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State v. Johnson

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 18, 2018


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-594187-B

          Gregory Scott Robey ATTORNEY FOR APPELLANT

          Michael C. O'Malley Cuyahoga County Prosecutor, Patrick J. Lavelle Assistant County Prosecutor Justice ATTORNEYS FOR APPELLEE

          BEFORE: Laster Mays, J., Kilbane, P.J., and McCormack, J.



         {¶1} Defendant-appellant Marvin F. Johnson, Sr. ("Johnson") appeals the trial court's denial of his motion to suppress evidence, as well as the trial court's imposition of an eight-year sentence, after initially imposing a six-year sentence. We affirm the trial court's denial of the motion to suppress but reverse the imposition of the eight-year sentence.

         I. Background and Facts

         {¶2} On April 29, 2015, Johnson entered a plea of not guilty to: (1) drug trafficking, R.C. 2925.03; (2) drug possession, R.C. 2925.11; and (3) possession of criminal tools, R.C. 2923.24. Each charge carried forfeiture specifications. Johnson rejected a two-year prison term plea offer and filed a motion to suppress evidence, which was denied by the trial court on December 14, 2015.

         {¶3} Johnson pleaded no contest on December 15, 2015, and was found guilty. Johnson suffers from a serious heart condition known as Wolff-Parkinson-White syndrome and high blood pressure. The January 20, 2016 sentencing hearing was continued several times due to Johnson's health issues and retention of new counsel. On May 26, 2016, Johnson was sentenced to a six-year prison term and declared to be indigent. The trial court also placed Johnson on supervised release and electronic home detention so that Johnson could undergo heart surgery scheduled for July 22, 2016. Johnson was directed to report for jail on August 1, 2016.

         {¶4} Johnson's retained counsel filed a motion for appointment of counsel as a result of the trial court's declaration of indigence on July 5, 2016. The trial court granted the motion and appointed different counsel on July 6, 2016. On July 12, 2016, the trial court vacated the order, sua sponte, because Johnson was represented by retained counsel throughout the proceedings and had failed to include an affidavit of indigence with his motion.

         {¶5} On July 14, 2016, the trial court set a bond hearing for July 25, 2016, after Johnson reportedly tested positive for marijuana. Johnson did not appear because he was recovering from the July 22, 2016 heart surgery, and counsel did not notify the trial court. The trial court revoked Johnson's bond and issued a capias.

         {¶6} Johnson was still under post-surgical medical care and did not report on August 1, 2016, nor did counsel notify the trial court. After turning himself in, Johnson was resentenced to an eight-year prison term on February 13, 2017, resulting in the instant appeal.

         II. Assignments of Error

         {¶7} Johnson presents four assigned errors:

I. The trial court erred when it denied appellant's motion to suppress evidence.
II. The trial court erred in imposing an eight-year prison term that is not supported by the record.
III. The trial court erred when it resentenced appellant to an increased prison term of eight years after initially imposing a six-year term.
IV. Johnson was denied the effective assistance of counsel when, at the resentencing hearing, trial counsel failed to object to an increased prison term of eight years; and when trial counsel failed to object to the issuance of a capias for Johnson's failure to appear in court due to medical reasons.

         III. Discussion

         A. Motion to Suppress

         {¶8} Johnson's first assignment of error addresses the motion to suppress. The hybrid nature of appellate review of a trial court's denial of a motion to suppress, involving mixed questions of law and fact, dictates that we give deference to the trial judge's findings of fact, but conduct a de novo review of application of the law to the facts State v. Lennon, 8th Dist. Cuyahoga No. 104344, 2017-Ohio-2753, ¶ 45, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8, and State v. Davis, 8th Dist. Cuyahoga No. 83033, 2004-Ohio-1908.

         {¶9} Search warrant affidavits enjoy a presumption of validity. State v. Sheron, 8th Dist. Cuyahoga No. 98837, 2013-Ohio-1989, ¶ 29, citing State v. Roberts, 62 Ohio St.2d 170, 178, 405 N.E.2d 247 (1980).

In Roberts, the Ohio Supreme Court held that "a challenge to the factual veracity of a warrant affidavit must be supported by an offer of proof which specifically outlines the portions of the affidavit alleged to be false, and the supporting reasons for the defendant's claim." Id., citing Franks v. Delaware, 438 U.S. 154, 171-172, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). As the United States Supreme Court held in Franks, a challenge to the affiant's veracity requires "allegations of deliberate falsehood or of reckless disregard for the truth." Id. at 171. Such allegations must be supported by an "offer of proof [that] should include the submission of affidavits or otherwise reliable statements, or their absence should be satisfactorily explained." Roberts at 178.
In order to require a trial court to hold a hearing, a defendant must first make a "substantial preliminary showing" that the affiant included a false statement in the affidavit either knowingly and intentionally, or with reckless disregard for the truth. Id. at 177; Franks at 155. Even if a defendant makes a sufficient preliminary showing, a hearing is not required unless, without the allegedly false statements, the ...

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