State v. Bevington

[Cite as State v. Bevington, 2012-Ohio-6285.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2012-CA-106
ANTON BEVINGTON :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 2012-
CR-0103
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 31, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN FERRERO STEVEN REISCH
PROSECUTING ATTORNEY STARK COUNTY PUBLIC DEFENDER
BY: KATHLEEN TATARSKY 200 W. Tuscarawas Street, Ste. 200
110 Central Plaza South, Ste. 500 Canton, OH 44702
Canton, OH 44702-1413
[Cite as State v. Bevington, 2012-Ohio-6285.]
Gwin, J.
{¶1} Appellant Anton Bevington [“Bevington”] appeals the May 8, 2012
Judgment Entry of the Stark County Court of Common Pleas denying his motion to
suppress evidence. Appellee is the State of Ohio.
Factual and Procedural Background
{¶2} Bevington was placed on post-release control (PRC) for three years in
September 2010 after a criminal conviction. In August 2011, Rick Polinori, a parole
officer from the Ohio Adult Parole Authority (APA), took over supervising Bevington’s
release.
{¶3} Bevington agreed to and signed a series of rules as a condition of his
post-release control. Among those rules was a set of rules that permitted his parole
officer to conduct unannounced home visits. Additionally, the rules provided for
warrantless searches of Bevington’s residence if the parole officer had reason to believe
Bevington was violating any conditions of post-release control. As one of the conditions
of post-release control, Bevington was to abstain from illegal controlled substances.
The Crime
{¶4} On October 7, 2011, Polinori received a call from Alliance Police Officer
Mike Jones about an incident at a hotel. Bevington had received a severe head injury
requiring medical attention. Based on the information that he was told, and his familiarity
with Bevington, Polinori suspected that drug activity might have been involved in the
incident. Polinori went to Bevington's home in Alliance to investigate. Polinori knocked
on the door, which was opened by Bevington's wife/girlfriend, Heather. Heather let
Polinori inside the home. Polinori found Bevington laying down in the living room.
Stark County, Case No. 2012-CA-106 3
Polinori spoke with Bevington and observed the injuries to his head. Polinori then told
Heather and Bevington that he was going to conduct a parole search of the home.
{¶5} Heather took Polinori to the basement where he observed some weight
lifting equipment. Polinori found three bottles of anabolic steroids and several
hypodermic needles inside Bevington's folded clothes.
{¶6} The bottles were sent to the Stark County Crime Laboratory on October
11, 2011 for testing. They were found to be 23.4 grams of Testosterone, an illegal
controlled substance.
{¶7} The Stark County Grand Jury indicted Bevington on one count of
possession of drugs, a violation of R.C. 2925.11(A)(C)(2)(b), a felony of the fourth
degree. The bill of particulars provided more details, i.e., the controlled substance was
Testosterone 23.4 grams in three factory sealed injection vials labeled Aratesto.
{¶8} On March 16, 2012, Bevington filed a motion to suppress. Bevington
claimed that he was granted an early release from post-release control on September
27, 2011, and, therefore, Polinori had no authority to conduct a warrantless search of
his home on October 7, 2011. On April 23 2012, the Court held a hearing on
Bevington’s motion.
Polinori’s Testimony
{¶9} Polinori’s testified that Bevington originally received a three-year period of
post-release control. However, Bevington became eligible for early release after
supervision for one year. On September 27, 2011, Polinori sent his report
recommending an early release for Bevington to the chief of the adult parole authority in
Columbus, Ohio. He further testified,
Stark County, Case No. 2012-CA-106 4
Yes, September 27, I believe is when I processed the paperwork
and it goes through a series of hands to be approved starting with my
supervisor to [sic.] Columbus.
And once they process the paperwork, they stamp it and send it
back to us.
Typically it takes anywhere from two to four weeks is the typical
turnaround time for that to happen.
During that time frame, however, they are on supervision until they
receive the final release.
T., April 23, 2012 at 12. The “Final Release from Supervision” document from the APA
had a processing date of October 14, 2011. T. at 11. The eligibility or “effective date”
typewritten on that form was September 27, 2011. Id. at 11-12.
Trial Court’s Decision and Plea
{¶10} The trial court found that “the validity of the search as a ‘parole search’
has not been questioned here. Polinori conducted a ‘good faith’ parole search of
[Bevington’s] residence.” The trial court reasoned that legal custody of the parolee shall
remain in the department of rehabilitation and correction until a final release is granted
by the APA pursuant to R.C. 2967.16. The trial court found that Polinori considered
Bevington under his supervision until he received the final release form from Columbus,
which he received on October 13 or 14, 2011. The trial court therefore applied the good
faith exception found in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82
L.Ed.2d 677(1984).
Stark County, Case No. 2012-CA-106 5
{¶11} On May 14, 2012, Bevington returned to the trial court to withdraw his plea
of not guilty and pled no contest to the charge in the indictment. The trial court found
him guilty and sentenced him to three years of community control. Bevington did not
receive an additional enhanced sentence for violation of post-release control.
Assignment of Error
{¶12} Bevington raises one assignment of error,
{¶13} “I. THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT'S
MOTION TO SUPPRESS THE SEARCH OF HIS RESIDENCE.”
Law and Analysis
{¶14} When a person is paroled, or released from confinement under a period of
post-release control, he or she is released from confinement before the end of his or her
sentence and remains in the custody of the state until the sentence expires or the APA
grants final release. R.C. 2967.02(C); R.C. 2967.02(D); R.C. 2967.15(A); R.C. 2967.16.
State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶36. Even after a
prisoner has met the minimum eligibility requirements, parole or post-release control is
not guaranteed; the APA “has wide-ranging discretion in parole matters” and may refuse
to grant release to an eligible offender. Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d
456, 2002-Ohio-6719, 780 N.E.2d 548, ¶ 28; State ex rel. Hattie v. Goldhardt, 69 Ohio
St.3d 123, 125, 630 N.E.2d 696(1994). Clark, 119 Ohio St.3d at ¶ 38.
{¶15} Under R.C. 2967.16, a releasee or a parolee whose maximum sentence
has not expired must satisfy the following requirements before being considered for final
release: (1) the parolee or releasee has faithfully performed the conditions and
obligations of the parole or post-release controls and obeyed the APA's rules and
Stark County, Case No. 2012-CA-106 6
regulations, (2) the parolee or releasee has been on parole or under post-release
control for at least one year, and (3) the superintendent of parole supervision has
recommended that the parolee or releasee be granted final release. Even if all of these
requirements are met, the APA's decision whether to grant final release is still
discretionary. See, e.g., Bates v. Ohio Adult Parole Auth. 10th Dist. No. 86AP-471, 1987
WL 17528(Sept. 22, 1987)(“While the Adult Parole Authority had the discretion to
terminate that parole after one year, it was not obligated to do so.”). State ex rel.
Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 192 672 N.E.2d 654 (1996).
{¶16} In Bevington’s case, the parties agree that he fulfilled the requirements to
be considered for an early release from post-release control. The sole issue in this case
is when that final release became effective.
{¶17} The term “final release” is defined as “a remission by the adult parole
authority of the balance of the sentence or prison term of a parolee or prisoner or the
termination by the authority of a term of post-release control of a releasee.” R.C.
2967.01(K).
{¶18} The final release in Bevington’s case is governed by R.C. 2967.16(B)(1),
which states, in relevant part,
the [adult parole] authority upon the recommendation of the
superintendent of parole supervision may enter upon its minutes a final
release and, upon the entry of the final release, shall issue to the released
prisoner a certificate of final release* * *.
{¶19} The language of R.C. 2967.16 is clear and unambiguous on its face and
requires no interpretation. The statute clearly states that in order for a final release to be
Stark County, Case No. 2012-CA-106 7
effective three events must occur. First, the superintendent of parole supervision must
recommend the final release to the APA. Second, the APA may enter upon its minutes a
final release. Finally, upon the entry of the final release, the APA shall issue to the
released individual a certificate of final release.
{¶20} In the case at bar, Polinori’s testimony established that he mailed the
paperwork for Bevington’s early release to the APA on or near September 27, 2011.
When the search of Bevington’s home took place on October 7, 2011, Bevington’s
status was that of a “Releasee.” R.C. 2967.01(J), defines a “Releasee” as,
an inmate who has been released from confinement pursuant to
section 2967.28 of the Revised Code under a period of post-release
control that includes one or more post-release control sanctions.
Simply filling out the recommendation and mailing it to the APA in Columbus does not
constitute a final release by the APA within the meaning of R.C. 2967.16. See, Knight v.
Stickrath, 40 Ohio St.3d 38, 40, 531 N.E.2d 716(1988).
{¶21} In the case at bar, Bevington had not been granted a final release from
post-release control by the APA because the certificate of final release was not entered
upon its record, and the APA did not issue the certificate of final release to Bevington
until October 14, 2011. Therefore, because the original three-year period of post-
release control supervision had not expired, Bevington remained under the supervision
of the APA. R.C. 2967.01(N)1. Unless the adult parole authority has properly issued a
certificate of final release, a releasee remains under supervision of the APA. See, e.g.,
Hylton v. McAninch, 4th Dist. No. 95 CA 2115, 1995 WL 766372(Dec. 28, 1995); Byrd v.
1
(N) “Post-release control,” means a period of supervision by the adult parole authority after a
prisoner's release from imprisonment that includes one or more post-release control sanctions imposed
under section 2967.28 of the Revised Code.
Stark County, Case No. 2012-CA-106 8
Brigano, 91 Ohio App.3d 721, 724, 933 N.E.2d 604(12th Dist. 1993). See also, Green v.
Christiansen, 732 F.2d 1397, 1399 (9th Cir.1984) (“A ministerial mistake does not
necessarily excuse [the petitioner] from serving the rest of his sentence”); Russie v.
United States Dep't of Justice, 708 F. 2d 1445, 1448 (9th Cir. 1982) (holding that
Commission is not estopped from exercising jurisdiction despite probation officer's
mistaken order of discharge); United States v. Merritt, 478 F.Supp. 804, 807
(D.D.C.1979) (“A convicted person will not be excused from serving his sentence
merely because someone in a ministerial capacity makes a mistake with respect to its
execution.”).
{¶22} We find that Polinori had authority to conduct a parole search of
Bevington’s residence on October 7, 2011 because the APA had not issued Bevington a
final release until October 14, 2011.
{¶23} Bevington next argues that the search of Bevington’s residence was
unlawful because Polinori did not have “reasonable grounds” to believe that Bevington
failed to abide by the law or by the terms of probation. The state responds that because
Bevington never argued this issue in the trial court, he has waived appellate review of
this contention.
{¶24} Crim.R. 47, which governs motions in criminal proceedings, provides, in
relevant part:
An application to the court for an order shall be by motion. A
motion, other than one made during trial or hearing, shall be in writing
unless the court permits it to be made orally. It shall state with particularity
the grounds upon which it is made and shall set forth the relief or order
Stark County, Case No. 2012-CA-106 9
sought. It shall be supported by a memorandum containing citations of
authority, and may also be supported by an affidavit. (Emphasis added.).
{¶25} In City of Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889(1988), the
Ohio Supreme Court explained that “[Crim.R. 47], * * * when applied to a motion to
suppress evidence obtained by search and seizure, requires that the prosecution be
given notice of the specific legal and factual grounds upon which the validity of the
search and seizure is challenged.” Id. at 219. “The prosecutor must know the grounds of
the challenge in order to prepare his case, and the court must know the grounds of the
challenge in order to rule on evidentiary issues at the hearing and properly dispose of
the merits.” Id. at 218. “Failure on the part of the defendant to adequately raise the basis
of his challenge constitutes waiver of that issue on appeal.” Id.; Accord, State v.
Shindler, 70 Ohio St.3d 54, 58, 636 N.E.2d 319(1994) (“[b]y requiring the defendant to
state with particularity the legal and factual issues to be resolved, the prosecutor and
court are placed on notice of those issues to be heard and decided by the court and, by
omission, those issues which are otherwise being waived”).
{¶26} A review of the record in the case at bar reveals that Bevington never
argued before the trial court that Polinori did not have “reasonable grounds” to conduct
the search. The trial court did not address the “reasonable grounds” issue in its
Judgment Entry, because, as the trial court specifically noted, “The validity of the search
as a ‘parole search’ has not been questioned here.” Further support for Bevington’s lack
of argument that Polinori did not have “reasonable grounds” to conduct the search is
contained in the record of the suppression hearing. When asked by the trial judge if
Polinori could conduct the search if Bevington was under supervision at the time,
Stark County, Case No. 2012-CA-106 10
defense counsel reiterated his argument based on R.C. 2967.16 and the final release.
(T. at 20-23). At no time did Bevington address the trial court’s concern regarding the
validity to conduct the search if Bevington was found to be under supervision at the
time.
{¶27} We find that Bevington never argued before the trial court that Polinori did
not have “reasonable grounds” to believe that Bevington failed to abide by the law or by
the terms of probation Accordingly, Bevington’s contentions concerning reasonable
grounds are waived on appeal. City of Xenia v. Wallace.
{¶28} For the forgoing reasons, Bevington’s sole assignment of error is
overruled in its entirety, and the judgment of the Stark County Court of Common Pleas
is affirmed.
By Gwin, J.,
Delaney, P.J., and
Wise, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. JOHN W. WISE
WSG:clw 1211
[Cite as State v. Bevington, 2012-Ohio-6285.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
ANTON BEVINGTON :
:
:
Defendant-Appellant : CASE NO. 2012-CA-106
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Stark County Court of Common Pleas is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. JOHN W. WISE