State v. Clayton , 2014 Ohio 1427 ( 2014 )

[Cite as State v. Clayton, 2014-Ohio-1427.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100081
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CONRAD CLAYTON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-570339
BEFORE: S. Gallagher, J., Boyle, A.J., and Rocco, J.
RELEASED AND JOURNALIZED: April 3, 2014
ATTORNEY FOR APPELLANT
P. Andrew Baker
17877 St. Clair Avenue
Suite 150
Cleveland, Ohio 44110
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Martin M. Maxwell
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Defendant-appellant Conrad Clayton appeals from his conviction, entered
upon his plea of no contest, for offenses of trafficking and possession of criminal tools.
For the following reasons, we affirm.
{¶2} The trial court made the following findings of fact: On January 2, 2013,
Conrad was a passenger in a vehicle driven by Lloyd Jones. Two police officers
observed Jones change lanes without signaling and initiated a traffic stop. Jones was
driving the car while under a suspended license, so the police officers radioed for backup.
As the officers approached the vehicle, one of them observed Clayton holding a
marijuana cigarette. Clayton turned over the cigarette to the officer and was asked to exit
the car. While another officer frisked Clayton for officer safety, a third responding
officer saw what appeared to be a plastic baggie filled with cocaine falling out of the front
pocket of Clayton’s hooded sweatshirt. Clayton was relieved of the contraband and
arrested.
{¶3} In June 2013, Clayton pleaded no contest to one count of possession, in
violation of R.C. 2925.11(A); one count of trafficking, in violation of
R.C. 2925.03(A)(2); and one count of possessing criminal tools, in violation of
R.C. 2923.24(A). The trial court found Clayton guilty on all three counts, but merged
the trafficking and possession counts for sentencing. Clayton was sentenced to a
two-year term of imprisonment, one year on each count to be served consecutively. It is
from this conviction that Clayton timely appeals, advancing two assignments of error.
{¶4} In his first assignment of error, Clayton argues that the trial court erred in
denying his motion to suppress the discovered drugs because the police officers could not
have been able to identify the nature of the item from feel alone. We find no merit to
Clayton’s argument.
{¶5} An appellate court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence in reviewing the propriety of a motion to
suppress upon appeal. State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). In
this case, the trial court found that the drugs were discovered in plain view. According
to the evidence as presented, one officer observed the bag of drugs falling out of
Clayton’s pocket while another officer was conducting the pat-down search. The drugs
were not, therefore, discovered through the pat-down per se, and we need not address
whether the officer could have determined the nature of the contraband through feel
alone. Clayton’s first assignment of error is overruled.
{¶6} In his second assignment of error, Clayton argues that the trial court erred by
imposing consecutive sentences without making the three required findings pursuant to
R.C. 2929.14(C)(4).1 Contrary to Clayton’s argument, the trial court made separate and
Clayton does not advance any argument regarding whether the record does not clearly and
1
convincingly support the findings, other than to mention that the trial court incorrectly stated that his
12 prior convictions were all for drug trafficking, when according to Clayton, only 4 of those 12
involved drug trafficking. R.C. 2929.14(C)(4) does not require his prior convictions to be of the
same offense; therefore, any argument regarding the facts not supporting the finding is without merit.
distinct findings prior to imposing consecutive sentences. See State v. Venes,
2013-Ohio-1891, 992 N.E.2d 453, ¶ 17 (8th Dist.).
{¶7} The trial court succinctly found that
[(1)] A consecutive sentence is necessary to punish the offender, [(2)] that it
is not disproportionate to the seriousness of the offender’s conduct, and
[(3)] the offender’s history of criminal conduct, as indicated by this Court
previously, demonstrates that consecutive sentences are necessary to protect
the public from future crime by the offender.
Tr. 392:5-14; R.C. 2929.14(C)(4) (findings (1) and (2)) and 2929.14(C)(4)(c) (finding
(3)). The trial court made the required findings, and Clayton’s second assignment of
error is without merit.
{¶8} The decision of the trial court and Clayton’s conviction are affirmed.
It is ordered that appellee recover from appellant 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
KENNETH A. ROCCO, J., CONCUR