from Allen County Common Pleas Court Trial Court No. CR2017
Kenneth J. Rexford for Appellant
E. Emerick for Appellee
Defendant-appellant, Sharon Holmes ("Holmes"),
appeals the September 7, 2018 judgment of sentence of the
Allen County Court of Common Pleas. For the reasons that
follow, we affirm.
This case arises from a March 6, 2017 stop of Holmes's
vehicle on Interstate 75 in Allen County, Ohio. (Mar. 21,
2018 Tr. at 18-19). On approaching Holmes's vehicle, the
law enforcement officer who stopped the vehicle detected the
odor of raw marijuana emanating from within the vehicle and
proceeded to conduct a probable cause search for marijuana.
(Id. at 19-20). During the search, law enforcement
officers discovered a prescription pill bottle that contained
a quantity of multicolored pills enclosed in a knotted
plastic bag. (Id. at 28). The pills were seized and
later identified as pentylone and methamphetamine. (Doc. No.
On July 13, 2017, Holmes was indicted on four counts: Counts
One and Three of aggravated trafficking in drugs in violation
of R.C. 2925.03(A)(2), (C)(1)(d), second-degree felonies, and
Counts Two and Four of aggravated possession of drugs in
violation of R.C. 2925.11(A), (C)(1)(c), second-degree
felonies. (Id.). On December 20, 2017, Holmes
appeared for arraignment and pleaded not guilty to the counts
of the indictment. (Doc. No. 9).
On January 5, 2018, Holmes filed a motion to suppress
evidence. (Doc. No. 17). A hearing on Holmes's
suppression motion was conducted on March 21, 2018. (Doc. No.
30). On March 27, 2018, Holmes filed her written closing
arguments. (Doc. No. 32). On April 6, 2018, the State filed
its written closing arguments. (Doc. No. 34). On April 9,
2018, Holmes filed her reply to the State's written
closing arguments. (Doc. No. 35). On April 17, 2018, the
trial court denied Holmes's motion to suppress evidence.
(Doc. No. 38).
On April 13, 2018, Holmes filed a motion to dismiss. (Doc.
No. 36). On April 16, 2018, the trial court denied
Holmes's motion to dismiss. (Doc. No. 37).
On July 11, 2018, Holmes, under a negotiated plea agreement,
withdrew her not guilty pleas and entered a plea of no
contest to Count One of the indictment. (Doc. Nos. 47, 48).
In exchange, the State agreed to recommend dismissal of
Counts Two, Three, and Four of the indictment. (Doc. Nos. 47,
48). The trial court accepted Holmes's no contest plea,
found her guilty, and ordered a presentence investigation.
(Doc. No. 48). In addition, the trial court dismissed Counts
Two, Three, and Four of the indictment. (Id.).
On September 6, 2018, the trial court sentenced Holmes to
five years in prison. (Doc. No. 52). The trial court filed
its judgment entry of sentence on September 7, 2018.
On September 11, 2018, Holmes filed a notice of appeal. (Doc.
No. 53). She raises four assignments of error for our review.
We will begin by addressing her first assignment of error.
Then, we will consider her second and third assignments of
error together. Finally, we will address her fourth
assignment of error.
of Error No. I
Trial Court should have dismissed the Indictment for
insufficient number of jurors because Crim.R. 6(A) is
unconstitutional, in violation of Article I, Section 10, of
the Ohio Constitution and R.C. §2939.02.
In her first assignment of error, Holmes argues that the
trial court erred by denying her motion to dismiss.
Specifically, Holmes argues that the indictment against her
should have been dismissed because the indictment "was
(and remains) voidable for lack of a sufficient number of
grand jurors." (Appellant's Brief at 7). As Holmes
notes, the Ohio Constitution provides that the number of
persons necessary to constitute a grand jury "shall be
determined by law." (Id. at 8). She argues that
this provision vests the Ohio General Assembly with exclusive
authority to set the number of persons necessary to
constitute a grand jury, and she notes that the General
Assembly has, by statute, fixed this number at 15.
(Id. at 7-9). Yet, she observes, Crim.R. 6(A), a
rule prescribed by the Supreme Court of Ohio, provides that
only 9 persons are necessary to constitute a grand jury.
(Id. at 7). Holmes contends that this portion of
Crim.R. 6(A) is unconstitutional because the Supreme Court of
Ohio does not have authority under the Ohio Constitution to
vary the number of grand jurors that the General Assembly has
determined to be necessary to constitute a grand jury.
(Id. at 17). Thus, Holmes argues that because she
was indicted by a grand jury consisting of 9 grand jurors
rather than 15 grand jurors, the indictment should be voided
and the case dismissed. (Id.).
With respect to the right of indictment by grand jury, the
Ohio Constitution provides in relevant part:
[N]o person shall be held to answer for a capital, or
otherwise infamous, crime, unless on presentment or
indictment of a grand jury; and the number of persons
necessary to constitute such grand jury and the number
thereof necessary to concur in finding such indictment shall
be determined by law.
Ohio Constitution, Article I, Section 10. The Ohio General
Assembly has enacted two statutes dealing with the number of
grand jurors necessary to comprise a grand jury and the
number of grand jurors needed to concur in the decision to
issue an indictment. First, R.C. 2939.02 provides that
"[g]rand juries shall consist of fifteen persons who
satisfy the qualifications of a juror specified in section
2313.17 of the Revised Code." Although R.C. 2939.02 was
amended effective May 22, 2012, the amendment did not alter
the number of grand jurors needed to constitute a grand jury,
which has been fixed at 15 since at least 1984. See
R.C. 2939.02 (Oct. 1, 1984). In addition, R.C. 2939.20
requires that "[a]t least twelve of the grand jurors
must concur in the finding of an indictment." R.C.
2939.20 has remained unchanged since its original enactment
In addition, the Ohio Constitution grants the Supreme Court
of Ohio the power to make rules governing practice and
procedure in the courts of this state:
The supreme court shall prescribe rules governing practice
and procedure in all courts of the state, which rules shall
not abridge, enlarge, or modify any substantive right. * * *
All laws in conflict with such rules shall be of no further
force or effect after such rules have taken effect.
Constitution, Article IV, Section 5(B). Pursuant to this
authority, the court promulgated Crim.R. 6, which in part
provides that "[t]he grand jury shall consist of nine
members, including the foreman, plus not more than five
alternates." Crim.R. 6(A). Furthermore, Crim.R. 6(F)
provides that "[a]n indictment may be found only upon
the concurrence of seven or more jurors." Therefore,
Crim.R. 6(A) and (F) are clearly in conflict with R.C.
2939.02 and 2939.20.
The Supreme Court of Ohio has addressed the conflict between
Crim.R. 6 and R.C. 2939.02 and 2939.20 on one previous
occasion. In State v. Brown, the defendant argued
that the indictment against her was defective in part because
"the indictment was issued by a grand jury composed of
nine people rather than the fifteen required by R.C.
2939.02." 38 Ohio St.3d 305, 307 (1988). In rejecting
the defendant's argument, the court noted that various
Ohio courts of appeals had concluded that "the number of
persons on the grand jury is a procedural question rather
than substantive." Id., citing State v.
Wilson, 57 Ohio App.2d 11 (1st Dist.1978) and State
v. Juergens, 55 Ohio App.2d 104 (3d Dist.1977). The
Supreme Court, apparently agreeing with these courts'
conclusions, held that "the number of jurors on a grand
jury does not affect a substantive right." Id.
Thus, the court concluded, because the number of grand jurors
on a grand jury is a matter of procedure rather than an issue
affecting a substantive right, "Crim.R. 6(A) controls
the issue of how many grand jurors are needed to issue an
indictment" and "R.C. 2939.02 and 2939.20 are
superseded insofar as they conflict with [Crim.R. 6]."
Id. at paragraph one of the syllabus.
Holmes acknowledges Brown but argues that
"Brown resulted in an errant result because the
Ohio Supreme Court did not consider (perhaps because not
argued) that no true conflict of laws exists."
(Appellant's Brief at 11). She argues that the court
would never have been required to reconcile Crim.R. 6(A) and
R.C. 2939.02 "by reference to Article IV, Section(B)
of the Ohio Constitution had the litigants in Brown
* * * recognized [that] Criminal Rule 6(A) is
unconstitutional and thus invalid." (Id.).
Thus, Holmes does not appear to contest that Crim.R. 6(A)
would supersede R.C. 2939.02 so long as Crim.R. 6(A) resulted
from a valid exercise of the Supreme Court of Ohio's
power under Article IV, Section 5(B) of the Ohio
Constitution. Instead, she argues that the Supreme Court of
Ohio could not make a rule establishing the size of the grand
jury because the phrase "shall be determined by
law" used in Article I, Section 10 of the Ohio
Constitution signifies that only the General Assembly is able
to determine the number of grand jurors necessary to
constitute a grand jury.
We disagree and conclude that Crim.R. 6(A) does not run afoul
of Article I, Section 10 of the Ohio Constitution. At the
time of its adoption, Article I, Section 10 of the Ohio
Constitution "assumed the grand jury to be an existing
institution in Ohio, or, in short, recognized the grand jury
as it existed at common law." State ex rel. Doerfler
v. Price, 101 Ohio St. 50, 54 (1920). Article I, Section
10 of the Ohio Constitution simply "conferred] a
discretion on the law making body and empower[ed] it to fix
the number [of persons required to constitute a grand jury]
at less than twelve," the minimum number required under
the common law. Juergens at 108. Accord State v.
Knight, 5th Dist. Delaware No. 76-CA-19, 1977 WL 200763,
*1 (May 13, 1977). That is, Article I, Section 10 of the Ohio
Constitution allows that a law-making body "may change
the number of persons who constitute a grand jury so that
changes in that number do not involve an abridgement of [the]
constitutional right" to indictment by grand jury.
Knight at *2.
Holmes urges us to assume that Article I, Section 10 of the
Ohio Constitution contemplates that the legislature is the
"law-making body" with discretion to vary the size
of the grand jury. Yet, assuming without deciding that the
Ohio Constitution initially contemplated that the legislature
would be the body to exercise this discretion, Holmes's
argument is without merit because the adoption of Article IV,
Section 5(B) of the Ohio Constitution in 1968 changed the
constitutional landscape. Following the adoption of Article
IV, Section 5(B), the Supreme Court of Ohio is now the
principal "law-making body" tasked with crafting
the laws that govern practice and procedure in the courts of
this state. See Rockey v. 84 Lumber Co., 66 Ohio
St.3d 221, 224 (1993) ("The Civil Rules are the law
of this state with regard to practice and procedure in
our state courts.") (Emphasis added.), citing Bishop
v. Grdina, 20 Ohio St.3d 26, 28 (1985). Therefore,
Crim.R. 6(A)'s requirement that the grand jury shall
consist of nine members is a "determin[ation] by
law" of the number of persons necessary to constitute
the grand jury within the meaning of Article I, Section 10 of
the Ohio Constitution.
However, Holmes also argues that Crim.R. 6(A) was not validly
promulgated under Article IV, Section 5(B) of the Ohio
Constitution because the Ohio Constitution only permits the
Supreme Court to make rules governing practice and procedure
in the courts of Ohio and the grand jury is not a part of any
court. We disagree. "The grand jury itself is under the
control and direction of the court of common pleas. * * * The
grand jury is essentially an arm of the court."
State ex rel Shoop v. Mitrovich,4 Ohio St.3d 220,
221 (1983), citing State v. Schwab,109 Ohio St. 532
(1924); State v. Asher, 112 Ohio App.3d 646, 651-652
(1st Dist.1996). But see State ex rel. Doerfler at
55 ("In short, the grand jury belongs to the people, to
the government, and is not an adjunct of the court.").
Thus, because the grand jury ...