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State v. Wheeler

Court of Appeals of Ohio, Second District, Montgomery

May 26, 2017

STATE OF OHIO Plaintiff-Appellee
v.
ERIC WHEELER Defendant-Appellant

         Criminal Appeal from Common Pleas Court T.C. NO. 15-CR-3208

          MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee

          CHARLES E. McFARLAND, Atty. Reg. No. 0031808, Attorney for Defendant-Appellant

          OPINION

          DONOVAN, J.

         {¶ 1} Defendant-appellant Eric Wheeler appeals his conviction and sentence for one count of possession of cocaine (twenty grams but less than twenty-seven grams), in violation of R.C. 2925.11(A) & R.C. 2925.11(C)(4)(d), a felony of the second degree. Wheeler filed a timely notice of appeal with this Court on May 13, 2016.

         {¶ 2} The incident which forms the basis for the instant appeal occurred on the night of October 15, 2015, at approximately 10:15 p.m. when Dayton Police Officer Mark Orick was assisting other officers with the recovery of a stolen vehicle near the intersection of North Main Street and Parkwood Avenue in Dayton, Ohio. After engaging in a foot chase of a separate suspect involved in the vehicle theft, Officer Orick began walking northbound on the west side North Main Street in order to recover some property the officer discarded during the chase. When he reached the intersection of North Main Street and Laura Avenue, Officer Orick observed an individual, later identified as the appellant, Wheeler, standing on the opposite side of North Main Street. Officer Orick testified that he also observed an unidentified female sitting on the steps of a vacant house on the same side of North Main Street where he was walking. Officer Orick further testified that Wheeler and the female subject were the only people he observed in the vicinity at that time. Officer Orick testified that the area where he was located is a high-crime area from which the Dayton Police Department receives approximately eighty drug related complaints on a monthly basis.

         {¶ 3} Shortly after observing Wheeler and the female, Officer Orick heard a loud noise which he immediately identified as a gunshot based upon his training and experience. Officer Orick testified that gunshot came from the area where Wheeler was located on North Main Street. Significantly, Officer Orick testified that he recognized the loud noise as a gunshot because he had been fired upon previously in the line of duty. After hearing the gunshot, Officer Orick observed the female sitting in the doorway visibly recoil from the sound. Officer Orick then looked across the street at Wheeler and observed that he did not exhibit any surprise or shock at the sound of the gunshot. Rather, Officer Orick testified that while maintaining eye contact with him, Wheeler began slowly walking backwards while placing something on the ground with a light throwing motion.

         {¶ 4} Believing that Wheeler fired the gunshot, Officer Orick drew his service weapon and ordered him to get down on the ground. Wheeler did not comply with Officer Orick's order and continued walking backwards. At that point, Sergeant Riegel arrived at the scene in his cruiser to assist Officer Orick. Together, Officer Orick and Sgt. Riegel placed Wheeler on the ground and handcuffed him.

         {¶ 5} Shortly thereafter, Officer Jason Berger arrived at the scene in his police cruiser. Officer Berger testified that he also heard the noise that Officer Orick believed to be a gunshot. While Officer Berger testified that he did not identify the noise as a gunshot, he admitted that Officer Orick was a great deal closer to Wheeler, and therefore in a better position to perceive the nature of the threat. Officer Orick and Sgt. Riegel handed the handcuffed Wheeler off to Officer Berger so that they could check the area for a gun. We note that the officers did not locate any guns during their search, but did find a water bottle that Wheeler had placed on the ground while being approached by Officer Orick.

         {¶ 6} Informed by Officer Orick that Wheeler was suspected of having fired a gunshot, Officer Berger conducted a Terry pat down for his own safety. While patting Wheeler down, Officer Berger, without any manipulation, immediately felt what he recognized to be a gel cap used to package and sell heroin in Wheeler's right front pants pocket. Officer Berger proceeded to remove the gel cap from Wheeler's pocket where he also discovered two baggies containing crack cocaine. Officer Berger did not recover any weapons from Wheeler. Officer Berger testified that he placed Wheeler under arrest and read him his Miranda rights. Thereafter, Wheeler invoked his right to counsel, and Officer Berger transported him to the Safety Building for processing.

         {¶ 7} On October 23, 2015, Wheeler was indicted for one count of possession of cocaine, a felony of the second degree, and one count of possession of heroin, a felony of the fifth degree. At his arraignment on November 5, 2015, Wheeler pled not guilty to the charges contained in the indictment.

         {¶ 8} On November 10, 2015, Wheeler filed a motion to suppress all of the physical evidence obtained by police during Officer Berger's pat-down on October 15, 2015. A hearing was held before the trial court on said motion on February 11, 2016. On May 13, 2016, the trial court issued a decision and entry overruling Wheeler's motion to suppress.

         {¶ 9} On August 25, 2016, Wheeler pled no contest to one count of possession of cocaine (twenty grams but less than twenty-seven grams), in violation of R.C. 2925.11(A) & R.C. 2925.11(C)(4)(d), a felony of the second degree. In return for Wheeler's no contest plea, the State dismissed the remaining count for possession of heroin. On September 28, 2016, the trial court sentenced Wheeler to a mandatory two years in prison and waived payment of the mandatory fine. Wheeler's judgment entry of conviction was filed the next day on September 29, 2016.

         {¶ 10} It is from this judgment that Wheeler now appeals.

         {¶ 11} Wheeler's first assignment of error is as follows:

         {¶ 12} "THE TRIAL COURT ERRED IN RECORDING IN THE TERMINATION ENTRY THAT WHEELER HAD PLED GUILTY TO POSSESSION OF COCAINE AND HEROIN."[1]

         {¶ 13} In his first assignment, Wheeler contends that the trial court erred since it characterized his plea as guilty when in fact the plea was no contest. Initially, we note that the State concedes that the trial court erred in this respect. Although the trial court did not correctly state in the judgment entry of conviction that Wheeler had pled no contest, Wheeler has not alleged or demonstrated any prejudice in his sentencing as a result of this clerical error. State v. Redavide, 2d Dist. Montgomery No. 26070, 2015-Ohio-3056, ¶ 24.

         {¶ 14} It is clear from the record, especially the plea form signed by the parties, that everyone understood Wheeler was pleading no contest to one count of possession of heroin. As we recently held in State v. Mayberry, 2014-Ohio-4706, 22 N.E.3d 222, ¶ 34 (2d Dist.), when it is necessary for the trial court to correct its sentencing entry, we will remand the case for correction of the error. Therefore, upon remand, the trial court may issue a nunc pro tunc order and entry with imposition of sentence that properly identifies the no contest plea. Redavide at ¶ 24.

         {¶ 15} Wheeler's first assignment of ...


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