Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Joseph V. Pagano.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Anna Woods Assistant County Prosecutor.
BEFORE: Jones, J., S. Gallagher, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
A. JONES, SR., J.
Defendant-appellant, Andre Lewis, appeals the trial
court's denial of his motion to suppress and his
conviction and sentence for trafficking of drugs with a
one-year firearm specification, possession of drugs with a
one-year firearm specification, carrying concealed weapons,
improperly handling firearms in a motor vehicle, having
weapons while under disability, and possession of criminal
tools. For the reasons that follow, we affirm Lewis's
convictions but vacate his sentence and remand for
In 2016, Lewis was charged with the crimes as stated above.
He filed a motion to suppress, which the trial court denied
after a full hearing. The matter proceeded to a bench trial.
The following pertinent evidence was presented at the
suppression hearing and bench trial.
Cleveland police officers Patty Katynski and Joshua McCoy
were on patrol when they conducted a random registration
check on a Chevrolet Equinox. The check revealed that the
owner of the car had a suspended license. In comparing the
registration picture to the driver of the vehicle, they
determined that Lewis was both the driver and owner of the
The officers conducted a traffic stop and told Lewis he was
under arrest for driving with a suspended license. The
officers asked Lewis's passenger for identification and
found out that his passenger also did not have a valid
driver's license; therefore, the car would have to be
towed because no one was present who could legally drive it.
Officer McCoy searched Lewis pursuant to arrest and found a
small folded piece of paper in Lewis's front pants
pocket; Lewis told Officer McCoy that it was "Molly,
" a street name for the drug MDMA.
Officer McCoy testified that departmental policy requires him
to search a vehicle prior to towing it. Pursuant to the
policy he must determine if a car contains a battery,
radiator, engine, air conditioning, radio, tape player, CD
player, keys, and transmission, and he cannot have the car
towed until he has completed the Vehicle/Tow Supplement Form.
Officer McCoy searched the car and testified that he
"popped" the hood as part of his search for the
battery, radiator, and engine. He saw, in plain view, the
handle of a handgun sticking up from the hood next to a
damaged air filter. Officer Katynski also observed the gun
next to the air filter. The officers radioed for a supervisor
to take photos of the gun, and the gun was removed from the
car. The gun was loaded and operable. The officers also
located a jar of suspected marijuana and plastic baggies.
Lewis admitted to the police that the contraband and gun were
The trial court found Lewis guilty of all charges and
specifications. During the sentencing hearing, the court told
Lewis that it was sentencing him to a total of three years in
prison. The sentencing journal entry also stated that Lewis
was being sentenced to a total of three years in prison by
running the three-year firearm specification concurrent to
the crime of having weapons while under disability.
Lewis now appeals, raising the following assignments of error
for our review:
I. The trial court erred by denying Appellant's motion to
suppress where the search of his vehicle exceeded the scope
of a permissible warrantless search in violation of his
II. The trial court erred by denying Appellant's Crim.R.
29 motions because Appellant's convictions were based on
III. Appellant's convictions were against the manifest
weight of the evidence.
IV. Appellant's sentence is contrary to law and was
imposed in violation of his Sixth Amendment rights.
In the first assignment of error, Lewis argues that the trial
court erred ...