Court No. 2014 CR 0609
J. Baxter, Erie County Prosecuting Attorney, and Anthony A.
Battista III, Assistant Prosecuting Attorney, for appellee.
Elaine Hall, for appellant.
DECISION AND JUDGMENT
1} Appellant, Paul Barnhart, appeals the August 3,
2018 judgment of the Erie County Court of Common Pleas. For
the following reasons, we affirm the judgment.
2} Appellant sets forth four assignments of error:
Assignment of Error No. 1: The trial court erred when it
denied defense counsel's Rule 29 Motion to Dismiss * * *
not because it denied the Motion to Suppress Det. Adam
West's testimony, but when the trial court allowed the
admission of items seized from Holly Robuck - obtained from
an uncharged third party at the time of the residence check,
who did not consent to search the bedroom, nor have the
apparent authority to give consent to search the bedroom[, ]
the closet, the clothesbasket and the dresser, which she
shared in common with the defendant-probationer, Paul M.
Assignment of Error No. 2: Defense trial counsel for the
defendant-appellant, Paul M. [Barnhart, ] * * * provided
ineffective assistance of counsel when he failed to file a
Motion to Suppress all [of] the evidence seized from the
shared common bedroom with Holly Robuck, pursuant to Taylor
v. United States, 600 F.3d 678 (6th Cir. 2010) and made
stipulations to admit State's Exhibits 3, 4 & 7 as
against the defendant?
Assignment of Error No. 3: Whether the trial court committed
error when it admitted evidence from the
defendant-appellant-probationer, Paul M. Barnhart's
cellphone against him at trial?
Assignment of Error No. 4: Whether the trial court committed
plain and structural error when it did not amend the written
jury instructions on Constructive Possession * * * over the
objection of defense trial counsel, regarding the possible
constructive possession of drugs by third party, Holly
Case No. 2014 CR 0007
3} On August 30, 2013, an indictment was found by
the grand jury charging appellant with one count of
possession of marijuana, a fifth-degree felony. The
indictment was filed in the Erie County Court of Common
Pleas, case No. 2014 CR 0007.
4} On February 27, 2014, appellant was arraigned and
pled not guilty to the charge.
5} On August 18, 2014, appellant entered a guilty
plea/intervention in lieu of conviction to the possession
charge. Also on August 18, 2014, appellant was presented with
and signed a "Waiver of Rights/Consent to Search"
form ("waiver form"). Counsel for appellant signed
the waiver form too. The waiver form stated, in pertinent
I have been advised that while subject to * * * Probation/
Intervention in Lieu of Conviction ("IILC") that
there may exist times when the Erie County Adult Probation
Department ("APD") may want to conduct a
warrantless search or seizure of my property or my
possessions or myself to ensure that I am in compliance with
my * * * Probation/IILC. Further, that the APD's reasons
to conduct such searches and seizures is based on a standard
lesser than probable cause. It would be based on a reasonable
suspicion standard. Additionally, that the conditions of my *
* * Probation/IILC may require me to submit to warrantless
searches and seizure of my property, my possessions, and
myself * * *
I acknowledge that I am knowingly, intelligently, or
voluntarily waiving my Constitutional Rights against
warrantless searches and seizures by signing this Waiver of
Rights/Consent to Search Form.
6} On November 13, 2014, the court accepted the
guilty plea and found appellant was eligible for intervention
in lieu of conviction. Appellant was sentenced to probation
for a period not to exceed three years, beginning November
14, 2014, and was subject to numerous conditions. The
court's judgment entry was filed on November 18, 2014.
7} On December 1 and 2, 2014, the Sandusky Police
Department received anonymous complaints from a male caller
on a drug tip hotline that appellant was in possession of
approximately two ounces of cocaine and 13 pounds of medical
marijuana concealed in five-gallon buckets. The tipster
informed police that appellant was on probation and resided
at a certain address on Harrison Street. Police had also
received complaints, throughout the previous year, that
appellant was involved in drug trafficking. Police contacted
Erie County Probation and a probation officer confirmed that
appellant was on probation and lived at that address. The
probation officer requested that police assist in conducting
a probation check at the Harrison Street home.
8} On the morning of December 3, 2014, appellant met
with his probation officer and completed a monthly probation
report. Appellant indicated he lived at the Harrison Street
home ("the home") with his mother, who owned the
home, and her husband.
9} Later on December 3, 2014, a probation officer
and police arrived at the home and knocked on the door to
conduct a check, pursuant to the authority granted under the
waiver form. Appellant answered the door and was advised of
the probation check of the home. Appellant was asked if
anyone else was in the home, and he said no. However, as
police and the probation officer walked up the stairs to
appellant's second floor bedroom, appellant called out,
"Holly, my probation officer is here." Holly
Robuck, appellant's then-girlfriend, was in
appellant's bedroom, trying to hide drugs in a clothes
basket. Further searching revealed more drugs, empty buckets
with green residue, a digital scale, money and paperwork.
Both appellant and Robuck were detained.
10} Robuck was never charged with any crimes as a
result of the search and seizure. However, appellant was
charged with a probation violation as well as other crimes.
11} On October 27, 2017, appellant filed a motion to
suppress the items seized by police as a result of the
alleged unlawful search, seizure and arrest. Appellant
claimed his Fourth Amendment rights were violated
"because the information upon which [his] parole officer
based the search was unreliable, due to its source and the
police officer to whom it was conveyed." Appellant
argued "the actual content of the tip is ultimately
unknown, but certainly unreliable. The informant, according
to several sources, had an improper relationship with the
officer to whom she reported the tip." Appellant
maintained "[w]ithout reasonable suspicion, the parole
officer and especially the police violated [appellant's]
Fourth Amendment right by searching his mother's house
and his bedroom." The state opposed the
12} On August 1, 2018, a hearing was held and the
trial court terminated appellant's intervention in lieu
of conviction and sentenced him to 11 months in prison. On
August 3, 2018, the court filed its judgment entry. Appellant
did not file an appeal.
No. 2014 CR 0609
13} In late December 2014, appellant was charged
with possessing criminal tools. Thereafter, an indictment was
found by the grand jury charging appellant with the following
counts: Count 1-preparation of cocaine for sale (27.37
grams), a first-degree felony; Count 2-possession of cocaine
(27.37 grams), a first-degree felony; Count 3-aggravated
possession of drugs (13 tablets of Oxycodone), a fifth-degree
felony; and Count 4-possession of drugs (2 tablets and 1
partial tablet of Hydrocodone), a fifth-degree felony. These
charges originated out of the December 3, 2014 search. On
February 11, 2015, the indictment was filed in the Erie
County Court of Common Pleas, case No. 2014 CR 0609.
14} On February 26, 2015, appellant was arraigned