State v. Yetts , 2019 Ohio 1203 ( 2019 )

[Cite as State v. Yetts, 2019-Ohio-1203.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
JEFFERSON COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
JAMAR YETTS,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 18 JE 0004.
Criminal Appeal from the
Court of Common Pleas of Jefferson County, Ohio
Case No. 17 CR 114.
BEFORE:
Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. Jane M. Hanlin, Jefferson County Prosecutor and Atty. Samuel A. Pate, Assistant
Prosecuting Attorney, Jefferson County Justice Center, 16001 State Route 7,
Steubenville, Ohio 43952, for Plaintiff-Appellee.
Atty. Eric M. Reszke, Suite 810, Sinclair Building, Steubenville, Ohio 43952, for
Defendant-Appellant.
Dated: March 29, 2019
WAITE, P.J.
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{¶1} Appellant Jamar Yetts appeals from the judgment of the Jefferson County
Court of Common Pleas finding him guilty of possession of cocaine, trafficking in cocaine,
having weapons under disability and receiving stolen property, following jury trial.
Appellant raises numerous issues in this appeal. He argues his conviction is against the
manifest weight of the evidence. He also contends the trial court erred in sentencing him
to a term of eleven years for the convictions. Additionally, he argues error occurred when
his letter offering to plead guilty in return for a lesser sentence was presented to the jury.
Finally, Appellant contends the trial court erred in granting his request to self-represent.
Based on the analysis below, the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} On June 14, 2017, the Jefferson County Drug Task Force used two
confidential informants to purchase cocaine from Appellant. At the time of the transaction,
Appellant was sitting in his vehicle in the parking lot outside of his apartment. The drug
task force had in place an established protocol for controlled drug buys. Detective Tom
Ellis (“Det. Ellis”) of the task force testified that the protocol was followed in this buy. First,
a telephone call was made by an informant requesting he meet with Appellant so he could
purchase drugs - $40 worth of cocaine. This call was recorded by the task force. At the
end of the recording, Det. Ellis noted on the recording the date and time; the name of
Appellant; Appellant’s telephone number; the type of drug being purchased and the dollar
amount of the buy. After the buy was set up, Confidential Informant #1 was fitted with an
audio and video recording device. Confidential Informant #2 was not. Det. Ellis was
stationed in a vehicle across the street from Appellant’s apartment where the sale took
place and took photographs of the transaction. A review of the video reflects that Det.
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Ellis provided an introductory narrative including the date, Appellant’s name and that the
transaction involved a $40 buy of cocaine. The video shows both informants driving to
the location. Confidential Informant #2 got out of the car first. Informant #1 followed
shortly after and approached Appellant and Informant #2. Although the video is
somewhat shaky and difficult to follow, it appears that the buy had already occurred
between Appellant and Informant #2 by the time Informant #1 reached Appellant’s car.
Appellant’s face is momentarily visible on the video but there is no audio discussing the
buy nor is there visible confirmation. Once the transaction was concluded, the informants
met Det. Ellis at a predetermined location where they turned over the contraband. The
substance was field tested as positive for cocaine.
{¶3} On July 20, 2017, the same two confidential informants arranged a second
purchase of cocaine from Appellant at his residence at 730 N. Seventh Street, Apartment
212, Steubenville, Ohio. As with the June 14th buy, a recorded telephone call was made
to set up the purchase. After the call, Confidential Informant #1 was again wired with an
audio/video device and Confidential Informant #2 was not. The buy is memorialized in
three digital video files, each approximately ten minutes in length. A review of the first
video file for this buy begins with a short introductory statement by Det. Ellis, reflecting
the date and time, and that the buy was for $50 of cocaine from Appellant at his residence
in Steubenville. The remainder of this file shows the two confidential informants driving
to Appellant’s apartment building. The second video file begins with the informants exiting
their vehicle and standing outside of it awaiting Appellant. The number “730” can clearly
be seen on the side of the building, which confirms Appellant’s address of 730 North
Seventh Street in Steubenville. The next six minutes of video is silent and the camera is
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stationary and pointed skyward. At approximately six and half minutes into this video file,
Appellant is seen arriving in a burgundy SUV, similar to the vehicle in the video and
photographs from the June 14th buy. The informants approach Appellant, who
acknowledges them briefly, and both informants follow Appellant into the building lobby.
At this point, however, Confidential Informant #1 states that he is going to see his mother,
who apparently lives in the building. As they reach the elevator, Appellant says what
sounds like, “Are you going to tell her your problems?” Informant #1 responds, “What?”
Appellant says, “Go visit your mom.” Appellant and Informant #2 enter the elevator. The
rest of the video consists of Informant #1 walking through the halls, briefly visiting his
mother’s apartment and saying to her, “I’m doing something. I’ll tell you about it later.”
Informant #1 then waits in the hall near the elevator. Appellant and Informant #2 exit the
elevator shortly after, and this concludes the second video file. The third video file reveals
the two informants back in their vehicle and driving to the predetermined location to meet
with Det. Ellis. During the drive, both informants discuss their concern about not capturing
the buy on video. Informant #2 places a call to Det. Ellis telling him that Informant #1 did
not take part in the buy and asking if it is a problem that the buy was not captured on
video. In the final ten seconds, the informants both exit the vehicle after apparently
arriving to meet Det. Ellis.
{¶4} Later in the day, Det. Ellis drafted an affidavit in support of a search warrant
for Appellant’s residence. In his affidavit, Det. Ellis cites, among other information, the
following as probable cause for the warrant:
4. Confidential informant #1 was fitted with an electronic audio and video
recording device and provided with prerecorded funds.
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5. The confidential informants drove to 730 North Seventh Street in
Steubenville, Ohio and parked their vehicle. A short time later Yetts arrived
at 730 North Seventh Street driving a maroon Ford Expedition. Yetts exited
the vehicle and met with both confidential informants. Both confidential
informants and Yetts entered 730 North Seventh Street. Confidential
informant #2 and Yetts entered the elevator and went to the second floor of
the apartment building. Confidential informant #2 and Yetts exited the
elevator and entered apartment 212. While inside apartment 212, Yetts
sold confidential informant #2 crack cocaine in exchange for the
prerecorded currency. Following the drug transaction between Yetts and
confidential informant #2 both exited apartment 212 and proceeded to the
first floor of the apartment building and exited the building. Both confidential
informants met with detectives at a prearranged location. There confidential
informant #1 provided a detective with the purchased crack cocaine.
(State’s Exh. 1.)
{¶5} The trial court issued the search warrant and it was executed that same
day. During the search of the apartment, the officers seized two firearms which had both
been reported stolen, approximately 53 grams of cocaine, a digital scale, and a piece of
mail addressed to Appellant at that residence.
{¶6} On September 13, 2017, a Jefferson County Grand Jury returned a seven
count indictment against Appellant. Count 1 was for possession of cocaine, a fifth degree
felony in violation of R.C. 2925.11(A) and (C)(4)(a). Count 2 was for trafficking in cocaine,
a fifth degree felony in violation of R.C. 2925.03(A) and (C)(4)(a). Both counts 1 and 2
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relate to the June 14th buy. Count 3 was for possession of cocaine, a fifth degree felony
in violation of R.C. 2925.11(A) and (C)(4)(a). Count 4 was for trafficking in cocaine, a fifth
degree felony in violation of R.C. 2925.03(A) and (C)(4)(a). Both counts 3 and 4 relate to
the July 20th buy. Count 5 charged possession of cocaine in an amount that equals or
exceeds 27 grams in violation R.C. 2925.11(A) and (C)(4)(e), a first degree felony. This
corresponds to the cocaine seized from Appellant’s apartment. Count 6 was for violating
R.C. 2923.13(A)(3), having weapons while under disability as a result of a previous drug
violation, a third degree felony. This was due to the two guns seized from Appellant’s
residence during the search. Count 7 was for receiving stolen property, a third degree
felony in violation of R.C. 2913.51(A) because the seized guns were reported stolen.
{¶7} On January 19, 2018, an amended and superseding indicted was returned
against Appellant which added a forfeiture specification to count 2, seeking forfeiture of
Appellant’s vehicle used during the June 14th buy.
{¶8} Appellant filed a motion to suppress on January 4, 2018 in which he sought
to bar from trial all evidence obtained as a result of execution of the search warrant. He
did not directly attack the confidential informants’ veracity. Instead, he contended that
the state lacked probable cause for the warrant because there was no independent
corroboration of the statements made by the confidential informants in regard to the buys.
A hearing on the motion was held January 16, 2018. Det. Ellis was the only witness to
testify at the suppression hearing. He outlined the protocol for controlled buys and
discussed to what degree that protocol was followed in making the two buys in Appellant’s
case. No other witnesses testified. Importantly, Appellant never requested to have the
identity of the confidential informants made known, nor did he file a motion seeking to
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have them testify at the suppression hearing. The trial court issued a judgment entry on
January 23, 2018, overruling the motion to suppress and concluding that the search was
valid.
{¶9} The matter was set for a jury trial on January 23, 2018. The day before trial
was to commence, at a pretrial hearing, Appellant requested that his appointed counsel
be removed and new counsel be appointed. The state objected to the request. A lengthy
colloquy occurred concerning Appellant’s last minute request for new counsel. Appellant
stated that he did not like the way counsel was handling his case. He explained that in
his view, the text records from his cell phone were necessary to support his defense. As
his phone had been seized during the search, he asked counsel to retrieve the records
from the telephone company. Counsel had not done as Appellant requested. (1/22/18
Tr., p. 5.) The trial court informed Appellant that new counsel would not be appointed so
close to trial. Appellant then made the request to represent himself. (1/22/18 Tr., p. 9.)
The trial court discussed at length the problems and issues surrounding self-
representation and indicated that it was not inclined to grant Appellant’s request.
Ultimately, the court admonished Appellant to think about it overnight, and told Appellant
that if he still wished to represent himself he would be required to sign a waiver. (1/22/18
Tr., p. 12.)
{¶10} The record reflects that the following morning, the trial court again engaged
in a discussion about the dangers of self-representation. Appellant insisted on
representing himself. While the trial court cautioned against it, Appellant persisted and
executed a written waiver. The trial court ultimately granted Appellant’s request and
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ordered defense counsel to remain in the courtroom as stand-by counsel, as needed.
(1/23/18 Tr., p. 9.)
{¶11} The matter proceeded to trial that day. The jury found Appellant guilty on
all counts. On January 29, 2018 a sentencing hearing was held. Appellant was
sentenced to one year in prison each for counts 1, 2, 3, 4 and 7. He was sentenced to a
term of eight years on count 5 and three years on count 6. The sentences on counts 5
and 6 were ordered to be served consecutively. The sentences for counts 1, 2, 3, 4 and
7 were ordered to be served concurrently to the other sentences for a total stated prison
term of eleven years. Appellant filed this timely appeal.
ASSIGNMENT OF ERROR NO. 1
THE JURY VERDICT OF GUILTY TO ALL COUNTS OF THE
INDICTMENT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶12} Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.”
(Emphasis deleted.) State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997).
“Weight is not a question of mathematics, but depends on its effect in inducing belief.”
(Emphasis deleted.) Id.
{¶13} When reviewing a manifest weight of the evidence argument, a reviewing
court must examine the entire record, consider the credibility of the witnesses and
determine whether, in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered. Id. at 387, 389. Only in exceptional circumstances will a conviction
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be reversed as against the manifest weight of the evidence. Id. This strict test for
manifest weight acknowledges that credibility is generally the province of the factfinder
who sits in the best position to accurately assess the credibility of the witnesses. State v.
Hill, 75 Ohio St. 3d 195, 204, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St. 2d
230, 231, 227 N.E.2d 212 (1967).
{¶14} Appellant argues his convictions are against the manifest weight of the
evidence due to the state’s failure to present evidence establishing all of the elements of
his charged crimes. He contends the trial court erred in accepting the verdict of the jury
as there was “no audio, video or photographic evidence that identified [Appellant]
possessing and trafficking crack cocaine to anyone.” Since the informants did not testify
at trial, Appellant argues that there was no “chain of custody linkage” from Appellant to
the drug task force. (Appellant’s Brief, p. 7.)
{¶15} Appellant’s manifest weight argument is based solely on issues surrounding
the confidential informants. Appellant asserts that at trial the state failed to demonstrate
a link between Appellant and the charged offenses because it failed to provide testimony
from the confidential informants. Appellant urges this was necessary largely because the
informants failed to capture Appellant on audio or video making a sale of drugs during
one of the controlled buys. An examination of the manifest weight of the evidence
requires an examination of the evidence presented at trial. Thompkins, at 387, 389.
However, in a case such as this where Appellant challenged the validity of the search
warrant by filing a motion to suppress, the issue of the use of confidential informants to
procure the warrant was required to be addressed at the time Appellant sought to
suppress the evidence. State v. Truax, 7th Dist. No. 06 BE 66, 2007-Ohio-4993, ¶ 16;
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Crim.R. 12(C)(3). While the basis for procuring the warrant was the controlled buys,
neither confidential informant was present at the suppression hearing. Despite the fact
that Appellant was aware two confidential informants had been utilized to conduct both
controlled buys, Appellant never filed a motion seeking disclosure of the informants’
identity or seeking to have them present to testify at the suppression hearing.
{¶16} In Appellant’s motion to suppress he argued that the search lacked probable
cause because it “does not exist absent independent corroboration of the statements
attributed to an unnamed ‘confidential informants.’ ” (Motion to Suppress, p. 2.) Appellant
contended that in order to ascertain whether the affidavit seeking the warrant was
sufficiently supported, the trial court must rely on the veracity of the two informants. He
claimed that the search warrant was not issued as “the result of information provided by
the confidential informant but as a result of unsubstantiated police activity.” (Motion to
Suppress, p. 3.) In essence, Appellant contended that the informants had no independent
knowledge of Appellant’s drug activity. Instead, the police, who had been targeting
Appellant for some time, had coached the informants. (Motion to Suppress, p. 4.) Hence,
while Appellant’s motion was based entirely on a theory that could only be proved or
disproved by testimony from the informants, at no time did Appellant request their identity
be disclosed or that they be brought to testify.
{¶17} A motion for court ordered relief, “shall state with particularity the grounds
upon which it is made and shall set forth the relief or order sought.” Crim.R. 47. At a
suppression hearing, the state’s burden of proof “is limited to those contentions that are
asserted with sufficient particularity to place the prosecutor and court on notice of the
issues to be decided.” State v. Diaz, 5th Dist. No. 2016 CA 00113, 2017-Ohio-262, ¶ 23,
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citing City of Xenia v. Wallace, 37 Ohio St. 3d 216, 218, 524 N.E.2d 889 (1988). Thus,
the burden was on Appellant at the suppression hearing to articulate the issues to be
decided, including the link between the confidential informants and the search warrant,
and to take all necessary steps to support these issues with proof. Pursuant to Appellant’s
suppression motion, the issue to be addressed by the state and the court was whether
the confidential informants actually had independent information regarding Appellant’s
drug activity or whether they were essentially props used by the police who obtained all
of their relevant information from other, impliedly improper, police activity. (Motion to
Suppress, p. 3.) In attacking the validity of the search warrant in this manner, Appellant
was required to request that the identity of the confidential informants be disclosed and
to cross-examine them regarding the controlled buys in order to prove or disprove his
claims. No such motion seeking the disclosure of the confidential informants was ever
filed. Appellant relied solely on attacking the testimony of Det. Ellis at the suppression
hearing, instead.
{¶18} The general rule in Ohio regarding disclosure of a confidential informant’s
identity is “that the identity of an informant must be revealed to a criminal defendant when
the testimony * * * is vital to establishing an element of the crime or would be helpful or
beneficial to the accused in preparing or making a defense to criminal charges.” State v.
Williams, 4 Ohio St. 3d 74, 77, 446 N.E.2d 779 (1983).
{¶19} This Court held in State v. Kelley, 179 Ohio App. 3d 666, 2008-Ohio-6598,
903 N.E.2d 365 (7th Dist.2008), that the trial court did not err in failing to reveal the identity
of a confidential informant because the informant’s statement was not vital to establishing
an element of the case and that the identity of the informant was not helpful in assisting
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in preparation for trial, as the defense counsel requested the identity only after trial was
to begin. Id. at ¶ 8. In Kelley, the defendant did not file a motion to suppress and did not
seek the disclosure of the confidential informant until the day of trial. Id.
{¶20} At the suppression hearing in this matter, Det. Ellis testified regarding the
protocol for buys, including recording the telephone call made to arrange the buy,
supplying “marked” money, and having confidential informants wired to obtain audio and
visual recordings. He testified that the protocol was followed for the June 14th buy and
that he took photographs of the parking lot buy from across the street. (1/16/18 Tr., pp.
7-8.) He testified that he personally observed Appellant in his vehicle and selling the
cocaine to the informants. (1/16/18 Tr., pp. 7-8.) At the conclusion of this buy, Det. Ellis
testified that he met the informants at a separate location, who turned over the drugs
purchased from Appellant.
{¶21} Det. Ellis also testified regarding the second buy on July 20th. He noted that
initially the protocol was followed. (1/16/18 Tr., p. 10.) He admitted, however, that
Confidential Informant #2, who was not wearing video or audio equipment, went up to
Appellant’s apartment and purchased $50 worth of cocaine. The informant who was
wired did not participate in the actual buy. Det. Ellis met the informants at a separate
location after the transaction concluded, where they turned over the drugs they said they
purchased from Appellant. (1/16/18 Tr., p. 11.) Det. Ellis testified that based on the
results of the buys, he prepared an affidavit to obtain a search warrant for Appellant’s
apartment. While his application seeking the search warrant was spurred by the July 20th
buy, (1/16/18 Tr., p. 12), Det. Ellis testified that he
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provided [the judge] information of both controlled purchases, who it was
from, how the controlled purchase went down and I gave him a background
on the confidential informants, that they were -- were reliable and had
worked with me in the past.
(1/16/18 Tr., p. 13.)
{¶22} On cross-examination, Det. Ellis confirmed that his basis for seeking the
search warrant was the July 20th buy. (1/16/18 Tr., p. 15.) He also testified that the
second transaction was not recorded and that he did not maintain visual contact with the
confidential informants once they entered Appellant’s apartment building. (1/16/18 Tr., p.
16.) Det. Ellis testified that after the buy, he retrieved the contraband from the informants
at a separate location where they informed him that Confidential Informant #2 had
purchased the drugs from Appellant. (1/16/18 Tr., p. 18.) The following exchange also
occurred on cross-examination:
[APPELLANT’S COUNSEL]: Well, what’s the relationship between the two
confidential informants?
[DET. ELLIS]: I’m sorry?
THE COURT: Go ahead. You can ask him. We’re not going to get too
particular to the point where it might identify somebody.
APPELLANT’S COUNSEL]: Right and I don’t want that.
(1/16/18 Tr., pp. 18-19.)
{¶23} It is apparent from this exchange that Appellant’s counsel did not seek to
have the identity of the confidential informants disclosed and, in fact, was careful not to
do so while cross-examining Det. Ellis even though the purpose of the suppression motion
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was to contest the validity of the search warrant and even though Appellant’s theory was
based on information only the informants could provide.
{¶24} Appellant now argues that his convictions are against the manifest weight
of the evidence because the state failed at trial to provide testimony from the confidential
informants and failed to present photographic evidence of the buys. Because he failed
to timely raise this issue of the identity of the informants to the trial court, Appellant has
forfeited the right to raise the issue on appeal. State v. Schindler, 70 Ohio St. 3d 54, 58,
636 N.E.2d 319 (1994). Appellant has waived this issue, and any argument regarding
validity of the search warrant based on the information provided by Det. Ellis regarding
the controlled buys is also waived. The search undertaken pursuant to the warrant
yielded the drugs and firearms found in Appellant’s apartment. That contraband, taken
in conjunction with the controlled buys, led to the charges and subsequent convictions of
Appellant.
{¶25} Appellant was charged with trafficking, a violation of R.C. 2925.03(A) and
(C)(4)(a). This requires proof that Appellant knowingly sold or offered to sell a controlled
substance, in this case, cocaine. Possession, in violation of R.C. 2925.11(A) and
(C)(4)(a), requires proof that Appellant obtained, possessed or used a controlled
substance. Again, in this case the substance was cocaine in an amount over 27 grams,
a first degree felony. Having weapons while under disability in violation of R.C. 2923.13,
requires proof that Appellant acquired, had, carried or used any firearm or dangerous
ordnance after conviction on a prior felony drug offense. Finally, Appellant was charged
with receiving stolen property, a violation of R.C. 2913.51(A). This required the state to
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prove that Appellant received, retained or disposed of the property of another while
knowing or having reasonable cause to believe that the property was stolen.
{¶26} At trial, the state presented the testimony of Det. Ellis and of Detective
Christopher Vinci, another drug task force detective who assisted in executing the search
warrant. Det. Ellis testified about the manner in which the controlled buys were conducted
and the details of how the June 14th and July 20th buys occurred. He testified that after
the completion of both buys, drugs were recovered from the informants, who said they
purchased the drugs from Appellant. A search warrant was obtained which led to the
seizure of additional drugs and firearms from Appellant’s residence. Det. Ellis also
testified that the substance seized from Appellant’s apartment tested positive for cocaine
in a field test and that BCI confirmed, after additional testing, that the substance was
cocaine.
{¶27} The tapes of the phone calls setting up the buys and the videos from the
confidential informants of the two buys were played for the jury. As noted above, the
videos do not reveal the details of the transactions, so Det. Ellis testified about what was
occurring throughout the tapes, including when the informants arrived at the location, how
the building was identified as Appellant’s residence, and the manner in which Appellant’s
vehicle was identified.
{¶28} Det. Vinci testified about the execution of the search warrant and described
where the firearms were found. (1/23/18 Tr., p. 114.) He testified that a check on the
firearms was run through a national database. This revealed that both firearms had been
reported stolen. The state offered the reports about the firearms into evidence.
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{¶29} The testimony of the two detectives regarding the controlled buys, the
recording of the telephone calls and videos, and the drugs and firearms seized from
Appellant’s apartment all support the conclusion that Appellant possessed and was
trafficking in cocaine and that he had stolen firearms in his possession. A copy of
Appellant’s prior felony convictions was also presented, which supports his possession
of firearms while under a disability.
{¶30} Based upon the evidence in the record, each element of each offense was
proven at trial. We cannot conclude that Appellant’s convictions were against the
manifest weight of the evidence. Appellant’s first assignment of error is without merit and
is overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
SENTENCING THE DEFENDANT TO ELEVEN (11) YEARS IN PRISON.
{¶31} In his second assignment of error, Appellant contends the trial court erred
in sentencing him to eleven years in prison. Pursuant to State v. Marcum, 146 Ohio St. 3d
516, an appellate court is permitted to review a felony sentence to determine if it is
contrary to law. Further, “an appellate court may vacate or modify any sentence that is
not clearly and convincingly contrary to law only if the appellate court finds by clear and
convincing evidence that the record does not support the sentence.” Id.
{¶32} At the sentencing hearing on January 29, 2018, the trial court stated that it
considered the principles and purposes of sentencing set forth in R.C. 2929.11, including
the purpose of protecting the public from future crime by the offender and of punishing
the offender. The trial court also stated it considered factors regarding the seriousness
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of the offense and the likelihood of recidivism pursuant to R.C. 2929.12(B), (C), (D) and
(E). The court noted that Appellant was subject to a mandatory prison term for the first
degree felony.
{¶33} The court merged counts 1 and 2 and counts 3 and 4 for sentencing
purposes. Counts 6 and 7 also merged for sentencing as they were related to the firearms
recovered.
{¶34} Regarding consecutive sentencing, the trial court noted both at the
sentencing hearing and in the judgment entry of sentence that consecutive sentences
were not disproportionate to the seriousness of Appellant’s conduct, addressed the
danger Appellant poses to the public, and that the court sought to protect the public from
future crime. (1/29/18 Tr., p. 11.); (2/5/18 J.E.).
{¶35} According to R.C. 2929.14(C)(4), a trial court may impose consecutive
sentences if the court makes three statutory findings:
[T]hat 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.
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(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.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶36} Although the trial court initially indicated at the sentencing hearing that
consecutive sentencing findings were not necessary because “that only kicks in when you
exceed the maximum term of the biggest offense which we’ve not done,” and noted
“[y]ou’re probably the nicest guy I ever sent to prison but you keep doing bad things,” the
court ultimately sentenced Appellant to consecutive sentences. (1/29/18 Tr., p. 11.)
While the trial court did not mention R.C. 2929.14(C) specifically at the hearing, the court
found that Appellant had a prior criminal history, that consecutive sentences were not
disproportionate to the seriousness of Appellant’s conduct, and that Appellant posed a
danger to the public and consecutive sentences were necessary to protect the public from
future crime. (1/29/18 Tr., p. 11.) Taken as a whole, this record shows that the court
made the necessary findings even though not using the direct statutory language, at the
hearing. The trial court must make the requisite findings regarding consecutive
sentencing at the sentencing hearing and incorporate those findings into the sentencing
entry. State v. Williams, 7th Dist. No. 13 MA 125, 2015-Ohio-4100, 43 N.E.3d 797, ¶ 33-
34, citing State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
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The trial court here already made the required consecutive sentencing findings in the
written judgment entry, also.
{¶37} Appellant’s second assignment of error lacks merit and is overruled.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
PERMITTING THE STATE TO PRESENT THE DEFENDANT'S PLEA
OFFER LETTER TO THE JURY.
{¶38} In his third assignment of error Appellant contends the trial court erred in
allowing the state to present to the jury the letter he wrote concerning a plea. Pursuant
to Evid.R. 410, any statements made in the course of plea discussions should not be
admissible. The Ohio Supreme Court has held that in order to seek protection under
Evid.R. 410, a defendant is required to have a subjective expectation at the time the
statements were made that a plea was being negotiated. State v. Frazier, 73 Ohio St. 3d
323, 652 N.E.2d 1000 (1995), syllabus. That expectation is required to be “reasonable
under the circumstances.” Id. Evid.R. 410 is not implicated when the disputed statements
were provided to the state by the accused or his attorney. State v. Jeffries, 119 Ohio
St.3d 265, 2008-Ohio-3865, 893 N.E.2d 487, ¶ 9.
{¶39} As noted by the state, Evid.R. 410 does not provide protection where, as
here, Appellant drafted a letter to a prosecutor who was not assigned to his case, and
offered his own plea deal when no plea negotiations were being undertaken. The state
also noted that there was no response offered to Appellant’s letter because there were
no ongoing plea negotiations. Appellant testified at trial that he did not draft the letter in
question and that he did not tell the drafter what to write, but that he had signed the letter.
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(1/23/18, Tr., p. 158.) This record reflects that Appellant could not have possessed a
reasonable subjective expectation that a plea was being negotiated in this matter. Hence,
his letter offering to accept a plea was not subject to protection from being used as
evidence against him.
{¶40} Appellant’s third assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING
TO APPOINT TRIAL COUNSEL FOR THE DEFENDANT.
{¶41} In his fourth assignment of error, Appellant contends the trial court erred in
refusing to appoint new trial counsel. Appellant had been represented by counsel
throughout the proceedings until the day before trial when he requested new counsel.
{¶42} An indigent defendant’s right to counsel does not extend to an ability to
select the counsel of defendant’s choice and does not require that the appointed counsel
develop “a meaningful relationship” with the defendant. State v. Blankenship, 102 Ohio
App.3d 534, 558, 657 N.E.2d 559 (12th Dist.1995). Relevant grounds for determining
when new counsel should be appointed exist only after “a showing of good cause, such
as a conflict of interest, a complete breakdown in communication, or an irreconcilable
conflict which leads to an apparently unjust result.” Id., citing State v. Pruitt, 18 Ohio
App.3d 50, 57, 480 N.E.2d 499 (1984). The defendant bears the burden to demonstrate
that new counsel is required. If the defendant alleges facts which, if true, would require
relief and the appointment of new counsel, the trial court must inquire into the defendant’s
complaint and make that inquiry part of the record. State v. Deal, 17 Ohio St. 2d 17, 20,
244 N.E.2d 742 (1969).
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{¶43} In the instant matter, the transcripts of the proceedings both on the day
before trial was set to commence and the morning of trial contain extensive dialogue
between Appellant and the trial court regarding Appellant’s request for new counsel or to
self-represent. Appellant first contended that he needed new counsel because he sought
to obtain text records from his phone and had communicated that request to counsel to
no avail. Defense counsel denied that he and Appellant had any disagreement that would
impact representation. Appellant subsequently demurred and indicated that while he did
not have any real issue with counsel’s representation of him, he simply wanted new
counsel. Appellant ultimately stated: “I have everything right here” to move forward, and
requested that he be allowed to represent himself. (1/22/18 Tr., p. 11.)
{¶44} The trial court had the duty to inquire on the record as to Appellant’s
concerns. Vague or general objections do not trigger a duty to investigate further. Deal,
at 19. This record reveals the trial court inquired as to Appellant’s decision to seek new
counsel and a lengthy discussion was had on the record as to exactly why Appellant
thought he needed new counsel. Appellant’s stated concern about his telephone records
was quickly dispensed with and Appellant admitted he simply desired new counsel or, in
the alternative, he desired to represent himself. Such vague assertions one day before
trial do not trigger the kind of concerns regarding representation set forth in Pruitt, supra.
The decision to appoint new trial counsel rests within the sound discretion of the trial
judge. State v. Dukes, 34 Ohio App. 3d 263, 265, 518 N.E.2d 28 (8th Dist.1986). The
facts in the instant case indicate the trial court properly inquired into Appellant’s last
minute request for new counsel. Appellant did not adequately demonstrate why new
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counsel should be appointed. We conclude the trial court did not abuse its discretion in
failing to appoint new trial counsel one day prior to trial.
{¶45} While Appellant does not raise error in the trial court granting his request to
represent himself, this record does not reflect error in this regard. Once the trial court
made it clear that no new counsel would be appointed on the eve of trial, Appellant then
demanded his right to self-representation. The trial court fully apprised Appellant of the
pitfalls involved in such an endeavor and engaged in a dialogue to determine whether
Appellant fully understood what he was undertaking. Appellant was allowed a day to
reflect and consider. The trial court’s decision to grant Appellant’s request is supported
in the record, here.
{¶46} Appellant’s fourth assignment of error is without merit and is overruled.
Conclusion
{¶47} Based on the foregoing, Appellant’s first assignment of error contending his
convictions were against the manifest weight of the evidence is without merit, as the state
presented evidence that, if believed, supports his convictions. Appellant’s second
assignment of error regarding sentencing lacks merit, as the record demonstrates the trial
court conducted an analysis of the factors relative to consecutive sentencing at the
sentencing hearing and in the judgment entry of sentence. Appellant’s third assignment
of error regarding the admission of his letter into evidence is without merit because the
letter did not run contrary to the prohibition found in Evid.R. 410. There were no ongoing
plea negotiations and it was not reasonable under the circumstances for Appellant to
believe a plea negotiation was occurring. Appellant’s fourth assignment of error regarding
the trial court’s failure to appoint new counsel one day prior to trial is without merit, as a
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review of the record reflects the trial court inquired extensively into Appellant’s request
for new counsel and found no conflict existed which would warrant new counsel one day
prior to trial. Appellant’s convictions are upheld and the judgment of the trial court is
affirmed.
Donofrio, J., concurs.
D’Apolito, J., concurs.
Case No. 18 JE 0004
[Cite as State v. Yetts, 2019-Ohio-1203.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.