracity and basis of knowledge of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime will be found
in a particular place. State v. George (1980), 45 Ohio St.3d 325, at paragraph one of the
syllabus, citing Illinois v. Gates (1983), 462 U.S. 213, 238–239 (internal quotation marks
omitted).
{¶18} Appellant first challenges the authority of the Guernsey County Probate /
Juvenile Court to issue the search warrant in question. We note Civ.R. 41(A)(1) states
that “[u]pon the request of a prosecuting attorney or a law enforcement officer *** [a]
search warrant authorized by this rule may be issued by a judge of a court of record to
search and seize property located within the court's territorial jurisdiction ***.” In addition,
R.C. 2933.21 states: “A judge of a court of record may, within his jurisdiction, issue
warrants to search a house or place ***.” The Ohio Supreme Court has indeed determined
that “[u]nless a probate judge has been assigned by the chief justice pursuant to Article
IV, Section 5(A)(3) of the Ohio Constitution to temporarily sit or hold court in another
division of a court of common pleas a probate judge does not have the authority to hear
evidence and issue search warrants in criminal matters.” State v. Brown, 142 Ohio St.3d
92, 28 N.E.3d 81, 2015-Ohio-486, ¶ 1.
{¶19} In reaching its decision in Brown, the Court relied in large measure on the
definition of “judge” set forth in R.C. 2931.01, finding the language of said statute to be
plain and unambiguous. However, our research reveals that subsequent to Brown, the
General Assembly amended R.C. 2931.01(B), which now reads in pertinent part: “As
Guernsey County, Case No. 16 CA 15 7
used in Chapters 2931. to 2953., except sections 2933.21 to 2933.33, of the Revised
Code: (1) “Judge” does not include the probate judge. (2) “Court” does not include the
probate court. ***.” We find the General Assembly thereby intended to remove the
restriction against probate judges issuing search warrants under R.C. 2933.21.
{¶20} We recognize the amendments to R.C. 2931.01 were not effective until
March 23, 2016, which post-dates the 2015 search warrant in the case sub judice.
However, the three companion cases addressed by the Supreme Court in Brown all
involved Alliance, Ohio, police detectives obtaining a search warrant from the Stark
County Court of Common Pleas, Probate Division. We take judicial notice that Stark
County has a separate judge of the probate division of court of common pleas. See R.C.
2101.02. In contrast, Guernsey County has a dual probate and juvenile judgeship. The
applicable definition of “juvenile court” applicable to Guernsey County is simply “[t]he
probate division of the court of common pleas.” See R.C. 2151.011(A)(1)(c). We also note
the definition of “judge,” for purposes of the Rules of Criminal Procedure, is a “judge of
the court of common pleas, juvenile court, municipal court, or county court, or the mayor
or mayor's court magistrate of a municipal corporation having a mayor's court.” Crim.R.
2(E). Furthermore, “[t]he juvenile court is a court of record within the court of common
pleas.” R.C. 2151.07.
{¶21} Thus, even assuming the 2016 amendments to R.C. 2931.01 are not
retroactive, we are unpersuaded that Brown precludes the issuance of search warrants
by a probate judge who also serves as the juvenile judge for a particular county. Finally,
given the lack of clear precedent on the present issue in regard to combined
probate/juvenile courts, we would otherwise conclude that the good-faith exception under
Guernsey County, Case No. 16 CA 15 8
United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), would have
applied to the officers’ execution of the search warrant under the circumstances of the
case sub judice.
{¶22} Appellant also contends the search warrant at issue was invalid because it
incorrectly utilized “Cambridge Municipal Court” as its heading. Clearly, juvenile courts
and municipal courts are granted separate jurisdictional authority by the General
Assembly. See R.C. 2151.23; R.C. 1901.02, 1901.18. The State concedes that a “clerical
error” occurred in this instance. However, it is well-established that inadvertent clerical
errors, unless they cause prejudice to the defendant, will not invalidate an otherwise valid
search warrant. See State v. Gervin, 3rd Dist. Marion No. 9–15–51, 2016-Ohio-5670, ¶
16 (additional citations omitted). We find no demonstration of prejudice to appellant by
the mistaken document heading under the circumstances presented.
{¶23} Appellant's Second Assignment of Error is overruled.
{¶24} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Guernsey County, Ohio, is hereby affirmed.
By: Wise, John, J.
Gwin, P. J., and
Baldwin, J., concur.
JWW/d 0503