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State v. Sanders

Court of Appeals of Ohio, Ninth District

June 26, 2013

STATE OF OHIO Appellee
v.
LATARRIS LAMONT SANDERS Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 11 03 0796 (A)

PAUL F. ADAMSON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

JENNIFER HENSAL, Judge.

{¶1} Latarris Sanders appeals his convictions for trafficking in heroin, possession of cocaine, having weapons while under disability, driving under suspension, and endangering children in the Summit County Court of Common Pleas. For the following reasons, this Court affirms.

I.

{¶2} In March 2011, police executed a search warrant at 440 East York Street in Akron. Following the search, the Grand Jury indicted Mr. Sanders for trafficking in heroin, possession of heroin, possession of cocaine, having weapons under disability, possession of criminal tools, driving under suspension, endangering children, and possession of marijuana. Mr. Sanders moved to suppress the evidence found during the search, arguing that the visiting judge who issued the warrant did not have authority to issue it and that it was not supported by probable cause. After the trial court denied Mr. Sanders's motion, he pleaded no contest to several of the charges. The trial court found him guilty of those offenses, and sentenced him to eight years imprisonment. Mr. Sanders has appealed the denial of his motion to suppress, assigning three errors.

II.

ASSIGNMENT OF ERROR I
THE SEARCH WARRANT AT ISSUE WAS VOID AB INITIO IN THAT THE WARRANT WAS NOT SIGNED BY A JUDGE OF COMPETENT JURISDICTION.

{¶3} Mr. Sanders argues that the search warrant was void at its inception because it was not signed by any of the six elected Akron Municipal Court judges. The issue raised by Mr. Sanders entails a question of law which we review de novo. State v. Ross, 9th Dist. No. 12CA010196, 2012-Ohio-6111, ¶ 7.

{¶4} Regarding search warrants, Revised Code Section 2933.21 provides that "[a] judge of a court of record may, within his jurisdiction, issue warrants to search a house or place[.]" Similarly, Criminal Rule 41(A) provides that "[a] search warrant * * * may be issued by a judge of a court of record to search and seize property located within the court's territorial jurisdiction, upon the request of a prosecuting attorney or a law enforcement officer."

{¶5} The warrant was signed by a retired judge who had been appointed by the Chief Justice of the Ohio Supreme Court to serve as a visiting judge in the Akron Municipal Court from January 2011 to March 2011. None of the court's six elected judges, however, had requested that the visiting judge sit "by assignment" for them on that particular date. Sanders argues, therefore, that the visiting judge lacked authority to issue the warrant and it is void.

{¶6} Mr. Sanders's argument is without merit. In Mr. Sanders's co-defendant's case, this Court noted that "Section 1901.10(B) of the Ohio Revised Code provides that, '[if] the volume of cases pending in any municipal court necessitates an additional judge, the chief justice of the supreme court * * * may designate a judge of another municipal court or county court to serve for any period of time that the chief justice may prescribe.'" State v. Nurse, 9th Dist. No. 26391, 2012-Ohio-6000, ¶ 5, quoting R.C. 1901.10(B); see also Sup.R. 17(B)(2) (providing that the chief justice of the Ohio Supreme Court may assign a retired judge "to temporarily serve as a judge on any municipal * * * court."). Although it is not clear from the record why the Chief Justice assigned the visiting judge who signed the search warrant in this case to serve on the Akron Municipal Court, Section 1901.10(B) establishes that the chief justice may designate a judge to serve in any municipal court for any period of time the chief justice may prescribe. Superintendent Rule 17 also permits the ...


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