[Cite as State v. Willoughby, 2021-Ohio-2611.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 20CA5
VS. :
RAHEEM C. WILLOUGHBY, : DECISION & JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
Todd W. Barstow, Columbus, Ohio for appellant.1
Judy Wolford, Pickaway County Prosecuting Attorney, and Jayme H. Fountain, Assistant Prosecuting Attorney, Circleville, Ohio, for appellee.
CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:7-22-21 ABELE, J.
{¶1} This is an appeal from a Pickaway County Common Pleas
Court judgment of conviction and sentence. Raheem C.
Willoughby, defendant below and appellant herein, pleaded no
contest to one count of aggravated trafficking in drugs and one
count of aggravated possession of drugs.
{¶2} Appellant assigns two errors for review:
1 Different counsel represented appellant during the trial PICKAWAY, 20CA05 2
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY OVERRULING HIS MOTION TO SUPPRESS EVIDENCE, IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION. (T. 7- 24; R. DECISION AND ENTRY 8/2/19).”
SECOND ASSIGNMENT OF ERROR:
“APPELLANT’S PLEA OF NO CONTEST WAS NOT MADE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY IN VIOLATION OF HIS RIGHT TO DUE PROCESS OF LAW PURSUANT TO THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION SIXTEEN OF THE OHIO CONSTITUTION. (R. ENTRY OF NO CONTEST PLEA AND SENTENCE, 6/29/20; T. 28-42).”
{¶3} On June 7, 2019, a Pickaway County Grand Jury returned
an indictment that charged appellant with (1) one count of
aggravated trafficking in drugs in violation of R.C.
2925.03(A)(2), and (2) one count of aggravated possession of
drugs in violation of R.C. 2925.11(A). Both charges are second-
degree felonies and included forfeiture specifications.
{¶4} Subsequently, appellant filed a motion to suppress
evidence. At the suppression hearing, Pickaway County Sheriff’s
Deputy Corporal Stephen Harger testified that, during the
daylight hours of May 4, 2019, he observed a vehicle make an
improper lane change, fail to signal, and fail to display a
court proceedings. PICKAWAY, 20CA05 3
license plate. Harger thereupon initiated a traffic stop: “I
made contact with the driver, a female. Both she and the
passenger, appellant, were extremely nervous, couldn’t answer
very basic questions that I ask everybody that I stop.” Harger
further described the behavior of the car’s occupants: “I asked
them very basic questions, where were you coming from. They
wouldn’t look me in the eye, they were extremely nervous to
where both the driver and the passenger were physically
shaking.” Harger stated that, after the back seat passenger
“was found to have a warrant,” Harger “secured the passenger in
my cruiser.” Harger then removed the driver as she “seemed
possibly being under the influence the way she was acting.”
Harger also requested the assistance of a female deputy and,
during his interaction with the driver, Harger “advised [the
driver] that I had deployed my K-9 for a free air narcotic
search around the vehicle.”
{¶5} After Corporal Harger removed the driver, he also
removed appellant and “explained what was going on, what I was
doing and that I would be performing a simple pat down for
weapons.” When asked at the hearing whether he would ever “run
a K-9 around the car with passengers in the car,” Harger
testified, “[n]o * * * Because safety of the unknown, what’s
inside that vehicle as far as weapons, safety for myself, my PICKAWAY, 20CA05 4
partner and everybody that could be around. Like I said, we
were right there on 23, we don’t know what’s inside that
vehicle. It’s standard procedure for any type of stop,
including my K-9.” When asked why he advised appellant that he
intended to pat him down, Harger stated, “Just because of all of
the areas that I have been trained in. It was, like I said,
there was inconsistencies of the stories, and just for my
safety.”
{¶6} When Corporal Harger patted down appellant’s outer
garments and “felt a hard bulge in the groin area,” Harger
informed appellant that he found contraband and advised
appellant he was under arrest. After appellant told Harger that
he “had something in his pants,” Harger “put gloves on and I
retrieved it out of his pants.” Harger identified the
contraband as methamphetamine. Appellant also informed Harger
that “he had suboxone in his pants,” and Harger retrieved the
suboxone. At that time, Harger deployed the canine, and
“[i]mmediately, on my cursory search, the dog alerted on the
passenger’s side of the vehicle where Mr. Willoughby was
sitting.”
{¶7} During cross-examination, Corporal Harger acknowledged
that in the criminal complaint he only noted that the driver
appeared to be extremely nervous and that he did not arrest the PICKAWAY, 20CA05 5
driver. The complaint further stated that, after Harger removed
the contraband, “Mr. Willoughby was secured in the back of
[Deputy Canos’s] cruiser. I deployed my K-9 partner Joris, he
indicated on the drivers side door and the passenger side door
of the vehicle. Upon search of the vehicle, Deputy Cano located
some paraphernalia and a small amount of marijuana inside the
vehicle on the passenger side. Mr. Griffith [back seat
passenger] was transported to the jail on his warrant and Mr.
Willoughby was transported to the jail and charged with
possession of drugs and trafficking in drugs.”
{¶8} After the trial court overruled appellant’s motion to
suppress evidence, appellant pleaded no contest to both counts.
The court accepted appellant’s pleas and: (1) imposed a four-
year mandatory prison sentence for Count One; (2) ordered Count
One be subject to an additional two years of imprisonment
pursuant to the Reagan Tokes Law, (3) merged counts one and two
for purposes of sentencing, and (4) ordered a mandatory three-
year post-release control term. This appeal followed.
I.
{¶9} In his first assignment of error, appellant asserts
that the trial court’s decision to overrule his motion to
suppress evidence violates his rights under the Fourth and
Fourteenth Amendments to the United States Constitution. PICKAWAY, 20CA05 6
Appellant argues that the trial court erroneously applied the
inevitable discovery rule when the court denied appellant’s
motion to suppress. Appellant further contends that the
prosecution did not adduce evidence to establish that (1) the
canine could detect contraband no longer in a vehicle, and (2)
the evidence did not establish what particular drug sparked the
canine’s alert on the car, although the post-alert vehicle
search found marijuana.
{¶10} In general, appellate review of a motion to suppress
evidence presents a mixed question of law and fact. State v.
Hawkins, 158 Ohio St.3d 94, 2019-Ohio-4210, 140 N.E.3d 577, ¶
16, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, 797 N.E.2d 71, ¶ 8. When ruling on a motion to suppress
evidence, a 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. State v. Roberts, 110 Ohio St.3d
71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. Thus, a reviewing
court must defer to a trial court’s findings of fact if
competent, credible evidence exists to support the trial court’s
findings. Id.; State v. Fanning, 1 Ohio St.3d 19, 20, 437
N.E.2d 583 (1982); State v. Debrossard, 4th Dist. Ross No.
13CA3395, 2015-Ohio-1054, ¶ 9. The reviewing court then must
independently determine, without deference to the trial court, PICKAWAY, 20CA05 7
whether the trial court properly applied the substantive law to
the case’s facts. See Roberts at ¶ 100; Burnside, supra, at ¶
8; State v. Hansard, 4th Dist. Gallia No. 19CA11, 2020-Ohio-
5528, ¶ 15.
A. Pat-Down Search for Weapons
{¶11} The Fourth Amendment to the United States Constitution
and Article I, Section Fourteen of the Ohio Constitution,
protect individuals from unreasonable searches and seizures.
State v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d
787, ¶ 15. The exclusionary rule protects this constitutional
guarantee and mandates the exclusion of evidence obtained from
an unreasonable search and seizure. Id.
{¶12} The case sub judice involves an automobile
investigatory stop. To make an investigatory stop, an officer
must have a reasonable, articulable suspicion that the driver
has, is, or is about to commit a crime, including a minor
traffic violation. See State v. Petty, 2019-Ohio-4241, 134
N.E.3d 222, ¶ 12 (4th Dist.); State v. Shrewsbury, 4th Dist.
Ross No. 13CA3402, 2014-Ohio-716, ¶ 15, citing United States v.
Williams, 6th Cir. No. 12-5844, 2013 WL 1831773 (May 2, 2013).
In the case at bar, Corporal Harger’s observation of traffic
violations justified the initial investigatory stop. See, e.g.,
Hansard, ¶ 17; State v. Brown, 4th Dist. Ross No. 18CA3644, PICKAWAY, 20CA05 8
2019-Ohio-1112, ¶ 15; State v. Mays, 119 Ohio St.3d 406, 2008-
Ohio-4539, 894 N.E.2d 1204, syllabus (“A traffic stop is
constitutionally valid when a law enforcement officer witnesses
a motorist drift over the lane markings in violation of R.C.
4511.33, even without further evidence of erratic or unsafe
driving.”)
{¶13} Further, after a stop an officer has the authority to
order the vehicle’s occupants to exit the vehicle. See State v.
Fowler, 4th Dist. Ross No. 17CA3599, 2018-Ohio-241, ¶ 17,
quoting State v. Alexander-Lindsey, 2016-Ohio-3033, 65 N.E.3d
129, ¶ 14 (4th Dist.)(“ ‘Officers may order a driver and a
passenger to exit a vehicle, even absent any additional
suspicion of a criminal violation’ ”). Therefore, in the case
at bar, the officer properly stopped the vehicle and directed
appellant to exit the vehicle. Brown at ¶ 16; Hansard at ¶ 17.
{¶14} An officer may also ask a driver to sit in the patrol
car to facilitate a traffic stop, “but the question of whether
the driver may be searched for weapons before entering the
patrol car is more problematic.” State v. Gordon, 5th Dist.
Ashland No. 17-COA-031, 17-COA-032, 2018-Ohio-2080, ¶ 26. The
Supreme Court of Ohio has held that “[d]uring a routine traffic
stop, it is reasonable for an officer to search the driver for
weapons before placing the driver in a patrol car, if placing PICKAWAY, 20CA05 9
the driver in the patrol car during the investigation prevents
officers or the driver from being subjected to a dangerous
condition and placing the driver in the patrol car is the least
intrusive means to avoid the dangerous condition.” State v.
Lozada, 92 Ohio St.3d 74, 2001-Ohio-149, 748 N.E.2d 520,
paragraph one of the syllabus. Conversely, “[d]uring a routine
traffic stop, it is unreasonable for an officer to search the
driver for weapons before placing him or her in a patrol car, if
the sole reason for placing the driver in a patrol car during
the investigation is for the convenience of the officer.”
Lozada, paragraph two of the syllabus. Otherwise, “every single
traffic stop could be transformed, as a matter of routine, into
a Terry stop,” and we cannot allow the Fourth Amendment
protection against seizures to “be whittled away by police
regulations.” Lozada at 77, citing O’Hara v. State
(Tex.Crim.App.2000), 27 S.W.3d 548, 553, quoting Sikes v. State,
(Tex.App.1998), 981 S.W.2d 490, 494.
{¶15} Thus, because an officer’s authority to conduct a pat-
down search for weapons does not flow automatically from a
lawful stop, a separate inquiry is required. Terry v. Ohio, 392
U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Consequently,
neither an order to exit the vehicle, nor the act of placing a
motorist in a police cruiser, automatically entitles an officer PICKAWAY, 20CA05 10
to conduct a pat-down for weapons. State v. Dozier, 187 Ohio
App.3d 804, 2010-Ohio-2918, 933 NE.2d 1160, ¶ 8, citing State v.
Evans, 67 Ohio St.3d 405, 407, 618 N.E.2d 162 (1993). Instead,
to determine whether a person may be subjected to a pat-down
search for weapons, “we must consider whether, based on the
totality of the circumstances, the officer had a reasonable,
objective basis to believe that the motorist was armed and
dangerous.” Evans at 409; State v. Andrews, 57 Ohio St.3d 86,
565 N.E.2d 1271 (1991). The officer “need not be absolutely
certain that the individual is armed; rather, the issue is
whether a reasonably prudent man in those circumstances would be
warranted in the belief that his safety or the safety of others
was in danger.” Andrews at 89.
{¶16} The “right to frisk is virtually automatic when
individuals are suspected of committing a crime, like drug
trafficking, for which they are likely to be armed.” Williams,
51 Ohio St.3d 58, 554 N.E.2d 108 (1990). However, Williams does
not appear at first glance to support a Terry frisk in the case
at bar. At the time Corporal Harger removed appellant from the
vehicle, Harger knew that the driver could possibly be under the
influence, the back seat passenger had an outstanding warrant,
appellant had committed a seat-belt violation, and the car’s
occupants appeared to be “extremely nervous.” PICKAWAY, 20CA05 11
{¶17} The question of whether Harger had a reasonable,
objective basis to believe that appellant was armed and
dangerous, we note that in State v. Brandon, 2016-Ohio-271, 58
N.E.3d 444 (5th Dist.), officers made contact with Brandon while
he sat in a stationary vehicle, asked for identification, then
asked him to go to the police station to speak with them.
Brandon agreed, but preferred to drive himself. Officers then
patted Brandon down for weapons, “for officer safety.” Id. at ¶
19, 25. The Fifth District observed that officers did not
arrest Brandon, had no legitimate reason to place Brandon in an
unmarked car and drive him to the police station, observed no
weapons in the vehicle, and stood close to Brandon while he
answered questions during the daytime on a public street. Thus,
because officers did not express a reasonable, articulable
suspicion that Brandon was armed and dangerous, the court
concluded that the Terry pat-down search was improper. Id. at
25-27.
{¶18} In State v. Gordon, 5th Dist. 17-COA-031, 17-COA-032,
2018-Ohio-2080, an officer performed the pat-down because of
department policy. The pat-down led to the discovery of a pill
bottle. However, because the officer did not articulate any
reason to believe Gordon to be armed and dangerous, the court
determined the pat-down to be improper. Id. at 27. PICKAWAY, 20CA05 12
{¶19} In the case sub judice, the trial court concluded that
Corporal Harger’s pat-down search “seem to be his own standard
operating procedure when he removes anyone from a motor
vehicle.” Harger did not articulate facts to demonstrate that
he had a reason to believe that appellant may have been armed
and dangerous. At the suppression hearing, Harger acknowledged
that, although he stated in the complaint that the driver acted
nervously, at the hearing Harger testified that all occupants
behaved that way. Harger also testified that he generally
removes people from vehicles before he walks his canine around a
car because of “safety of the unknown, what’s inside that
vehicle as far as weapons, safety for myself, my partner and
everybody that could be around. Like I said, we were right
there on 23, we don’t know what’s inside that vehicle. It’s
standard procedure for any type of stop, including my K-9.” As
for appellant’s pat-down, Harger stated “just because of all of
{¶20} While we readily agree that officer safety is of
paramount importance, under the lens of existing law that Terry
demands, we believe that the totality of the circumstances in
the case at bar did not rise to the reasonable and objective PICKAWAY, 20CA05 13
basis to believe that the occupants were armed and dangerous.
We, however, are also fully aware of the alarming trend of
increasing danger and tragic circumstances that law enforcement
officers now encounter on a daily basis while conducting routine
traffic stops. Certainly we can foresee a time when an
officer’s safety may permit a pat-down search for weapons even
during routine traffic stops even without the need for specific
facts to indicate that a detainee may be armed and dangerous.
Today, however, the controlling authorities have not yet adopted
that view.
{¶21} Consequently, we agree with the trial court’s
conclusion that the officer’s pat-down search did not comply
with the Terry requirements. However, to determine whether the
evidence in the case at bar must be suppressed, we turn to a
discussion of the inevitable-discovery doctrine.
B. Inevitable Discovery
{¶22} Although the pat-down search for weapons in the case
sub judice may not have complied with Terry, the trial court
nevertheless determined that the inevitable discovery exception
permits the inclusion of the evidence obtained during the pat-
down search. Appellant, however, contends that (1) no evidence
exists to show that the canine could detect methamphetamine in PICKAWAY, 20CA05 14
appellant’s pants after he exited the vehicle, and (2) no
evidence exists regarding what particular drug, if any, the
canine alerted to on the car. Appellant observes that the
vehicle search found marijuana, but the officer discovered
methamphetamine and suboxone during appellant’s pat-down search.
{¶23} The Supreme Court of Ohio has held that “illegally
obtained evidence is properly admitted in a trial court
proceeding once it is established that the evidence would have
been ultimately or inevitably discovered during the course of a
lawful investigation.” State v. Perkins, 18 Ohio St.3d 193,
196, 480 N.E.2d 763 (1985), adopting the rule set forth in Nix
v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)
(holding that under the inevitable-discovery doctrine, if the
evidence in question “ultimately or inevitably would have been
discovered by lawful means * * * then * * * the evidence should
be received”). Under the inevitable-discovery doctrine, the
prosecution has the burden to demonstrate, within a reasonable
probability, that law enforcement would have discovered the
evidence in question apart from the unlawful conduct. Perkins,
supra.
{¶24} For evidence to be admitted under the “inevitable
discovery exception,” the state must demonstrate (1) a
reasonable probability that evidence would have been discovered PICKAWAY, 20CA05 15
by lawful means but for the police misconduct, (2) police
possessed the leads to make the discovery inevitable at the time
of the misconduct, and (3) police actively pursued an alternate
line of investigation prior to the misconduct. United States v.
Buchanan, 904 F.2d 349, 356 (6th Cir.1990), quoting United
States v. Webb, 796 F.2d 60 (6th Cir.1986); State v. Taylor, 138
Ohio App.3d 139, 151, 740 N.E.2d 704 (2000), citing State v.
Wilson, 97 Ohio App.3d 333, 335, 646 N.E.2d 863 (1994); State v.
Coston, 168 Ohio App.3d 278, 2006-Ohio-3961, 859 N.E.2d 990, ¶
25 (10th Dist.). Thus, we must examine whether a reasonable
probability exists that law enforcement would have discovered
appellant’s drugs apart from the improper pat-down search.
{¶25} It is well-settled that the use of trained drug-
detection dogs during lawful traffic stops will not trigger
Fourth Amendment protection. Illinois v. Caballes, 543 U.S.
405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). A drug-
detection dog may sniff a vehicle’s exterior during a lawful
traffic stop even in the absence of a reasonable suspicion of
drug-related activity. Id. at 409, 125 S.Ct. 834. However, law
enforcement may not unreasonably extend a traffic stop to
conduct a dog sniff, absent a reasonable suspicion of drug
activity. Rodriguez v. United States, 575 U.S. 348, 357-358, PICKAWAY, 20CA05 16
135 S.Ct. 1609, 191 L.Ed.2d 492 (2015). The question “is not
whether the dog sniff occurs before or after the officer issues
a ticket, * * * but whether conducting the sniff ‘prolongs’--
i.e., adds time to - - ‘the stop.’” Rodriguez, supra, at 357,
citation omitted. In the present case Corporal Harger had the
canine on the scene from the inception of the vehicle stop and
available to sniff the vehicle’s exterior. In fact, as the
trial court points out, Harger actually advised the driver that
Harger intended to deploy his canine for a vehicle sniff before
he gave appellant a pat-down. Furthermore, the canine sniff did
not unreasonably extend the duration of the stop.
{¶26} It is also well-settled that, if a trained narcotics
dog alerts to the odor of drugs from a lawfully detained
vehicle, an officer then has probable cause to search the
vehicle for contraband. Florida v. Harris, 568 U.S. 237, 133
S.Ct. 1050, 185 L.Ed.2d 61 (2013); United States v. Reed, 141
F.3d 644 (6th Cir.1998) (quoting United States v. Berry, 90 F.3d
148, 153 (6th Cir.1996), cert. denied 519 U.S. 999, 117 S.Ct.
497, 136 L.Ed.2d 389 (1996); accord, United States v. Hill, 195
F.3d 258, 273 (6th Cir.1999); United States v. Diaz, 25 F.3d
392, 394 (6th Cir.1994). However, probable cause to search a
vehicle’s occupant has a more demanding standard. In United PICKAWAY, 20CA05 17
States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 92 L.Ed. 210
(1948), the United States Supreme Court held that probable cause
to search a car does not mean that “a person, by mere presence
in a suspected car, loses immunities from search of his person
to which he would otherwise be entitled.” Id. at 587, 68 S.Ct.
222. Similarly, “a person’s mere propinquity to others
independently suspected of criminal activity does not, without
more, give rise to probable cause to search that person.”
Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d
238 (1979).
{¶27} In deciding the suppression issue in the case sub
judice, the trial court cited State v. Jones, 4th Dist.
Washington No. 03CA61, 2004-Ohio-7280, and State v. Kelley, 4th
Dist. Ross No. 10CA3182, 2011-Ohio-3545. In State v. Jones,
supra, this court upheld the warrantless search of a vehicle’s
passenger when a narcotics dog alerted in the area of the
vehicle where the defendant was seated. Id. at ¶ 43. We added,
however, that, although “the dog’s positive reaction to the
vehicle while Jones was seated in it was clearly relevant, this
factor alone is insufficient to constitute probable cause to
search Jones’ person.” Id. Also, in Jones (1) the officer
observed Jones make furtive movements in the backseat, (2) the PICKAWAY, 20CA05 18
officer knew Jones had a history of drug possession, (3) the
canine alerted to drugs while Jones was seated in the car, and
(4) Jones attempted to hinder the pat-down search. These
factors do not appear to be present in the case at bar, however.
{¶28} In State v. Kelley, supra, this court found it
unnecessary to determine whether a dog’s alert, by itself, could
establish probable cause to search a person seated in a vehicle.
Id. at ¶ 24. We noted, however, that “we have previously
indicated that although a dog’s alert on a vehicle with a
defendant seated in it may be a relevant factor in the probable
cause analysis, ‘this factor alone is insufficient to constitute
probable cause to search [the] person.’ ” Id., citing Jones at
¶ 43. Rather than focus on one factor, such as the dog alert,
we concluded that the officer possessed probable cause to search
Kelley under the totality of the circumstances. Id. We also
observed that in State v. Moore, 90 Ohio St.3d 47, 734 N.E.2d
804 (2000), the Supreme Court of Ohio held that “[t]he smell of
marijuana, alone, by a person qualified to recognize this odor,
is sufficient to establish probable cause to conduct a search.”
Moore, syllabus. Thus, in Kelley we observed that “[o]ne could
easily infer that a drug dog’s alert on a vehicle is at least
similar, and maybe more precise, to a trained officer’s smell of PICKAWAY, 20CA05 19
marijuana.” Kelley, supra, footnote 3. In Kelley, the dog
alerted on the vehicle’s passenger side while Kelley sat in the
vehicle.
{¶29} In the case at bar, Corporal Harger observed a vehicle
make an illegal lane change, fail to signal, and fail to
properly display a license plate. The officer testified that
all occupants were “extremely nervous,” the driver appeared to
be shaking and under the influence, and a back-seat passenger
had an outstanding warrant. “While [some] degree of nervousness
during interactions with police officers is not uncommon, * * *
nervousness can be a factor to weigh in determining reasonable
suspicion.” State v. Simmons, 2013-Ohio-5088, 5 N.E.3d 670, ¶
17 (12th Dist.) After the officer advised the occupants of his
intention to conduct a canine vehicle sniff, he conducted a pat-
down search for weapons that resulted in the discovery of
appellant’s drugs, albeit immediately prior to the canine
vehicle search. Shortly thereafter, the canine alerted to the
presence of drugs on the side of the car where appellant had
been sitting. Thus, because the canine did alert to the
presence of drugs, the officer’s pat-down of appellant would
have been justified after the canine alert. Taken together, we
agree with the trial court’s conclusion that the totality of the PICKAWAY, 20CA05 20
circumstances present in the case sub judice supports the
application of the inevitable-discovery doctrine.
{¶30} Accordingly, based upon the foregoing reasons we
overrule appellant’s first assignment of error.
II.
{¶31} In his second assignment of error, appellant asserts
that he did not enter a knowingly, voluntary, and intelligent no
contest plea. In particular, appellant argues, citing R.C.
2937.07, that the trial court’s plea colloquy failed to advise
him of the effects of his no contest plea and that his plea did
not constitute an admission of guilt.
{¶32} In deciding whether to accept a plea, a court must
determine whether a defendant is making the plea knowingly,
intelligently, and voluntarily. State v. McDaniel, 4th Dist.
Vinton No. 09CA677, 2010–Ohio–5215, ¶ 8. “ ‘In considering
whether a guilty plea was entered knowingly, intelligently and
voluntarily, an appellate court examines the totality of the
circumstances through a de novo review of the record to ensure
that the trial court complied with constitutional and procedural
safeguards.’ ” (Emphasis sic.) Id., quoting State v. Eckler,
4th Dist. Adams No. 09CA878, 2009–Ohio–7064, ¶ 48; State v.
Hearn, 4t Dist. Washington No. XXX, 2021-Ohio-594, ¶ 18; State PICKAWAY, 20CA05 21
v. Barner, 4th Dist. Meigs No. 10CA9, 2012-Ohio-4584, ¶ 8.
{¶33} “Before accepting a guilty plea, the trial court
should engage in a dialogue with the defendant as described in
Crim.R. 11(C).” McDaniel at ¶ 8, citing State v. Morrison, 4th
Dist. No. 07CA854, 2008–Ohio–4913, ¶ 9. Crim.R. 11(C)(2)
provides:
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: (a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing. * * *
{¶34} Substantial compliance with Crim.R. 11(C)(2)(a) is
sufficient for a valid plea concerning nonconstitutional rights.
State v. Veney, 120 Ohio St.3d 176, 2008–Ohio–5200, 897 N.E.2d
621, ¶ 14. “ ‘Substantial compliance means that, under the
totality of the circumstances, appellant subjectively understood
the implications of his plea and the rights he waived.’ ”
McDaniel at ¶ 13, quoting State v. Vinson, 10th Dist. No. 08AP–
903, 2009–Ohio–3240, ¶ 6. As the Supreme Court of Ohio
explained in State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748, PICKAWAY, 20CA05 22
893 N.E.2d 462, ¶ 32:
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. The test for prejudice is “whether the plea would have otherwise been made.” 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. “A complete failure to comply with the rule does not implicate an analysis of prejudice.” (Emphasis sic.) (Citations omitted.)
{¶35} “Crim.R. 11(C)(2)(b) requires the trial court to
inform the defendant of the effect of his guilty or no-contest
plea and to determine whether he understands that effect.”
State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d
677, ¶ 12; State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415,
814 N.E.2d 51, ¶ 10-12. “To satisfy the effect-of-plea
requirement under Crim.R. 11(C)(2)(b), a trial court must inform
the defendant, either orally or in writing of the appropriate
language of Crim.R. 11(B).” Jones at ¶ 25, 51. Further, the
trial court must also inform the defendant that upon acceptance
of his pleas, it “may proceed with judgment and sentence.”
Crim.R. 11(C)(2)(b). PICKAWAY, 20CA05 23
{¶36} At the June 29, 2020 change of plea hearing, appellee
indicated “[t]he state has agreed to offer Mr. Willoughby a no
contest plea to both counts in this particular matter. That way
it preserves his appeal rights for the suppression motion,
understanding the state is then also still recommending a four-
year mandatory prison term.” Appellant’s counsel stated that he
read the change of plea form to appellant, “and I think that I
have explained it to his satisfaction. He has signed the
document in both places, both the change of plea form and the
waiver of jury trial rights, and the acknowledgment thereof.”
The trial court addressed appellant and inquired about his
education level, to which appellant replied, “I’m actually
college educated.” After the court discussed the charges and
maximum sentence, the court stated, “[h]ow this operates, Mr.
Willoughby, is if you are pleading no contest, there is a
stipulation of finding of guilt[.]” The court also explained
that appellant would be waiving his right to a jury trial and
stated:
[I]f you plead no contest to these charges here this morning with a stipulation of guilt, you are giving up your right to go further with this jury trial and all the other rights I just got through explaining to you.
By pleading no contest with a stipulation of guilt, it will preserve your right to appeal the decision previously made in this court with respect to your PICKAWAY, 20CA05 24
motion to suppress. Do you understand that?
Appellant replied, “Yes. I understand that.” The trial court
then reviewed the agreed sentence and asked appellant if he
understood, to which he replied, “Yes, I understand it
completely.” After hearing an explanation about post-release
control, appellant entered his plea and stated, “I intend to
appeal the suppression motion that falls within the thirty
days.” Appellant also requested appellate representation.
{¶37} After our review in the case at bar, we believe that
the trial court substantially complied with the applicable
rules. Further, appellant acknowledged that he understood the
implications of his plea and the various rights that he would
waive through a no contest plea. Appellant, represented by
counsel at the plea hearing, did not assert his innocence and we
find nothing to suggest any confusion or lack of understanding
regarding the effect of his plea. Moreover, appellant did not
argue that he would not have entered his no contest plea but for
the trial court’s alleged error. See State v. Nero, 56 Ohio
St.3d 106, 108, 564 N.E.2d 474. Moreover, even if the trial
court was arguably required to recite the facts and
circumstances that surrounded the no contest pleas, the omission
at most constitutes harmless error. Therefore, because PICKAWAY, 20CA05 25
appellant failed to establish prejudice, we conclude that
appellant knowingly, voluntarily, and intelligently entered his
no contest pleas.
{¶38} Accordingly, based upon the foregoing reasons we
overrule appellant’s second assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED. PICKAWAY, 20CA05
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 Pickaway 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.