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State v. Moon

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 22, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MICHAEL E. MOON DEFENDANT-APPELLANT

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-09-522061-A

          ATTORNEYS FOR APPELLANT Barry W. Wilford Sarah M. Schregardus Kura Wilford & Schregardus Co., L.P.A.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Daniel T. Van Assistant County Prosecutor Justice Center.

          BEFORE: Laster Mays, J., McCormack, P.J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE.

         {¶1} Defendant-appellant, Michael E. Moon ("Moon"), appeals the trial court's decision to deny his postconviction petition. We affirm.

         I. Facts and Procedural History

         {¶2} This court in State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶ 2-13 ("Moon I "), summarized the facts and procedural history of this case as follows:

On July 29, 2008, Moon was at Cleveland Hopkins International Airport traveling for a business trip. When his checked bags were sent through security screening, baggage scanners discovered 50 images of child pornography concealed in several envelopes in his luggage. Because the luggage scanner could not penetrate the envelopes, a hand search was conducted, revealing the images. Moon was identified as the owner of the luggage and arrested.
On August 6, 2008, Cleveland police obtained a warrant to search the remainder of Moon's luggage and a laptop that were seized at the airport. The search revealed nothing other than those images. On August 8, 2008, a warrant was purportedly obtained from the Medina County Court of Common Pleas to search Moon's home in Medina, Ohio for further evidence that Moon had engaged in criminal activity related to child pornography (the "August 8, 2008 search warrant"). As a result of that search, police officers recovered seven computer disks that were later discovered to contain images of child pornography. A third search warrant, to search the property that had been seized from the house during the August 8, 2008 search, including various electronic devices, computer peripherals, cell phones, floppy discs, CDs and DVDs, was issued on August 15, 2008.
On March 18, 2009, the Cuyahoga County Grand Jury indicted Moon on 101 counts - four counts of pandering sexually-oriented matter involving a minor, 42 counts of illegal use of a minor in nudity-oriented material or performance, 53 counts of pandering sexually oriented matter involving a minor and two counts of possession of criminal tools. The offenses arose from Moon's possession of over 500 images of child pornography. State v. Moon, 8th Dist. Cuyahoga No. 93673, 2010-Ohio-4483, ¶ 3. Forty-seven of the counts (Counts 1-46 and 100) related to the images and other evidence discovered during the search of Moon's checked baggage at the airport; the remaining counts (Counts 47-101) related to images discovered and materials seized as a result of the August 8, 2008 search of Moon's home.
On June 8, 2009, Moon pled guilty to four counts of pandering sexually oriented matter involving a minor in violation of R.C. 2907.22(A)(2) (Counts 1-4), 46 counts of illegal use of a minor in nudity-oriented material or performance in violation of R.C. 2907.323(A)(1) (Counts 5-40 and 47-56) and two counts of possession of criminal tools in violation of R.C. 2923.24 (Counts 100-101). Forty-one of the counts to which Moon pled guilty (Counts 1-40 and 100) related to the images and other evidence discovered during the search of Moon's checked baggage at the airport; the remaining counts (Counts 47-56 and 100-101) related to the images discovered and materials seized during the search of Moon's home. In exchange for his guilty pleas, the remaining counts were nolled.
Although Moon and his counsel were aware that search warrants had allegedly been obtained for the search of Moon's luggage, laptop and home, Moon's trial counsel did not request or obtain copies of the search warrants or otherwise review the search warrants before Moon entered his guilty pleas. The prosecutor purportedly stated at the plea hearing that he "did not provide a copy of the search warrant * * * because it was filed under seal" and "no request was ever made to unseal that warrant."
On July 8, 2009, the trial court sentenced Moon to a prison term of (1) six years each on Counts 1-4, to run concurrently with each other, (2) six years each on Counts 5-40, to run concurrently with each other, (3) six years each on Counts 47-56, to run concurrently with each other and (4) one year each on Counts 100 and 101. The sentences on Count 1 (six years), Count 5 (six years), Count 47 (six years), Count 100 (one year) and Count 101 (one year) were to run consecutively, for an aggregate prison sentence of 20 years. The trial court also imposed a five-year mandatory period of postrelease control on counts 1, 5 and 47, a three-year period of discretionary postrelease control on Counts 100 and 101 and classified Moon as a Tier II sex offender/child victim offender subject to the requirements of that classification for 25 years.
Moon appealed his convictions and sentences, retaining new counsel to represent him in his appeal. Among the issues Moon raised in his appeal was that trial counsel was ineffective for failing to request that the search warrant relating to the search of Moon's home be unsealed prior to advising Moon to enter his guilty pleas. Moon, 2010-Ohio-4483 at ¶ 6. Moon argued that by not requesting and reviewing the sealed search warrant, trial counsel was deprived of the possibility of arguing that the search warrant was defective and that, if the search warrant had been found to be defective, the offenses linked to the images found on the computer disks seized during the search of Moon's home would have been eliminated. Id. at ¶ 8. This court rejected Moon's argument as "pure speculation, " reasoning that the search warrant could have just as likely been valid and that "because we obviously do not know what is contained in the search warrant, " there was no evidence that the unsealing of the warrant would have changed the result of the proceedings. Id. at ¶ 9. On September 23, 2010, this court affirmed Moon's convictions but remanded the case to the trial court for a hearing pursuant to R.C. 2929.191 on the criminal possession counts (Counts 100 and 101). Id. at ¶ 34. Moon's other sentences were affirmed. Id. The Ohio Supreme Court declined jurisdiction. State v. Moon, 128 Ohio St.3d 1412, 2011-Ohio-828, 942 N.E.2d 384.
After his direct appeal was unsuccessful, Moon hired new counsel to represent him. On October 13, 2011, Moon's counsel filed a motion to unseal the search warrants "for the limited purpose of providing a copy to [new] counsel." The state did not oppose the motion, and the ...

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