CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2008-11-1918.
Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, for plaintiff-appellee.
Otis M. Kelly, #A615475, London Correctional Institution, defendant-appellant, pro se.
S. POWELL, JUDGE.
(¶ 1} Defendant-appellant, Otis M. Kelly, appeals pro se from the Butler County Court of Common Pleas decision denying his motion to withdraw his no contest plea. For the reasons outlined below, we affirm.
(¶ 2} On November 5, 2008, Kelly was indicted on one count of trafficking in cocaine and one count of possession of cocaine. Each charge also included a major-drug-offender specification and three forfeiture specifications. The charges stemmed from Kelly's involvement in the transportation of seven kilos of cocaine from Chicago to the Butler County area in conjunction with his co-defendant, Sudinia Johnson. The investigation into the alleged drug trafficking began after officers from the Butler County Sheriffs Office received word from several confidential informants that Johnson had recently sold several kilos of cocaine and had arranged to pick up an additional seven to ten kilos of cocaine for sale and distribution. After receiving this information, officers conducted a trash pull at Johnson's home and placed a global-positioning system ("GPS") on Johnson's van.
(¶ 3} A few days later, the GPS unit placed on Johnson's van indicated the vehicle was located at a shopping center near Chicago. After several unsuccessful attempts to contact Chicago law enforcement, Rudy Medellin, the brother of a Butler County Sheriff's Office employee and retired immigration and customs enforcement officer living in the Chicago area, confirmed the van was located at the shopping center. Medellin then followed the van to a nearby residence where he saw two men, later identified as Johnson and Kelly, exit the van and enter the home.
(¶ 4} Shortly thereafter, Medellin saw Johnson exit the house carrying a box before getting into the van and driving away. At that same time, Medellin also saw Kelly pull out of the garage in a car displaying Ohio plates. Medellin then followed Johnson and Kelly as they drove their separate vehicles from Chicago to Butler County. After entering Butler County, both vehicles were stopped and Johnson and Kelly were arrested after officers located seven kilos of cocaine in a hidden compartment within Kelly's vehicle. Kelly entered a plea of not guilty to all charges.
(¶ 5} Prior to trial, Kelly filed a motion to suppress, claiming the traffic stop on his vehicle was unlawful, that the stop was unreasonably long, and that the warrantless search of the trunk was improper. Kelly also challenged the constitutionality of the placement of a GPS unit on Johnson's van without a warrant. After a hearing on the matter, the trial court denied Kelly's motion in its entirety.
(¶ 6} Following the denial of his motion to suppress, Kelly entered a no contest plea to the pending charges and accompanying specifications. As a result of his no contest plea, the trial court found Kelly guilty of all charges. The trial court then merged the charges into a single count of cocaine possession and sentenced Kelly to an aggregate 11-year prison term. The trial court also imposed a $10, 000 fine and ordered the forfeiture of three vehicles.
(¶ 7} On October 8, 2009, Kelly, with the assistance of counsel, appealed from his conviction arguing that the trial court erred in denying his motion to suppress. In support of this claim, Kelly argued that the traffic stop was invalid because the police lacked reasonable articulable suspicion justifying the stop, he was arrested without probable cause when officers placed him in a cruiser during the search of his vehicle, and the length of the stop was unreasonable. Kelly did not appeal from the trial court's decision finding the warrantless placement of the GPS unit on Johnson's van was constitutionally permissible. This court affirmed Kelly's conviction on August 2, 2010. See State v. Kelly, 188 Ohio App.3d 842, 2010-Ohio-3560 (12th Dist.). It is undisputed that Kelly did not appeal from that decision to the Ohio Supreme Court.
(¶ 8} Johnson was also indicted on single counts of trafficking in cocaine and possession of cocaine along with several forfeiture specifications. In preparing his defense, Johnson filed various motions to suppress. This included a challenge regarding the constitutionality of attaching the GPS unit to his van without a warrant. The trial court denied all of Johnson's motions. After his motions to suppress were denied, Johnson entered a no contest plea and the trial court found him guilty. The trial court then merged the charges for sentencing and ordered Johnson to serve an aggregate of 15 years in prison. Johnson was also required to forfeit several vehicles, televisions, shoes, clothing, and a firearm, all of which he admitted to purchasing with drug money.
(¶ 9} Like Kelly, Johnson also appealed from his conviction. See State v. Johnson, 190 Ohio App.3d 750, 2010-Ohio-5808 (12th Dist.). As part of his appeal, Johnson alleged the warrantless placement of the GPS unit on the van was unconstitutional. However, in affirming Johnson's conviction, this court found that attaching a GPS unit to a car was not a search under the Fourth Amendment, and therefore, did not require a search warrant. Unlike Kelly, Johnson then appealed to the Ohio Supreme Court. The Ohio Supreme Court accepted the case for review in State v. Johnson, 128 Ohio St.3d 1425, 2011-Ohio-1049. The matter was then held in abeyance while the United States Supreme Court also considered the constitutionality of the use of GPS units under the Fourth Amendment.
(¶ 10} On January 23, 2012, and while the Johnson case was still pending, the United States Supreme Court issued its decision in United States v. Jones, ___ U.S.___, 132 S.Ct. 945 (2012), which held the attachment of a GPS unit to a vehicle constitutes a search within the meaning of the Fourth Amendment. In light of that holding, the Ohio Supreme Court remanded Johnson to the trial court for application of the United States ...