State v. Sherman

[Cite as State v. Sherman, 2013-Ohio-2136.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney
-vs- :
:
PATRICK R. SHERMAN : Case No. 12CA14
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2009-CR-0028
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 24, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN C. NIEFT JEFFREY P. UHRICH
38 South Park Street P.O. Box 1977
Mansfield, OH 44902 Westerville, OH 43086
Richland County, Case No. 12CA14 2
Farmer, J.
{¶1} On January 7, 2009, the Richland County Grand Jury indicted appellant,
Patrick Sherman, on one count of having weapons under disability with a firearm
specification in violation of R.C. 2923.13, one count of carrying a concealed weapon in
violation of R.C. 2923.12, one count of improper handling of a firearm in a motor vehicle
in violation of R.C. 2923.16, two counts of trafficking in drugs with forfeiture
specifications in violation of R.C. 2925.03, and two counts of possession of drugs (crack
cocaine and cocaine) with forfeiture specifications in violation of R.C. 2925.11. Said
charges arose after a traffic stop by Mansfield Police Officer Phil Messer, Jr.
{¶2} On May 29, 2009, appellant filed a motion to suppress, claiming an illegal
stop. A hearing was held on July 29, 2009. By judgment entry filed July 31, 2009, the
trial court denied the motion.
{¶3} On September 28, 2009, appellant pled guilty to having weapons under
disability with a firearm specification and possession of crack cocaine with a forfeiture
specification. The remaining counts were dismissed. By sentencing entry filed
September 29, 2009, the trial court sentenced appellant to an aggregate term of eight
years in prison.
{¶4} Appellant appealed his sentence, claiming his plea was not made
knowingly and voluntarily. This court agreed and reversed the matter for further
proceedings. State v. Sherman, 5th Dist. No. 2009-CA-132, 2010-Ohio-3959.
{¶5} On January 7, 2011, appellant filed a motion to discharge the case,
claiming a violation of his speedy trial rights. A hearing was held prior to trial on
January 10, 2011. The trial court denied the motion. The trial commenced and the jury
Richland County, Case No. 12CA14 3
found appellant guilty of all counts save for the two counts of drug trafficking. By
sentencing entry filed January 21, 2011, the trial court sentenced appellant to an
aggregate term of eight years in prison. The two outstanding counts were dismissed on
February 13, 2012.
{¶6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶7} "THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT-
APPELLANT'S REQUEST TO DISCHARGE THE CASE AS HIS RIGHT TO SPEEDY
TRIAL WAS VIOLATED PURSUANT TO R.C. 2945.71 AND R.C. 2945.73."
II
{¶8} "THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT-
APPELLANT'S MOTION TO SUPPRESS BASED UPON THE ILLEGAL SEARCH OF
DEFENDANT-APPELLANT'S PERSON AND PROPERTY BY LAW ENFORCEMENT
AS WELL AS THE ILLEGAL SEIZURE OF EVIDENCE FROM DEFENDANT-
APPELLANT BY LAW ENFORCEMENT."
III
{¶9} "THE TRIAL COURT ERRED BY IMPOSING FINES AS PART OF THE
DEFENDANT-APPELLANT'S SENTENCE WITHOUT CONSIDERING THE
DEFENDANT-APPELLANT'S PRESENT AND FUTURE ABILITY TO PAY THE FINES."
Richland County, Case No. 12CA14 4
I
{¶10} Appellant claims the trial court erred in denying his motion to discharge
the case as the 144 days between this court's reversal and his trial were unreasonable
and violated his rights to a speedy trial. We disagree.
{¶11} A timeline of events is in order: this court's reversal occurred on August
19, 2010, a pretrial was set for September 29, 2010 which was subsequently
rescheduled, new trial counsel was appointed on October 27, 2010, the state filed
discovery on October 28, 2010 and appellant was required to reciprocate, a pretrial was
held on November 24, 2010, appellant requested a bond hearing on December 6, 2010,
appellant filed a pro se request for new trial counsel on December 10, 2010, a
magistrate recommended a $50,000 cash and personal recognizance bond as well as
electronic monitoring on January 4, 2011, appellant filed a pro se motion to discharge
the case on January 4, 2011, appellant responded to the state's discovery on January 6,
2011, appellant's trial counsel filed a motion to discharge the case on January 7, 2011,
appellant filed a motion to recuse the judge on January 7, 2011, and the jury trial
commenced on January 10, 2011. Because appellant was incarcerated, the docket
includes numerous warrants to convey.
{¶12} R.C. 2945.71 governs time within which hearing or trial must be held. In
addressing a misdemeanor conviction and a no contest plea in State v. Hull, 110 Ohio
St.3d 183, 2006-Ohio-4252, paragraph one of the syllabus, the Supreme Court of Ohio
reaffirmed its previous position that "R.C. 2945.71 does not apply to criminal convictions
that have been overturned on appeal." The Hull court at ¶ 20 explained the following:
Richland County, Case No. 12CA14 5
In situations where the legislature has not expressed its intent for
R.C. 2945.71 to apply, the time limitation for bringing the appellant to trial
is governed by the Sixth Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution. In Barker v. Wingo (1972),
407 U.S. 514, 523, 92 S.Ct. 2182, 33 L.Ed.2d 101, the court determined
this to be "a reasonable period consistent with constitutional standards."
{¶13} In upholding a 149 day delay, the Hull court at ¶ 22-23 stated the
following:
In Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d
101, the court identified four factors to be assessed in determining
whether an accused had been constitutionally denied a speedy trial: (1)
the length of the delay, (2) the reason for the delay, (3) the defendant's
assertion of his right to a speedy trial, and (4) the prejudice to the
defendant. Id. at 530, 92 S.Ct. 2182, 33 L.Ed.2d 101. Even though no
single factor controlled, the court in Barker stated that the length of the
delay is particularly important:
"The length of the delay is to some extent a triggering mechanism.
Until there is some delay which is presumptively prejudicial, there is no
necessity for inquiry into the other factors that go into the balance.
Nevertheless, because of the imprecision of the right to speedy trial, the
length of delay that will provoke such an inquiry is necessarily dependent
Richland County, Case No. 12CA14 6
upon the peculiar circumstances of the case." (Emphasis added and
footnote omitted.) Id. at 530–531, 92 S.Ct. 2182, 33 L.Ed.2d 101.
{¶14} From our review of the docket, we find the time from reversal to retrial
(144 days) was reasonable. Appellant requested new trial counsel, was required to
reciprocate to the state's discovery filing, and requested a bond hearing.
{¶15} Assignment of Error I is denied.
II
{¶16} Appellant claims the trial court erred in denying his motion to suppress as
the evidence obtained during the traffic stop was against the guarantees of the Fourth
Amendment to the United States Constitution. We disagree.
{¶17} 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
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
Richland County, Case No. 12CA14 7
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."
{¶18} 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.
{¶19} Appellant's specific challenge is that the trial court's findings of fact are
against the manifest weight of the evidence. Appellant argues Officer Messer's
observations relative to his speed and illegal left turn were not the reasons why he was
stopped.
{¶20} As the Supreme Court of Ohio recognized in State v. Roberts, 110 Ohio
St.3d 71, 2006-Ohio-3665, ¶ 100, a review of a trial court's findings of fact is limited:
Richland County, Case No. 12CA14 8
"Appellate review of a motion to suppress presents a mixed
question of law and fact. When considering a motion to suppress, the trial
court assumes the role of trier of fact and is therefore in the best position
to resolve factual questions and evaluate the credibility of witnesses.
State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972.
Consequently, an appellate court must accept the trial court's findings of
fact if they are supported by competent, credible evidence. State v.
Fanning (1982), 1 Ohio St.3d 19, [20], 1 OBR 57, 437 N.E.2d 583.
Accepting these facts as true, the appellate court must then independently
determine, without deference to the conclusion of the trial court, whether
the facts satisfy the applicable legal standard." State v. Burnside, 100
Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8.
{¶21} In its judgment entry filed July 31, 2009, the trial court made the following
decision on the facts:
A trained experienced police officer working at 2:00 a.m. in a high
crime area is capable of making observations and decisions that an
untrained person would be incapable of. When at 2:00 a.m. such an
officer observes an unknown vehicle make an unannounced turn and
speed down an unknown alley, that officer has a reason to stop the
vehicle and check out the condition of the driver. Reasonable conclusions
Richland County, Case No. 12CA14 9
the officer could have made were that he was dealing with an impaired
driver or that the driver of the vehicle had some other untoward reason for
getting quickly away from the police. There was no evidence in this case
that Officer Messer had any idea who was driving the vehicle until the
vehicle came to a stop.
There is simply no indication that Officer Messer did anything
improper. While all citizens have constitutional rights, defendant – a
known criminal with a gun and drugs in his possession – acted in such a
way as to bring himself to the attention of the officer. The officer had a
right and a duty to check out why defendant was driving erratically and he
cited defendant for his failure to operate his vehicle in accordance to Ohio
law.
{¶22} The trial court specifically found Officer Messer to be credible in his
testimony: "[u]nder the circumstances of this case, this Court has no reason to question
the integrity of the Mansfield police officer who – by his training and experience – was
able to legitimately take a gun out of the hands of a person previously convicted of a
felony of violence."
{¶23} Appellant argues the stop was pretextural and Officer Messer knew who
he was prior to the stop. In our review of the record, we find appellant's position not to
be substantiated by the evidence.
{¶24} Officer Messer testified he first observed the vehicle driving at a high rate
of speed down an alley at 2:00 a.m. July 29, 2009 T. at 5, 21. He attempted to catch
Richland County, Case No. 12CA14 10
up to the vehicle. Id. at 5. The vehicle turned left from the alley without signaling. Id.
Officer Messer activated his patrol lights and the vehicle u-turned into a driveway and
stopped. Id. at 6, 12, 19-20, 22-23. As Officer Messer called in the stop, he observed
the driver of the vehicle "making a lot of movements, which is unusual for a stop." Id. at
6. Officer Messer approached the vehicle from the passenger side, observed two
people in the front seat, and asked them for identification. Id. at 7. The driver of the
vehicle appeared to be stalling and did not hand his identification over immediately. Id.
Backup officers arrived and asked the driver to exit the vehicle. Id. at 8. As the driver
turned, Officer Messer observed a silver handgun "up under his right leg." Id. The
driver was identified as appellant. Id. at 10. The videotape from the patrol car was
marked as State's Exhibit No. 4 and was reviewed by the trial court. Id. at 11, 24-25.
{¶25} Upon review, we find the stop met the requirements of Terry, and the trial
court did not err in denying appellant's motion to suppress.
{¶26} Assignment of Error II is denied.
III
{¶27} Appellant claims the trial court erred in imposing fines as the trial court
failed to consider his present and future ability to pay. We disagree.
{¶28} R.C. 2929.19(B)(5) states, "[b]efore imposing a financial sanction under
section 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised
Code, the court shall consider the offender's present and future ability to pay the
amount of the sanction or fine." In State v. Martin, 140 Ohio App.3d 326, 327, 2000-
Ohio-1942 (4th Dist.), our brethren from the Fourth District noted, "there are no express
factors that must be taken into consideration or findings regarding the offender's ability
Richland County, Case No. 12CA14 11
to pay that must be made on the record." All that is required is for the trial court to
consider the offender's present or future ability to pay.
{¶29} Appellee argues the trial court was very familiar with appellant's ability to
pay. During the first sentencing hearing, the trial court heard appellant's mother
wherein she stated "most of my son's life I've been taking care of him." September 28,
2009 T. at 19. The trial court was aware of appellant's high school education, that he
could read and write, his age, and the fact that he had multiple appearances before the
court. Id. at 6-7.
{¶30} In its sentencing entry filed January 21, 2011, the trial court ordered
appellant to pay a total fine of $7,000.00: $5,000.00 on the having weapons under
disability conviction, $1,000.00 on the possession of crack cocaine conviction, and
$1,000.00 on the possession of cocaine conviction. The possession of crack cocaine
conviction was a felony in the second degree and carried with it a mandatory fine up to
$7,500.00. R.C. 2925.11(E)(1) and 2929.18(A)(3)(b).
{¶31} R.C. 2929.18(B)(1) provides for the waiver of the mandatory fine if: 1) the
offender files an affidavit of indigency prior to sentencing alleging he/she is unable to
pay the mandatory fine, and 2) the trial court makes a finding that the offender is an
indigent person and unable to pay the mandatory fine. Appellant did not file an affidavit
of indigency prior to sentencing. Although appellant filed an affidavit of indigency for the
appointment of counsel back on November 10, 2009, such affidavit does not apply to
mandatory fines. State v. Gordon, 5th Dist. No. CT2007-0011, 2007-Ohio-5545. "[T]he
ability to pay a fine over a period of time is not equivalent to the ability to pay legal
Richland County, Case No. 12CA14 12
counsel a retainer fee at the onset of criminal proceedings." State v. Kelly, 145 Ohio
App.3d 277, 284 (12th Dist.2001).
{¶32} Based upon the foregoing, we find the trial court did not err in imposing
the complained of fines.
{¶33} Assignment of Error III is denied.
{¶34} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
s/ Sheila G. Farmer________________
s/ W. Scott Gwin__________________
s/ Patricia A. Delaney_____________
JUDGES
SGF/sg 503
[Cite as State v. Sherman, 2013-Ohio-2136.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
PATRICK R. SHERMAN :
:
Defendant-Appellant : CASE NO. 12CA14
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to
appellant.
s/ Sheila G. Farmer________________
s/ W. Scott Gwin__________________
s/ Patricia A. Delaney_____________
JUDGES