State v. Driscoll

2019 Ohio 1124

• Court: Ohio Court of Appeals
• Decided: March 28, 2019
• Docket: 107165
• Status: Published

Opinion

[Cite as State v. Driscoll, 2019-Ohio-1124.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 107165

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

LOUIS DRISCOLL

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-624907-A

BEFORE: E.T. Gallagher, P.J., Blackmon, J., and Sheehan, J.

RELEASED AND JOURNALIZED: March 28, 2019 ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen 3552 Severn Road, #613 Cleveland, Ohio 44118

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

BY: Timothy R. Troup Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

EILEEN T. GALLAGHER, P.J.:

{¶1} Defendant-appellant, Louis Driscoll, appeals from his convictions following a guilty

plea. He raises the following assignment of error for review:

1. Defendant’s Fourth Amendment rights were violated herein.1

{¶2} After careful review of the record and relevant case law, we affirm Driscoll’s

convictions.

I. Procedural and Factual History

{¶3} In January 2018, Driscoll was named in a 13-count indictment. The indictment

stemmed from allegations that Driscoll produced a firearm and fired two shots at a victim

1 During oral arguments, counsel for Driscoll briefly raised arguments concerning the length of Driscoll’s sentence. Driscoll, however, failed to present any arguments pertaining to his sentence in his appellate briefing and failed to file a notice of his intent to present authorities supporting such arguments before oral argument. Because the state was not afforded the opportunity to present a response, we decline to address arguments concerning Driscoll’s sentence. App.R. 16(A)(7). following a physical altercation. Driscoll subsequently was observed firing three shots into the

air while standing in the middle of East 100th Street in Cleveland, Ohio. It was further alleged

that Driscoll approached a victim while she stood on her front porch and held her against her will

at gunpoint. After Driscoll was apprehended, the police discovered $752, a plastic baggie

containing cocaine, and a plastic baggie containing bath salts on Driscoll’s person.

{¶4} In March 2018, Driscoll entered into a plea agreement with the state and pleaded

guilty to felonious assault in violation of R.C. 2903.11(A)(1), with a three-year firearm

specification; having weapons while under disability in violation of R.C. 2923.13(A)(2);

abduction in violation of R.C. 2905.02(A)(2), with a one-year firearm specification and forfeiture

specifications; discharge of a firearm on or near a prohibited premises in violation of R.C.

2923.162(A)(3), with a three-year firearm specification; and drug possession in violation of R.C.

2925.11(A), with a one-year firearm specification and forfeiture specifications. The remaining

counts of Driscoll’s original indictment were nolled.

{¶5} Following an extensive Crim.R. 11 colloquy, the trial court accepted Driscoll’s plea

and found him guilty of the foregoing offenses. At sentencing, the trial court imposed an

aggregate prison term of 23 years.

{¶6} Driscoll now appeals from his convictions.

II. Law and Analysis

{¶7} In his sole assignment of error, Driscoll argues the evidence supporting his

convictions were obtained in violation of the Fourth Amendment. Specifically, Driscoll contends

that the police violated the constitutional protections afforded against unreasonable searches and

seizures by searching his person without his consent or sufficient probable cause. {¶8} The Fourth Amendment to the United States Constitution and Article I, Section 14,

of the Ohio Constitution guarantee the right to be free from unreasonable searches and seizures.

State v. Orr, 91 Ohio St.3d 389, 391, 745 N.E.2d 1036 (2001). The Fourth Amendment

proscribes all unreasonable searches and seizures. United States v. Ross, 456 U.S. 798, 825,

102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). It is a restraint on the government. “[S]earches

conducted outside the judicial process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment — subject only to a few specifically established and

well-delineated exceptions.” (Footnote omitted.) Katz v. United States, 389 U.S. 347, 357, 88

S.Ct. 507, 19 L.Ed.2d 576 (1967).

{¶9} In this case, however, Driscoll’s convictions resulted from guilty pleas following a

sufficient Crim.R. 11 colloquy and explanation of the constitutional and nonconstitutional rights

Driscoll would be waiving by pleading guilty. “A plea of guilty is a complete admission of the

defendant’s guilt.” Crim.R. 11(B)(1). A defendant who enters a plea of guilty waives the right

to appeal all nonjurisdictional issues arising at prior stages of the proceedings, although the

defendant may contest the constitutionality of the plea itself. State v. Darling, 8th Dist.

Cuyahoga No. 104517, 2017-Ohio-7603, ¶ 12, citing State v. Lewis, 8th Dist. Cuyahoga No.

102939, 2015-Ohio-5267, ¶ 16. Thus, by entering into a guilty plea, a defendant waives any

complaint as to claims of constitutional violations not related to the entry of the guilty plea.

State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 105.

{¶10} On appeal, Driscoll’s assigned error does not relate to the constitutionality of the

plea itself, nor does it challenge the adequacy of the trial court’s Crim.R. 11 colloquy.

Accordingly, we find Driscoll has waived his right to assert his search and seizure arguments on

appeal. Driscoll’s sole assignment of error is overruled. {¶11} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the common pleas court to carry this

judgment into execution. The defendant’s convictions having been affirmed, any bail pending

appeal is terminated. Case remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

EILEEN T. GALLAGHER, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and MICHELLE J. SHEEHAN, J., CONCUR