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State v. Philpotts

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 18, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
DELVONTE PHILPOTTS, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-619945-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Kevin R. Filiatraut and Christopher D. Schroeder, Assistant Prosecuting Attorneys, for appellee.

          Mark A. Stanton, Cuyahoga County Public Defender, Robert Blanshard McCaleb, Assistant Public Defender, for appellant.

          JOURNAL ENTRY AND OPINION

          MICHELLE J. SHEEHAN, JUDGE.

         {¶ 1} Delvonte Philpotts appeals from his conviction of having weapons while under disability. R.C. 2923.13(A)(2) prohibits a person under indictment for a felony offense of violence from acquiring, having, carrying, or using any firearm. Philpotts was found to have a weapon while under indictment for rape. Although the rape charge against Philpotts was eventually dismissed by the state, Philpotts was prosecuted and convicted for the weapons-while-under-disability offense pursuant to R.C. 2923.13(A)(2). On appeal, he raises three assignments of error for our review:

1. Automatic criminalization of the possession of firearms by indictees violates the Second Amendment on its face.
2. Automatic criminalization of the possession of firearms by indictees violates the Second Amendment as applied.
3. Automatic criminalization of the possession of firearms by indictees violates the right to procedural due process, both on its face and as applied.

         {¶ 2} Upon review, we conclude R.C. 2923.13(A)(2) to be constitutional on its face and as applied to Philpotts. In addition, we determine the statute does not violate the Due Process Clause. Finding no merit to his constitutional claims, we affirm the judgment of the trial court.

         Background

         {¶ 3} On March 10, 2017, Philpotts was indicted by the grand jury for rape, kidnapping, and assault. The rape and kidnapping counts were accompanied with one- and three-year firearm specifications. On March 15, 2017, Philpotts appeared for arraignment and pleaded not guilty. The court subsequently set a bond for $25, 000, and as a condition of his bond, he was subject to GPS electronic home detention monitoring. On April 17, 2017, Philpotts posted the bond and was released from the county jail.

         {¶ 4} Three months later, the Cleveland Police Department's Gang Impact Unit discovered that, while out on bond, Philpotts posted pictures of himself on his social media page showing him standing outside of his home with a handgun; his GPS home monitoring ankle bracelet was visible in some of the pictures, indicating the pictures were taken while he was out on bond.

         {¶ 5} Based on the discovery, the police prepared a warrant to search his home. During the search, the police found an operable Taurus PT111 Pro 9 mm handgun with ammunition - the same gun displayed in his social media pictures. Philpotts subsequently admitted to the police that he possessed the firearm discovered by the police.

         {¶ 6} On August 4, 2017, Philpotts was indicted by the grand jury for having a weapon while under a disability pursuant to R.C. 2923.13(A)(2). Subsequently, on November 27, 2017, the state dismissed the rape case without prejudice.

         {¶ 7} Thereafter, on January 3, 2018, Philpotts moved to dismiss the indictment in the weapons-while-under-disability case, arguing R.C. 2923.13(A)(2) was unconstitutional. On March 14, 2018, the trial court held a hearing on the motion. On April 19, 2018, the court denied the motion.

         {¶ 8} The record also reflects that, sometime after the March 14, 2018 hearing, Philpotts was arrested for having a loaded handgun in a vehicle, in violation of R.C. 2923.16 ("Improperly handling firearms in a motor vehicle"). Philpotts subsequently pleaded no contest in the weapons-while-under-disability case but pleaded guilty to the charge of improperly handling firearms in a motor vehicle. The trial court sentenced him to three years of community control sanctions for his convictions in these two cases. Philpotts appeals from his conviction in the weapons-while-under-disability case only.

         {¶ 9} We review de novo a trial court's decision concerning a defendant's motion to dismiss an indictment based on a constitutional challenge to the statute under which the defendant is indicted. State v. Wheatley, 2018-Ohio-464, 94 N.E.3d 578, ¶ 5 (4th Dist.)

         {¶ 10} On appeal, Philpotts argues R.C. 2923.13(A)(2)'s automatic criminalization of possession of firearms by one who is under indictment violates the Second Amendment to the United States Constitution and is unconstitutional on its face and as applied to him. He argues the statute violates the Second Amendment to the United States Constitution as that amendment was interpreted by the United States Supreme Court in the landmark decision District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), as well as Article I, Section 4 of the Ohio Constitution.

         The Second Amendment and District of Columbia v. Heller

         {¶ 11} The Second Amendment to the United States Constitution provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Historically, legal scholars debated whether the Second Amendment recognizes an individual's right to keep and bear arms beyond the goal of guaranteeing the availability of a citizen militia for the security of the State. See Heller in passim and United States v. Miller, 307 U.S. 174, 176-183, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). In Heller, the United States Supreme Court interpreted the Second Amendment to be conferring a right to keep and bear arms regardless of whether or not one is a member of an organized militia. Applying the Second Amendment, the court struck down a law in the District of Columbia that banned any handgun possession. Subsequently, in McDonald v. Chicago, 561 U.S. 742, 750, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), the court extended Heller to the states, holding that the Second Amendment right to keep and bear arms is applicable to the states by virtue of the Fourteenth Amendment.

         {¶ 12} Long before Heller and McDonald, Ohio courts have recognized the right to bear arms under the Ohio Constitution. Section 4, Article I of the Ohio Constitution states: "The people have the right to bear arms for their defense and security * * *." The provision has been found to confer upon the people of Ohio the fundamental right to bear arms. Arnold v. Cleveland, 67 Ohio St.3d 35, 46, 616 N.E.2d 163 (1993). See also State v. Smith, 10th Dist. Franklin No. 18AP-124, 2018-Ohio-4297, ¶ 10 (the Ohio Constitution expressly provides its citizens the right to bear arms for their defense and security unrelated to militia service).

         {¶ 13} Thus, we review the constitutionality of R.C. 2923.13(A)(2) with the understanding that "[t]he right to keep and bear arms is a fundamental right enshrined in federal and state constitutional law." State v. Robinson, 2015-Ohio-4649, 48 N.E.3d 1030, ¶ 11 (12th Dist.).

         R.C. 2923.13: Weapons-While-Under-Disability Statute

         {¶ 14} R.C. 2923.13 was enacted in 1972 as part of a bill that largely revamped Ohio's existing substantive criminal code. State v. Carnes, 154 Ohio St.3d 527, 2018-Ohio-3256, 116 N.E.3d 138, ¶ 16. It enumerates several disability conditions, and a violation of the statute is a third-degree felony. The statute states:

(A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:
(1) The person is a fugitive from justice.
(2) The person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.
(3) The person is under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense involving the illegal ...

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