State v. Snyder

2024 Ohio 861

• Court: Ohio Court of Appeals
• Decided: March 8, 2024
• Docket: 29933
• Status: Published

Opinion

[Cite as State v. Snyder, 2024-Ohio-861.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellee : C.A. No. 29933 : v. : Trial Court Case No. 2019 CR 0292 : KEVIN L. SNYDER : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on March 8, 2024

P.J. CONBOY, II, Attorney for Appellant

MATHIAS H. HECK, JR., by SARAH H. CHANEY, Attorney for Appellee

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LEWIS, J.

{¶ 1} Appellant Kevin L. Snyder appeals from a order of the Montgomery County

Court of Common Pleas denying his petition for post-conviction relief. For the following

reasons, we will affirm the judgment of the trial court. -2-

I. Facts and Course of Proceedings

{¶ 2} On March 5, 2020, a Montgomery County grand jury indicted Snyder on one

count of possession of marijuana in an amount equal to or greater than 1,000 grams but

less than 5,000 grams, a third-degree felony in violation of R.C. 2925.11(A); and one

count of illegal cultivation of marijuana in an amount equal to or greater than 1,000 grams

but less than 5,000 grams, a third-degree felony in violation of R.C. 2925.04(A). Those

counts were based on events that occurred on October 1, 2018.

{¶ 3} On May 18, 2020, Snyder filed a motion to suppress evidence seized during

the search of his residence as well as any statements obtained from him. According to

the motion, a warrant was obtained on September 25, 2018, to deploy thermal imaging

on Snyder’s address. Partially as a result of that thermal imaging, a search warrant for

Snyder’s address was issued on October 1, 2018. Snyder argued that probable cause

did not exist for the issuance of the September 25, 2018 warrant.

{¶ 4} Snyder filed an amended motion to suppress on September 9, 2020. In

addition to other arguments, Snyder contended that the warrants to search his property

were improper, lacked probable cause, contained conclusions, contained facts that were

stale and remote, and were improperly executed. Following a hearing, Snyder filed

another brief in support of his motion to suppress in which he narrowed his motion to

addressing the two search warrants that were issued in the case. Snyder challenged the

sufficiency of probable cause in the affidavits submitted to obtain the search warrants.

According to Snyder, the police officers filed an affidavit for a search warrant to deploy a

thermal imager on Snyder’s residence. The affidavit was submitted in September 2018 -3-

and a warrant was issued. The basis for the warrant was a complaint that Snyder was

growing marijuana in his basement, a prior misdemeanor arrest for misdemeanor

possession in 2011, a comparison of power usage between Snyder’s residence and

another residence, and the officer’s training and experience with marijuana cultivation.

Snyder argued that the complaint by an anonymous citizen had not been corroborated by

any evidence and there was no additional information provided to support the

complainant’s claims.

{¶ 5} On February 12, 2021, the trial court overruled the motion to suppress. The

court found that “[d]ue to the specific nature of the information provided by the

complainant and the extreme discrepancy in power usage between the two properties,

* * * the affidavit established sufficient probable cause to conduct thermal imaging of

Defendant’s property.” The court also found that the search warrant for the residence

had been properly supported by an affidavit setting forth the findings of the thermal

imaging of Snyder’s residence.

{¶ 6} Snyder ultimately pled guilty to one count of the lesser included offense of

possession of marijuana in an amount equal to or greater than 200 grams but less than

1000 grams, a fifth-degree felony in violation of R.C. 2925.11(A). In exchange for his

plea, the remaining count of marijuana cultivation was dismissed. The trial court held a

sentencing hearing on February 23, 2022, and sentenced Snyder to community control

sanctions for a period not to exceed five years. The court memorialized the sentencing

in a February 24, 2022 written judgment. Snyder did not appeal from this final judgment.

{¶ 7} On March 14, 2023, Snyder filed a petition for post-conviction relief. The -4-

sole evidence he submitted in support of the petition was an affidavit of Jason Greear.

The trial court denied the petition on September 5, 2023, because the petition was

untimely filed and “Defendant failed to provide any credible evidence or argument in

support of his Petition. The lay opinion of Mr. Greear, which references his alleged

observations on a date that has no relevance to this case is woefully insufficient to justify

granting post-conviction relief.” Snyder filed a timely notice of appeal.

II. The Trial Court Did Not Abuse Its Discretion in Denying Snyder’s Motion for

Post-conviction Relief Without Holding a Hearing.

{¶ 8} Snyder’s sole assignment of error states:

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT’S MOTION FOR POSTCONVICTION RELIEF.

{¶ 9} Post-conviction relief is governed by R.C. 2953.21, which provides that any

person who has been convicted of a criminal offense and who claims that there was such

a denial of the person's rights as to render the judgment void or voidable may file a petition

in the court that imposed sentence. R.C. 2953.21(A)(1)(a)(i). The petition must state

the grounds for relief relied upon and ask the court to vacate or set aside the judgment or

sentence or to grant other appropriate relief. R.C. 2953.21(A)(1)(a). The petitioner may

file a supporting affidavit and other documentary evidence in support of the claim for relief.

R.C. 2953.21(A)(1)(b).

{¶ 10} “A postconviction proceeding is not an appeal of a criminal conviction, but,

rather, a collateral civil attack on the judgment.” State v. Stefen, 70 Ohio St.3d 399, 410, -5-

639 N.E.2d 67 (1994), citing State v. Crowder, 60 Ohio St.3d 151, 573 N.E.2d 652 (1991).

To prevail on a petition for post-conviction relief, the defendant must establish a violation

of his constitutional rights which renders the judgment of conviction void or voidable.

R.C. 2953.21(A)(1)(a)(i).

{¶ 11} We review the trial court's denial of Snyder’s petition for an abuse of

discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58.

“ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or

unconscionable. * * * It is to be expected that most instances of abuse of discretion will

result in decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.” AAAA Ents., Inc. v. River Place Community

Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶ 12} Snyder contends that the trial court abused its discretion when it found that

his petition for post-conviction relief was not timely filed. Also, Snyder argues that the

trial court abused its discretion in concluding that his petition was not supported by

credible evidence. The State concedes that the petition for post-conviction relief was

timely filed. However, the State contends that the affidavit submitted with Snyder’s

petition was not credible evidence. Even if the affidavit was found credible, however, the

State argues that it does not establish a substantive ground for relief, because it describes

events that occurred after the search warrant at issue had already been executed.

{¶ 13} We will first address the timeliness of Snyder’s petition. Snyder did not file

a direct appeal from his conviction. Therefore, to be timely, Snyder had to file his petition

for post-conviction relief “no later than three hundred sixty-five days after the expiration -6-

of the time for filing the appeal.” R.C. 2953.21(A)(2)(a). The expiration of the time for

filing his appeal from the trial court’s February 24, 2022 judgment was March 26, 2022.

Snyder filed his petition for post-conviction relief on March 14, 2023. Therefore, as the

State concedes, Snyder filed his petition for post-conviction relief within the one year

provided for in R.C. 2953.21(A)(2)(a). As such, the trial court erred in overruling

Snyder’s petition based on timeliness. But that does not end our review of the trial court’s

decision.

{¶ 14} The trial court also denied Snyder’s petition because “Defendant failed to

provide any credible evidence or argument in support of his Petition. The lay opinion of

Mr. Greear, which references his alleged observations on a date that has no relevance to

this case is woefully insufficient to justify granting post-conviction relief.” Decision and

Order Overruling Petition for Post-Conviction Relief (Sept. 5, 2023), p. 3. As a result of

this finding, the trial court denied Snyder’s petition without holding a hearing.

{¶ 15} “In order to grant a hearing on a timely postconviction petition, the trial court

must ‘determine whether there are substantive grounds for relief.’ ” State v. Bunch, 171

Ohio St.3d 775, 2022-Ohio-4723, 220 N.E.3d 773, ¶ 23, quoting R.C. 2953.21(D). “If the

petition ‘is sufficient on its face to raise an issue that the petitioner's conviction is void or

voidable on constitutional grounds, and the claim is one which depends upon factual

allegations that cannot be determined by examination of the files and records of the case,

the petition states a substantive ground for relief.’ ” Id., quoting State v. Milanovich, 42

Ohio St.2d 46, 325 N.E.2d 540 (1975), paragraph one of the syllabus.

{¶ 16} “In determining whether the petition states a substantive ground for relief, -7-

the trial court must consider the entirety of the record from the trial proceedings as well

as any evidence filed by the parties in postconviction proceedings.” Id. at ¶ 24, citing

R.C. 2953.21(D). “If the record on its face demonstrates that the petitioner is not entitled

to relief, then the trial court must dismiss the petition.” Id., citing R.C. 2953.21(D) and

(E). “If the record does not on its face disprove the petitioner's claim, then the court is

required to ‘proceed to a prompt hearing on the issues.’ ” Id., quoting R.C. 2953.21(F)

and citing State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, ¶ 28.

{¶ 17} The sole evidence Snyder submitted in support of his petition for post-

conviction relief was the affidavit of Jason Greear. According to his affidavit, Greear was

visiting Snyder’s residence on October 1, 2018. Around 11:00 p.m. that night, while he

was standing on the deck, he saw a police helicopter flying “really low” around the

property, approximately 300-400 feet off the ground. Greear stated that he saw the

helicopter make four laps around the property and he later heard the helicopter overhead

“but it was blacked out with no lights.”

{¶ 18} Based on this affidavit, Snyder argued to the trial court that “[t]he aerial

observation of [his] residence was unconstitutional and a violation of [his] rights.”

Petition for Postconviction Relief, p. 2. According to Snyder, “[t]he Helicopter was not in

a legal position. It was flying too low and it did not have it [sic] lights on. * * * FAA

Regulations do not allow flying ‘blacked out.’ In addition, the helicopter was flying too

low. Further the helicopter was not in communication with the airport or its command.”

Id. at 3. Snyder also stated that “the helicopter was illegally flying in airport air space.

Snyder’s property was located close to the Dayton International Airport. The air space -8-

over Defendant’s residence is governed by additional regulations due to its proximity to

the airport. There was no specific permission provided to helicopter. In addition the

helicopter crew was not in constant contact with the airport, and did not have permission

from the airport to fly blacked out or as low as they did.” Id.

{¶ 19} As the State points out and the trial court found, the date on which Greear

allegedly saw a police helicopter flying low around Snyder’s residence was well after the

date on which the warrant allowing for the thermal imaging of his residence was issued

and executed. Indeed, the actual search of Snyder’s residence pursuant to a second

search warrant appears to have been conducted earlier in the day on October 1, 2018,

the same date on which Greear allegedly saw the police helicopter flying around Snyder’s

residence later in the evening. Moreover, many of the arguments Snyder made in his

petition for post-conviction relief based on Mr. Greear’s affidavit were not supported by

the affidavit. For example, Snyder contends that the police helicopter was violating

airport airspace, was not in contact with the airport, and did not have permission from the

airport to fly blacked out or as low as it did. But Greear’s affidavit did not provide any

information establishing that he would have had any personal knowledge of such facts,

and none of these alleged facts are contained anywhere in his affidavit.

{¶ 20} The affidavit of Jason Greear failed to support any substantive grounds for

relief. Therefore, the trial court did not err in overruling Snyder’s petition for post-

conviction relief without a hearing. The assignment of error is overruled.

III. Conclusion -9-

{¶ 21} Having overruled the sole assignment of error, we will affirm the judgment

of the trial court.

EPLEY, P.J. and HUFFMAN, J., concur.