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State v. Holmes

Court of Appeals of Ohio, Third District, Allen

June 24, 2019

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
SHARON HOLMES, DEFENDANT-APPELLANT.

          Appeal from Allen County Common Pleas Court Trial Court No. CR2017 0226

          Kenneth J. Rexford for Appellant

          Jana E. Emerick for Appellee

          OPINION

          PRESTON, J.

         {¶1} 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.

         {¶2} 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. 1).

         {¶3} 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).

         {¶4} 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).

         {¶5} 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).

         {¶6} 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.).

         {¶7} 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. (Id.).

         {¶8} 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.

         Assignment of Error No. I

         The 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.

         {¶9} 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.).

         {¶10} 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 1953.

         {¶11} 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.

         Ohio 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.

         {¶12} 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.

         {¶13} 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[5](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.

         {¶14} 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.

         {¶15} 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.

         {¶16} 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 ...


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