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State of Ohio v. Jason Cubic

September 30, 2011

STATE OF OHIO APPELLEE
v.
JASON CUBIC APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 08 CR 0075

The opinion of the court was delivered by: Moore, Judge.

Cite as State v. Cubic,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Appellant, Jason A. Cubic, appeals the judgment of the Medina County Court of Common Pleas. This Court affirms.

I.

{¶2} Jason A. Cubic was arrested after police executed a search warrant at 1829 Rocklyn Drive, Brunswick, Ohio. In April 2007, Police received an anonymous tip that Cubic and his brothers were operating a methamphetamine lab in a garage at their residence in Brunswick. In response to the tip, members of the Medina County Drug Taskforce placed the Rocklyn Drive residence under surveillance in December 2007. The officers observed several vehicles arriving at the residence, then departing after a short time. Agent John Stayrook conducted two "trash pull[s]" at the residence. On both occasions, he found "green/brown vegetable matter" that field tested positive for the presence of marijuana, as well as mail addressed to 1829 Rocklyn Drive. In the second trash pull he also found burnt foil, clear plastic bags, and a broken smoking device containing residue.

{¶3} On February 7, 2008, Agent Stayrook and Agent Jennifer Smith conducted an audit of the Ohio Pseudoephedrine Transaction Log at several pharmacies located in Brunswick and Hinckley, Ohio. They searched for the last name Cubic and the address of 1829 Rocklyn Drive. They discovered: "From October 9, 2006 to January 30, 2008, [the Cubic brothers] purchased 4,436 pills containing Pseudoephedrine and three boxes containing an unknown amount of pills containing Pseudoephedrine from Discount Drug Mart and Walgreens."

{¶4} Agent Stayrook requested and received a warrant authorizing a night-time search to protect agent safety and to minimize the destruction of evidence. He requested and received authority to search people and vehicles found on the property. The warrant also authorized police to locate and seize any marijuana, cocaine, or any other controlled substance or contraband, drug processing paraphernalia, weapons, or drug trafficking records. Upon executing the search warrant, officers reportedly found evidence tending to show that methamphetamine was being produced in one of the garages at the Rocklyn Drive residence. During this time, Cubic had control over the garage and many children, including Cubic's, were present in the home.

{¶5} On February 21, 2008, Cubic was indicted by the Medina County Grand Jury on one count of illegal manufacture of drugs in the vicinity of a school in violation of R.C. 2925.04(A)(C), a felony of the first degree, and one count of illegal assembly/possession of chemicals for the manufacture of drugs in violation of R.C. 2925.041(A), a felony of the third degree. On March 10, 2008, he entered a plea of not guilty. A supplemental indictment was filed on March 19, 2008, and Cubic was indicted on one count of possession of methamphetamine in violation of R.C. 2925.11(A)(C)(1)(b), a felony of the third degree. On April 7, 2008, he entered a plea of not guilty to that count.

{¶6} Cubic filed a motion to suppress on May 8, 2008. The trial court denied the motion on July 22, 2008. On October 20, 2008, he entered a plea of no contest to all counts. On January 22, 2009, Cubic was sentenced to four years of incarceration on count one, two years of incarceration on count two, and two years of incarceration on count three. Counts two and three were ordered to run concurrently with each other, and consecutively with count one, for a total of six years of incarceration.

{¶7} On February 20, 2009, Cubic filed a notice of appeal with this Court. On October 19, 2009, we dismissed the appeal and remanded the matter to the trial court for resentencing. On April 13, 2010, Cubic filed a motion to withdraw his previously entered plea of no contest. A hearing was held on the motion on May 11, 2010. The motion was denied on June 11, 2010. On June 28, 2010, the original sentence of six years of incarceration was reimposed, and Cubic was notified of mandatory five-year period of postrelease control.

{ΒΆ8} Cubic timely filed a notice of appeal. He raises one assignment of ...


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