State v. Newman

[Cite as State v. Newman, 2017-Ohio-4047.]

COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 16 CA 15
REGINALD JEVON NEWMAN

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 15 CR 80

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 30, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOEL BLUE TERRENCE K. SCOTT
PROSECUTING ATTORNEY ASSISTANT PUBLIC DEFENDER
JASON R. FARLEY 250 East Broad Street
ASSISTANT PROSECUTOR Suite 1400
139 West 8th Street, P.O. Box 640 Columbus, Ohio 43215
Cambridge, Ohio 43725
Guernsey County, Case No. 16 CA 15 2

Wise, John, J.

{¶1} Appellant Reginald Jevon Newman appeals his conviction, in the Court of

Common Pleas, Guernsey County, on several felony counts, including cocaine trafficking

and possession. Appellee is the State of Ohio. The relevant procedural facts leading to

this appeal are as follows.

{¶2} The State’s criminal case against appellant developed out of a series of

controlled drug purchases through a confidential police informant in February, March, and

April 2015, and the subsequent execution of a search warrant at a residence on

Fairground Road in Lore City, Ohio. The search warrant in question was signed by

Guernsey County’s probate/juvenile judge on April 16, 2015, although the form utilized

the heading "Cambridge Municipal Court, Guernsey County, Ohio."

{¶3} On August 7, 2015, appellant was indicted by the Guernsey County Grand

Jury on two counts of trafficking in cocaine (R.C. 2925.03(C)(4)(d)), one count of

trafficking in cocaine (R.C. 2925.03(C)(4)(e)), three counts of conspiracy to commit

trafficking in cocaine (R.C. 2923.01), one count of illegal manufacture of drugs (R.C.

2925.04), one count of possession of cocaine (R.C. 2925.11(C)(4)(e)), two counts of

possession of cocaine (R.C. 2925.11(C)(4)(a)), one count of possession of drugs

(suboxone) (R.C. 2925.11(C)(2)(a)), and one count of possession of drugs (alprazolam)

(R.C. 2925.11 (C)(2)(a)).

{¶4} On September 4, 2015, appellant filed a motion to suppress evidence. The

motion raised several grounds, including the argument that the probate/juvenile judge did

not have authority or jurisdiction to sign the search warrant, particularly when labeled with
Guernsey County, Case No. 16 CA 15 3

a municipal court heading. A hearing on the motion to suppress was conducted on

September 29, 2015.

{¶5} On October 2, 2015, the trial court issued a judgment entry, with findings of

facts and conclusions of law, denying appellant’s motion to suppress.

{¶6} The court subsequently dismissed the count of possession of suboxone and

the count of possession of alprazolam. A jury trial commenced on April 14, 2016, following

which appellant was found guilty of all remaining counts in the indictment except count

one (trafficking in cocaine (R.C. 2925.03(C)(4)(d)) and count two (conspiracy to commit

trafficking in cocaine (R.C. 2923.01)).

{¶7} On June 27, 2016, the trial court sentenced appellant to a total sentence of

sixteen years in prison.

{¶8} On July 28, 2016, appellant filed a notice of appeal.1 He herein raises the

following two Assignments of Error:

{¶9} “I. THE TRIAL COURT ERRED WHEN IT CONVICTED MR. NEWMAN OF

ENHANCED-DEGREE FELONIES FOR TRAFFICKING OR POSSESSION OF

COCAINE BASED ON GROSS WEIGHT THAT INCLUDED OTHER MATERIAL,

INSTEAD OF THE WEIGHT OF ACTUAL COCAINE, IN VIOLATION OF HIS RIGHT TO

DUE PROCESS. FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO

CONSTITUTION.

1Appellant’s notice of appeal appears to be untimely. However, in the interest of justice,
we hereby grant leave, sua sponte, for a delayed criminal appeal under App.R. 5.
Guernsey County, Case No. 16 CA 15 4

{¶10} “II. THE TRIAL COURT VIOLATED MR. NEWMAN'S RIGHTS TO DUE

PROCESS AND A FAIR TRIAL WHEN THE COURT DENIED THE MOTION TO

SUPPRESS, WHEN THE SEARCH WARRANTS WERE CAPTIONED ‘CAMBRIDGE

MUNICIPAL COURT’ AND ISSUED BY A PROBATE/JUVENILE JUDGE, IN VIOLATION

OF THE FOURTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND ARTICLE I, SECTIONS 5, 10, AND 16 OF THE OHIO

CONSTITUTION.”

I.

{¶11} In his First Assignment of Error, appellant contends his conviction for

cocaine trafficking and possession based on the gross weight of the substances seized

by law enforcement was a violation of his right to due process of law. We disagree.

{¶12} Appellant directs us to State v. Gonzales, 6th Dist. Wood No. WD–13–086,

2015–Ohio–461, which was initially affirmed by the Ohio Supreme Court on December

23, 2016, in a certified conflict appeal. See State v. Gonzales, ––– N.E. 3d ––––, 2016–

Ohio–8319. The Supreme Court therein held that the State, in prosecuting cocaine

possession offenses involving mixed substances under R.C. 2925.11(C)(4)(b) through (f),

must prove that the weight of the cocaine meets the statutory threshold, excluding the

weight of any filler materials used in the mixture. Three Justices signed the lead opinion

and one Justice concurred in the judgment only, with a separate opinion.

{¶13} However, on March 6, 2017, subsequent to the filing of the briefs in the case

sub judice, the Ohio Supreme Court, upon reconsideration, instead held as follows:

“Giving effect to the statute as a whole and to the intent of the legislature as expressed in

the words of the statute, we conclude that the applicable offense level for cocaine
Guernsey County, Case No. 16 CA 15 5

possession under R.C. 2925.11(C)(4) is determined by the total weight of the drug

involved, including any fillers that are part of the usable drug.” State v. Gonzales, ----

N.E.3d ----, 2017-Ohio-777, ¶ 18 (“Gonzales II”).

{¶14} Accordingly, appellant's First Assignment of Error must be overruled.

II.

{¶15} In his Second Assignment of Error, appellant contends the trial court erred

in admitting evidence seized from the Fairground Road residence pursuant to the search

warrant obtained by law enforcement officers. We disagree.

{¶16} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third type of claim, an appellate court must independently determine,

without deference to the trial court's conclusion, whether the facts meet the appropriate

legal standard in the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 437

N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; State v. Curry

(1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d

623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d

726. The United States Supreme Court has held that as a general matter determinations

of reasonable suspicion and probable cause should be reviewed de novo on appeal. See

Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d

911.
Guernsey County, Case No. 16 CA 15 6

{¶17} When issuing a search warrant, a trial judge or magistrate must make a

practical, common-sense decision whether, given all the circumstances set forth in the

affidavit, including the veracity and basis of knowledge of persons supplying hearsay

information, there is a fair probability that contraband or evidence of a crime will be found

in a particular place. State v. George (1980), 45 Ohio St.3d 325, at paragraph one of the

syllabus, citing Illinois v. Gates (1983), 462 U.S. 213, 238–239 (internal quotation marks

omitted).

{¶18} Appellant first challenges the authority of the Guernsey County Probate /

Juvenile Court to issue the search warrant in question. We note Civ.R. 41(A)(1) states

that “[u]pon the request of a prosecuting attorney or a law enforcement officer *** [a]

search warrant authorized by this rule may be issued by a judge of a court of record to

search and seize property located within the court's territorial jurisdiction ***.” In addition,

R.C. 2933.21 states: “A judge of a court of record may, within his jurisdiction, issue

warrants to search a house or place ***.” The Ohio Supreme Court has indeed determined

that “[u]nless a probate judge has been assigned by the chief justice pursuant to Article

IV, Section 5(A)(3) of the Ohio Constitution to temporarily sit or hold court in another

division of a court of common pleas a probate judge does not have the authority to hear

evidence and issue search warrants in criminal matters.” State v. Brown, 142 Ohio St.3d

92, 28 N.E.3d 81, 2015-Ohio-486, ¶ 1.

{¶19} In reaching its decision in Brown, the Court relied in large measure on the

definition of “judge” set forth in R.C. 2931.01, finding the language of said statute to be

plain and unambiguous. However, our research reveals that subsequent to Brown, the

General Assembly amended R.C. 2931.01(B), which now reads in pertinent part: “As
Guernsey County, Case No. 16 CA 15 7

used in Chapters 2931. to 2953., except sections 2933.21 to 2933.33, of the Revised

Code: (1) “Judge” does not include the probate judge. (2) “Court” does not include the

probate court. ***.” We find the General Assembly thereby intended to remove the

restriction against probate judges issuing search warrants under R.C. 2933.21.

{¶20} We recognize the amendments to R.C. 2931.01 were not effective until

March 23, 2016, which post-dates the 2015 search warrant in the case sub judice.

However, the three companion cases addressed by the Supreme Court in Brown all

involved Alliance, Ohio, police detectives obtaining a search warrant from the Stark

County Court of Common Pleas, Probate Division. We take judicial notice that Stark

County has a separate judge of the probate division of court of common pleas. See R.C.

2101.02. In contrast, Guernsey County has a dual probate and juvenile judgeship. The

applicable definition of “juvenile court” applicable to Guernsey County is simply “[t]he

probate division of the court of common pleas.” See R.C. 2151.011(A)(1)(c). We also note

the definition of “judge,” for purposes of the Rules of Criminal Procedure, is a “judge of

the court of common pleas, juvenile court, municipal court, or county court, or the mayor

or mayor's court magistrate of a municipal corporation having a mayor's court.” Crim.R.

2(E). Furthermore, “[t]he juvenile court is a court of record within the court of common

pleas.” R.C. 2151.07.

{¶21} Thus, even assuming the 2016 amendments to R.C. 2931.01 are not

retroactive, we are unpersuaded that Brown precludes the issuance of search warrants

by a probate judge who also serves as the juvenile judge for a particular county. Finally,

given the lack of clear precedent on the present issue in regard to combined

probate/juvenile courts, we would otherwise conclude that the good-faith exception under
Guernsey County, Case No. 16 CA 15 8

United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), would have

applied to the officers’ execution of the search warrant under the circumstances of the

case sub judice.

{¶22} Appellant also contends the search warrant at issue was invalid because it

incorrectly utilized “Cambridge Municipal Court” as its heading. Clearly, juvenile courts

and municipal courts are granted separate jurisdictional authority by the General

Assembly. See R.C. 2151.23; R.C. 1901.02, 1901.18. The State concedes that a “clerical

error” occurred in this instance. However, it is well-established that inadvertent clerical

errors, unless they cause prejudice to the defendant, will not invalidate an otherwise valid

search warrant. See State v. Gervin, 3rd Dist. Marion No. 9–15–51, 2016-Ohio-5670, ¶

16 (additional citations omitted). We find no demonstration of prejudice to appellant by

the mistaken document heading under the circumstances presented.

{¶23} Appellant's Second Assignment of Error is overruled.

{¶24} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Guernsey County, Ohio, is hereby affirmed.

By: Wise, John, J.

Gwin, P. J., and

Baldwin, J., concur.

JWW/d 0503