Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Ruth R. Fischbein-Cohen
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Andrew T. Gatti Assistant Prosecuting
BEFORE: S. Gallagher, P.J., Blackmon, J., and Jones, J.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, P.J.
Appellant Ryan Diluzio appeals his conviction for drug
possession. Upon review, we affirm the judgment of the trial
Appellant was indicted on March 24, 2016, and charged with
one count of drug possession in violation of R.C. 2925.11(A),
a felony of the fifth degree. Appellant pleaded not guilty to
the charge and retained counsel. The trial court denied a
motion to suppress after a hearing was held. Appellant then
withdrew his former plea and entered a plea of no contest to
the indictment. The trial court found appellant guilty of the
offense as charged. The trial court placed appellant on one
year of community control, with a one-year sentence that was
suspended. This appeal followed.
Appellant raises two assignments of error for our review.
Under his first assignment of error, appellant claims his
plea was not made voluntarily as required under Crim.R.
11(C). Appellant claims that he was pressured to plead to the
offense, that the judge encouraged a "no contest"
plea, that he was not comfortable with the case and the plea,
and that he is a fragile and vulnerable individual.
"When a defendant enters a plea in a criminal case, the
plea must be made knowingly, intelligently, and
voluntarily." State v. Engle, 74 Ohio St.3d
525, 527, 1996-Ohio-179, 660 N.E.2d 450. The record in this
case reflects that prior to taking the plea, the trial court
engaged in a Crim.R. 11 colloquy with appellant. The trial
court recognized appellant's concern with being given
probation and informed appellant that he could also go to
prison for a year. The trial court expressed a desire to
provide appellant assistance and indicated that the court
would include the component of mental-health counseling. The
trial court informed appellant of the charge against him and
his right to go to trial. The court further informed
appellant that it had a reasonable and a sufficient basis to
make a finding of guilt upon a no contest plea. The trial
court informed appellant what his sentence would be if he
pleaded no contest. Defense counsel indicated that
"[defendant] has an understanding of his Constitutional
rights. It's his desire at this time to enter a no
contest plea to that one count possession charge. That would
be knowingly, voluntarily, intelligently made while entering
There is nothing in the record evincing that appellant was
confused, coerced, or did not understand the proceedings or
his plea. Our review of the record reflects that appellant
entered his plea of no contest knowingly, intelligently, and
voluntarily. His first assignment of error is overruled.
Under his second assignment of error, appellant challenges
the denial of his motion to suppress, claiming that the
search was made absent probable cause in violation of the
The record reflects that appellant was a front-seat passenger
in a friend's vehicle that was stopped by a state highway
patrol trooper for non-illumination of a license plate.
Appellant concedes that the trooper had a right to stop the
car. He challenges whether the trooper had probable cause for
search and seizure.
The Fourth Amendment to the United States Constitution
protects individuals from unreasonable searches and seizures.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968). An investigative traffic stop does not violate
the Fourth Amendment where an officer has reasonable
suspicion that the individual is engaged in criminal
activity, even in the case of a minor traffic violation.
State v. Tate, 8th Dist. Cuyahoga No. 102474,
2015-Ohio-4496, ¶ 12. So long as the circumstances
attending the traffic stop produce a reasonable suspicion of
some other illegal activity, further detention is permissible
for as long as that new articulable and reasonable suspicion
In this case, upon conducting the traffic stop, the trooper
noticed that appellant was not wearing his seat belt and that
appellant appeared "very nervous and fidgety" and
"[h]is hands were shaking." The trooper asked
appellant to step out of the vehicle. Officers are permitted
to order a driver, as well as passengers, out of a vehicle
during a traffic stop as a precautionary measure for officer
safety. State v. Lozada,92 Ohio St.3d 74, 81,
2001-Ohio-149, 748 N.E.2d 520, citing Pennsylvania v.
Mimms, 434 U.S. 106, 110-111, 98 ...