State v. Laubacher

[Cite as State v. Laubacher, 2019-Ohio-4271.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2018 CA 00169
JASON LAUBACHER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2017 CR 02118
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 15, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO GREGORY SCOTT ROBEY
PROSECUTING ATTORNEY ROBEY & ROBEY
KATHLEEN O. TATARSKY 14402 Granger Road
ASSISTANT PROSECUTOR Cleveland, Ohio 44137
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2018 CA 00169 2
Wise, J.
{¶1} Appellant Jason Laubacher appeals his convictions on nine drug-related
counts and two counts of Having Weapons while Under Disability, following no contest
pleas to all counts in the Stark County Court of Common Pleas.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS
{¶3} The relevant facts and procedural history are as follows:
{¶4} On October 23, 2017, the Canton Police Department received an
anonymous call complaining about a strong smell of marijuana at certain times of the
month and high traffic at a residence located at 1905 Superior Ave. N.E., Canton, Ohio.
(Supp. T. at 9). Vice Detective Michelle Kalabon was assigned to investigate the
complaint. She began her investigation by checking the Stark County Auditor's website
and learned from the property record card that the home was owned by Appellant Jason
Laubacher, that the residence was 915 square feet, and that it was heated with natural
gas. (Supp. T. at 10-11). She then checked for a criminal docket and learned that
Appellant Laubacher had been convicted of cultivation and possession of marijuana in
2015. Based on this information, she requested and received a court order to obtain two
years of electricity records for the residence. (Supp. T. at 10). The records showed an
unusually high amount of electricity use for a 915 square foot home. Based on this
information, Det. Kalabon suspected a marijuana growing operation and decided to try a
"trash pull."
{¶5} On October 26, 2017, Det. Kalabon tried the first "trash pull" which was
unsuccessful. On November 7, 2017, she decided to try a "knock and talk" but no one
Stark County, Case No. 2018 CA 00169 3
answered the door. (Supp. T. at 14). However, while at the residence she did notice
abandoned trash in the alley directly behind the house. She drove around to the back
alley and recovered two bags of trash from the public area. (Supp. T. at 14, 34). The trash
bags were taken to the basement of police headquarters and inventoried. Various items
were recovered including mail with Appellant Laubacher's name, "Coco Loco" potting soil
which is allegedly favored by marijuana growers for its draining qualities, cut shrink wrap
with an overwhelming smell of raw marijuana, and bits of raw or fresh marijuana known
as "shake." (Supp. T. at 13, 23).
{¶6} On November 7, 2017, based on the above information and evidence, Det.
Kalabon prepared an affidavit and requested a search warrant from the Stark County
Common Pleas Court. The curtilage warrant was granted and allowed K-9 Cash, a Dutch
Shepherd dog specifically trained to detect narcotics, and his handler to "sniff' the
residence. (Supp. T. at 62). Cash had worked with his handler, Detective Todd Gillilan,
since 2012. (Supp. T. at 90).
{¶7} At the hearing, Cash's trainer, Eric Stanbro, and his handler, Detective
Gillilan, testified about Cash's training in drug detection. Stanbro is the head K-9 trainer
for the Canton Police Department and has "trained a lot of dogs." He testified that he even
took a leave from the police department to train dogs for the Navy SEALS in 2013. (Supp.
T. at 60). It was explained that Cash was imprinted to detect narcotics and alerts by a
change of behavior when a drug is detected. "The alert is the change in behavior, staring
at the odor, and then I teach a behavior, which is the sit. And then he gets the reward
based off that." (Supp. T. at 64-65).
{¶8} Stanbro also trained Cash's handler, Det. Gillilan. The handler watches for
Stark County, Case No. 2018 CA 00169 4
the dog's change in behavior. (Supp. T. at 67). Once the handler gives the dog the
command to search, the dog takes over. (Supp. T. at 68). Stanbro does everything he
can to avoid teaching a dog and handler to "cue" and teaches a dog to work independently
of the handler to avoid a cue. (Supp. T. at 77).
{¶9} Cash and his handler have been certified by the Ohio Peace Officers'
Training Academy as a narcotics detection dog since 2012 and has been consistently
recertified since that time. (Supp. T. at 70-71, 90-91). Stanbro testified that Cash is one
of his favorite dogs. (Supp. T. at 73).
{¶10} On November 7, 2017, Cash and Det. Gillilan were called to do a "curtilage
sniff' at Appellant Laubacher's residence on Superior Avenue. (Supp. T. at 93). They
approached the front door and Cash went to work on the front of the residence. In a free
air sniff, Cash "went to the north a little bit and then came back to the bottom of the door
seam, at which upon inhaled twice really deep, which was a change of behavior for Cash.
And then lastly sat and turned back and looked at me." Cash alerted to the odor of an
illegal drug. (Supp. T. at 95). Det. Gillilan then went to the north side of the residence and
gave Cash the command to search. Cash approached a basement window, his behavior
changed and he sat and looked at Det. Gillilan. Cash again smelled an odor of narcotics.
(Supp. T. at 98). Det. Gillilan explained that he did not take Cash to the south side of the
residence because there were dogs there, and he wanted to avoid a dog fight. (Supp. T.
at 97).
{¶11} Along with the above testimony, the State introduced training logs that
demonstrated Cash's ability to detect drugs and were consistent with the testimony and
the certification records for Cash.
Stark County, Case No. 2018 CA 00169 5
{¶12} Based on Cash's detection of narcotics at the perimeter of the home, Det.
Kalabon sought and received a warrant to search Appellant Laubacher's residence from
the Stark County Common Pleas Court. A search of the residence revealed a marijuana
grow operation; over 1,000 grams of marijuana; over 250 grams of hashish; Psilocybin
(mushrooms) - a Schedule I controlled substance over five times bulk amount; over 10
unit doses in solid form of LSD; and two firearms.
{¶13} On November 15, 2017, the Stark County Grand Jury indicted Appellant,
Jason Laubacher, on eleven counts, as follows:
Illegal Cultivation of Marijuana, R.C. §2925.04(A)(C)(5)(d) [F2]
Trafficking in Marijuana, R.C. §2925.03(A)(2)(C)(3)(d) [F2]
Possession of Marijuana, R.C. §2925.11(A)(C)(3)(d) [F3]
Trafficking in Hashish, R.C. §2925.03(A)(2)(C)(7)(d) [F2]
Possession of Hashish, R.C. §2925.11(A)(C)(7)(e) [F3]
Aggravated Trafficking in Drugs, R.C. §2925.03(A)(2)(C)(1)(d) [F1]
Aggravated Possession of Drugs, R.C. §2925.11(A)(C)(1)(c) [F2]
Trafficking in L.S.D., R.C. §2925.03(A)(2)(C)(5)(c) [F3]
Possession of L.S.D., R.C. §2925.11(A)(C)(5)(b) [F4]
Having Weapons While under Disability, 2 counts, R.C.
§2923.13(A)(3) [F3]
{¶14} Appellant initially pled not guilty and on February 16, 2018, Appellant filed
a Motion to Suppress. Specifically, Appellant challenged the dog sniff search done as part
of the search warrant obtained for the curtilage of his home.
{¶15} On May 17, 2018, the trial court held a hearing on Appellant’s motion to
Stark County, Case No. 2018 CA 00169 6
suppress. At the hearing, the trial court heard testimony from four witnesses; three called
by the State and one called by Appellant. Exhibits included the search warrants and K-9
training certificates for Cash. (Supp. T. at 62).
{¶16} By Judgment Entry filed June 25, 2018, the trial court denied Appellant’s
motion to suppress finding that probable cause existed to issue the warrants. The trial
court found that based on a totality of the circumstances, probable cause existed for the
issuance of the search warrants.
{¶17} On September 13, 2018, Appellant withdrew his previous ‘not guilty’ pleas
and entered pleas of ‘no contest’ to all eleven (11) counts.
{¶18} At the plea hearing, the state briefly recited the facts:
On November 7th in Stark County, Ohio, Canton, Stark County, Ohio,
a search warrant was executed at the defendant's residence. That search
warrant was granted - given and granted by this court.
Inside the residence of the defendant, a litany of drugs were found,
including over a thousand grams of marijuana. The items of production are
- cultivation of marijuana, including glow- grow lights and other items that
had been harvested. But those items were there, and the weight does equal
over a thousand pounds [grams].
And there was also found in the residence, hashish, which was over
250 grams. There was also five times the bulk amount of mushrooms or –
Psilocin [sic] found in the residence. L.S.D. was also found in the residence,
which was over ten unit doses of the drug. And then two firearms were, also,
found in the residence but found to be operable.
Stark County, Case No. 2018 CA 00169 7
He did give a statement to detectives on scene, which were the
Canton Police Department Special Investigations Unit, admitted that he was
making money from this. Admitting that he was operating a grow operation.
Admitting that he was involved in the transportation and distribution of the
narcotics. (Plea/Sentence T. at 21-22).
{¶19} The trial court sentenced Appellant to six (6) years in prison. (9/21/2018
Plea and Sentencing Entry).
{¶20} Appellant filed a motion for a delayed Appeal which was granted by this
Court.
{¶21} Appellant now appeals, raising the following errors for review:
ASSIGNMENTS OF ERROR
{¶22} “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S
MOTION TO SUPPRESS EVIDENCE.
{¶23} “II. THE TRIAL COURT ERRED WHEN IT IMPOSED A 6 YEAR PRISON
TERM THAT IS NOT SUPPORTED BY THE RECORD.
{¶24} “III. THE TRIAL COURT ERRED WHEN IT IMPOSED THE MAXIMUM 5
YEAR DRIVER'S LICENSE SUSPENSION WITHOUT PROVIDING JUSTIFICATION
FOR SAME.
{¶25} “IV. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL.”
I.
{¶26} In his first assignment of error, Appellant argues the trial court erred in
denying his motion to suppress. We disagree.
Stark County, Case No. 2018 CA 00169 8
{¶27} 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, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d
1141(1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726 (1993). Second,
an appellant may argue the 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, 619 N.E.2d 1141 (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, 641
N.E.2d 1172 (1994); State v. Claytor, 85 Ohio App.3d 623, 620 N.E.2d 906 (1993);
Guysinger, supra. As the United States Supreme Court held in Ornelas v. U.S., 517 U.S.
690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “... as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de novo
on appeal.”
{¶28} Appellant challenges the grounds for the issuance of the curtilage warrant;
reliability of the K-9 sniff search; and probable cause for the search warrant for the home.
Stark County, Case No. 2018 CA 00169 9
{¶29} Appellant herein argues the search warrants were not supported by
probable cause.
{¶30} The Fourth Amendment to the United States Constitution and Article I,
Section 14 of the Ohio Constitution protect against unreasonable searches and seizures
and provide that a warrant can be issued only if probable cause for the warrant is
supported by an oath or affirmation and particularly describes the place to be searched
and the persons or things to be seized. See also Crim.R. 41(C); R.C. 2933.23.
{¶31} In deciding whether probable cause exists for the issuance of a search
warrant, the issuing judge must make “ ‘a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit before him, 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, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the
syllabus, following Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d
527 (1983). “[C]onsiderations to be taken into account when determining whether to issue
a search warrant include how stale the information relied upon is, when the facts relied
upon occurred, and whether there is a nexus between the alleged crime, the objects to
be seized, and the place to be searched.” State v. Castagnola, 2015-Ohio-1565, ¶ 34,
145 Ohio St.3d 1, 46 N.E.3d 638, citing 2 LaFave, Search and Seizure, Section 3.7(a),
(b), (d). “ ‘To establish probable cause to search a home, the facts must be sufficient to
justify a conclusion that the property that is the subject of the search is probably on the
premises to search.’ ” State v. Marler, 2d Dist. Clark No. 2007 CA 8, 2009-Ohio-2423, ¶
26, quoting State v. Freeman, 4th Dist. Highland No. 06CA3, 2006-Ohio-5020, ¶ 13. “The
Stark County, Case No. 2018 CA 00169 10
nexus between the items sought and the place to be searched depends upon all of the
circumstances of each individual case, including the type of crime and the nature of the
evidence.” State v. Carter, 2d Dist. Greene No. 2011 CA 11, 2011-Ohio-6700, ¶ 10, citing
Freeman at ¶ 13.
{¶32} The duty of the reviewing court is to ensure that the issuing judge had a
“substantial basis” for concluding that probable cause existed. Castagnola at ¶ 35;
George at paragraph two of the syllabus. When conducting any after-the-fact scrutiny of
an affidavit submitted in support of a search warrant, reviewing courts should accord
“great deference” to the issuing judge's determination of probable cause; “doubtful or
marginal cases should be resolved in favor of upholding the warrant.” George at
paragraph two of the syllabus. Neither a trial court nor an appellate court may substitute
its judgment for that of the issuing judge by determining de novo whether the affidavit
provided sufficient probable cause. Id.{¶33} Appellant herein argues that the tip received by the police from an
anonymous citizen was stale and was unreliable. Appellant claims that the tip was fifteen
(15) days old when the request for the warrant was made and was therefore stale.
{¶34} “There is no arbitrary time limit that dictates when information [offered to
support a search warrant application] becomes stale.” State v. Ingold, 10th Dist. No. 07-
AP648, 2008-Ohio-2303. Instead, “[t]he test for staleness is whether the alleged facts
justify the conclusion that contraband is probably on the person or premises to be
searched at the time the warrant issues.” Id. See also State v. Rieves, 8th Dist., 2018-
Ohio-955, 109 N.E.3d 190, ¶ 31 (internal quotation omitted) (stating information becomes
Stark County, Case No. 2018 CA 00169 11
stale when enough time has elapsed such that there is no longer sufficient basis to believe
that the items to be seized are still on the premises).
{¶35} “The question of staleness is not measured solely by counting the days
between the events listed in the affidavit and the application for warrant.” Ingold at 23.
“Ohio courts have identified a number of factors to consider in determining whether the
information contained in an affidavit is stale, including the character of the crime, the
criminal, the thing to be seized, as in whether it is perishable, the place to be searched,
and whether the affidavit relates to a single isolated incident or ongoing criminal activity.”
Id.{¶36} An affidavit supporting a search warrant which, viewed in its totality,
indicates investigation into an ongoing criminal operation, such as drug trafficking, may
support the issuance of a search warrant even where the information provided in the
affidavit is not recent. United States v. Ortiz, 143 F.3d 728, 733 (2d Cir.1998), quoting
United States v. Martino, 664 F.2d 860, 867 (2d Cir.1981) (“[W]hen the supporting facts
'present a picture of continuing conduct or an ongoing activity, ... the passage of time
between the last described act and the presentation of the application becomes less
significant.”); State v. Ridgeway, 4th Dist. 00CA19, 2001-Ohio-2655, quoting State v.
McKenzie, 6th Dist. No. E-97-040, (Sept. 18, 1998) (“ ‘[A]n affidavit which establishes a
pattern of conduct or indicates an ongoing investigation can justify the granting of a search
warrant based on old information.’ ”).
{¶37} For example, information in an affidavit over one month old has been found
to support probable cause to issue a search warrant where the affidavit describes ongoing
criminal activity. See, e.g., State v. Clouser, 4th Dist. No. 16CA4, 2016-Ohio-5370, 2016
Stark County, Case No. 2018 CA 00169 12
WL 4268772, ¶ 16-17 (two and one-half months between last incidents of drug
transactions and warrant application not stale and supported probable cause); State v.
Prater, 12th Dist. No. CA2001-12-114, 2002-Ohio-4487, 2002 WL 2005708, ¶ 10-14 (six
months between last incidents of drug transactions and warrant application not stale and
supported probable cause).
{¶38} Different offenses have different periods of time in which the government
can act on information before it is considered stale.
{¶39} In the instant case, Appellant was being investigated for, and was ultimately
charged with, operating a marijuana grow operation. A marijuana growing operation, in
which the marijuana must grow to maturity and then be harvested, has a longer lifetime
of relevant data than a cocaine distribution operation in which all sales may be
consummated within hours of delivery. See United States v. Greany, 929 F.2d 523, 525
(9th Cir.1991) (nearly two-year old information on marijuana growing operation upheld,
staleness evaluated in light of particular facts of case and nature of criminal activity and
property sought); United States v. Dozier, 844, F.2d 701, 707 (9th Cir.1988) (marijuana
cultivation is long-term crime; even “substantial” time lapse not controlling on staleness).
{¶40} Based on the facts of this case, we do not find that the tip was stale. We
likewise do not find that the tip was unreliable as the investigating officer did her own
independent verification by researching the auditor’s records, performing a trash pull,
subpoenaing and reviewing utility records and reviewing the criminal docket.
{¶41} We likewise consider the reliability challenges to the power usage the
canine sniff and find that taken together with the other evidence, probable cause existed
for the search warrants.
Stark County, Case No. 2018 CA 00169 13
{¶42} Det. Kalabon’s affidavit in support of the search warrant stated that the
electric records for Appellant’s property were unusually high for the previous two years.
She used the August, September and October electric consumption readings as
examples. We find same, taken together with the other evidence to be sufficient to support
the probable cause finding.
{¶43} Testimony and evidence were submitted as to the training and certification
of the K-9. While Appellant challenges the reliability of the canine sniff search because
the dog did not sniff the entire perimeter, we find no support for the proposition that such
is required. Here, the K-9 alerted twice to the presence of drugs at Appellant’s home.
Appellant does not challenge such findings.
{¶44} Even if we were to determine the search warrant was not supported by
probable cause, we could find the trial court did not err in denying Appellant's motion to
suppress under the “good faith exception” to the exclusionary rule set forth in United
States v. Leon, 468 U.S. 897 (1984), and adopted by the Ohio Supreme Court in State v.
Wilmoth, 22 Ohio St.3d 251 (1986). Under the “good faith exception,” the exclusionary
rule should not be applied so as to bar the use in the prosecution's case-in-chief of
evidence obtained by officers acting in objectively reasonable reliance on a search
warrant issued by a detached and neutral magistrate but ultimately found to be
unsupported by probable cause. State v. George, 45 Ohio St.3d 325, 330 (1980), citing
Leon, supra at 918-23, 926. However, even under the “good faith exception,” suppression
of evidence is appropriate where any of the following occurs:
(1) * * * the magistrate or judge * * * was misled by information in an
affidavit that the affiant knew was false or would have known was false
Stark County, Case No. 2018 CA 00169 14
except for his reckless disregard of the truth * * *; (2) * * * the issuing
magistrate wholly abandoned his judicial role * * *; (3) an officer purports to
rely upon * * * a warrant based upon an affidavit so lacking in indicia of
probable cause as to render official belief in its existence entirely
unreasonable; or (4) * * * depending on the circumstances of the particular
case, a warrant may be so facially deficient-i.e. in failing to particularize the
place to be searched or the things to be seized-that the executing officers
cannot reasonably presume it to be valid.
{¶45} Leon, supra at 923.
{¶46} We hold that, looking at the totality of the evidence, there was ample
probable cause to support the issuance of the warrants. The electrical usage was high
for the size of the house. The anonymous tip complained of an odor coming from the
house every other month in addition to high traffic at the home during those periods. Trash
recovered from the alley behind the house included a type of potting soil used by
marijuana growers, along with shrink wrap which smelled of marijuana. Additionally,
Appellant had previously been charged and found guilty of similar offenses.
{¶47} “Statements made in a search warrant affidavit enjoy a presumption of
validity. State v. Taylor, 174 Ohio App.3d 477, 2007-Ohio-7066, 882 N.E.2d 945 (1st
Dist.). Without evidence to the contrary, this court is bound to find the statements made
in the affidavit valid and, thus, the warrants valid.” State v. Mock, 2018-Ohio-268, 106
N.E.3d 154, ¶ 18 (8th Dist.).
{¶48} Appellant’s first assignment of error is overruled.
Stark County, Case No. 2018 CA 00169 15
II.
{¶49} In his second assignment of error, Appellant argues that his sentence is not
supported by the record. We disagree.
{¶50} R.C. §2953.08(G)(2), “Appeals based on felony sentencing guidelines”
provides:
The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence * * *. 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 2929.13(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. R.C.
2953.08(G)(2).
{¶51} “[A]ppellate courts must adhere to the plain language of R.C.
2953.08(G)(2).” State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231,
¶7. An appellate court may only modify or vacate a sentence if it finds by clear and
Stark County, Case No. 2018 CA 00169 16
convincing evidence that the record does not support the sentencing court's decision. Id.
at ¶23. Clear and convincing evidence is that “ ‘which will produce in the mind of the trier
of facts a firm belief or conviction as to the facts sought to be established.’ ” State v.
Silknitter, 3rd Dist. Union No. 14–16–07, 2017–Ohio–327, ¶ 7 quoting, Marcum, supra,
quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of
the syllabus. Clear and convincing evidence is that measure or degree of proof which is
more than a mere “preponderance of the evidence,” but does not require the certainty of
“beyond a reasonable doubt.” Marcum, at ¶ 22 quoting Ledford.
{¶52} R.C. § 2929.11(A) governs the purposes and principles of felony sentencing
and provides that a sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of felony sentencing, which are (1) to protect the
public from future crime by the offender and others, and (2) to punish the offender using
the minimum sanctions that the court determines will accomplish those purposes. Further,
the sentence imposed shall be “commensurate with and not demeaning to the
seriousness of the offender's conduct and its impact on the victim, and consistent with
sentences imposed for similar crimes by similar offenders.” R.C. § 2929.11(B).
{¶53} R.C. § 2929.12 sets forth the seriousness and recidivism factors for the
sentencing court to consider in determining the most effective way to comply with the
purposes and principles of sentencing set forth in R.C. § 2929.11. The statute provides a
non-exhaustive list of factors a trial court must consider when determining the
seriousness of the offense and the likelihood that the offender will commit future offenses.
{¶54} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124,
the court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856,
Stark County, Case No. 2018 CA 00169 17
845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court
severed the judicial-fact-finding portions of R.C. § 2929.14, holding that “trial courts have
full discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” Kalish at ¶1 and ¶11, citing Foster at ¶ 100. See
also, State v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306; State v.
Firouzmandi, 5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823.
{¶55} “Thus, a record after Foster may be silent as to the judicial findings that
appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶ 12.
However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.
2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at ¶ 13,
see also State v. Mathis, 109 Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1; State v.
Firouzmandi supra at ¶ 29.
{¶56} Thus, post-Foster, “there is no mandate for judicial fact-finding in the
general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster
at ¶ 42. State v. Rutter, 5th Dist. No. 2006–CA–0025, 2006–Ohio–4061; State v. Delong,
4th Dist. No. 05CA815, 2006–Ohio–2753 at ¶ 7–8. Therefore, post-Foster, trial courts are
still required to consider the general guidance factors in their sentencing decisions.
{¶57} There is no requirement in R.C. § 2929.12 that the trial court states on the
record that it has considered the statutory criteria concerning seriousness and recidivism
or even discussed them. State v. Polick, 101 Ohio App.3d 428, 431(4th Dist. 1995); State
v. Gant, 7th Dist. No. 04 MA 252, 2006–Ohio–1469, at ¶ 60 (nothing in R.C. § 2929.12 or
the decisions of the Ohio Supreme Court imposes any duty on the trial court to set forth
Stark County, Case No. 2018 CA 00169 18
its findings), citing State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94 (1992); State
v. Hughes, 6th Dist. No. WD–05–024, 2005–Ohio–6405, ¶ 10 (trial court was not required
to address each R.C. § 2929.12 factor individually and make a finding as to whether it
was applicable in this case), State v. Woods, 5th Dist. No. 05 CA 46, 2006–Ohio–1342,
¶ 19 (“... R.C. 2929.12 does not require specific language or specific findings on the
record in order to show that the trial court considered the applicable seriousness and
recidivism factors”). (Citations omitted).
{¶58} Here, Appellant herein pled no contest to nine drug-related counts (One F1,
four F2s, three F3s and one F4) and two counts of Having Weapons while Under Disability
(both F3s).
{¶59} The trial court considered the type and quantity of drugs found and seized
at Appellant’s home, along with operable firearms. (Plea T. at 21). The court also
considered statements Appellant made to the officers on the scene regarding his
transportation and distribution of the drugs and the profit he was making therefrom. (Plea
T. at 22). Additionally, the trial court considered his prior criminal history.
{¶60} The sentencing range for the F1 Aggravated Trafficking in Drugs count
alone is three (3) to eleven (11) years. The trial court imposed an aggregate sentence of
six (6) years in this case.
{¶61} Upon a thorough review, we find the record clearly and convincing supports
the sentence imposed by the trial court. We find the trial court properly considered the
purposes and principles of sentencing set forth in R.C. § 2929.11, as well as the
applicable factors set forth in R.C. § 2929.12, along with all other relevant factors and
circumstances. While Appellant may disagree with the weight given to these factors by
Stark County, Case No. 2018 CA 00169 19
the trial judge, Appellant’s sentence was within the applicable statutory range for a felony
of the first degree and therefore, we have no basis for concluding that it is contrary to law.
{¶62} Appellant’s second assignment of error is overruled.
III.
{¶63} In his third assignment of error, Appellant argues that the trial court erred in
imposing a maximum five (5) year driver’s license suspension. We disagree.
{¶64} Appellant herein argues that because the search warrants in this matter did
not involve an automobile, his driver’s license suspension was an abuse of discretion.
{¶65} Pursuant to R.C. §2925.11(E)(1) and (2), when an offender is sentenced for
felony drug possession under this statute, in addition to imprisonment and a fine, “[t]he
court shall suspend for not less than six months or more than five years the offender's
driver's * * * license * * *.” See, also, State v. Thompkins (1996), 75 Ohio St.3d 558, 561
(holding that mandatory driver's license suspensions for “all drug offenders, regardless of
whether a motor vehicle was used in the commission of the offense” are constitutional,
and serve “as an effective means to protect other drivers and passengers on the roads
and to deter future drug use and punish offenders”).
{¶66} We therefore find no abuse of discretion. Appellant’s third assignment of
error is overruled.
IV.
{¶67} In his fourth and final assignment of error Appellant argues the he was
denied the effective assistance of counsel.
{¶68} To prevail on a claim of ineffective assistance of counsel, a defendant “must
satisfy a two-prong test.” State v. Kennard, 10th Dist. No. 15AP-766, 2016-Ohio-2811, ¶
Stark County, Case No. 2018 CA 00169 20
14, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Under the first prong, a defendant must “demonstrate that his trial counsel's
performance was deficient.” Id. If a defendant “can show deficient performance, he must
next demonstrate that he was prejudiced by the deficient performance.” Id. A defendant's
“failure to make either showing defeats a claim of ineffective assistance of counsel.” Id.,citing State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989), quoting Strickland
at 697, 104 S.Ct. 2052.
{¶69} In order to demonstrate deficient performance by counsel, a defendant
“must show that his counsel committed errors which were so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
at ¶15 (Quotations omitted). Further, a defendant “must overcome the strong presumption
that defense counsel's conduct falls within a wide range of reasonable professional
assistance.” Id., citing Strickland at 689. In order to show prejudice, a defendant “must
establish there is a reasonable probability that, but for his counsel's unprofessional errors,
the result of the trial would have been different.” Id., citing Strickland at 689.
{¶70} Appellant herein argues that his counsel was ineffective because he failed
to subpoena the training, certification and/or testing records of the K-9 or his handler prior
to the suppression hearing and for failing to object to the admission of the K-9 certificates
at the hearing.
{¶71} Upon review, we find no prejudice to Appellant with regard to the failure to
subpoena the K-9 records. At the hearing, both the trainer and the handler of K-9 Cash
testified as to the canine’s training and certification. The training records were identified
by Det. Gillilan and the certification records were identified by both Eric Stanbro and Det.
Stark County, Case No. 2018 CA 00169 21
Gillilan. Appellant’s counsel cross-examined both the trainer and the handler. Appellant
has failed to show how the outcome of the hearing would have been any different had
counsel subpoenaed the records or challenged their admission.
{¶72} Appellant’s fourth assignment of error is overruled.
{¶73} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas of Stark County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/d 1001