Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Gregory Scott Robey ATTORNEY FOR APPELLANT
Michael C. O'Malley Cuyahoga County Prosecutor, Patrick
J. Lavelle Assistant County Prosecutor Justice ATTORNEYS FOR
BEFORE: Laster Mays, J., Kilbane, P.J., and McCormack, J.
JOURNAL ENTRY AND OPINION
LASTER MAYS, J.
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.
Background and Facts
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.
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.
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.
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.
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.
Assignments of Error
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
Motion to Suppress
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.
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 ...