[Cite as State v. Gaona, 2011-Ohio-5214.]
COURT OF APPEALS LICKING 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, J. -vs- : : GEORGE GAONA : Case No. 11-CA-27 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 10 CR 148
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 7, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH OSWALT CRAIG M. JAQUITH Licking County Prosecutor Assistant State Public Defender 20 South Second Street 250 East Broad Street Fourth Floor Suite 1400 Newark, OH 43055 Columbus, OH 43215 Licking County, Case No. 11-CA-17 2
Farmer, J.
{¶1} Appellant, George Gaona, was indicted on two counts of Having Weapons
while under Disability, felonies of the third degree, in violation of R.C. 2923.13(A)(2).
Trial Counsel for Appellant filed a motion to suppress evidence which was overruled
following a hearing. Appellant then entered a plea of no contest to Count One of the
indictment. The State dismissed Count Two of the Indictment. Appellant was
sentenced to a term of two years of incarceration. A timely notice of appeal was filed.
{¶2} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant
to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,
indicating that the within appeal was wholly frivolous and setting forth one proposed
Assignments of Error. Appellant did not file a pro se brief alleging any additional
Assignments of Error.
{¶3} Counsel for Appellant raises the following potential assignment of error:
{¶4} “I. THE TRIAL COURT APPLIED AN INCORRECT LEGAL STANDARD
REGARDING WARRANTLESS SEARCHES WHEN IT DENIED APPELLANT’S
SUPPRESSION MOTION. ENTRY, DEC. 17, 2010.”
{¶5} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time
to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies Licking County, Case No. 11-CA-17 3
these requirements, the appellate court must fully examine the proceedings below to
determine if any arguably meritorious issues exist. If the appellate court also determines
that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and
dismiss the appeal without violating constitutional requirements, or may proceed to a
decision on the merits if state law so requires. Id.
{¶6} Counsel in this matter has followed the procedure in Anders v. California
(1967), 386 U.S. 738, we find the appeal to be wholly frivolous and grant counsel’s
motion to withdraw. For the reasons which follow, we affirm the judgment of the trial
court:
I.
{¶7} In his only assignment of error, Appellant argues the trial court used the
incorrect standard in evaluating whether Appellant’s motion to suppress should have
been granted.
{¶8} While Appellant was on probation for a sex offense conviction in Texas, he
requested to have his probation transferred to Ohio. Pursuant to his request to transfer
his probation, Appellant executed a document titled, “Consent to Random Drug or
Alcohol Testing and to Searches Based on Reasonable Suspicion.” This document
contained the following sentence, “I agree to consent to the search of my person, my
residence and my belongings while under supervision in order to insure against violation
of the terms of my parole, probation of other supervision.”
{¶9} Upon the transfer of probation, Appellant was supervised by the Licking
County probation department. A parole officer from Licking County attempted to locate
Appellant at his residence on two occasions without success. The officer noticed the Licking County, Case No. 11-CA-17 4
mailbox was full of mail leading to the conclusion no one had been at the residence for
some time to retrieve the mail. Upon this discovery, a search of the residence was
conducted. During the search, the parole officer found bullets. He also noticed
Appellant’s belongings had been removed supporting the conclusion Appellant had
absconded. A motion to suppress the evidence found during the search was filed by
Appellant. The trial court found Appellant waived his right to challenge any search by
his probation supervisor based upon the execution of the consent to search form.
Appellant argues the consent to search form required the existence of reasonable
suspicion in order for the search to be valid.
{¶10} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154–155, 797 N.E.2d 71, 74, 20030–
Ohio–5372 at ¶ 8. When ruling on a motion to suppress, the trial court assumes the role
of trier of fact and is in the best position to resolve questions of fact and to evaluate
witness credibility. See State v.. Dunlap (1995), 73 Ohio St.3d 308, 314, 652 N.E.2d
988; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. Accordingly, a
reviewing court must defer to the trial court's factual findings if competent, credible
evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.
Long (1998), 127 Ohio App.3d 328, 332, 713 N.E.2d 1; State v. Medcalf (1996), 111
Ohio App.3d 142, 675 N.E.2d 1268. However, once this Court has accepted those facts
as true, it must independently determine as a matter of law whether the trial court met
the applicable legal standard. See Burnside, supra, citing State v. McNamara (1997),
124 Ohio App.3d 706, 707 N.E.2d 539; See, generally, United States v. Arvizu (2002),
534 U.S. 266, 122 S.Ct. 744; Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct. Licking County, Case No. 11-CA-17 5
1657. That is, the application of the law to the trial court's findings of fact is subject to a
de novo standard of review. Ornelas, supra. Moreover, due weight should be given “to
inferences drawn from those facts by resident judges and local law enforcement
officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.
{¶11} We find the trial court did not err in concluding Appellant consented to the
search of his residence under the conditions which were present at the time of the
search. For this reason, Appellant’s assignment of error is overruled.
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[Cite as State v. Gaona, 2011-Ohio-5214.]
COURT OF APPEALS LICKING 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, J. -vs- : : GEORGE GAONA : Case No. 11-CA-27 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 10 CR 148
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 7, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH OSWALT CRAIG M. JAQUITH Licking County Prosecutor Assistant State Public Defender 20 South Second Street 250 East Broad Street Fourth Floor Suite 1400 Newark, OH 43055 Columbus, OH 43215 Licking County, Case No. 11-CA-17 2
Farmer, J.
{¶1} Appellant, George Gaona, was indicted on two counts of Having Weapons
while under Disability, felonies of the third degree, in violation of R.C. 2923.13(A)(2).
Trial Counsel for Appellant filed a motion to suppress evidence which was overruled
following a hearing. Appellant then entered a plea of no contest to Count One of the
indictment. The State dismissed Count Two of the Indictment. Appellant was
sentenced to a term of two years of incarceration. A timely notice of appeal was filed.
{¶2} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant
to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,
indicating that the within appeal was wholly frivolous and setting forth one proposed
Assignments of Error. Appellant did not file a pro se brief alleging any additional
Assignments of Error.
{¶3} Counsel for Appellant raises the following potential assignment of error:
{¶4} “I. THE TRIAL COURT APPLIED AN INCORRECT LEGAL STANDARD
REGARDING WARRANTLESS SEARCHES WHEN IT DENIED APPELLANT’S
SUPPRESSION MOTION. ENTRY, DEC. 17, 2010.”
{¶5} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time
to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies Licking County, Case No. 11-CA-17 3
these requirements, the appellate court must fully examine the proceedings below to
determine if any arguably meritorious issues exist. If the appellate court also determines
that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and
dismiss the appeal without violating constitutional requirements, or may proceed to a
decision on the merits if state law so requires. Id.
{¶6} Counsel in this matter has followed the procedure in Anders v. California
(1967), 386 U.S. 738, we find the appeal to be wholly frivolous and grant counsel’s
motion to withdraw. For the reasons which follow, we affirm the judgment of the trial
court:
I.
{¶7} In his only assignment of error, Appellant argues the trial court used the
incorrect standard in evaluating whether Appellant’s motion to suppress should have
been granted.
{¶8} While Appellant was on probation for a sex offense conviction in Texas, he
requested to have his probation transferred to Ohio. Pursuant to his request to transfer
his probation, Appellant executed a document titled, “Consent to Random Drug or
Alcohol Testing and to Searches Based on Reasonable Suspicion.” This document
contained the following sentence, “I agree to consent to the search of my person, my
residence and my belongings while under supervision in order to insure against violation
of the terms of my parole, probation of other supervision.”
{¶9} Upon the transfer of probation, Appellant was supervised by the Licking
County probation department. A parole officer from Licking County attempted to locate
Appellant at his residence on two occasions without success. The officer noticed the Licking County, Case No. 11-CA-17 4
mailbox was full of mail leading to the conclusion no one had been at the residence for
some time to retrieve the mail. Upon this discovery, a search of the residence was
conducted. During the search, the parole officer found bullets. He also noticed
Appellant’s belongings had been removed supporting the conclusion Appellant had
absconded. A motion to suppress the evidence found during the search was filed by
Appellant. The trial court found Appellant waived his right to challenge any search by
his probation supervisor based upon the execution of the consent to search form.
Appellant argues the consent to search form required the existence of reasonable
suspicion in order for the search to be valid.
{¶10} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154–155, 797 N.E.2d 71, 74, 20030–
Ohio–5372 at ¶ 8. When ruling on a motion to suppress, the trial court assumes the role
of trier of fact and is in the best position to resolve questions of fact and to evaluate
witness credibility. See State v.. Dunlap (1995), 73 Ohio St.3d 308, 314, 652 N.E.2d
988; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. Accordingly, a
reviewing court must defer to the trial court's factual findings if competent, credible
evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.
Long (1998), 127 Ohio App.3d 328, 332, 713 N.E.2d 1; State v. Medcalf (1996), 111
Ohio App.3d 142, 675 N.E.2d 1268. However, once this Court has accepted those facts
as true, it must independently determine as a matter of law whether the trial court met
the applicable legal standard. See Burnside, supra, citing State v. McNamara (1997),
124 Ohio App.3d 706, 707 N.E.2d 539; See, generally, United States v. Arvizu (2002),
534 U.S. 266, 122 S.Ct. 744; Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct. Licking County, Case No. 11-CA-17 5
1657. That is, the application of the law to the trial court's findings of fact is subject to a
de novo standard of review. Ornelas, supra. Moreover, due weight should be given “to
inferences drawn from those facts by resident judges and local law enforcement
officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.
{¶11} We find the trial court did not err in concluding Appellant consented to the
search of his residence under the conditions which were present at the time of the
search. For this reason, Appellant’s assignment of error is overruled.
{¶12} For these reasons, after independently reviewing the record, we agree
with counsel's conclusion that no arguably meritorious claims exist upon which to base
an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant
counsel's request to withdraw, and affirm the judgment of the Licking County Court of
Common Pleas. Costs to Appellant.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
s/ Sheila G. Farmer_________________
s/ W. Scott Gwin____________________
_s/ Patricia A. Delaney________________
JUDGES
SGF/as 907 Licking County, Case No. 11-CA-17 6
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : GEORGE GAONA : : Defendant-Appellant : CASE NO. 11-CA-27
For the reasons stated in our accompanying Memorandum-Opinion, counsel is
granted leave to withdraw and the judgment of the Court of Common Pleas of Licking
County, Ohio is affirmed. Costs to appellant.