State v. Taylor

2023 Ohio 2994

Opinion

[Cite as State v. Taylor, 2023-Ohio-2994.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. 21CA13

v. :

DARRYL D. TAYLOR, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

_________________________________________________________________

APPEARANCES:

Darryl D. Taylor, Caldwell, Ohio, pro se.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Andrea M. Kratzenberg, Assistant Prosecuting Attorney, Ironton, Ohio, for appellee. ___________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:8-22-23 ABELE, J.

{¶1} This is an appeal from a Lawrence County Common Pleas

Court judgment that overruled a pro se motion to suppress evidence

and a pro se motion for a Franks hearing. Darryl Taylor, defendant

below and appellant herein, assigns three errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE PROSECUTOR AND LAW ENFORCEMENT VIOLATED DEFENDANT’S CLEARLY ESTABLISHED FOURTH AMENDMENT RIGHT TO BE FREE FROM SEIZURE AND PROSECUTION BASED ON FABRICATED EVIDENCE.” LAWRENCE, 21CA13

2 SECOND ASSIGNMENT OF ERROR:

“THE PROSECUTION COMMITTED A BRADY-NAPUE-GIGLIO VIOLATION BY SUPPRESSING MATERIAL EVIDENCE.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT WHEN IT HELD A MOTION TO SUPPRESS HEARING WITHOUT THE DEFENDANT OR HIS COUNSEL PRESENT.”

{¶2} We find the facts and procedural history of this case in

State v. Taylor, 4th Dist. Lawrence No. 19CA24, 2021-Ohio-585

(Taylor II). In 2015, a jury found appellant guilty of: (1) drug

trafficking in the presence of juveniles in violation of R.C.

2925.03(A)(1)(C)(1)(c), a second-degree felony, (2) two counts of

drug trafficking in violation of R.C. 2925.03(A)(1)(C)(1)(c),

third-degree felonies, and (3) one count of drug trafficking in

violation of R.C. 2925.03(A)(2)(C)(1)(c), a third-degree felony.

The trial court sentenced appellant to serve 13 years in prison.

Taylor II at ¶ 2.

{¶3} On April 27, 2016, this court affirmed the trial court’s

judgment in part, reversed in part, and remanded for limited

resentencing. See State v. Taylor, 4th Dist. Lawrence No. 15CA12,

2016-Ohio-2781 (Taylor I). In particular, we affirmed appellant’s

convictions, but concluded that the trial court failed to advise

appellant of postrelease control at the sentencing hearing. Id. at

¶ 41, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, LAWRENCE, 21CA13

3 942 N.E.2d 332, ¶ 27-29, State v. Triplett, 4th Dist. Lawrence No.

10CA35, 2011-Ohio-4628, ¶ 4. On May 25, 2016, the trial court

resentenced appellant to serve a 13-year prison term.

{¶4} On March 5, 2019, appellant filed a pro se “motion to

vacate void judgment” and argued that the court must vacate “void

portions of the judgment of conviction based upon lack of subject

matter jurisdiction.” On September 19, 2019, the trial court

overruled the motion. On appeal, this court affirmed the trial

court’s judgment. Taylor II at ¶ 14.

{¶5} On July 16, 2021, appellant filed a pro se “Motion to

Suppress” and a pro se “Motion for a Franks Hearing.” Appellant

argued that the trial court should “grant a Motion to Suppress

hearing or New Trial based on trial court erred to the prejudice of

the defendant when it held a motion to suppress hearing without

defendant being present violating his due process rights.”

Appellant claimed he did not attend, and did not waive his right to

attend, the suppression hearing. Appellant’s “Motion for a Franks

Hearing” asserted that an affidavit filed in municipal court is

“based upon knowingly false and misleading statements without

regard for the truth by affiant(s) in the arrest warrant

affidavit(s) and violation of due process rights.” Appellant

argued that this affidavit intentionally misled authorities to

issue an arrest warrant. LAWRENCE, 21CA13

4 {¶6} The trial court denied both motions and held that (1) the

petitions are untimely pursuant to R.C. 2953.23, and (2) appellant

did not satisfy either requirement in R.C. 2953.23(A)(1) and (2).

Further, the court held that res judicata bars appellant from

raising these issues in petitions for postconviction relief as he

either raised, or could have raised, the issues on direct appeal.

This appeal followed.

I.

{¶7} In his appeal of the denial of the motion to suppress and

motion for a Franks hearing, appellant raises three assignments of

error for review. The trial court, however, concluded that res

judicata barred consideration of appellant’s motions.

{¶8} In general, appellate review of a motion to suppress

presents a mixed question of law and fact. Taylor I at ¶ 30,

citing State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10

N.E.3d 691, ¶ 7. Appellate review of the denial of a motion for a

hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct.

2674, 57 L.Ed.2d 667 (1978) appears to be unsettled, with some

federal courts applying a “clear error” standard and others a “de

novo” standard. State v. Kilbarger, 2d Dist. Montgomery No. 25584,

2013–Ohio–2577, ¶ 23, fn. 4, citing U.S. v. Fowler, 535 F.3d 408

(6th Cir.2008). However, under either standard we find no error

with the trial court’s judgment. LAWRENCE, 21CA13

5 {¶9} In his first assignment of error, appellant asserts that

the prosecutor and law enforcement violated his Fourth Amendment

right to be free from seizure and prosecution based on fabricated

evidence.

{¶10} First, we point out that prior to trial, appellant’s

trial counsel filed a motion to suppress evidence. In his motion,

appellant argued that the actions of a confidential informant

amounted to an improper search of his residence. In appellant’s

direct appeal, this court reviewed this issue and determined that

“[t]here is no reasonable expectation of privacy when a person

entrusts a supposed companion in criminal activities and that

companion betrays that trust. Where the private party acts as an

agent of the government, the Fourth Amendment does not protect a

wrongdoer’s misplaced belief that a person to whom he voluntarily

confides his wrongdoing will not reveal it.” Taylor I at ¶ 36.

Accordingly, because the confidential informant’s actions did not

constitute a search, and did not violate appellant’s Fourth

Amendment rights, this court overruled appellant’s assignment of

error (Taylor I) and affirmed the denial of the motion to suppress.

{¶11} Furthermore, according to the law of the case doctrine

“legal questions resolved by a reviewing court in a prior appeal

remain the law of that case for any subsequent proceedings at both

the trial and appellate levels.” Giancola v. Azem, 153 Ohio St.3d LAWRENCE, 21CA13

6 594, 2018-Ohio-1694, 109 N.E.3d 1194, ¶ 1, citing Nolan v. Nolan,

11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). Moreover, under the

doctrine of res judicata “a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and

litigating in any proceeding except an appeal from that judgment,

any defense or claimed lack of due process that was raised or could

have been raised by the defendant at the trial, * * * or an appeal

from that judgment.” State v. Szefcyk, 77 Ohio St.3d 93, 95, 671

N.E.2d 233 (1996), quoting State v. Perry, 10 Ohio St.2d 175, 226

N.E.2d 104 (1967), paragraph nine of the syllabus. Res judicata is

“a substantive rule of law that applies to a final judgment,

whereas the law-of-the-case doctrine is a rule of practice

analogous to estoppel.” Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-

Ohio-6769, 820 N.E.2d 329, ¶ 22, citing Gohman v. St. Bernard, 111

Ohio St. 726, 730 and 733, 146 N.E. 291 (1924); Hart Steel Co. v.

Railroad Supply Co., 244 U.S. 294, 299, 37 S.Ct. 506, 61 L.Ed. 1148

(1917).

{¶12} It is also important to recognize that the doctrine of

res judicata applies not only to direct appeals, but “to all

postconviction proceedings in which an issue was or could have been

raised.” State v. Heid, 4th Dist. Scioto No. 15CA3710, 2016-Ohio-

2756, ¶ 18, quoting State v. Montgomery, 2013-Ohio-4193, 997 N.E.2d

579, ¶ 42 (8th Dist.). Therefore, res judicata applies to bar LAWRENCE, 21CA13

7 raising piecemeal claims in successive postconviction relief

petitions that could have been raised, but were not, in the first

postconviction relief petition or in a motion to withdraw a guilty

plea. State v. Kent, 4th Dist. Jackson No. 02CA21, 2003-Ohio-6156,

¶ 6.

{¶13} We recently emphasized in State v. Carver, 2022-Ohio-

2653, 194 N.E.3d 393 (4th Dist.), that the focus under R.C.

2953.21, the postconviction proceeding statute, is whether a claim

in a postconviction petition involves evidence outside of the trial

court record not available at the time of trial. If a

postconviction petition claim does not rely upon evidence outside

the record that was not available for use at trial, but instead

relies upon matters contained within the record, then res judicata

bars the claim. Id. at ¶ 19. Thus, to overcome the barrier of res

judicata, a postconviction petition must include competent,

relevant and material evidence outside of the record established in

the trial court that was not in existence or available for use at

trial. (Emphasis added.) Id. at ¶ 21. In the case sub judice,

because it appears that appellant did not present evidence from

outside of the record, we agree with the trial court’s

determination that res judicata barred appellant’s second motion to

suppress. LAWRENCE, 21CA13

8 {¶14} Turning to appellant’s pro se motion for a hearing

pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57

L.Ed.2d 667 (1978), we point out that “[t]here is * * * a

presumption of validity with respect to the affidavit supporting

[a] search warrant.” Franks, 438 U.S. at 171, 98 S.Ct. 2674. “In

Franks * * *, the United States Supreme Court squarely addressed

the issue of when a defendant, under the Fourth Amendment, is

entitled to a hearing to challenge the veracity of the facts set

forth in the warrant affidavit after the warrant has been issued

and executed.”

To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient.

Franks at 171, 98 S.Ct. 2674. State v. Roberts, 62 Ohio St.2d 170,

177, 405 N.E.2d 247 (1980).

{¶15} Moreover, “[e]ven if a defendant makes a sufficient

preliminary showing, a hearing is not required unless, without the

allegedly false statements, the affidavit is unable to support a

finding of probable cause.” State v. Cubic, 9th Dist. Medina No. LAWRENCE, 21CA13

9 09CA0005–M, 2009-Ohio-5051, ¶ 11, citing Roberts at 178, 405 N.E.2d

247, quoting Franks at 171–172, 98 S.Ct. 2674; State v. Jackson,

2015-Ohio-3520, 37 N.E.3d 1288, ¶ 10.

{¶16} As we note above, the standard of review for the denial

of a Franks hearing appears to be unsettled. Some federal courts

apply a “clear error” standard, while others apply a “de novo”

standard. Kilbarger, supra, at ¶ 23, fn. 4, citing U.S. v. Fowler,

535 F.3d 408 (6th Cir.2008). However, regardless of the standard

we find no error in the case at bar. First, as appellee points

out, both a motion to suppress evidence and a motion for a Franks

hearing must be made before trial. Crim.R. 12(C)(3). Further,

there does not appear to be any affidavits or sworn, reliable

statements of witnesses with appellant’s motion for a Franks

hearing. Moreover, nothing in the Franks decision suggests that a

hearing can be held at anytime. Id.

{¶17} We further point out that this court affirmed appellant’s

convictions in 2016. As indicated above, appellant’s trial counsel

did, in fact, file a pre-trial motion to suppress, that the trial

court overruled. We affirmed appellant’s convictions in his direct

appeal (Taylor I). Now, seven years later appellant seeks to file

a motion to suppress and a motion for a Franks hearing. We

believe, however, that the trial court correctly concluded that res

judicata barred both motions. LAWRENCE, 21CA13

10 {¶18} Accordingly, we overrule appellant’s first assignment of

error.

II.

{¶19} In his second assignment of error, appellant asserts that

the prosecution suppressed material evidence and thus committed a

Brady-Napue-Giglio violation.

{¶20} Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963) requires the prosecution to disclose exculpatory

evidence to the defense. “Suppression by the prosecution of

evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”

Brady, 373 U.S. at 87. In Napue v. Illinois, 360 U.S. 264, 79

S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the court found that due process

is denied when the state allows false evidence to go uncorrected.

See Napue at 269. However, the false evidence must be material,

and a new trial required only if “the false testimony could * * *

in any reasonable likelihood have affected the judgment of the jury

* * *.” Giglio v. U.S., 405 U.S. 150, 153-154, 92 S.Ct. 763, 31

L.Ed.2d 104 (1972), citing Napue, supra, at 271; see also State v.

McClellan, 4th Dist. Washington No. 79CA16, 1981 WL 6027 (Sept. 23,

1981), *3. LAWRENCE, 21CA13

11 {¶21} Once again, we point out that appellant could have raised

these claims in his direct appeal to this court. Additionally,

appellant appears to have presented no evidence of his claims from

outside the record. Consequently, the trial court properly

concluded res judicata now bars these claims.

{¶22} Accordingly, we overrule appellant’s second assignment of

III.

{¶23} In his third assignment of error, appellant asserts that

the trial court erred to his prejudice when it held a suppression

hearing without his presence. Here, however, the trial court’s

entry states that appellant was present at the suppression hearing.

Appellant, however, denies this.

{¶24} We again point out that appellant has already challenged

the denial of the suppression motion in his direct appeal. See

State v. Taylor, 2016-Ohio-2781, ¶ 29 (Taylor I). As for

appellant’s argument that the trial court held the suppression

hearing without his participation, appellant also had the

opportunity to raise this issue in his direct appeal. Thus, res

judicata now bars appellant’s claim.

{¶25} Accordingly, we overrule appellant’s final assignment of

error and affirm the trial court’s judgment. LAWRENCE, 21CA13

12 JUDGMENT AFFIRMED. LAWRENCE, 21CA13

13 JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellee recover of appellant the 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 Lawrence County Common Pleas Court to carry this judgment into execution.

If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:_____________________________ Peter B. Abele, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.