State v. Doss

[Cite as State v. Doss, 2020-Ohio-5510.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 109235
v. :

SANFORD D. DOSS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 3, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-638751-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Eben McNair, Assistant Prosecuting
Attorney, for appellee.

John F. Corrigan, for appellant.

SEAN C. GALLAGHER, P.J.:

Sanford Doss appeals his conviction for two counts of aggravated

vehicular homicide, one count of aggravated vehicular assault, and one count of

operating a vehicle while intoxicated — all arising from Doss’s decision to drive a

pickup truck while having a blood-alcohol concentration over three times the legal
limit, which resulted in the death of two victims and serious injury to another in a

vehicle that Doss violently collided with when he failed to stop at a red light. Before

the collision, Doss was driving 86 m.p.h. on a surface street with a 35-m.p.h. speed

limit, and was estimated to be traveling 50-60 m.p.h. at the moment of impact.

At the scene of the accident, after ascertaining that Doss was the

driver of the vehicle that ran the red light, the responding officer noticed that Doss

was visibly intoxicated and seemed confused when attempting to answer basic

biographical questions. According to the responding officer, when Doss first

indicated he was the driver of the other vehicle involved in the collision, “he had

glassy, watery eyes, a strong odor of an alcoholic beverage coming from his person,

and at times his speech was mumbled and confused and slurred.” Doss admitted to

consuming at least one shot of whiskey before driving. Based on Doss’s appearance

and voluntary statement, and the nature of the accident itself, the officer indicated

that he would have to conduct the field sobriety tests, to which Doss consented. Doss

failed the field sobriety tests and was arrested and transported to a nearby hospital

for a medical evaluation.

Doss ultimately pleaded no contest to the indictment after the trial

court denied Doss’s motion to suppress the results of the blood-alcohol

concentration test conducted during his medical evaluation. After merging the

applicable offenses, the trial court sentenced Doss to a minimum aggregate term of

16 years, with the maximum term of 19.5 years (the court imposed 7-year minimum

prison sentences on each of the aggravated vehicular homicide counts, 2 years on
the aggravated vehicular assault count, and 6 months on the operating a vehicle

while intoxicated count, although only the latter was not imposed consecutively).

In the first assignment of error, Doss claims that his no contest plea

to aggravated vehicular assault under R.C. 2903.08(A)(1)(a) was not voluntarily

entered because the trial court failed to inform Doss of the mandatory nature of the

prison sentence at the second change-of-plea hearing. In the first change-of-plea

hearing, the trial court informed Doss that the penalty on the aggravated vehicular

assault count was a prison term ranging up to five years in six-month increments.

Under R.C 2903.08(D)(1), some term of imprisonment is mandatory. The trial

court, however, generally advised that prison would not be mandatory on the “felony

offenses.” After the change-of-plea hearing, the trial court realized that it incorrectly

informed Doss of the maximum sentence on a qualifying felony under R.C. 2929.144

—the then newly enacted sentencing law providing for a minimum and maximum

indefinite term of imprisonment on qualifying felony offenses. At the second

change-of-plea hearing, the trial court outlined the terms of imprisonment related

to all offenses, including the qualifying felony offenses under R.C. 2929.144.

Although the trial court again spoke in general terms with respect to the felony

offenses during that colloquy, the prosecutor specifically asked the trial court to

clarify the sentence that could be imposed on the aggravated vehicular assault count

— to which the court stated that the sentence potential was “five years.” The trial

court ultimately imposed a two-year prison term on that count. Further, as Doss

concedes in his appellate briefing, there was no question that a prison sentence was
being imposed upon his plea even at the time of the change-of-plea hearing — also

demonstrated by the fact that Doss’s trial counsel never even attempted to seek a

community-control sanction during the sentencing hearing.

“When a defendant enters a plea in a criminal case, the plea must be

made knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525,

527, 1996-Ohio-179, 660 N.E.2d 450. The standard of review for determining

whether a plea was knowing, intelligent, and voluntary within the meaning of

Crim.R. 11 is substantial compliance for nonconstitutional issues and strict

compliance for constitutional issues. State v. Nero, 56 Ohio St.3d 106, 108, 564

N.E.2d 474 (1990), citing State v. Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d 1163

(1977). “Substantial compliance means that under the totality of the circumstances

the defendant subjectively understands the implications of his plea and the rights he

is waiving.” Nero. When challenging a guilty plea based on the trial court’s lack of

substantial compliance, a defendant must also show a prejudicial effect — that the

plea would not have been otherwise entered but for the error. State v. Clark, 119

Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32, citing Nero at 108.

Doss’s entire argument with respect to his pleading no contest to

aggravated vehicular assault arguably rests on a technical error in the process, but

not one that affected his decision-making process. As he concedes, it was a foregone

conclusion shared by all parties that Doss was going to be sentenced to prison after

pleading no contest to the indictment. At no time during the change-of-plea or

sentencing process did Doss ever voice any indication that he thought a community-
control sanction would be imposed instead of a prison sentence for any of the

offenses. On this point, State v. Smith, 8th Dist. Cuyahoga No. 83395, 2004-Ohio-

1796, is instructive.

In Smith, the trial court failed to inform the offender of the mandatory

nature of a sentence during the change-of-plea process. Id. at ¶ 8-10. Despite this

oversight, the panel concluded that the offender never held the belief that

community control would be an option. Id. According to the Smith court, “the mere

fact that the court failed to specifically notify the offender that he was ineligible for

anything but a prison sentence, is not ‘fatal unless the record clearly indicates that

the defendant was unaware that he would be sent to prison upon a plea of guilty and

he was prejudiced by that fact.’” Id. at ¶ 11, citing Nero, 56 Ohio St.3d at 108, and

State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). Further, the Smith court

concluded that the offender’s statements in sentencing demonstrated that he was

aware of the fact that a prison sentence would be imposed such that there was no

indication that the offender entered the plea with any notion that a term of

community control could be imposed. Id.

In this case, Doss concedes that the totality of the circumstances

indicates that he was aware that a term of imprisonment would be imposed upon

his entering a no contest plea. At no point during the change-of-plea or the

sentencing hearing did Doss ever demonstrate a belief that a term of community

control would be imposed on any of the counts surviving merger, and more

important, the court expressly warned Doss that a five-year prison term was
applicable to the aggravated vehicular assault count. In addition, the trial court

never informed Doss of the possibility of community control or explained what that

would entail upon which Doss’s ability to render an informed decision as to pleading

no contest could have been compromised. Nothing distinguishes this case from

Smith, and thus, we reach the same conclusion.

Doss’s reliance on State v. Tutt, 2015-Ohio-5145, 54 N.E.3d 619 (8th

Dist.), is therefore, misplaced. In that case, similarly involving the failure to notify

the offender of the mandatory prison term associated with some of the counts at

issue, the panel concluded that the offender was “unaware of the full extent of the

penalties associated with his no contest pleas” based on the totality of the

circumstances because “the defendant ‘could not have subjectively understood that

he was subject to a mandatory prison term on the robbery charge.’” Id. at ¶ 32, 34.

This conclusion is in harmony with the analysis used in Smith. In light of our

conclusion that Doss was subjectively aware of the fact that the term of

imprisonment would be imposed upon the no contest plea under a totality of the

circumstances and because Doss was expressly warned that a possible five-year

prison term was applicable to the aggravated vehicular assault count, Tutt is not

applicable. The first assignment of error if overruled.

In the remaining assignments of error, Doss claims the trial court

erred in denying his motion to suppress because the state failed to demonstrate that

the field sobriety test was conducted in compliance with the applicable standards,

that officers lacked probable cause to arrest Doss because the state failed to prove
he caused the accident or committed a traffic infraction, or because Doss’s consent

to the blood draw at the hospital was not voluntary. None of Doss’s claims has merit.

“Appellate review of a motion to suppress presents a mixed question

of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. With regard to factual determinations, “[a]n appellate court must accept the

trial court’s findings of fact if they are supported by competent, credible evidence.”

State v. Hawkins, 158 Ohio St.3d 94, 2019-Ohio-4210, 140 N.E.3d 577, ¶ 16, citing

State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). “But the appellate

court must decide the legal questions independently, without deference to the trial

court’s decision.” Id., citing Burnside at ¶ 8.

Although the state must demonstrate by clear and convincing

evidence that the field sobriety tests were conducted in accordance with the

applicable testing standard in order for the results to be admissible in court under

R.C. 4511.19(D)(4), Doss did not contest the admissibility of the field sobriety tests

at the suppression hearing, much less in his motion to suppress and the supplement

thereto. His sole claim with respect to the failure to adhere to testing standards was

limited to the blood draw taken at the hospital after Doss was arrested. The trial

court did not resolve whether the field sobriety tests were conducted in substantial

compliance with the applicable regulations, and we therefore will not consider that

issue for the first time on appeal. In State v. Codeluppi, 139 Ohio St.3d 165, 2014-

Ohio-1574, 10 N.E.3d 691, the offender’s motion to suppress alleged that the officer

failed to conduct field sobriety tests in substantial compliance with NHTSA
guidelines as required by R.C. 4511.19(D)(4)(b) and the Ohio Supreme Court found

this sufficient to identify the issues the defendant was raising. Id. at ¶ 13. Thus, the

issue was deemed to have been preserved for review and the matter was remanded

to the trial court for consideration. Id. However, by “failing to file a motion to

suppress illegally obtained evidence, a defendant waives any objection to its

admission.” State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588,

¶ 136, quoting State v. Campbell, 69 Ohio St.3d 38, 44, 1994-Ohio-492, 630 N.E.2d

339. At the minimum, based on the combination of Codeluppi and Osie, a defendant

needs to identify that the suppression of evidence in a case involving the operation

of a vehicle while intoxicated in part depends on the officer’s substantial compliance

with the field sobriety testing standards in order to preserve the issue for further

review.

In this case, Doss failed to object to the admissibility of the field

sobriety results in his motion to suppress and, in part, claimed that he actually

passed the tests that were administered for the purposes of demonstrating that the

police officers lacked probable cause to arrest him and conduct the blood draw. The

focus of the suppression motion was on the blood draw and whether the officers had

a reasonable, articulable suspicion warranting the administration of the field

sobriety tests that Doss consented to undergo — an issue that Doss has not raised in

this appeal. Parma Hts. v. Dedejczyk, 8th Dist. Cuyahoga No. 97664, 2012-Ohio-

3458, ¶ 29, citing State v. Evans, 127 Ohio App.3d 56, 62, 711 N.E.2d 761 (11th

Dist.1998) (outlining what is considered reasonable suspicion to conduct a field
sobriety test). It is for this reason, and contrary to the argument presented in this

appeal, that the record contains little information on the applicable testing

standards — those standards were not at issue during the suppression hearing. See,

e.g., State v. Osborne, 11th Dist. Lake Nos. 2018-L-124, 2018-L-125, and 2018-L-

126, 2019-Ohio-3235, ¶ 69. Doss has waived any challenges to the admissibility of

the field sobriety tests.

Accordingly, we need not consider Doss’s claim that there was no

probable cause to arrest him at the scene of the collision. Probable cause to arrest is

based on “‘whether at that moment the facts and circumstances within [the officer’s]

knowledge and of which they had reasonably trustworthy information were

sufficient to warrant a prudent man in believing that the [arrestee] had committed

or was committing an offense.’” Cleveland v. Jones, 8th Dist. Cuyahoga No. 107257,

2019-Ohio-1525, ¶ 26, quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d

142 (1964). In this case, the responding officer testified that Doss was visibly

intoxicated, had trouble answering basic questions, and performed poorly on the

field sobriety tests. There was probable cause to arrest Doss for operating a vehicle

while intoxicated that directly led to his causing the horrific accident. See, e.g., id.

And finally, we summarily find no merit to Doss’s claim as to the

exclusion of the blood-alcohol concentration result based on the notion that the

blood-draw procedure occurred before his consent was delivered. Doss claims that

his written consent was procured, as portrayed in the body camera video, while the

nurse can be seen handling the blood samples in the background. According to the
officer’s testimony, there were two written consent forms executed, the Bureau of

Motor Vehicle’s Form 2255, as well as the hospital’s own consent form. There is no

dispute that Doss signed both. His sole claim, presented in a cursory manner, is that

the forms were signed after the blood sample was procured and that for the written

consent to be valid, it cannot be coerced pursuant to Schneckloth v. Bustamonte,

412 U.S. 218, 233, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). There is no indication as

to the basis of Doss’s belief that his consent was coerced. App.R. 16(A)(7).

The officer testified that he procured Doss’s consent for the blood

draw three minutes before the hospital employee obtained the blood sample. Even

if we agreed with Doss that the memorialization of that consent occurred

immediately after the blood draw according to the video evidence, the nurse who

procured the blood sample expressly testified that Doss’s consent to the procedure

was communicated before it was conducted. A motion to suppress presents a mixed

question of law and fact. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71. Appellate courts defer to the trial court’s factual findings. Id. In this

case, the trial court concluded that Doss timely consented to the blood draw based

on the officer’s and the nurse’s testimony of the timing, and at a minimum ratified

that consent by executing the consent forms. We cannot conclude the trial court

erred in finding that Doss consented to the blood draw for the purpose of deeming

the results of the blood-alcohol concentration test to be admissible.

We affirm the convictions.

It is ordered that appellee recover from appellant costs herein taxed.
 The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

___________________________________
SEAN C. GALLAGHER, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
EILEEN A. GALLAGHER, J., CONCUR