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State of Ohio v. Darius Jones

December 28, 2012

STATE OF OHIO APPELLEE
v.
DARIUS JONES APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 06-CR-0467

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

Cite as State v. Jones,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Defendant, Darius Jones, appeals from the judgment of the Wayne County Court of Common Pleas. This Court affirms in part, reverses in part, and remands this matter to the trial court for further proceedings consistent with this opinion.

I.

{¶2} In 2006, Mr. Jones was indicted on one count of possession of crack cocaine, a first degree felony, one count of possession of cocaine, a third degree felony, forfeiture specifications attendant to the first and second counts, and one count of falsification, a first degree misdemeanor. These charges stemmed from a traffic stop of Mr. Jones' car, during which Mr. Jones lied to police officers about his identity, and during which the officers located alleged powder and crack cocaine in his vehicle and on his person. Mr. Jones initially pleaded not guilty to the charges and filed a motion to suppress the evidence, arguing that he did not give the officers consent to search his vehicle. The trial court denied the motion. Thereafter, Mr. Jones changed his plea to no contest, and, on May 17, 2007, the trial court issued a sentencing entry finding him guilty on all counts, and imposing a total term of incarceration of seven years. Mr. Jones appealed, and we dismissed his appeal for lack of a final, appealable order because the trial court failed to dispose of the forfeiture specifications in the sentencing entry.

{¶3} On July 18, 2007, the trial court entered a forfeiture order requiring forfeiture of the cash found on Mr. Jones' person at the time of his arrest. On June 11, 2008, the trial court issued a nunc pro tunc sentencing entry reflecting a finding of guilt on the forfeiture specifications. Mr. Jones appealed from the nunc pro tunc entry, and this Court affirmed Mr. Jones convictions. State v. Jones, 9th Dist. No. 08CA0033, 2009-Ohio-670.

{¶4} In 2009, Mr. Jones filed a motion to withdraw his plea, which the trial court denied. Mr. Jones attempted to appeal from the order denying his 2009 motion, but we dismissed his appeal from that order because it was not timely filed.

{¶5} In 2010, Mr. Jones filed a motion for resentencing, which the trial court denied. Mr. Jones appealed from the order denying his motion. This Court affirmed in part the trial court's ruling; however, we determined that postrelease control had not been properly imposed, and we remanded this matter to the trial court for proper imposition of postrelease control. State v. Jones, 9th Dist. No. 10CA0022, 2011-Ohio-1450, ¶ 13. Thereafter, Mr. Jones filed a new motion to vacate his plea. After issuing a resentencing entry on May 19, 2011, which corrected the imposition of postrelease control, the trial court denied Mr. Jones' motion to vacate his plea. Mr. Jones filed a notice of appeal from the resentencing entry in Case No. 11CA0030 and a notice of appeal from the entry denying his motion to vacate his plea in Case No. 11CA0034. Mr. Jones also filed a motion to reopen his appeal in Case No. 08CA0033. We granted his motion to reopen and consolidated Case Nos. 08CA0033, 11CA0030, and 11CA0034.

Thereafter, we determined that the May 21, 2007, June 11, 2008, and May 19, 2011 sentencing entries failed to impose a sentence on the forfeiture specifications. We concluded that these entries were not final, appealable orders, and, accordingly, the entries denying Mr. Jones' motions were interlocutory. Therefore, we dismissed the consolidated appeal for lack of a final, appealable order.

{¶6} On April 6, 2012, the trial court issued a sentencing entry which included a sentence on the forfeiture specifications. Mr. Jones timely appealed, and he now raises eight assignments of error for our review. We have re-ordered certain assignments of error to facilitate our discussion.

II.

{¶7} Initially, we note that the State has argued that our review of Mr. Jones' arguments is barred by res judicata. "The doctrine of res judicata prevents repeated attacks on a final judgment and applies to all issues that were or might have been previously litigated." (Citations omitted.) State v. Lowe, 9th Dist. No. 25475, 2011-Ohio-3355, ¶ 7. However, as set forth above, this Court dismissed Mr. Jones' last attempted appeal based upon our determination that the trial court had not yet issued a final, appealable order. Accordingly, res judicata does not bar Mr. Jones' challenges to the April 6, 2012 sentencing entry, and we will proceed to discuss his arguments on the merits.

ASSIGNMENT OF ERROR VI

THE TRIAL COURT ERRED BY OVERRULING THE MOTION TO SUPPRESS EVIDENCE.

{¶8} In his sixth assignment of error, Mr. Jones argues that the trial court erred in overruling his motion to suppress evidence because he did not give officers consent to search his car, and he instead acquiesced to the search based upon the officers' claim of lawful authority.

We conclude that the trial court did not err in finding that Mr. Jones had voluntarily consented to the officers searching his vehicle.

{¶9} The Supreme Court of Ohio has held that:

[a]ppellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.

(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

{¶10} "When police conduct a warrantless search, the state bears the burden of establishing the validity of the search. Searches and seizures without a warrant are per se unreasonable except in a few well-defined and carefully circumscribed instances." (Citation omitted.) State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 98. One such exception to the warrant requirement arises when officers obtain consent to search. State v. Posey, 40 Ohio St.3d 420, 427 (1988), citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). "To rely on the consent exception of the warrant requirement, the state must show by clear and positive evidence that the consent was freely and voluntarily given." (Citations omitted.) Posey at 427; see also State v. Hetrick, 9th Dist. No. 07CA009231, 2008-Ohio-1455, ¶ 23. Whether consent to a search was voluntarily given is determined by the totality of the circumstances. State v. Childress, 4 Ohio St.3d 217 (1983), paragraph one of the syllabus.

{¶11} The trial court made the following findings of fact. In our discussion of Mr. Jones' purported consent, we will accept these findings, as they are supported by competent, credible evidence. See Burnside at ¶ 8. On October 14, 2006, a confidential informant reported to the Wooster Police Department that a man would be transporting a large quantity of cocaine to Wooster. The informant said the man would identify himself as the man's brother, Dearco Jones, and the informant described the vehicle that the man would be driving. A short time later, Officer Brandon Heim of the Wooster Police Department stopped a vehicle matching the description provided by the informant. The driver, Mr. Jones, falsely informed the officer that he was his brother, Dearco Jones, and he provided the officer with Dearco Jones' address, birth date, and social security number.

{¶12} The officer performed a window tint test on Mr. Jones' rear window and gave Mr. Jones a written warning regarding the level of tint. He then told Mr. Jones that he was free to leave, unless there was anything further that the officer should be concerned about. In response, Mr. Jones patted his chest and waist, indicated that there was nothing there, and told the officer that he could look. The officer, along with another officer, Officer Rotolo, who had arrived at the scene, ultimately searched Mr. Jones' car, resulting in the discovery of 43 grams of crack cocaine, 42 grams of powder cocaine, a baggie containing a small amount of cocaine, and $4467 in cash.

{¶13} At the suppression hearing, Mr. Jones admitted telling Officer Heim that he was his brother, Dearco Jones, and admitted providing the officer with his brother's social security number. Mr. Jones explained that he gave the officer his brother's identifying information because he did not have a driver's license. He also remembered Officer Heim telling him that he was "free to go unless [he had] something on [him] that [Officer Heim] should know about." Regardless, Mr. Jones maintained that he did not consent to the search of the car. Instead, Mr. Jones contended that Officer Heim opened the door of his car and told him to get out. However, at the hearing, both officers testified that Mr. Jones had offered to let the officers look in his car, and that Mr. Jones opened the door exited the car.

{¶14} Mr. Jones has argued that he did not voluntarily consent to the search, but he was instead acquiescing to the search based upon the officers' claim of authority. Whether Mr. Jones voluntarily consented depends on whether he or the officers were more credible as witnesses. Officer Heim's and Rotolo's statements about the incident were consistent with each other. Mr. Jones, on the other hand, admitted that he lied to Officer Heim twice about his identity. It, therefore, was proper for the trial court to determine that his testimony was less credible. Based on a review of the totality of the circumstances, we conclude that the trial court did not err in determining that Mr. Jones voluntarily consented to the search of his vehicle. His sixth assignment of error is overruled.

ASSIGNMENT OF ERROR I

[MR.] JONES'[ ]CHANGE OF PLEA WAS NOT MADE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY.

{¶15} Crim.R. 11 provides that, in felony cases, the trial court shall not accept a no contest plea without first addressing the defendant and engaging in a colloquy to ensure that the plea is "knowingly, intelligently, and voluntarily made[.]" State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 25-26.

Under [Crim.R. 11], the trial judge may not accept a plea of guilty or no contest without addressing the defendant personally and (1) [d]etermining 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, (2) informing the defendant of the effect of the specific plea and that the court may proceed with judgment and sentencing after accepting it, and ensuring that the defendant understands these facts, and (3) informing the defendant that entering a plea of guilty or no contest waives the constitutional rights to a jury trial, to confrontation, to compulsory process, and to the requirement of proof of guilt beyond a reasonable doubt and determining that the defendant understands that fact.

(Internal quotations omitted). Clark at ¶ 27. See also Crim.R. 11(C)(2).

{¶16} "If a trial court fails to literally comply with Crim.R. 11, reviewing courts must engage in a multi-tiered analysis to determine whether the trial judge failed to explain the defendant's constitutional or non-constitutional rights and, if there was a failure, to determine the significance of the failure and the appropriate remedy." Clark at ¶ 30. The failure to explain the constitutional rights set forth in Crim.R. 11(C)(2)(c) renders the plea invalid. Id. at ¶ 31. However, if the court "imperfectly explained non-constitutional rights such as the right to be informed of the maximum possible penalty and the effect of the plea, a substantial-compliance rule applies." Id. Under the substantial compliance standard, "a slight deviation from the text of the rule is permissible; so long as the totality of the circumstances indicates that 'the defendant subjectively understands the implications of his plea and the rights he is waiving,' the plea may be upheld." Id., quoting State v. Nero, 56 Ohio St.3d 106, 108 (1990).

{¶17} If the trial court has not substantially complied with Crim.R. 11, the reviewing court must determine whether the trial court partially complied or failed to comply. Clark at ¶

32. If the trial court "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." Id. The test for prejudice is "whether the plea would have otherwise been made." Nero at 108.

{¶18} Here, Mr. Jones argues that the trial court failed to substantially comply with the mandates of Crim.R. 11 when informing him of certain effects of his plea, including: incorrectly advising him as to the potential sentences on each charge and in total, repeatedly and incorrectly referencing his plea as one of "guilty" instead of "no contest," and failing to make a finding of guilt on the record. We will address these arguments separately.

Potential Sentences

{ΒΆ19} Mr. Jones contends that the trial court conflated and confused the then applicable sentencing criteria for the first degree felony of possession of crack cocaine charge with the third degree felony of possession of cocaine charge. Mr. Jones further argues that the trial court misinformed him as to the maximum jail sentence he could receive on the misdemeanor ...


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