State v. Henderson

2012 Ohio 1040

• Court: Ohio Court of Appeals
• Decided: March 15, 2012
• Docket: 95655
• Status: Published

Opinion

[Cite as State v. Henderson, 2012-Ohio-1040.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95655

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

PAUL HENDERSON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-530899

BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J.

RELEASED AND JOURNALIZED: March 15, 2012 FOR APPELLANT

Paul S. Henderson, pro se Inmate No. 573-468 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43301-0057

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Louis J. Brodnik Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:

{¶1} Defendant-Appellant, Paul Henderson, appeals his convictions for drug

trafficking, drug possession, and possession of criminal tools. After careful review of the

record and relevant case law, we affirm appellant’s convictions.

{¶2} On December 10, 2009, appellant was named in a three-count indictment

charging him with trafficking in marijuana in excess of 20,000 grams, in violation of R.C.

2925.03(A)(2), a felony of the second degree; drug possession in excess of 20,000 grams

of marijuana, in violation of R.C. 2925.11(A), a felony of the second degree; and

possession of criminal tools, in violation of R.C. 2923.24(A), a felony of the fifth degree.

{¶3} Appellant’s jury trial commenced on June 4, 2010. The following testimony

was presented at trial.

{¶4} Paulette Gentry testified that she was employed by Town Air Freight as a

shift supervisor and dispatcher. Gentry stated that on September 9, 2009, she noticed a

package that aroused her suspicions because it reminded her of a 2008 instance where

authorities discovered a large quantity of marijuana in a package that had been delivered

for pickup by appellant.1 With those suspicions in mind, Gentry immediately contacted

1 Based on appellant’s receipt of the 2008 shipment of marijuana, he was charged with drug trafficking in Case No. CR-520709. The facts of appellant’s prior offense were admitted at trial in accordance with Evid.R. 404. Deputy Anthony Quirino, whom she knew as a K-9 officer with the sheriff’s office from

the 2008 investigation of appellant.

{¶5} Deputy Anthony Quirino testified that he was a K-9 handler and deputy with

the Cuyahoga County Sheriff’s Office. Deputy Quirino testified that he and his dog,

Hugo, responded to a call from Town Air Freight that they possessed a suspicious

package. Deputy Quirino testified that Hugo went directly to the suspicious package and

signaled that it contained drugs. Subsequently, the package was taken to the police

department for inspection. Upon obtaining a search warrant, Deputy Quirino inspected

the package and confirmed that it contained approximately 60 pounds of marijuana, worth

an estimated $60,000. The package was then returned to Town Air Freight for a

“controlled delivery,” and appellant was informed that his package was ready to be picked

up.

{¶6} Appellant’s girlfriend, Patricia Casey, testified that on September 24, 2009,

appellant drove her to the Town Air Freight warehouse and instructed her to go into the

warehouse and sign for a package. Casey testified that the invoice identified “Paul

Anderson”2 as the recipient and indicated that the package contained auto parts. Casey

testified that she went into Town Air Freight and signed her name for appellant’s

2 Appellant used his real name, Paul Henderson, on the 2008 shipment invoice. package, and the package was loaded into appellant’s van by a Town Air Freight

employee.3

{¶7} Deputy Ben Meder of the Cuyahoga County Sheriff’s Department testified

that he was assigned by his department to conduct surveillance of appellant’s vehicle.

Deputy Meder testified that unmarked police vehicles followed appellant once he left

Town Air Freight with the package. After appellant dropped Casey off at her home,

police officers stopped appellant’s vehicle and arrested him. A cell phone and $21 in

cash was found on appellant, and officers retrieved a second cell phone from appellant’s

vehicle.

{¶8} On June 7, 2010, the jury found appellant guilty of all counts. At his

sentencing hearing, the trial court concluded that the possession and trafficking

convictions were allied offenses, and the state elected to pursue sentencing on appellant’s

drug trafficking conviction. Appellant was sentenced to an aggregate nine-year term of

imprisonment, a $7,750 fine, court costs, driver’s license suspension, and the forfeiture of

two cell phones.

{¶9} Appellant now brings this timely appeal, pro se, raising six assignments of

error for review.4

3Because of her involvement, Casey was arrested and named as appellant’s co-defendant. Casey testified that she entered a guilty plea to a reduced charge in exchange for her truthful testimony against appellant. 4 Appellant’s assignments of error are contained in the appendix to this opinion. {¶10} We note that

“an appellate court will ordinarily indulge a pro se litigant where there is some semblance of compliance with the appellate rules.” However, pro se litigants are presumed to have knowledge of the law and legal procedures and are held to the same standards as litigants who are represented by counsel. Thomas McGuire Bail Bond Co. v. Hairston, 8th Dist. No. 89307, 2007-Ohio-6648, 2007 WL 4340858 at ¶ 6, quoting Delaney v. Cuyahoga Metro. Housing Auth., 8th Dist. No. 65714, 1994 WL 326097 (July 7, 1994).

Law and Analysis

Final Appealable Order

{¶11} Before we address the substance of appellant’s appeal, we first must

consider this court’s jurisdiction to hear the appeal.

{¶12} The critical issue is whether the journal entry’s failure to identify the items

to be forfeited with specificity precludes the judgment from being a final, appealable

order. In State v. Bohanon, 8th Dist. No. 95907, 2011-Ohio-4108, 2011 WL 3629238,

and State v. Jones, 8th Dist. No. 95961, 2011-Ohio-3984, 2011 WL 3557092, this court

held that the trial court is required to describe the property to be forfeited with specificity

before the judgment would be considered final and appealable. These decisions,

however, relied on the Ohio Supreme Court’s decision in State v. Baker, 119 Ohio St.3d

197, 2008-Ohio-3330, 893 N.E.2d 163, and strictly analyzed the requirements of Crim.R.

32(C) in determining what constitutes a final, appealable order.

{¶13} In State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142,

paragraph one of the syllabus, however, the Ohio Supreme Court has modified its

decision in Baker, recognizing the following: A judgment of conviction is a final order subject to appeal under R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp indicating the entry upon the journal by the clerk.

{¶14} The Lester court limited Baker, noting that it should not stand for a strict

application of Crim.R. 32(C) that requires the journal entry to describe the particular

manner of conviction. Id. at ¶ 9-12. Instead, the Lester court recognized that a

judgment entry need only disclose the fact of conviction to be final and appealable. Id. at

¶ 11. In reaching this conclusion, the court distinguished between the “substantive

provisions” of Crim.R. 32(C) and those that are merely a “matter of form.” Id. at ¶ 12.

Whereas the omission of a substantive provision precludes a finding of a final, appealable

order, the same cannot be said regarding a provision that is a “matter of form.” Id. As

stated by the court: “[T]he fact that a defendant may be entitled to a revised order setting

forth an inadvertently omitted term that is required by Crim.R. 32(C) as a matter of form

does not prevent an original order that conforms to the substantive requirements of

Crim.R. 32(C) from being final.” Id. at ¶ 16.

{¶15} Applying Lester, we find that the journal entry here is a final, appealable

order because the entry contains all the necessary substantive provisions for a final

judgment. In contrast, the failure of the trial court to identify the items forfeited with

more specificity is a “matter of form” that can be raised as an error in a direct appeal.

See State ex rel. Jones v. Ansted, N.E.2d , 2012-Ohio-109 (finding that the

journal entry was a final appealable order despite not disposing of every firearm specification for which defendant was found guilty; court held that defect could be raised

in a direct appeal). It does not, however, affect the finality of the judgment entry.

{¶16} Accordingly, having found that we have jurisdiction to hear this appeal, we

now turn to the merits of appellant’s appeal.

I. Legality of Search and Seizure

{¶17} In his first assignment of error, appellant argues that the judgment of the

trial court violated his Fourth Amendment right to be free from the illegal seizure of a

person and property.

{¶18} The suppression of evidence must be raised in a pretrial motion. Crim.R.

12(C)(3). Because appellant did not challenge the admissibility of his search and seizure

prior to trial, he has removed this from our consideration. State v. Chandler, 8th Dist.

No. 81817, 2003-Ohio-6037, 2003 WL 22671580, ¶ 32 (“[b]y failing to file a motion to

suppress illegally obtained evidence, a defendant waives any objection to its admission.”);

State v. Roskovich, 7th Dist. No. 04 BE 37, 2005-Ohio-2719, 2005 WL 1301738, ¶ 13 (“a

defendant’s failure to raise an issue in a motion to suppress constitutes a waiver of that

issue on appeal.”); State v. Stuber, 3d Dist. No. 1-02-66, 2003-Ohio-982, 2003 WL

747991, ¶ 10 (“[b]ecause the appellant failed to request a motion to suppress, the issues

asserted in his assignment of error are waived”).

{¶19} Appellant’s first assignment of error is overruled.

II. Right to Assemble and Associate {¶20} In his second assignment of error, appellant argues that the trial court erred

to his prejudice in that his conviction violated his right to assembly and association

guaranteed by the First Amendment to the United States Constitution.

{¶21} Throughout the trial, appellant maintained that he was engaging in a

legitimate delivery business at the time of his arrest. Preliminarily, we note that

appellant did not challenge the constitutionality of his conviction at trial. It is axiomatic

that a litigant’s failure to raise an issue in the trial court waives his right to raise that issue

on appeal. Shover v. Cordis Corp., 61 Ohio St.3d 213, 220, 574 N.E.2d 457 (1991).

Therefore, this court may not address this issue for the first time on appeal. Regardless,

we find no merit to appellant’s constitutional challenge because the First Amendment

does not guarantee the right to conspire in criminal conduct or possess and transport

approximately 60 pounds of marijuana.

{¶22} Appellant’s second assignment of error is overruled.

III. Ineffective Assistance of Counsel

{¶23} In his third assignment of error, appellant argues that he received ineffective

assistance of counsel.

{¶24} In order to substantiate a claim of ineffective assistance of counsel, the

appellant is required to demonstrate that: 1) the performance of defense counsel was

seriously flawed and deficient; and 2) the result of appellant’s trial or legal proceeding

would have been different had defense counsel provided proper representation.

Strickland v. Washington, 466 U.S. 668, 687-696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). {¶25} In reviewing a claim of ineffective assistance of counsel, it must be

presumed that a properly licensed attorney executes his legal duty in an ethical and

competent manner. State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985); Vaughn v.

Maxwell, 2 Ohio St.2d 299, 209 N.E.2d 164 (1965).

{¶26} The Ohio Supreme Court held in State v. Bradley, 42 Ohio St.3d 136,

141-142, 538 N.E.2d 373 (1989), that

“[w]hen considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel’s essential duties to his client. Next, and analytically separate from the question of whether the defendant’s Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel’s ineffectiveness.” State v. Lytle, 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627 (1976). This standard is essentially the same as the one enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668 * * *.

Even assuming that counsel’s performance was ineffective, this is not sufficient to warrant reversal of a conviction. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365, 101 S.Ct. 665, 667-68, 66 L.Ed.2d 564] (1981).” Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066. To warrant reversal, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra, at 694, 104 S.Ct. at 2068. Bradley at 142.

{¶27} Appellant has failed to present this court with a basis for his ineffective

assistance claim. Rather, he merely states that “trial counsel was not operating as

counsel guaranteed under the Sixth Amendment, and had he properly represented

appellant and co-defendant[,] the outcome would have been different.” It is not the duty of this court to search the record for evidence to support defendant’s argument of an

alleged error. State v. Porter, 9th Dist. No. 18384, 1997 WL 803070, at *4 (Dec. 24,

1997). Because appellant has failed to provide this court with specific instances of

alleged ineffective assistance, we are unable to conclude that the performance of

appellant’s counsel was deficient.

{¶28} Appellant’s third assignment of error is overruled.

IV. Cruel and Unusual Punishment

{¶29} In his fourth assignment of error, appellant argues that his imprisonment for

operating a legitimate business was cruel and unusual, in violation of the Eighth

Amendment to the United States Constitution.

{¶30} As stated, constitutional arguments are generally not considered for the

first time on appeal. State v. Hamann, 90 Ohio App.3d 654, 630 N.E.2d 384 (8th

Dist.1993). Moreover, even if appellant had properly raised this argument, we find that

his conviction and subsequent imprisonment for illegally possessing and transporting

marijuana did not violate the Eight Amendment’s protections against cruel and unusual

punishment.

{¶31} The Ohio Supreme Court has held that to be determined cruel and unusual,

for purposes of federal and state constitutional law, “the penalty must be so greatly

disproportionate to the offense as to shock the sense of justice of the community.” State

v. Weitbrecht, 86 Ohio St.3d 368, 371, 715 N.E.2d 167 (1999); McDougle v. Maxwell, 1

Ohio St.2d 68, 70, 203 N.E.2d 334 (1964). Here, it is highly unlikely that a nine-year sentence imposed within the statutory framework for appellant’s felony convictions

would shock any reasonable person’s sense of justice.

{¶32} Appellant’s fourth assignment of error is overruled.

V. Cumulative Errors

{¶33} In his fifth assignment of error, appellant argues that the trial court’s

cumulative errors denied him due process, in violation of the Fourteenth Amendment. In

State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), the Ohio Supreme Court

recognized the doctrine of cumulative error. Pursuant to this doctrine, a conviction will

be reversed where the cumulative effect of errors in a trial deprives a defendant of the

constitutional right to a fair trial even though each of numerous instances of trial court

error does not individually constitute cause for reversal. State v. Baker, 8th Dist. No.

95300, 2011-Ohio-2784, 2011 WL 2409203, ¶ 59, citing State v. Garner, 74 Ohio St.3d

49, 656 N.E.2d 623 (1995).

{¶34} “In order to find ‘cumulative error’ present, we first must find that multiple

errors were committed at trial. We then must find a reasonable probability that the

outcome of the trial would have been different but for the combination of the separately

harmless errors.” (Citations omitted.) State v. Djuric, 8th Dist. No. 87745,

2007-Ohio-413, 2007 WL 274373, ¶ 52.

{¶35} As we have previously discussed, appellant has failed to demonstrate that

multiple errors occurred during his trial, let alone that those errors resulted in prejudice.

{¶36} Appellant’s fifth assignment of error is overruled. VI. Illegal Seizure

{¶37} In his sixth assignment of error, appellant argues that the trial court erred to

his prejudice in violation of his constitutional right to be free from illegal seizure of a

person. Appellant raises various theories under this assignment of error.

a. Speedy Trial

{¶38} Initially, appellant contends that he was denied his right to a speedy trial. A

criminal defendant is guaranteed the right to a speedy trial by the Sixth Amendment to the

United States Constitution, which was made applicable to the states as a fundamental

right by the Due Process Clause of the Fourteenth Amendment to the United States

Constitution. Klopfer v. N. Carolina, 386 U.S. 213, 222-223, 87 S.Ct. 988, 18 L.Ed.2d 1

(1967). This right is also guaranteed by Section 10, Article I of the Ohio Constitution.

Furthermore, state legislatures are authorized by Barker v. Wingo, 407 U.S. 514, 523, 92

S.Ct. 2182, 33 L.Ed.2d 101 (1972), to enact procedural rules or laws consistent with the

constitutional guarantee. Id. Courts strictly enforce statutory speedy trial rights because

the speedy trial statutes protect the constitutional guarantee of a public speedy trial. State

v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980).

{¶39} In Ohio, R.C. 2945.71 sets forth the time period in which a defendant must

be brought to trial. Generally, if a defendant is incarcerated on an unrelated matter, the

speedy trial provisions in R.C. 2945.71 are tolled pursuant to R.C. 2945.72(A).

However, if a defendant is incarcerated in a state correctional institution, he may assert his right to be brought to trial within 180 days by complying with the requirements of

R.C. 2941.401.

{¶40} R.C. 2941.401 provides:

When a person has entered upon a term of imprisonment in a correctional institution of this state, and * * * there is pending in this state any untried indictment * * * against the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court * * * written notice of the place of his imprisonment and a request for a final disposition to be made of the matter * * *. The request of the prisoner shall be accompanied by a certificate of the warden or superintendent having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time served and remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the adult parole authority relating to the prisoner.

The written notice and request for final disposition shall be given or sent by the prisoner to the warden or superintendent having custody of him, who shall promptly forward it with the certificate to the appropriate prosecuting attorney and court by registered or certified mail, return receipt requested.

***

If the action is not brought to trial within the time provided * * * no court any longer has jurisdiction thereof, the indictment * * * is void, and the court shall enter an order dismissing the action with prejudice.

{¶41} The Ohio Supreme Court has held that, pursuant to R.C. 2941.401, the

initial duty is placed on the defendant to notify the prosecutor and the court of his place of

incarceration and to request final disposition of outstanding charges. State v. Hairston,

101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471. “In its plainest language, R.C.

2941.401 grants an incarcerated defendant a chance to have all pending charges resolved in a timely manner, thereby preventing the state from delaying prosecution until after the

defendant has been released from his prison term.” Id. at 311.

{¶42} In the case sub judice, appellant was incarcerated within the state of Ohio at

the time he filed a notice of availability on December 29, 2009. Thus, appellant initiated

his right to be brought to trial within 180 days pursuant to R.C. 2941.401. Here,

appellant’s trial began on June 4, 2010, well within the 180-day window mandated by

R.C. 2941.401. Accordingly, appellant was not denied his right to a speedy trial.

b. Subject Matter Jurisdiction

{¶43} Next, appellant contends that defects in the complaint and the supporting

affidavit in the initial state of this case deprived the trial court of subject matter

jurisdiction, thereby warranting the dismissal of all charges.

[S]ubject matter jurisdiction is conferred upon the court of common pleas by R.C. 2931.03, which provides: “The court of common pleas has original jurisdiction of all crimes and offenses, except in cases of minor offenses the exclusive jurisdiction of which is vested in courts inferior to the court of common pleas.” Peters v. Anderson, 9th Dist. No. 02CA008096, 2002-Ohio-6766, 2002 WL 31761490, at ¶ 17.

“The felony jurisdiction is invoked by the return of a proper indictment by the grand jury

of the county.” Click v. Eckle, 174 Ohio St. 88, 89, 186 N.E.2d 731 (1962).

{¶44} Appellant was indicted by the Cuyahoga County Grand Jury on December

10, 2009. This invoked the felony jurisdiction of the Cuyahoga County Court of

Common Pleas, pursuant to R.C. 2931.03. Gotel v. Gansheimer, 11th Dist. No.

2006-A-0087, 2007-Ohio-2311, 2007 WL 1395446, ¶ 8, citing Peters v. Anderson, supra;

State v. Barnes, 8th Dist. No. 92515, 2011-Ohio-63, 2011 WL 193369. Consequently, any alleged defects with the initial complaint are irrelevant and harmless to appellant’s

convictions because he was tried and convicted on the indictment. See State v. Jenkins,

4th Dist. No. 02CA5, 2003-Ohio-1058, 2003 WL 894807, ¶ 24. Accordingly, the trial

court had subject matter jurisdiction over the case.

{¶45} Appellant’s sixth assignment of error is overruled.

{¶46} 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 issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction 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.

FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and LARRY A. JONES, SR., J., CONCUR APPENDIX

Appellant’s assignments of error:

I. The trial court erred to the prejudice of appellant in violation of is Fourth Amendment right to be free from illegal seizure of a person and property. II. The trial court erred to the prejudice of appellant in violation of the First Amendment right.

III. Trial counsel was not effective and had counsel been counsel as guaranteed under the Sixth Amendment, the outcome would be been different.

IV. Being wrongfully imprisoned for operating a legitimate business was cruel and unusual punishment because it violated the Eighth Amendment.

V. The cumulative effect of claims I through IV denied appellant due process in violation of the Fourteenth Amendment.

VI. The trial court erred to the prejudice of appellant in violation of his Fourth and Eighth Amendment rights to be free from illegal seizure of a person, and cruel and unusual punishment because it violated the Eighth Amendment.