State v. Nelson

2016 Ohio 2787

Opinion

[Cite as State v. Nelson, 2016-Ohio-2787.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. -vs- : : LEROY J. NELSON : Case No. CT2015-0057 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2015-0189

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 2, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GERALD V. ANDERSON, II WILLIAM T. CRAMER 27 North Fifth Street 470 Olde Worthington Road P.O. Box 189 Suite 200 Zanesville, OH 43702-0189 Westerville, OH 43082 Muskingum County, Case No. CT2015-0057 2

Farmer, P.J.

{¶1} On June 3, 2015, the Muskingum County Grand Jury indicted appellant,

Leroy Nelson, on two counts of possession of drugs (cocaine and heroin) in violation of

R.C. 2925.11. The indictment also contained a major drug offender specification under

R.C. 2941.1410 and a forfeiture specification under R.C. 2941.1417. The heroin count

was subsequently dismissed. Said charges arose from a drug trafficking investigation

involving a Wesley Newman. Law enforcement officers obtained a warrant and placed a

GPS device on an orange pick-up truck that Mr. Newman was known to operate. They

then set up a controlled drug buy, and monitored the movements of the vehicle via the

GSP system. At some point, officers stopped the vehicle and found appellant operating

the vehicle, carrying cocaine on his person and inside the vehicle.

{¶2} On July 28, 2015, appellant filed a motion to suppress, claiming an illegal

stop and improper Miranda warnings. A hearing was held on August 10, 2015. The trial

court denied the motion.

{¶3} On August 20, 2015, appellant pled no contest to the remaining charge and

the specifications. By entry filed August 25, 2015, the trial court found appellant guilty

and ordered a presentence investigation.

{¶4} On October 5, 2015, appellant appeared for sentencing and moved to

withdraw his plea. A hearing on the motion was held on October 14, 2015. By entry filed

October 15, 2015, the trial court denied the motion and sentenced appellant to eleven

years in prison.

{¶5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows: Muskingum County, Case No. CT2015-0057 3

I

{¶6} "APPELLANT'S RIGHTS TO BE FREE FROM UNREASONABLE

SEARCHES AND SEIZURES UNDER THE STATE AND FEDERAL CONSTITUTIONS

WERE VIOLATED BY THE DENIAL OF THE MOTION TO SUPPRESS THE

WARRANTLESS SEARCH OF THE VEHICLE THAT APPELLANT WAS DRIVING."

II

{¶7} "APPELLANT'S RIGHTS UNDER THE STATE AND FEDERAL

CONSTITUTIONS, CRIM.R. 11, WERE VIOLATED BY THE TRIAL COURT'S FAILURE

TO ENGAGE APPELLANT IN AN ADEQUATE PLEA COLLOQUY."

III

{¶8} "THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

APPELLANT'S PRESENTENCE MOTION TO WITHDRAW HIS PLEA."

{¶9} Appellant claims the trial court erred in denying his motion to suppress as

the officers lacked probable cause to stop the vehicle he was driving. We disagree.

{¶10} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v. Guysinger,

86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an appellate

court can reverse the trial court for committing an error of law. State v. Williams, 86 Ohio Muskingum County, Case No. CT2015-0057 4

App.3d 37 (4th Dist.1993). Finally, assuming the trial court's findings of fact are not

against the manifest weight of the evidence and it has properly identified the law to be

applied, an appellant may argue the trial court has incorrectly decided the ultimate or final

issue raised in the motion to suppress. When reviewing this type of claim, an appellate

court must independently determine, without deference to the trial court's conclusion,

whether the facts meet the appropriate legal standard in any given case. State v. Curry,

95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio App.3d 623 (4th Dist.1993);

Guysinger. As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,

116 S.Ct. 1657, 1663 (1996), "…as a general matter determinations of reasonable

suspicion and probable cause should be reviewed de novo on appeal."

{¶11} In Terry v. Ohio, 392 U.S. 1, 22 (1968), the United States Supreme Court

determined that "a police officer may in appropriate circumstances and in an appropriate

manner approach a person for purposes of investigating possible criminal behavior even

though there is no probable cause to make an arrest." However, for the propriety of a

brief investigatory stop pursuant to Terry, the police officer involved "must be able to point

to specific and articulable facts which, taken together with rational inferences from those

facts, reasonably warrant that intrusion." Id. at 21. Such an investigatory stop "must be

viewed in the light of the totality of the surrounding circumstances" presented to the police

officer. State v. Freeman, 64 Ohio St.2d 291 (1980), paragraph one of the syllabus.

{¶12} As explained by the United States Supreme Court in Texas v. Brown, 460

U.S. 730, 742, 103 S.Ct. 1535 (1983): Muskingum County, Case No. CT2015-0057 5

As the Court frequently has remarked, probable cause is a flexible,

common-sense standard. It merely requires that the facts available to the

officer would "warrant a man of reasonable caution in the belief," Carroll v.

United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925),

that certain items may be contraband or stolen property or useful as

evidence of a crime; it does not demand any showing that such a belief be

correct or more likely true than false. A "practical, nontechnical" probability

that incriminating evidence is involved is all that is required. Brinegar v.

United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879

(1949).

{¶13} In Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280 (1925), the

United States Supreme Court explained the following:

We have made a somewhat extended reference to these statutes to

show that the guaranty of freedom from unreasonable searches and

seizures by the Fourth Amendment has been construed, practically since

the beginning of the government, as recognizing a necessary difference

between a search of a store, dwelling house, or other structure in respect

of which a proper official warrant readily may be obtained and a search of

a ship, motor boat, wagon, or automobile for contraband goods, where it is

not practicable to secure a warrant, because the vehicle can be quickly

moved out of the locality or jurisdiction in which the warrant must be sought. Muskingum County, Case No. CT2015-0057 6

{¶14} "If a car is readily mobile and probable cause exists to believe it contains

contraband, the Fourth Amendment thus permits police to search the vehicle without

more." Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485 (1996).

{¶15} In the case sub judice, officers were investigating Mr. Newman for drug

trafficking, not appellant. Officers obtained a warrant to place a GPS device on a vehicle

Mr. Newman was known to operate. August 10, 2015 T. at 9. With the assistance of a

confidential informant, the officers set up a drug buy with Mr. Newman to purchase five

ounces of cocaine. Id. at 10, 12. The officers monitored the conversations between the

confidential informant and Mr. Newman. Id. at 10-11. Mr. Newman stated he had three

ounces of cocaine, so "he had to hit the highway to go get more cocaine." Id. at 12. The

officers knew Mr. Newman "to be supplied out of Columbus, Ohio," so they watched the

vehicle via GPS and "loosely tailed" him from a place he was working in Muskingum

County to the place where he lived to Westerville, Ohio. Id. at 11-13. The officers visually

observed Mr. Newman driving the vehicle during the day, but after it left Muskingum

County, they never got close enough for a visual confirmation because "Mr. Newman

knows the majority of our units." Id. at 11-14.

{¶16} A telephone call to the confidential informant from Mr. Newman confirmed

that Mr. Newman had the drugs and could deliver them in forty-five minutes, the

approximate time for the vehicle being tracked to return to Muskingum County from

Westerville. Id. at 14-15. Mr. Newman told the confidential informant he needed about

fifteen minutes "to break this thing down" to give him the requested five ounces. Id. at

15-16. The officers believed "there would be a larger quantity of drugs in the car than we Muskingum County, Case No. CT2015-0057 7

originally had thought." Id. at 15. They also believed Mr. Newman was operating the

tracked vehicle based upon the monitored conversations and the tracking of the vehicle

normally used by Mr. Newman. Id. at 16-17.

{¶17} We find these specific and articulable facts are sufficient to cause a

reasonable officer to conclude the tracked vehicle was transporting contraband, and find

sufficient probable cause to justify the stop of the moving vehicle.

{¶18} Upon review, we find the trial court did not err in denying the motion to

suppress.

{¶19} Assignment of Error I is denied.

{¶20} Appellant claims the trial court erred in accepting his no contest plea

because of an inadequate plea colloquy under Crim.R. 11. Specifically, appellant claims

the trial court failed to inform him of the effect of his no contest plea and that the trial court

could immediately proceed to sentencing. We disagree.

{¶21} Crim.R. 11 governs pleas and rights upon plea. Subsection (B)(2) and

(C)(1)(b) state the following, respectively:

(B) Effect of Guilty or No Contest Pleas. With reference to the

offense or offenses to which the plea is entered:

(2) The plea of no contest is not an admission of defendant's guilt,

but is an admission of the truth of the facts alleged in the indictment,

information, or complaint, and the plea or admission shall not be used

against the defendant in any subsequent civil or criminal proceeding. Muskingum County, Case No. CT2015-0057 8

(C) Pleas of Guilty and No Contest in Felony Cases.

(2) In felony cases the court may refuse to accept a plea of guilty or

a plea of no contest, and shall not accept a plea of guilty or no contest

without first addressing the defendant personally and doing all of the

following:

(b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the court,

upon acceptance of the plea, may proceed with judgment and sentence.

{¶22} In State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 31-32, the

Supreme Court of Ohio explained the following:

When a trial judge fails to explain the constitutional rights set forth in

Crim.R. 11(C)(2)(c), the guilty or no-contest plea is invalid "under a

presumption that it was entered involuntarily and unknowingly." Griggs, 103

Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12; see also Nero, 56

Ohio St.3d at 107, 564 N.E.2d 474, citing Boykin, 395 U.S. at 242–243, 89

S.Ct. 1709, 23 L.Ed.2d 274. However, if the trial judge imperfectly

explained nonconstitutional rights such as the right to be informed of the

maximum possible penalty and the effect of the plea, a substantial-

compliance rule applies. Id. Under this standard, a slight deviation from

the text of the rule is permissible; so long as the totality of the circumstances

indicates that "the defendant subjectively understands the implications of Muskingum County, Case No. CT2015-0057 9

his plea and the rights he is waiving," the plea may be upheld. Nero, 56

Ohio St.3d at 108, 564 N.E.2d 474.

When the trial judge does not substantially comply with Crim.R. 11

in regard to a nonconstitutional right, reviewing courts must determine

whether the trial court partially complied or failed to comply with the rule. If

the trial judge partially complied, e.g., by mentioning mandatory postrelease

control without explaining it, the plea may be vacated only if the defendant

demonstrates a prejudicial effect. See Nero, 56 Ohio St.3d at 108, 564

N.E.2d 474, citing State v. Stewart (1977), 51 Ohio St.2d 86, 93, 5 O.O.3d

52, 364 N.E.2d 1163, and Crim.R. 52(A); see also Sarkozy, 117 Ohio St.3d

86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 23. The test for prejudice is

"whether the plea would have otherwise been made." Nero at 108, 564

N.E.2d 474, citing Stewart, id. If the trial judge completely failed to comply

with the rule, e.g., by not informing the defendant of a mandatory period of

postrelease control, the plea must be vacated. See Sarkozy, 117 Ohio

St.3d 86, 2008-Ohio-509, 881 N.E.2d, 1224, paragraph two of the syllabus.

"A complete failure to comply with the rule does not implicate an analysis of

prejudice." Id. at ¶ 22.

{¶23} Prior to entering his plea of no contest on August 20, 2015, appellant

reviewed the plea form with his counsel and signed the form which contained the following

language: Muskingum County, Case No. CT2015-0057 10

Upon a plea of "no contest" to Count One as contained in the

indictment, inclusive of the Specifications contained therein, the parties

stipulate to the facts sufficient for a finding of guilty on the charges and

submit stipulated exhibits concerning the scientific testing of the evidence.

Defendant agrees to the forfeiture of the $150.00 in U.S. currency seized in

regard to this matter to the State.

***

I know the Judge may either sentence me today or refer my case for

a pre-sentence report.

{¶24} At the start of the plea hearing, the prosecutor specifically stated, "[t]here is

an agreement that the parties will stipulate to the facts sufficient for a finding of guilty on

the charges and submit the stipulated exhibits concerning the scientific testing of the

evidence which is attached to these forms here." August 20, 2015 T. at 4. During the

plea colloquy, the prosecutor again stated, "[s]o we are stipulating the facts sufficient for

the conviction and permitting the no contest plea." Id. at 11. Although the trial court did

not specifically address the effect of a no contest plea with appellant, appellant stipulated

that there were facts sufficient for conviction via his plea form and the issue was

mentioned on two occasions prior to his no contest plea. Following the plea, the trial court

acknowledged the stipulation to the facts, "[a]s well as the Court did hear a suppression

hearing and did hear testimony in regards to those same facts." Id. at 14. At no time

during the plea hearing did appellant object to the stipulation. Muskingum County, Case No. CT2015-0057 11

{¶25} As for sentencing, although the trial court did not specifically inform

appellant that it could immediately proceed to sentencing, the trial court did not proceed

to sentencing upon finding appellant guilty, but instead ordered a presentence

investigation report and deferred sentencing. Id. at 15-16.

{¶26} Appellant concedes these deficiencies are nonconstitutional. Appellant's

Brief at 9-10. In reviewing the plea colloquy and the plea form signed by appellant, we

find appellant has not demonstrated prejudice by showing that the plea would not have

been made.

{¶27} Upon review, we find no prejudice to appellant in the trial court accepting

his no contest plea.

{¶28} Assignment of Error II is denied.

{¶29} Appellant claims the trial court erred in not permitting him to withdraw his

no contest plea prior to sentencing. We disagree.

{¶30} Crim.R. 32.1 governs withdrawal of guilty plea and states "[a] motion to

withdraw a plea of guilty or no contest may be made only before sentence is imposed;

but to correct manifest injustice the court after sentence may set aside the judgment of

conviction and permit the defendant to withdraw his or her plea." The right to withdraw a

plea is not absolute and a trial court's decision on the issue is governed by the abuse of

discretion standard. State v. Smith, 49 Ohio St.2d 261 (1977). In order to find an abuse

of discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217 (1983). Muskingum County, Case No. CT2015-0057 12

{¶31} In State v. McNeil, 146 Ohio App.3d 173, 175-176 (1st Dist.2001), our

brethren from the First District explained the following:

It is well established that, even though a defendant does not have an

absolute right to withdraw a plea prior to sentencing, a presentence motion

to withdraw a guilty plea should be "freely and liberally granted."***Although

such a motion is to be treated liberally, the trial court's decision is still

ultimately one of discretion. In determining whether the trial court has

properly exercised its discretion, this court is aided by the following factors:

(1) whether the accused was represented by highly competent counsel, (2)

whether the accused was given a full Crim.R. 11 hearing before entering

the plea, (3) whether a full hearing was held on the withdrawal motion, and

(4) whether the trial court gave full and fair consideration to the motion.***In

addition to these factors, there are other considerations, including (1)

whether the motion was made within a reasonable time; (2) whether the

motion set out specific reasons for the withdrawal; (3) whether the accused

understood the nature of the charges and the possible penalties; and (4)

whether the accused was perhaps not guilty or had a complete defense to

the charges. (Footnotes omitted.)

{¶32} At the start of the sentencing hearing, appellant indicated his desire to

withdraw his plea. October 5, 2015 T. at 5-8. The trial court held a hearing on the motion

on October 14, 2015. Appellant argued he was merely borrowing the vehicle and should Muskingum County, Case No. CT2015-0057 13

not be penalized for drugs found inside the vehicle. October 14, 2015 T. at 5-7. In

essence, appellant argued he was the innocent victim of driving a tracked vehicle and he

should not bear the burden of the cocaine found other than on his person. Id. at 8.

{¶33} When questioned by the trial court regarding his plea, appellant explained

he pled no contest because he would win on appeal. Id. at 7. The trial court noted

appellant was gambling on a pending case in the Supreme Court of Ohio on the issue of

determining the weight of cocaine which could "greatly reduce the charges against you."

Id. at 8. In denying appellant's motion, the trial court found appellant's thirteenth hour

change of heart was not sufficient to permit a withdrawal of the plea. Id. at 11-12.

{¶34} The record is replete with defense counsel's efforts to win a suppression

hearing and obtain discovery. Appellant never denied he was the driver of the tracked

vehicle, that he possessed cocaine on his person, and that a large amount of cocaine

was inside the console of the vehicle. He was given full Crim.R. 11 and Crim.R. 32.1

hearings.

{¶35} Upon review, we find the trial court did not abuse its discretion in denying

appellant's motion to withdraw his plea.

{¶36} Assignment of Error III is denied. Muskingum County, Case No. CT2015-0057 14

{¶37} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, P.J.

Gwin, J. and

Wise, J. concur.

SGF/sg 422