State v. Velliquette

[Cite as State v. Velliquette, 2020-Ohio-4855.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-19-1232
Appellee Trial Court No. CR0201902337
v.
Dyllan Velliquette DECISION AND JUDGMENT
Appellant Decided: October 9, 2020
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
*****
ZMUDA, P.J.
I. Introduction
{¶ 1} This matter is before the court on appeal from the August 30, 2019
judgment, denying the motion to suppress of appellant Dyllan Velliquette, and the
September 12, 2019 judgment, sentencing appellant to an aggregate prison term of 3 to
4 ½ years in prison, ordered consecutive to the balance of post release control remaining
for a separate conviction. We affirm as to the trial court’s ruling on appellant’s motion to
suppress, and dismiss regarding sentencing, finding the issue is not ripe for review.
II. Facts and Procedural Background
{¶ 2} On June 17, 2019, appellant and two co-defendants, Gustavo Tapia and
Darrien Davis, forced their way into a home, pointed a gun at one of the occupants and
demanded cash and access to a safe. The three fled after another occupant called for
help. Later in the evening, police stopped a vehicle driven by S.W.,1 with Tapia and
Davis as passengers. S.W. cooperated with the investigation and admitted that she waited
outside in the car while appellant, Tapia, and Davis were inside the victims’ home. She
also told police where she had dropped appellant off afterwards, at appellant’s mother’s
home. Police went to his mother’s house and conducted a search with her consent,
locating dark clothing and a firearm possibly connected to the incident.
{¶ 3} Police later apprehended appellant and took him to the Safety Building for
an interview. Prior to the interview, Detective Kaczmarek asked appellant his name and
date of birth. He also asked appellant where he was currently staying, and appellant
indicated he stayed at both his mother’s and father’s homes and verified his mother’s
address. Detective Kaczmarek advised appellant of his Miranda rights, went over the
waiver of rights form, and appellant signed the waiver.
1
S.W. was identified in the record as a witness, subpoenaed for the September 9 trial
date.
2.
{¶ 4} At the start of the interview, Detective Kaczmarek noted appellant looked ill,
and asked appellant how he was feeling. Appellant told the detective that he had been
roofing all day and was tired. Aside from appellant’s weariness, the detective did not
note any other conditions that suggested intoxication. Appellant spoke without slurring
and gave thought-out answers to the detective’s questions. Appellant admitted he was
with Tapia, Davis, and S.W. the evening of the incident but denied involvement in any
crime. After learning that police searched his mother’s home with her consent, appellant
asked for an attorney and ended the interview.
{¶ 5} On August 2, 2019, appellant was indicted on one count of aggravated
robbery in violation of R.C. 2911.01(A)(1) and (C), a felony of the first degree, and one
count of aggravated burglary in violation of R.C. 2911.11(A)(2) and (B), a felony of the
first degree.2 Each count included a firearm specification pursuant to R.C. 2941.145(A),
(B), (C), and (F). Appellant was arraigned on August 7, with appointed counsel, and
entered a plea of not guilty. Appellant also filed a motion to suppress his statements from
his police interview, arguing he was too intoxicated to properly waive his Miranda rights
and the detective elicited an incriminating statement prior to having him sign the waiver.
2
The case is designated as a “re-indictment of CR 19-2106.” Appellant was initially
charged by indictment on June 26, 2019 in Lucas Common Pleas case No. CR
201902106 with a single count of aggravated burglary with a firearm specification. That
case was dismissed by nolle prosequi at the request of the state on August 21, 2019, at the
matter proceeded in the new case, now on appeal.
3.
Additionally, appellant argued that he was improperly coerced into giving statements,
rendering his statements involuntary.
{¶ 6} On August 26, 2019, the trial court held a hearing on the motion to suppress,
and determined appellant was not too intoxicated to make a knowing and intelligent
waiver of his Miranda rights, noting appellant’s ability to respond to questions and
terminate the questioning by asking for a lawyer. The trial court further found that
Detective Kaczmarek’s questions about where appellant was staying were identifying
questions, typical of preliminary questions preceding an interrogation, and appellant
again identified his mother’s house as his house after signing the Miranda waiver.
Finally, the trial court determined that any misrepresentation by Detective Kaczmarek,
regarding the number of people confessing to the crime, did not render appellant’s
statements involuntary.
{¶ 7} On September 9, 2019, the scheduled trial date, appellant entered a no
contest plea to aggravated robbery and aggravated burglary, with the state dismissing the
firearm specifications. The parties agreed to a jointly recommended sentence of 3 to 4.5
years.
{¶ 8} On September 11, 2019, the trial court held a sentencing hearing, and over
appellant’s objection to the imposition of indefinite sentencing under the Reagan Tokes
law, imposed the jointly recommended sentence of a minimum term of 3 years in prison
and a maximum term of 4.5 years in prison on each count, and ordered the sentences to
be served concurrently to each other, but consecutively to any remaining time imposed as
4.
post release control in a prior conviction.3 The trial court further determined that each
count was an offense of violence pursuant to R.C. 2901.01(A)(9)(a)-(d), and imposed
post release control as to each count for the 5-year mandatory period, with proper notice
to appellant.
{¶ 9} From this judgment, appellant filed a timely appeal.
III. Assignments of Error
{¶ 10} In his appeal, appellant raises the following issues as error for our
review:
I. The Trial Court erred in denying Appellant’s Motion to Suppress.
II. The Reagan Tokes Act is unconstitutional.
IV. Analysis
{¶ 11} In his first assignment of error, appellant argues his statements to police
should have been suppressed, as he did not make a knowing, intelligent, and voluntary
waiver of his rights prior to speaking with police. The statements at issue include
preliminary information supplied by appellant regarding where he lived and admissions
during the interview regarding his activities with Tapia, Davis, and S.W.
3
The trial court did not impose any post release control time in the prior case, Lucas
County Common Pleas case No. CR 201502822, and therefore, indicating that time
would be consecutive is merely a statement of applicable law. Pursuant to R.C.
2929.141(A)(1), “[a] prison term imposed for the violation shall be served consecutively
to any prison term imposed for the new felony.”
5.
{¶ 12} Our review of the trial court’s decision, denying appellant’s motion to
suppress “presents a mixed question of law and fact.” State v. Wesson, 137 Ohio St. 3d
309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 40, quoting State v. Burnside,100 Ohio St.3d
152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We must accept the trial court’s factual
findings if they are supported by competent credible evidence, and “independently
determine, without deference to the conclusion of the trial court, whether the facts satisfy
the applicable legal standard.” Wesson at ¶ 40, quoting Burnside at ¶ 8.
{¶ 13} Prior to a custodial interrogation, the Fifth Amendment requires that a
suspect “receive Miranda warnings to protect against self-incrimination.” Wesson at ¶
34, citing Miranda v. Arizona, 384 U.S. 436, 478-479, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). As a result, the prosecution may not use statements obtained through a custodial
interrogation that lacked the requisite Miranda safeguards. State v. Dailey, 53 Ohio St. 3d
88, 90, 559 N.E.2d 459 (1990), citing Miranda at 444.
{¶ 14} In this case, after some preliminary, biographical questions, appellant
waived his rights, executed a waiver form, and spoke with the detective. After the
detective informed appellant that police had searched his mother’s home with her
consent, appellant ended the interview by asking for a lawyer. Appellant now challenges
the admissibility of his preliminary statements, made prior to being advised of his
Miranda rights, as well as the validity of his written waiver and the use of statements
made after he executed the waiver form.
6.
{¶ 15} As to the first category of statements, appellant argues that eliciting his
address prior to advising him of his Miranda rights was improper, because where he
stayed was used against him as incriminating information. In rejecting this argument, the
trial court reviewed the recorded interview and determined the preliminary questions,
including where appellant was staying, were “simply general, identifying questions which
are asked of all individuals in custody prior to conducting an interview.” We agree.
{¶ 16} Identifying questions, like the ones asked in this case, do not require
Miranda warnings, as they are not asked to elicit an incriminating response. See State v.
Hale, 119 Ohio St. 3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 32-33, citing
Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990),
quoting United States v. Horton, 873 F.2d 180, 181, fn. 2 (8th Cir.1989). Here, Detective
Kaczmarek testified that he identified himself to appellant and then asked appellant
identifying questions, including name and address, which was routine “in case we have to
do a follow up investigation, or if we have to serve a subpoena through the court system.”
{¶ 17} Appellant spelled out his name and confirmed his mother’s address, and
after noting this information, the detective proceeded to inform appellant of his Miranda
rights. After waiving those rights and speaking with the detective, appellant again
referred to his mother’s home as a place where he stayed. Therefore, appellant’s address
as “incriminating” information, was conveyed both before and after appellant was given
the Miranda warning, diminishing any argument relative to the preliminary, biographical
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questions. Accordingly, we find no basis to suppress appellant’s preliminary statement
regarding his address.
{¶ 18} As to statements made after appellant executed the waiver form, appellant
argues his waiver was invalid because he was too intoxicated to make a knowing,
intelligent, and voluntary waiver of his rights. He also argues that Detective Kaczmarek
improperly coerced admissions by misstating the number of co-defendants who confessed
and implicated appellant.
{¶ 19} “An accused's signed waiver form is strong proof that such waiver was
valid.” State v. Nields, 93 Ohio St. 3d 6, 14, 75 2 N.E.2d 859 (2001), citing State v.
Clark, 38 Ohio St. 3d 252, 261, 527 N.E.2d 844 (1988); North Carolina v. Butler, 441
U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979). However, if a defendant
challenges the validity of the waiver, the state bears the burden of demonstrating, by a
preponderance of the evidence, that the waiver was knowingly, intelligently, and
voluntarily made. Wesson at ¶ 34, citing Miranda at 475; Colorado v. Connelly, 479
U.S. 157, 168-169, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); see also State v. Reynolds,
2017-Ohio-1478, 89 N.E.3d 235 ¶ 64, (6th Dist.), citing State v. Gumm, 73 Ohio St. 3d
413, 429, 653 N.E.2d 253 (1995).
{¶ 20} “[T]he touchstone of an involuntary confession is police misconduct and
the defendant’s mental condition is merely one factor in the totality of the circumstances
to be considered in determining constitutional voluntariness.” Reynolds at ¶ 69. While
appellant argues he was too intoxicated to voluntarily consent to questioning, our analysis
8.
focuses on the totality of the circumstances, including “the age, mentality, and prior
criminal experience of the accused; the length, intensity, and frequency of interrogation;
the existence of physical deprivation or mistreatment; and the existence of threat or
inducement.” State v. Dixon, 101 Ohio St. 3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶
25; State v. Edwards, 49 Ohio St. 2d 31, 358 N.E.2d 1051 (1976), paragraph two of the
syllabus.
{¶ 21} At hearing, Detective Kaczmarek testified that appellant did not exhibit
confusion or any comprehension issues. Indeed, as he read through the waiver form,
appellant asked for verification regarding his right to stop the interview at any time.
Detective Kaczmarek described appellant’s demeanor as “fairly tired, sweaty, and at the
time maybe uninterested.” Appellant exhibited no other signs suggesting intoxication.
Based on appellant’s appearance and responses to the questioning, the detective indicated
the absence of slurred speech or nodding off during questioning, and instead
characterized appellant’s responses as “very thought out.” After Detective Kaczmarek
told appellant that police had searched his mother’s home, appellant requested an
attorney, exercising his right to end the questioning. The video of appellant during
questioning supports Detective Kaczmarek’s recollections. Accordingly, considering the
totality of the circumstances, appellant’s mental state was not impaired, and his Miranda
waiver was clearly voluntary.
{¶ 22} Additionally, the record clearly supports the conclusion that appellant’s
will was not overcome by Detective Kaczmarek’s misrepresentation regarding the
9.
number of individuals who had confessed. Prior to questioning appellant, Detective
Kaczmarek indicated that S.W. had already identified all participants in the burglary and
robbery, and his questions regarding appellant’s location on the night of June 17 were
asked to “figure out a timeline throughout the night as to location of all of the individuals
involved in this incident[.]” Appellant’s mother, furthermore, had already told police that
appellant was staying at her home that night and police recovered a firearm at the house.
{¶ 23} Appellant argues, however, that Detective Kaczmarek coerced his
confession by telling him that “they” confessed and implicated him, rather than indicating
only “she,” or S.W. confessed. At the suppression hearing, Detective Kaczmarek
acknowledged saying “they” instead of “she,” but also testified that appellant did not
confess in response, stating appellant gave no reaction to his statement.
{¶ 24} “The tactic of lying to a suspect about the evidence is not in itself sufficient
to render a confession involuntary.” State v. Ford, 158 Ohio St. 3d 139, 2019-Ohio-4539,
140 N.E.3d 616, ¶ 196, citing Frazier v. Cupp, 394 U.S. 731, 737-739, 89 S. Ct. 1420, 22
L. Ed. 2d 684 (1969); State v. Bays, 87 Ohio St. 3d 15, 22-23, 716 N.E.2d 1126 (1999)
(additional citation omitted.). Here, appellant identifies no involuntary statement that
police elicited through assertions regarding the number of people who had already
confessed, implicating appellant. Furthermore, there was no confession. Accordingly,
we find no misrepresentations that overcame appellant’s will and caused him to make
involuntary statements.
10.
{¶ 25} Because the facts demonstrate a knowing, intelligent, and voluntary waiver,
with no interrogation prior to the Miranda waiver and no inappropriate deception, we
find appellant’s first assignment of error not well-taken.
{¶ 26} In his second assignment of error, appellant argues that R.C. 2967.271, the
Reagan Tokes law reinstituting indefinite sentences, is unconstitutional as a violation of
the separation of powers doctrine and his due process rights. The Reagan Tokes law was
enacted in 2018 and became effective on March 22, 2019. R.C. 2901.011. Appellant
joined the state in recommending this sentence, while also preserving a general,
unarticulated constitutional objection to the sentence at the time of sentencing.
{¶ 27} A jointly recommended sentence precludes review under R.C.
2953.08(D)(1), beyond what is “authorized by law.” (Citation omitted) State v. Sergent,
148 Ohio St. 3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 11. “A sentence is authorized by
law when ‘it is within the statutory range of possible sentences and does not exceed the
maximum term authorized for the offense.’” (Citation omitted) State v. Nguyen, 6th
Dist. Lucas No. L-05-1369, 2007-Ohio-2034, ¶ 30. Here, appellant does not dispute the
jointly recommended sentence, but rather, he challenges the constitutionality of the
authority granted to prison officials to extend his sentence up to the maximum term
imposed by the trial court.
{¶ 28} Under the Reagan Tokes law, a trial court imposing a prison term for a
non-life, first or second degree felony, for offenses committed after the effective date of
the law, must select a minimum prison term, which is then used in calculating the
11.
maximum prison term through the statutory formula. Based on conduct while
incarcerated, the institution may rebut the presumption in favor of the minimum prison
term and extend an offender’s incarceration up to the maximum prison term. The statute
provides, in part:
(B) When an offender is sentenced to a non-life felony indefinite
prison term, there shall be a presumption that the person shall be released
from service of the sentence on the expiration of the offender's minimum
prison term or on the offender's presumptive earned early release date,
whichever is earlier.
(C) The presumption established under division (B) of this section is
a rebuttable presumption that the department of rehabilitation and
correction may rebut as provided in this division. Unless the department
rebuts the presumption, the offender shall be released from service of the
sentence on the expiration of the offender's minimum prison term or on the
offender's presumptive earned early release date, whichever is earlier. The
department may rebut the presumption only if the department determines,
at a hearing, that one or more of the following applies:
(1) Regardless of the security level in which the offender is
classified at the time of the hearing, both of the following apply:
(a) During the offender's incarceration, the offender committed
institutional rule infractions that involved compromising the security of a
12.
state correctional institution, compromising the safety of the staff of a state
correctional institution or its inmates, or physical harm or the threat of
physical harm to the staff of a state correctional institution or its inmates, or
committed a violation of law that was not prosecuted, and the infractions or
violations demonstrate that the offender has not been rehabilitated.
(b) The offender's behavior while incarcerated, including, but not
limited to the infractions and violations specified in division (C)(1)(a) of
this section, demonstrate that the offender continues to pose a threat to
society.
(2) Regardless of the security level in which the offender is
classified at the time of the hearing, the offender has been placed by the
department in extended restrictive housing at any time within the year
preceding the date of the hearing.
(3) At the time of the hearing, the offender is classified by the
department as a security level three, four, or five, or at a higher security
level.
(D)(1) If the department of rehabilitation and correction, pursuant to
division (C) of this section, rebuts the presumption established under
division (B) of this section, the department may maintain the offender's
incarceration in a state correctional institution under the sentence after the
expiration of the offender's minimum prison term or, for offenders who
13.
have a presumptive earned early release date, after the offender's
presumptive earned early release date. The department may maintain the
offender's incarceration under this division for an additional period of
incarceration determined by the department. The additional period of
incarceration shall be a reasonable period determined by the department,
shall be specified by the department, and shall not exceed the offender's
maximum prison term.
(2) If the department maintains an offender's incarceration for an
additional period under division (D)(1) of this section, there shall be a
presumption that the offender shall be released on the expiration of the
offender's minimum prison term plus the additional period of incarceration
specified by the department as provided under that division or, for
offenders who have a presumptive earned early release date, on the
expiration of the additional period of incarceration to be served after the
offender's presumptive earned early release date that is specified by the
department as provided under that division. The presumption is a rebuttable
presumption that the department may rebut, but only if it conducts a
hearing and makes the determinations specified in division (C) of this
section, and if the department rebuts the presumption, it may maintain the
offender's incarceration in a state correctional institution for an additional
period determined as specified in division (D)(1) of this section. Unless the
14.
department rebuts the presumption at the hearing, the offender shall be
released from service of the sentence on the expiration of the offender's
minimum prison term plus the additional period of incarceration specified
by the department or, for offenders who have a presumptive earned early
release date, on the expiration of the additional period of incarceration to be
served after the offender's presumptive earned early release date as
specified by the department.
The provisions of this division regarding the establishment of a
rebuttable presumption, the department's rebuttal of the presumption, and
the department's maintenance of an offender's incarceration for an
additional period of incarceration apply, and may be utilized more than one
time, during the remainder of the offender's incarceration. If the offender
has not been released under division (C) of this section or this division prior
to the expiration of the offender's maximum prison term imposed as part of
the offender's non-life felony indefinite prison term, the offender shall be
released upon the expiration of that maximum term.
R.C. 2967.271(B) - (D).
{¶ 29} As to each of appellant’s arguments, regarding the possibility of hearings
and an extended term, appellee, the state of Ohio, argues such a possibility may never be
realized, and appellant’s challenge is therefore not ripe for review. We previously
reached this same conclusion in State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2020-
15.
Ohio-4702, ¶ 13, citing decisions from the Fifth District Court of Appeals, dismissing
such challenges as not ripe for review. See State v. Manion, 5th Dist. Tuscarawas No.
2020 AP 03 0009, 2020-Ohio-4230 and State v. Downard, 5th Dist. Muskingum No.
CT2019-0079, 2020-Ohio-4227.
{¶ 30} We note that other jurisdictions have implicitly determined the issue to be
ripe for review by addressing the constitutional challenge to the Regan Tokes provisions
regarding future, possible extensions of a prison term beyond the presumed minimum
term. The Second District Court of Appeals found the law constitutional in State v.
Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150, State v. Leet, 2d Dist.
Montgomery No. 28670, 2020-Ohio-4592, and State v. Ferguson, 2d Dist. Montgomery
No. 28644, 2020-Ohio-4153. The Twelfth District Court of Appeals also determined the
law was constitutional in State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-
Ohio-3837, State v. Rodgers, 12th Dist. No. Butler CA2019-11-194, 2020-Ohio-4102,
and State v. Morris, 12th Dist. Butler No. CA2019-12-205, 2020-Ohio-4103.4
{¶ 31} Pursuant to Section 3(B)(4), Article IV of the Ohio Constitution,
“[w]henever the judges of a court of appeals find that a judgment upon which they have
agreed is in conflict with a judgment pronounced upon the same question by any other
court of appeals of the state, the judges shall certify the record of the case to the supreme
4
The Fourth District Court of Appeals deemed the issue not preserved for appeal, based
on the appellant’s failure to raise the issue in the trial court and failure to assert any plain
error argument in the direct appeal. See State v. Conant, 4th Dist. Adams No.
20CA1108, 2020-Ohio-4319.
16.
court for review and final determination.” The Ohio Supreme Court set forth three
requirements that must be met in order for a case to be certified:
First, the certifying court must find that its judgment is in conflict
with the judgment of a court of appeals of another district and the asserted
conflict must be “upon the same question.” Second, the alleged conflict
must be on a rule of law-not facts. Third, the journal entry or opinion of the
certifying court must clearly set forth that rule of law which the certifying
court contends in in conflict with the judgment on the same question by
other district courts of appeals.
Whitelock v. Gilbane Bldg. Co., 66 Ohio St. 3d 594, 596, 613 N.E.2d 1032 (1993).
{¶ 32} Based on our precedent, we find the issue of constitutionality regarding
potential extensions to appellant’s presumed minimum prison term to be not ripe for
review. We do, however, recognize that our determination of an appealable issue
regarding the constitutionality of Reagan Tokes provisions governing ODRC review
pursuant to R.C. 2967.271(B)-(D) is in conflict with the decisions of the Second and
Twelfth District Courts of Appeals. We therefore sua sponte certify the conflict to the
Supreme Court of Ohio for review and final determination regarding whether the Reagan
Tokes sentencing provisions are ripe for review in a direct appeal.
V. Conclusion
{¶ 33} For the forgoing reasons, we affirm, in part, the judgments of the Lucas
County Court of Common Pleas of August 30, 2019 and September 12, 2019, and
17.
dismiss, in part, regarding the constitutional challenge to R.C. 2967.271. The parties are
directed to S.Ct. Prac.R. 8.01 for direction on how to proceed with respect to the certified
conflict. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Affirmed, in part, and
dismissed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
18.