State v. Henderson , 2012 Ohio 1040 ( 2012 )

[Cite as State v. Henderson, 2012-Ohio-1040.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95655
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PAUL HENDERSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-530899
BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: March 15, 2012
FOR APPELLANT
Paul S. Henderson, pro se
Inmate No. 573-468
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301-0057
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Louis J. Brodnik
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-Appellant, Paul Henderson, appeals his convictions for drug
trafficking, drug possession, and possession of criminal tools. After careful review of the
record and relevant case law, we affirm appellant’s convictions.
{¶2} On December 10, 2009, appellant was named in a three-count indictment
charging him with trafficking in marijuana in excess of 20,000 grams, in violation of R.C.
2925.03(A)(2), a felony of the second degree; drug possession in excess of 20,000 grams
of marijuana, in violation of R.C. 2925.11(A), a felony of the second degree; and
possession of criminal tools, in violation of R.C. 2923.24(A), a felony of the fifth degree.
{¶3} Appellant’s jury trial commenced on June 4, 2010. The following testimony
was presented at trial.
{¶4} Paulette Gentry testified that she was employed by Town Air Freight as a
shift supervisor and dispatcher. Gentry stated that on September 9, 2009, she noticed a
package that aroused her suspicions because it reminded her of a 2008 instance where
authorities discovered a large quantity of marijuana in a package that had been delivered
for pickup by appellant.1 With those suspicions in mind, Gentry immediately contacted
1 Based on appellant’s receipt of the 2008 shipment of marijuana, he was
charged with drug trafficking in Case No. CR-520709. The facts of appellant’s
prior offense were admitted at trial in accordance with Evid.R. 404.
Deputy Anthony Quirino, whom she knew as a K-9 officer with the sheriff’s office from
the 2008 investigation of appellant.
{¶5} Deputy Anthony Quirino testified that he was a K-9 handler and deputy with
the Cuyahoga County Sheriff’s Office. Deputy Quirino testified that he and his dog,
Hugo, responded to a call from Town Air Freight that they possessed a suspicious
package. Deputy Quirino testified that Hugo went directly to the suspicious package and
signaled that it contained drugs. Subsequently, the package was taken to the police
department for inspection. Upon obtaining a search warrant, Deputy Quirino inspected
the package and confirmed that it contained approximately 60 pounds of marijuana, worth
an estimated $60,000. The package was then returned to Town Air Freight for a
“controlled delivery,” and appellant was informed that his package was ready to be picked
up.
{¶6} Appellant’s girlfriend, Patricia Casey, testified that on September 24, 2009,
appellant drove her to the Town Air Freight warehouse and instructed her to go into the
warehouse and sign for a package. Casey testified that the invoice identified “Paul
Anderson”2 as the recipient and indicated that the package contained auto parts. Casey
testified that she went into Town Air Freight and signed her name for appellant’s
2 Appellant used his real name, Paul Henderson, on the 2008 shipment
invoice.
package, and the package was loaded into appellant’s van by a Town Air Freight
employee.3
{¶7} Deputy Ben Meder of the Cuyahoga County Sheriff’s Department testified
that he was assigned by his department to conduct surveillance of appellant’s vehicle.
Deputy Meder testified that unmarked police vehicles followed appellant once he left
Town Air Freight with the package. After appellant dropped Casey off at her home,
police officers stopped appellant’s vehicle and arrested him. A cell phone and $21 in
cash was found on appellant, and officers retrieved a second cell phone from appellant’s
vehicle.
{¶8} On June 7, 2010, the jury found appellant guilty of all counts. At his
sentencing hearing, the trial court concluded that the possession and trafficking
convictions were allied offenses, and the state elected to pursue sentencing on appellant’s
drug trafficking conviction. Appellant was sentenced to an aggregate nine-year term of
imprisonment, a $7,750 fine, court costs, driver’s license suspension, and the forfeiture of
two cell phones.
{¶9} Appellant now brings this timely appeal, pro se, raising six assignments of
error for review.4
3Because of her involvement, Casey was arrested and named as appellant’s
co-defendant. Casey testified that she entered a guilty plea to a reduced charge in
exchange for her truthful testimony against appellant.
4 Appellant’s assignments of error are contained in the appendix to this
opinion.
{¶10} We note that
“an appellate court will ordinarily indulge a pro se litigant where there is
some semblance of compliance with the appellate rules.” However, pro se
litigants are presumed to have knowledge of the law and legal procedures
and are held to the same standards as litigants who are represented by
counsel. Thomas McGuire Bail Bond Co. v. Hairston, 8th Dist. No. 89307,
2007-Ohio-6648, 2007 WL 4340858 at ¶ 6, quoting Delaney v. Cuyahoga
Metro. Housing Auth., 8th Dist. No. 65714, 1994 WL 326097 (July 7,
1994).
Law and Analysis
Final Appealable Order
{¶11} Before we address the substance of appellant’s appeal, we first must
consider this court’s jurisdiction to hear the appeal.
{¶12} The critical issue is whether the journal entry’s failure to identify the items
to be forfeited with specificity precludes the judgment from being a final, appealable
order. In State v. Bohanon, 8th Dist. No. 95907, 2011-Ohio-4108, 2011 WL 3629238,
and State v. Jones, 8th Dist. No. 95961, 2011-Ohio-3984, 2011 WL 3557092, this court
held that the trial court is required to describe the property to be forfeited with specificity
before the judgment would be considered final and appealable. These decisions,
however, relied on the Ohio Supreme Court’s decision in State v. Baker, 119 Ohio St.3d
197, 2008-Ohio-3330, 893 N.E.2d 163, and strictly analyzed the requirements of Crim.R.
32(C) in determining what constitutes a final, appealable order.
{¶13} In State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142,
paragraph one of the syllabus, however, the Ohio Supreme Court has modified its
decision in Baker, recognizing the following:
A judgment of conviction is a final order subject to appeal under R.C.
2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence,
(3) the judge’s signature, and (4) the time stamp indicating the entry upon
the journal by the clerk.
{¶14} The Lester court limited Baker, noting that it should not stand for a strict
application of Crim.R. 32(C) that requires the journal entry to describe the particular
manner of conviction. Id. at ¶ 9-12. Instead, the Lester court recognized that a
judgment entry need only disclose the fact of conviction to be final and appealable. Id. at
¶ 11. In reaching this conclusion, the court distinguished between the “substantive
provisions” of Crim.R. 32(C) and those that are merely a “matter of form.” Id. at ¶ 12.
Whereas the omission of a substantive provision precludes a finding of a final, appealable
order, the same cannot be said regarding a provision that is a “matter of form.” Id. As
stated by the court: “[T]he fact that a defendant may be entitled to a revised order setting
forth an inadvertently omitted term that is required by Crim.R. 32(C) as a matter of form
does not prevent an original order that conforms to the substantive requirements of
Crim.R. 32(C) from being final.” Id. at ¶ 16.
{¶15} Applying Lester, we find that the journal entry here is a final, appealable
order because the entry contains all the necessary substantive provisions for a final
judgment. In contrast, the failure of the trial court to identify the items forfeited with
more specificity is a “matter of form” that can be raised as an error in a direct appeal.
See State ex rel. Jones v. Ansted, N.E.2d , 2012-Ohio-109 (finding that the
journal entry was a final appealable order despite not disposing of every firearm
specification for which defendant was found guilty; court held that defect could be raised
in a direct appeal). It does not, however, affect the finality of the judgment entry.
{¶16} Accordingly, having found that we have jurisdiction to hear this appeal, we
now turn to the merits of appellant’s appeal.
I. Legality of Search and Seizure
{¶17} In his first assignment of error, appellant argues that the judgment of the
trial court violated his Fourth Amendment right to be free from the illegal seizure of a
person and property.
{¶18} The suppression of evidence must be raised in a pretrial motion. Crim.R.
12(C)(3). Because appellant did not challenge the admissibility of his search and seizure
prior to trial, he has removed this from our consideration. State v. Chandler, 8th Dist.
No. 81817, 2003-Ohio-6037, 2003 WL 22671580, ¶ 32 (“[b]y failing to file a motion to
suppress illegally obtained evidence, a defendant waives any objection to its admission.”);
State v. Roskovich, 7th Dist. No. 04 BE 37, 2005-Ohio-2719, 2005 WL 1301738, ¶ 13 (“a
defendant’s failure to raise an issue in a motion to suppress constitutes a waiver of that
issue on appeal.”); State v. Stuber, 3d Dist. No. 1-02-66, 2003-Ohio-982, 2003 WL
747991, ¶ 10 (“[b]ecause the appellant failed to request a motion to suppress, the issues
asserted in his assignment of error are waived”).
{¶19} Appellant’s first assignment of error is overruled.
II. Right to Assemble and Associate
{¶20} In his second assignment of error, appellant argues that the trial court erred
to his prejudice in that his conviction violated his right to assembly and association
guaranteed by the First Amendment to the United States Constitution.
{¶21} Throughout the trial, appellant maintained that he was engaging in a
legitimate delivery business at the time of his arrest. Preliminarily, we note that
appellant did not challenge the constitutionality of his conviction at trial. It is axiomatic
that a litigant’s failure to raise an issue in the trial court waives his right to raise that issue
on appeal. Shover v. Cordis Corp., 61 Ohio St.3d 213, 220, 574 N.E.2d 457 (1991).
Therefore, this court may not address this issue for the first time on appeal. Regardless,
we find no merit to appellant’s constitutional challenge because the First Amendment
does not guarantee the right to conspire in criminal conduct or possess and transport
approximately 60 pounds of marijuana.
{¶22} Appellant’s second assignment of error is overruled.
III. Ineffective Assistance of Counsel
{¶23} In his third assignment of error, appellant argues that he received ineffective
assistance of counsel.
{¶24} In order to substantiate a claim of ineffective assistance of counsel, the
appellant is required to demonstrate that: 1) the performance of defense counsel was
seriously flawed and deficient; and 2) the result of appellant’s trial or legal proceeding
would have been different had defense counsel provided proper representation.
Strickland v. Washington, 466 U.S. 668, 687-696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶25} In reviewing a claim of ineffective assistance of counsel, it must be
presumed that a properly licensed attorney executes his legal duty in an ethical and
competent manner. State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985); Vaughn v.
Maxwell, 2 Ohio St.2d 299, 209 N.E.2d 164 (1965).
{¶26} The Ohio Supreme Court held in State v. Bradley, 42 Ohio St.3d 136,
141-142, 538 N.E.2d 373 (1989), that
“[w]hen considering an allegation of ineffective assistance of counsel, a
two-step process is usually employed. First, there must be a determination
as to whether there has been a substantial violation of any of defense
counsel’s essential duties to his client. Next, and analytically separate from
the question of whether the defendant’s Sixth Amendment rights were
violated, there must be a determination as to whether the defense was
prejudiced by counsel’s ineffectiveness.” State v. Lytle, 48 Ohio St.2d 391,
396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627 (1976). This standard is
essentially the same as the one enunciated by the United States Supreme
Court in Strickland v. Washington (1984), 466 U.S. 668 * * *.
Even assuming that counsel’s performance was ineffective, this is not
sufficient to warrant reversal of a conviction. “An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of
a criminal proceeding if the error had no effect on the judgment. Cf.
United States v. Morrison, 449 U.S. 361, 364-365, 101 S.Ct. 665, 667-68,
66 L.Ed.2d 564] (1981).” Strickland, supra, 466 U.S. at 691, 104 S.Ct. at
2066. To warrant reversal, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, supra, at 694, 104 S.Ct. at 2068. Bradley at 142.
{¶27} Appellant has failed to present this court with a basis for his ineffective
assistance claim. Rather, he merely states that “trial counsel was not operating as
counsel guaranteed under the Sixth Amendment, and had he properly represented
appellant and co-defendant[,] the outcome would have been different.” It is not the duty
of this court to search the record for evidence to support defendant’s argument of an
alleged error. State v. Porter, 9th Dist. No. 18384, 1997 WL 803070, at *4 (Dec. 24,
1997). Because appellant has failed to provide this court with specific instances of
alleged ineffective assistance, we are unable to conclude that the performance of
appellant’s counsel was deficient.
{¶28} Appellant’s third assignment of error is overruled.
IV. Cruel and Unusual Punishment
{¶29} In his fourth assignment of error, appellant argues that his imprisonment for
operating a legitimate business was cruel and unusual, in violation of the Eighth
Amendment to the United States Constitution.
{¶30} As stated, constitutional arguments are generally not considered for the
first time on appeal. State v. Hamann, 90 Ohio App.3d 654, 630 N.E.2d 384 (8th
Dist.1993). Moreover, even if appellant had properly raised this argument, we find that
his conviction and subsequent imprisonment for illegally possessing and transporting
marijuana did not violate the Eight Amendment’s protections against cruel and unusual
punishment.
{¶31} The Ohio Supreme Court has held that to be determined cruel and unusual,
for purposes of federal and state constitutional law, “the penalty must be so greatly
disproportionate to the offense as to shock the sense of justice of the community.” State
v. Weitbrecht, 86 Ohio St.3d 368, 371, 715 N.E.2d 167 (1999); McDougle v. Maxwell, 1
Ohio St.2d 68, 70, 203 N.E.2d 334 (1964). Here, it is highly unlikely that a nine-year
sentence imposed within the statutory framework for appellant’s felony convictions
would shock any reasonable person’s sense of justice.
{¶32} Appellant’s fourth assignment of error is overruled.
V. Cumulative Errors
{¶33} In his fifth assignment of error, appellant argues that the trial court’s
cumulative errors denied him due process, in violation of the Fourteenth Amendment. In
State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), the Ohio Supreme Court
recognized the doctrine of cumulative error. Pursuant to this doctrine, a conviction will
be reversed where the cumulative effect of errors in a trial deprives a defendant of the
constitutional right to a fair trial even though each of numerous instances of trial court
error does not individually constitute cause for reversal. State v. Baker, 8th Dist. No.
95300, 2011-Ohio-2784, 2011 WL 2409203, ¶ 59, citing State v. Garner, 74 Ohio St.3d
49, 656 N.E.2d 623 (1995).
{¶34} “In order to find ‘cumulative error’ present, we first must find that multiple
errors were committed at trial. We then must find a reasonable probability that the
outcome of the trial would have been different but for the combination of the separately
harmless errors.” (Citations omitted.) State v. Djuric, 8th Dist. No. 87745,
2007-Ohio-413, 2007 WL 274373, ¶ 52.
{¶35} As we have previously discussed, appellant has failed to demonstrate that
multiple errors occurred during his trial, let alone that those errors resulted in prejudice.
{¶36} Appellant’s fifth assignment of error is overruled.
VI. Illegal Seizure
{¶37} In his sixth assignment of error, appellant argues that the trial court erred to
his prejudice in violation of his constitutional right to be free from illegal seizure of a
person. Appellant raises various theories under this assignment of error.
a. Speedy Trial
{¶38} Initially, appellant contends that he was denied his right to a speedy trial. A
criminal defendant is guaranteed the right to a speedy trial by the Sixth Amendment to the
United States Constitution, which was made applicable to the states as a fundamental
right by the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. Klopfer v. N. Carolina, 386 U.S. 213, 222-223, 87 S.Ct. 988, 18 L.Ed.2d 1(1967). This right is also guaranteed by Section 10, Article I of the Ohio Constitution.
Furthermore, state legislatures are authorized by Barker v. Wingo, 407 U.S. 514, 523, 92
S.Ct. 2182, 33 L.Ed.2d 101 (1972), to enact procedural rules or laws consistent with the
constitutional guarantee. Id. Courts strictly enforce statutory speedy trial rights because
the speedy trial statutes protect the constitutional guarantee of a public speedy trial. State
v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980).
{¶39} In Ohio, R.C. 2945.71 sets forth the time period in which a defendant must
be brought to trial. Generally, if a defendant is incarcerated on an unrelated matter, the
speedy trial provisions in R.C. 2945.71 are tolled pursuant to R.C. 2945.72(A).
However, if a defendant is incarcerated in a state correctional institution, he may assert
his right to be brought to trial within 180 days by complying with the requirements of
R.C. 2941.401.
{¶40} R.C. 2941.401 provides:
When a person has entered upon a term of imprisonment in a correctional
institution of this state, and * * * there is pending in this state any untried
indictment * * * against the prisoner, he shall be brought to trial within one
hundred eighty days after he causes to be delivered to the prosecuting
attorney and the appropriate court * * * written notice of the place of his
imprisonment and a request for a final disposition to be made of the matter
* * *. The request of the prisoner shall be accompanied by a certificate of
the warden or superintendent having custody of the prisoner, stating the
term of commitment under which the prisoner is being held, the time served
and remaining to be served on the sentence, the amount of good time
earned, the time of parole eligibility of the prisoner, and any decisions of
the adult parole authority relating to the prisoner.
The written notice and request for final disposition shall be given or sent by
the prisoner to the warden or superintendent having custody of him, who
shall promptly forward it with the certificate to the appropriate prosecuting
attorney and court by registered or certified mail, return receipt requested.
***
If the action is not brought to trial within the time provided * * * no court
any longer has jurisdiction thereof, the indictment * * * is void, and the
court shall enter an order dismissing the action with prejudice.
{¶41} The Ohio Supreme Court has held that, pursuant to R.C. 2941.401, the
initial duty is placed on the defendant to notify the prosecutor and the court of his place of
incarceration and to request final disposition of outstanding charges. State v. Hairston,
101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471. “In its plainest language, R.C.
2941.401 grants an incarcerated defendant a chance to have all pending charges resolved
in a timely manner, thereby preventing the state from delaying prosecution until after the
defendant has been released from his prison term.” Id. at 311.
{¶42} In the case sub judice, appellant was incarcerated within the state of Ohio at
the time he filed a notice of availability on December 29, 2009. Thus, appellant initiated
his right to be brought to trial within 180 days pursuant to R.C. 2941.401. Here,
appellant’s trial began on June 4, 2010, well within the 180-day window mandated by
R.C. 2941.401. Accordingly, appellant was not denied his right to a speedy trial.
b. Subject Matter Jurisdiction
{¶43} Next, appellant contends that defects in the complaint and the supporting
affidavit in the initial state of this case deprived the trial court of subject matter
jurisdiction, thereby warranting the dismissal of all charges.
[S]ubject matter jurisdiction is conferred upon the court of common pleas
by R.C. 2931.03, which provides: “The court of common pleas has
original jurisdiction of all crimes and offenses, except in cases of minor
offenses the exclusive jurisdiction of which is vested in courts inferior to
the court of common pleas.” Peters v. Anderson, 9th Dist. No.
02CA008096, 2002-Ohio-6766, 2002 WL 31761490, at ¶ 17.
“The felony jurisdiction is invoked by the return of a proper indictment by the grand jury
of the county.” Click v. Eckle, 174 Ohio St. 88, 89, 186 N.E.2d 731 (1962).
{¶44} Appellant was indicted by the Cuyahoga County Grand Jury on December
10, 2009. This invoked the felony jurisdiction of the Cuyahoga County Court of
Common Pleas, pursuant to R.C. 2931.03. Gotel v. Gansheimer, 11th Dist. No.
2006-A-0087, 2007-Ohio-2311, 2007 WL 1395446, ¶ 8, citing Peters v. Anderson, supra;
State v. Barnes, 8th Dist. No. 92515, 2011-Ohio-63, 2011 WL 193369. Consequently,
any alleged defects with the initial complaint are irrelevant and harmless to appellant’s
convictions because he was tried and convicted on the indictment. See State v. Jenkins,
4th Dist. No. 02CA5, 2003-Ohio-1058, 2003 WL 894807, ¶ 24. Accordingly, the trial
court had subject matter jurisdiction over the case.
{¶45} Appellant’s sixth assignment of error is overruled.
{¶46} Judgment affirmed.
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.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR
APPENDIX
Appellant’s assignments of error:
I. The trial court erred to the prejudice of appellant in violation of is Fourth
Amendment right to be free from illegal seizure of a person and property.
II. The trial court erred to the prejudice of appellant in violation of the First
Amendment right.
III. Trial counsel was not effective and had counsel been counsel as guaranteed under
the Sixth Amendment, the outcome would be been different.
IV. Being wrongfully imprisoned for operating a legitimate business was cruel and
unusual punishment because it violated the Eighth Amendment.
V. The cumulative effect of claims I through IV denied appellant due process in
violation of the Fourteenth Amendment.
VI. The trial court erred to the prejudice of appellant in violation of his Fourth and
Eighth Amendment rights to be free from illegal seizure of a person, and cruel and
unusual punishment because it violated the Eighth Amendment.