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State v. Louis

Court of Appeals of Ohio, Second District, Montgomery

November 22, 2017

STATE OF OHIO Plaintiff-Appellee
GILBERT LOUIS Defendant-Appellant

         Criminal Appeal from Municipal Court Trial Court Case No. 14-TRC-14033

          JOSHUA T. SHAW, Atty. Attorney for Plaintiff-Appellee

          TRAVIS KANE, Atty. Attorney for Defendant-Appellant


          WELBAUM, J.

         {¶ 1} Defendant-appellant, Gilbert Louis, appeals from his conviction in the Dayton Municipal Court after he pled no contest to three counts of driving under the influence of alcohol, one count of failing to maintain reasonable control of his vehicle, and one count of failing to use a turn signal. In support of his appeal, Louis contends that the trial court erred by overruling his motion to suppress evidence obtained as a result of his detainment following a traffic stop and subsequent arrest. Louis also contends that his trial counsel provided ineffective assistance by failing to file a written brief in support of the arguments raised at the suppression hearing. In addition to these arguments and pursuant to this court's order, the parties also addressed whether the instant appeal constitutes a final appealable order due to deficiencies in the trial court's sentencing entries. For the reasons outlined below, we conclude the instant appeal is from a final appealable order and will affirm the judgment of the trial court. However, the matter will be remanded to the trial court for the limited purpose of issuing a nunc pro tunc entry to correct the errors in the sentencing entries.

         Facts and Course of Proceedings

         {¶ 2} On November 14, 2014, Louis was arrested and charged with driving under the influence of alcohol ("OVI") in violation of R.C. 4511.19(A)(2). Louis was also charged with failing to maintain reasonable control of his vehicle in violation of R.C. 4511.202 and failing to use a turn signal in violation of R.C. 4511.39. After receiving laboratory test results showing that Louis's blood alcohol level was over the legal limit, on February 12, 2015, the State also charged Louis with two additional OVI charges under R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(b). All the charges stemmed from a routine traffic stop that was initiated due to Louis's moving violations. The traffic stop expanded into an OVI investigation after the police officer on duty made certain observations that led him to believe Louis was driving under the influence of alcohol.

         {¶ 3} On April 16, 2015, after entering a not guilty plea to all the charges, Louis filed a motion to suppress the evidence obtained as a result of his detention and subsequent arrest. In the motion, Louis argued that the police officer on duty unlawfully detained him when conducting the OVI investigation because the officer did not have a reasonable, articulable suspicion that he was driving under the influence of alcohol. Louis also argued that the officer did not have probable cause to arrest him for driving under the influence of alcohol.

         {¶ 4} On June 9, 2015, the trial court held a suppression hearing, during which the State presented testimony from the police officer on duty, Officer Alexander Dole. Officer Dole testified that he has been a City of Dayton police officer for two years and has taken part in several OVI stops. Dole also indicated that he received alcohol detection training and certification through the National Highway Traffic Safety Administration ("NHTSA"). During OVI investigations, Dole claimed that he looks for slurred speech, confusion, glossy or bloodshot eyes, heavy sweating, distressed clothes, and trouble walking or standing as indicators of intoxication.

         {¶ 5} Regarding the incident in question, Dole testified that around 8:00 p.m. on November 14, 2014, he was on duty in a marked cruiser with his partner when he observed a white vehicle on Midway Avenue in Dayton, Ohio, fail to signal 100 feet before turning onto Whitmore Avenue. Dole testified that the driver of the vehicle used the right turn signal and started to turn right onto Whitmore, but then suddenly changed direction and took a wide left turn instead. Dole testified that the wide left turn made him suspect the driver was intoxicated.

         {¶ 6} After observing the signal violation and wide left turn, Dole testified that he initiated a traffic stop for the moving violations and made contact with the driver, who was later identified as Louis. Upon approaching Louis in his vehicle, Dole testified that he smelled alcohol coming from either inside the vehicle or Louis's person and that the odor was strong enough to notice almost immediately. Dole also observed an open bottle in a brown paper bag tucked between Louis's leg and the vehicle's center console. Dole testified that in his experience, individuals often put open containers in brown paper bags in an attempt to hide them, and that "nine out of ten times" the brown bag usually contains "a bottle of alcohol or a can of beer." Suppression Hearing Trans. (June 9, 2015), p. 40. Dole also noted that the bottle in question was within easy reach for Louis to access if he wanted to take a drink while driving.

         {¶ 7} Continuing, Dole testified that he introduced himself to Louis, explained the reason for the traffic stop, and asked for Louis's driver's license and proof of insurance. After making the request, Dole claimed that Louis seemed confused about what was being asked of him. While Louis was looking for his proof of insurance, Dole testified that he asked Louis where he was coming from and Louis responded: "A friend's." Id. at 10. Dole then asked where Louis was going and Louis responded: "Down here." Id. When Dole asked what that meant, Louis responded that he was going "down the street to pick up his * * * nephews and nieces." Id. Dole testified that during their conversation Louis gave delayed responses and had long pauses in his speech, which Dole considered to be signs of intoxication.

         {¶ 8} After collecting Louis's driver's license and insurance information, Dole went back to the cruiser to run the information and discuss the matter with his partner, as Dole believed Louis was possibly driving under the influence of alcohol. Upon running the information, the officers discovered that Louis had two prior OVI convictions in 2012. Thereafter, Dole went back to Louis's vehicle and asked Louis if he had been drinking to which Louis answered "no." Id. at 11. Dole then told Louis that he believed Louis was under the influence of alcohol and asked if he would undergo field sobriety testing. Louis declined Dole's request.

         {¶ 9} Upon Louis declining field sobriety testing, Dole testified that he returned to the cruiser to speak with his partner again in order to make sure the correct steps were taken. Thereafter, Dole approached Louis a third time and asked him to exit his vehicle. Dole testified that when Louis exited his vehicle, he noticed that Louis seemed unsteady, as Louis had to "sway" or "rock about" to get out of the vehicle. Suppression Hearing Trans. (June 9, 2015), p. 11, 22. Although Dole testified that Louis had no trouble standing or walking, he further observed that Louis had bloodshot eyes and that the smell of alcohol was coming directly from Louis's breath. Dole also observed that Louis's clothes appeared mussed and smelled unclean.

         {¶ 10} Because it was cold and Louis refused to undergo field sobriety testing, Dole testified that he had Louis sit in the cruiser while he read Louis his Miranda rights and advised him of his arrest for driving under the influence of alcohol. According to Dole, Louis indicated that he was willing to answer questions without a lawyer present and signed a waiver form to that effect. Thereafter, Dole testified that he advised Louis of the consequences of refusing a chemical test by reading the warnings on the Administrative License Suspension ("ALS") form, which Louis signed. Since Louis refused to submit to chemical testing and had two prior OVI convictions, Dole also advised Louis that his vehicle would have to be towed and that a warrant for a blood draw would have to be obtained. The laboratory results from the blood draw confirmed that Louis's blood alcohol content was over the legal limit.

         {¶ 11} On cross-examination, Louis's counsel played a video taken from Dole's cruiser camera on the night of the arrest. The video confirmed the majority of Dole's testimony, however, the video did not show a delay or long pause when Dole requested Louis's driver's license. Following the driver's license request, Louis says "yeah" without delay. However, when Dole asked if Louis had proof of insurance, Louis merely said "ah" and gave no other verbal response to the question. The video also established that Louis's speech was, at certain times, fairly slow and overly deliberate.

         {¶ 12} Following the suppression hearing, the trial court ordered the parties to submit written briefs in support of the arguments raised at the hearing. The State filed its brief on August 31, 2015. Louis's counsel never filed a brief on Louis's behalf. On February 24, 2016, the trial court issued a written decision overruling Louis's motion to suppress.

         {¶ 13} Approximately six months later, on August 11, 2016, Louis's counsel filed a motion to reconsider the trial court's suppression ruling. In the motion, counsel explained that a written brief was not timely filed on Louis's behalf after the suppression hearing because counsel had been incarcerated in the Greene County Jail. Accordingly, Louis's counsel set forth various arguments in support of the motion to suppress for the trial court's reconsideration.

         {¶ 14} On August 15, 2016, the trial court stated on the record that Louis's motion for reconsideration was denied. That same day, Louis appeared before the trial court and pled no contest to all the charges against him. Following his no contest plea, the trial court found Louis guilty as charged and proceeded to sentencing.

         {¶ 15} During sentencing, the State and the trial court had a short discussion about Louis's OVI offenses being allied offenses of similar import, wherein the State requested the trial court to sentence Louis under the OVI offense in violation of R.C. 4511.19(A)(2). Following this discussion, the trial court sentenced Louis for the R.C. 4511.19(A)(2) offense, noting that the other two OVI offenses were being "sentenced under that offense. Accordingly, for the OVI offenses, the trial court imposed a single sentence of 180 days in jail with 120 days suspended, two years of drug and alcohol counseling, a two-year driver's license suspension, and an $850 fine plus court costs. The trial court suspended the fines and court costs for Louis's two traffic violations.

         {¶ 16} In journalizing Louis's sentence, the trial court issued a boilerplate sentencing entry form for each of Louis's offenses. The entries for the two OVI offenses under R.C. 4511.19(A)(1)(a) and (A)(1)(b) simply indicate that those offenses were "sentenced under 4511.19(A)(2) charge." None of the sentencing entries ...

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