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State of Ohio v. Kenneth L. Hobbs

September 30, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
KENNETH L. HOBBS, DEFENDANT-APPELLANT.



Civil Appeal from the Lake County Court of Common Pleas, Case No. 08 CR 000001.

The opinion of the court was delivered by: Mary Jane Trapp, J.

Cite as State v. Hobbs,

Judgment: Affirmed.

OPINION

{¶1} Kenneth L. Hobbs appeals from a judgment of the Lake County Court of Common Pleas Court which denied his petition for post-conviction relief. We affirm the trial court because Mr. Hobbs' claim is barred by the doctrine of res judicata.

{¶2} This is the third time Mr. Hobbs is before this court regarding his convictions of having weapons while under a disability, carrying concealed weapons, and improperly handling firearms in a motor vehicle with a firearm specification.

{¶3} The police stopped Mr. Hobbs' vehicle after an officer ran a computer check and found an outstanding warrant for his arrest. When the police searched his vehicle prior to its impoundment, they found a loaded gun in the center console. At the suppression hearing, the defense focused on the propriety of the traffic stop without challenging the propriety of the officers' search of the vehicle.

{¶4} Hobbs I

{¶5} Mr. Hobbs appealed his convictions to this court, claiming that the search of his vehicle was unlawful as an inventory search. We affirmed the trial court, in State v. Hobbs, 11th Dist. No. 2008-L-155, 2010-Ohio-589 ("Hobbs I"). We determined that Mr. Hobbs waived the search issue by not challenging it at the suppression hearing. We noted, however, that the record reflected the search of Mr. Hobbs' vehicle appeared to be a routine inventory search of an impounded vehicle, which is a well-recognized exception to the warrant requirement. We remarked that, although the state did not present its standardized policy and procedures to show that the police department conducted the inventory search pursuant to its guidelines, Mr. Hobbs had waived the issue of the propriety of the inventory search by choosing not to challenge it at the suppression hearing.

{¶6} Through a footnote in our decision we observed that the search of the vehicle could also be characterized as a search incident to arrest, another exception to the warrant requirement. However, as we further noted, although Ohio law currently allows an officer to search the passenger compartment of a vehicle as a contemporaneous incident of an arrest after the officer has made a lawful custodial arrest of the occupant of a vehicle, the United States Supreme Court, in Arizona v. Gant (2009), 556 U.S. 332, recently held that police may search a vehicle incident to an occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or if it is reasonable to believe the vehicle contains evidence of the offense of arrest. Hobbs, supra, at fn. 1.

{¶7} Mr. Hobbs filed a motion for a reconsideration of our decision, which we denied because he failed to raise issues not already considered in our decision. We stressed that Gant did not affect the outcome of his appeal because Mr. Hobbs did not contest the legality of the search as a lawful inventory search and the record does not suggest otherwise. He appealed our decision to the Supreme Court of Ohio, and the court denied the appeal in State v. Hobbs, 125 Ohio St.3d 1464, 2010-Ohio-2753.

{¶8} Hobbs II

{¶9} After his direct appeal, Mr. Hobbs successfully moved the trial court for a new sentencing hearing because it had erroneously applied a one-year gun specification to the count of improper handling of a firearm in a motor vehicle, rendering the sentence voidable. Before the new sentencing hearing, Mr. Hobbs filed several motions, one of which asked the court to reopen his suppression hearing under Gant. The court denied this motion. The court then resentenced him for offenses without the firearm specification.

{ΒΆ10} Mr. Hobbs appealed, claiming the trial court should have reopened his suppression hearing because of the Gant decision. We affirmed the trial court, explaining again that Gant would not affect the outcome of this case, because, regardless of the legality of the instant search as a search incident to arrest, he waived the issue of the lawfulness of the police's search of his vehicle as a an inventory search by not ...


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