State v. Velazquez , 2016 Ohio 5203 ( 2016 )

[Cite as State v. Velazquez, 2016-Ohio-5203.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
GENAR VELAZQUEZ : Case No. CT2015-0043
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2015-0011
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 1, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GERALD V. ANDERSON II ERIC J. ALLEN
27 North Fifth Street 713 South Front Street
P.O. Box 189 Columbus, OH 43206
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2015-0043 2
Farmer, P.J.
{¶1} On January 7, 2015, the Muskingum County Grand Jury indicted
appellant, Genar Velazquez, on one count of possession of drugs in violation of R.C.
2925.11, one count of trafficking in drugs in violation of R.C. 2925.03, and one count of
possession of criminal tools in violation of R.C. 2923.24. Said charges arose after a
traffic stop wherein appellant was a passenger in the vehicle. The vehicle was first
stopped by Ohio State Highway Patrol Trooper Timothy Williamson in Madison County
for a traffic violation. A responding K-9 jumped up to the open passenger window of the
vehicle. The trooper let the vehicle go, and then decided the K-9 had alerted on the
vehicle and he should have conducted a search. Trooper Samuel Hendricks was called
to be on the look-out for the vehicle. Trooper Hendricks stopped the vehicle for traffic
violations in Muskingum County. A K-9 was called to the scene and alerted to the
presence of drugs. A subsequent search revealed two suitcases full of marijuana in the
trunk of the vehicle.
{¶2} On March 2, 2015, appellant filed a motion to suppress, claiming an illegal
search of the vehicle. Hearings were held on March 5, and May 11, 2015. At the
conclusion of the hearings, the trial court denied the motion. The trial court never
memorialized its decision via an entry.
{¶3} A jury trial commenced on June 16, 2015. The jury found appellant guilty
as charged. By entry filed August 11, 2015, the trial court sentenced appellant to an
aggregate term of forty-two months in prison.
{¶4} Appellant filed an appeal, contesting the denial of his motion to suppress.
This court remanded the matter to the trial court for findings of fact and conclusions of
Muskingum County, Case No. CT2015-0043 3
law which the trial court filed on July 13, 2016. See State v. Velazquez, 5th Dist.
Muskingum No. CT2015-0043, 2016-Ohio-4782. This matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVERRULED
THE APPELLANT'S MOTION TO SUPPRESS."
II
{¶6} "THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO
CONSECUTIVE SENTENCES AS THE COURT FAILED TO ENGAGE IN THE
REQUISITE THREE PART ANALYSIS REQUIRED TO SENTENCE A DEFENDANT
TO CONSECUTIVE SENTENCES BY FAILING TO FIND THAT ANY OF THE THREE
FACTORS LISTED IN R.C. 2929.14(C)(4)(a)-(c) APPLIED."
I
{¶7} Appellant claims the trial court erred in denying his motion to suppress as
there was insufficient probable cause to stop the vehicle, the stop was predicated on a
"tip" via a previous stop in Madison County, and the stop was too lengthy an intrusion.
We disagree.
{¶8} 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 findings of fact.
In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1
Ohio St. 3d 19 (1982); State v. Klein, 73 Ohio App. 3d 486 (4th Dist.1991); State v.
Guysinger, 86 Ohio App. 3d 592 (4th Dist.1993). Second, an appellant may argue the
Muskingum County, Case No. CT2015-0043 4
trial court failed to apply the appropriate test or correct law to the findings of fact. In that
case, an appellate court can reverse the trial court for committing an error of law. State
v. Williams, 86 Ohio App. 3d 37 (4th Dist.1993). Finally, assuming the trial court's
findings of fact are not against the manifest weight of the evidence and it has properly
identified the law to be applied, an appellant may argue the trial court has incorrectly
decided the ultimate or final issue raised in the motion to suppress. When reviewing
this 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
any given case. State v. Curry, 95 Ohio App. 3d 93 (8th Dist.1994); State v. Claytor, 85
Ohio App. 3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S. Ct. 1657, 1663 (1996), "…as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal."
{¶9} In Terry v. Ohio, 392 U.S. 1, 22 (1968), the United States Supreme Court
determined that "a police officer may in appropriate circumstances and in an appropriate
manner approach a person for purposes of investigating possible criminal behavior
even though there is no probable cause to make an arrest." However, for the propriety
of a brief investigatory stop pursuant to Terry, the police officer involved "must be able
to point to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion." Id. at 21. Such an investigatory
stop "must be viewed in the light of the totality of the surrounding circumstances"
presented to the police officer. State v. Freeman, 64 Ohio St. 2d 291 (1980), paragraph
one of the syllabus.
Muskingum County, Case No. CT2015-0043 5
{¶10} This case involves two separate stops, the first in Madison County and the
second in Muskingum County. Both stops involved K-9 officers. During the first
suppression hearing held on March 5, 2015, the first stop came to light. The trial court
instructed the prosecutor to seek information on the first stop as it "may have been the
predicate to this stop" and provide the information to defense counsel. March 5, 2015
T. at 21. The suppression hearing then continued on the Muskingum stop.
{¶11} Trooper Hendricks stated he pulled the vehicle over for failure to stay left
while traveling through the city of Zanesville. Id. at 25. He admitted he was looking for
the red vehicle with the California registration from the first stop. Id. at 19, 27. On
redirect, Trooper Hendricks explained he pulled out behind the vehicle for "following too
closely" to the vehicle in front, because otherwise he "wouldn't know until they drove all
the way through Zanesville that they failed to get over to the left." Id. at 32. After
stopping the vehicle and observing "nervous indicators" from the driver, Trooper
Hendricks ran a records check and called for a K-9 unit. Id. at 13. It took ten minutes
for the K-9 unit to arrive. Id. During this time, Trooper Hendricks was working on the
citation, running the records check, and typing out the driver's information because the
driver had a license from the state of Delaware. Id. at 13-14. The K-9 alerted to the
vehicle. Id. at 15. The entire stop lasted approximately twenty minutes. Id. at 14-15.
{¶12} At the end of the hearing, defense counsel explained his issue was with
the first stop in Madison County. Id. at 38. He did not have an issue with the K-9's
qualifications or reliability with the Muskingum County stop. Id. The trial court stated,
"unless there's some issues with the other stop, the Court is going to rule in your
[appellee] favor." Id. at 40. The trial court explained (Id.):
Muskingum County, Case No. CT2015-0043 6
Because, obviously, there's no refuting that the testimony was they
were following too close and they didn't get over. He had the right to stop
the car. There's no question that - - or anything raised that the dog didn't
get there within a reasonable time of doing the ticket. Therefore, the
stop's okay.
***
But if there's something hinky about how the stop was made
because of what happened over there, then that's another issue.
{¶13} Defense counsel indicated he was fine with that. Id. at 40-41.
{¶14} The second suppression hearing was held on May 11, 2015, wherein
Troopers Williamson, Michael Wilson, and Gerald March testified to the first stop.
Trooper Williamson explained he pulled the vehicle over for speeding. May 11, 2015 T.
at 12. Trooper March observed the stop and stopped to assist with his K-9 officer. Id.
at 23. The K-9 walked around the vehicle, showed a "change of behavior," and put his
paws on the window, looking inside the vehicle. Id. at 18, 24-25. The vehicle was not
searched and the troopers let the vehicle leave. Id. at 15, 19, 25. Thereafter, the
troopers determined the K-9's response was an "alert" and because Trooper Williamson
believed "there was possibly criminal activity that was continued down the roadway,"
called Trooper Wilson and explained the situation for "somebody down the way" out
east. Id. at 5-6, 8, 15, 18-19, 27. Trooper Wilson in turn called Trooper Hendricks and
alerted him to a red vehicle with California plates. Id. at 8-9; March 5, 2015 T. at 18-19.
Muskingum County, Case No. CT2015-0043 7
{¶15} In its findings of fact and conclusions of law filed July 13, 2016, the trial
court stated the following:
After the first and second day of suppression hearings the defense
counsel stated that the stop of the vehicle in Muskingum County was valid
and the dog sniff and search were also valid. The sole issue raised was
that the car in which Mr. Velazquez was riding in should not be permitted
to be stopped twice in the same day even though there is not an argument
that there wasn't a traffic violation which caused the second stop. No legal
authority was presented to establish this argument of counsel therefore
the motion to suppress is denied.
{¶16} The tip received by Trooper Hendricks indicated a red vehicle with
California plates was traveling eastbound on I-70 and was suspected of containing
drugs. The record clearly demonstrates Trooper Hendricks observed two minor traffic
violations by a red vehicle with California plates. We find there were observable traffic
violations that gave rise to the stop. We further find the amount of time for the K-9 unit
to arrive was a reasonable length of time and did not prolong the stop, as Trooper
Hendricks was still in the process of issuing a citation. See State v. Batchili, 113 Ohio
St.3d 403, 2007-Ohio-2204.
{¶17} Upon review, we find the trial court did not err in denying the motion to
suppress.
{¶18} Assignment of Error I is denied.
Muskingum County, Case No. CT2015-0043 8
II
{¶19} Appellant claims the trial court erred in sentencing him to consecutive
sentences. We disagree.
{¶20} R.C. 2953.08 governs appeals based on felony sentencing guidelines.
Subsection (G)(2) sets forth this court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court's standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶21} "Clear and convincing evidence is that measure or degree of proof which
is more than a mere 'preponderance of the evidence,' but not to the extent of such
Muskingum County, Case No. CT2015-0043 9
certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought
to be established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
{¶22} R.C. 2929.14(C)(4) governs consecutive sentences and states the
following:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender to
serve the prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to punish
the offender and that consecutive sentences are not disproportionate to
the seriousness of the offender's conduct and to the danger the offender
poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
Muskingum County, Case No. CT2015-0043 10
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶23} Appellant was convicted on three counts, two felonies of the third degree
and one a felony in the fifth degree. By entry filed August 11, 2015, the trial court
merged the two felonies of the third degree and sentenced appellant to thirty month on
that count and twelve months on the remaining count, to be served consecutively for a
total term of forty-two months in prison.
{¶24} During the sentencing hearing, the trial court noted appellant had three
prior felony convictions in 2007, 1999, and 1998, and he was "transporting drugs from
Las Vegas to either Philadelphia or Delaware depending upon which story came
through." August 10, 2015 T. at 6-7. In ordering the sentences to be served
consecutively, the trial court stated the following (Id. at 7):
The Court finds this to be necessary based upon your criminal
history which shows a propensity and to protect the public from any future
crimes you may commit. The Court also finds it is not disproportionate to
the seriousness of the conduct and the danger you pose to the public.
The multiple offenses were committed during the course of conduct
that you engaged in, and you did so knowingly as well as with your
accomplice that you had with you whose whole trial is yet to come up.
Muskingum County, Case No. CT2015-0043 11
{¶25} The trial court echoed these findings in its judgment entry filed August 11,
2015, and again noted "Defendant has three (3) prior felony convictions." We find the
trial court complied with State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177,
syllabus, and R.C. 2929.14(C)(4) in ordering consecutive service.
{¶26} Upon review, we do not find clear and convincing evidence that the trial
court violated R.C. 2953.08(G)(2)(a) or (b) in sentencing appellant.
{¶27} Assignment of Error II is denied.
{¶28} The judgment of the Court of Common Pleas of Muskingum County, Ohio
is hereby affirmed.
By Farmer, P.J.
Delaney, J. and
Baldwin, J. concur.
SGF/sg 720