State v. Pence , 2014 Ohio 5072 ( 2014 )

[Cite as State v. Pence, 2014-Ohio-5072.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: Appellate Case No. 2013-CA-109
Plaintiff-Appellee :
: Trial Court Case No. 13-TRC-6034
v. :
:
PAUL PENCE : (Criminal Appeal from
: (Clark County Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 14th day of November, 2014.
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MARC ROSS, Atty. Reg. #0070446, Clark County Municipal Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
WILFRED L. POTTER, Atty. Reg. #0029121, 234 North Limestone Street, Springfield, Ohio
45503
Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant Paul Pence appeals from his conviction and sentence,
following a no-contest plea, for Operating a Vehicle Under the Influence of Alcohol or Drugs
in violation of R.C. 4511.19(A)(1)(a). Pence contends that the trial court erred by overruling
his motion to suppress evidence obtained from his traffic stop. According to Pence, the
deputy sheriff who initiated the traffic stop had neither probable cause for the stop nor a
reasonable and articulable suspicion that Pence had violated a traffic law. Furthermore, Pence
contends that the deputy sheriff lacked probable cause to administer field sobriety tests during
the traffic stop. Pence also contends that the trial court’s decision is against the manifest
weight of the evidence.
{¶ 2} We conclude that the trial court did not err in overruling Pence’s motion to
suppress. We also conclude that Pence has failed to demonstrate that the trial court’s decision
is against the manifest weight of the evidence. Accordingly, the judgment of the trial court is
Affirmed.
I. Pence Drives Across the Center Line, Resulting in a Traffic Stop
{¶ 3} At about 1:00 A.M. on May 29, 2013, Clark County Sheriff’s Deputy Brian
Beller observed Pence driving a truck on Dayton Road, just outside Springfield. Beller
noticed that Pence was driving on the center line, so Beller turned around and began following
the truck. While following Pence, Beller observed the truck drive over the center line by
more than a tire’s width for two seconds. Beller initiated a traffic stop.
{¶ 4} When he approached Pence’s driver side window, Beller observed that Pence had
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glassy, bloodshot eyes and a flush face. Beller also noticed a moderate odor of alcohol. When
Beller requested to see Pence’s driver’s license and registration information, Beller noticed that
Pence had difficulty concentrating on this task while listening to Beller. Pence admitted that he
had consumed two beers earlier that night. Beller asked Pence to step out of the truck in order to
perform some field sobriety tests. When Pence exited the vehicle, he was unsteady and left the
vehicle running. Pence performed poorly on the field sobriety tests. Beller arrested Pence for
suspicion of Operating a Vehicle Under the Influence of Alcohol or Drugs .
II. Course of the Proceedings
{¶ 5} Pence was charged with a Marked Lanes Violation, R.C. 4511.33(A), and with
Operating a Vehicle Under the Influence of Alcohol or Drugs in violation of R.C.
4511.19(A)(1)(a). Pence filed a motion to suppress evidence from the traffic stop. The trial
court overruled this motion. Pursuant to a plea agreement, Pence then pled no contest to the
OVI charge, and the Marked Lanes Violation was dismissed. The trial court found Pence guilty
of the OVI and sentenced him to 35 days in jail, 30 of which were suspended. The trial court
also fined Pence and suspended his driver’s license for two years. Pence appeals from this
judgment.
III. The Trial Court Properly Overruled Pence’s Motion to Suppress
{¶ 6} Pence’s first three assignments of error involve the trial court’s decision to
overrule his motion to suppress evidence. These three assignments state:
THE TRIAL COURT ERRED AS A MATTER OF LAW BY DECIDING
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THAT STATE HAD A REASONABLE AND ARTICULABLE SUSPICION
THAT THE APPELLANT VIOLATED A TRAFFIC LAW.
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
DECIDING THAT THE STATE HAD PROBABLE CAUSE FOR THE STOP.
THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING
THE APPELLANT’S MOTION TO SUPPRESS SINCE THERE WAS
INSUFFICIENT EVIDENCE TO SUPPORT A FIND [SIC] A REASONABLE
AND ARTICULABLE SUSPICION OR PROBABLE CAUSE TO
ADMINISTER THE FIELD SOBRIETY TESTS.
{¶ 7} In deciding a motion to suppress, the trial court assumes the role of trier of facts
and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.
State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996), quoting State v.
Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). The court of appeals must
accept the trial court's findings of fact if they are supported by competent, credible evidence in
the record. State v. Isaac, 2d Dist. Montgomery No. 20662, 2005-Ohio-3733, ¶ 8, citing State v.
Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d Dist.1994). Accepting those facts as
true, the appellate court must then determine as a matter of law, without deference to the trial
court's legal conclusion, whether the applicable legal standard is satisfied. Id.{¶ 8} The Fourth Amendment to the United States Constitution and Article I, Section
14 of the Ohio Constitution guarantee the right to be free from unreasonable searches and
seizures. State v. Orr, 91 Ohio St.3d 389, 391, 745 N.E.2d 1036 (2001). “The United States
Supreme Court has stated that a traffic stop is constitutionally valid if an officer has a reasonable
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and articulable suspicion that a motorist has committed, is committing, or is about to commit a
crime.” (Citations omitted.) State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d
1204, ¶ 7. If an officer's decision to stop a motorist for a criminal violation, including a traffic
violation, is prompted by a reasonable and articulable suspicion considering all the
circumstances, then the stop is constitutionally valid. Id. at ¶ 8.
{¶ 9} R.C. 4511.33(A)(1) provides that a driver must remain within the lane markings
“as nearly as is practicable” and that a driver shall not move from a lane “until the driver has first
ascertained that such movement can be made with safety.” As the Supreme Court of Ohio
explained in Mays, “[t]he phrase ‘as nearly as is practicable’ does not give the driver the option to
remain within the lane markings; rather, the phrase requires the driver to remain within the lane
markings unless the driver cannot reasonably avoid straying.” Id. at ¶ 18.
{¶ 10} Deputy Beller testified that he witnessed Pence drive left of the center line for
two seconds. As the Mays court explained “[a] traffic stop is constitutionally valid when a
law-enforcement officer witnesses a motorist drift over the lane markings in violation of R.C.
4511.33, even without further evidence of erratic or unsafe driving.” Id. at syllabus.
Consequently, we conclude that the trial court properly found that Deputy Beller had a reasonable
and articulable suspicion that Pence had committed a traffic offense. Mays at ¶ 7, 18.
{¶ 11} Pence cites State v. Spillers, 2d Dist Darke No. 1504, 2000 WL 299550 (March
24, 2000), contending that it stands for the proposition that crossing a white line three times and
driving on a yellow line constitute only de minimus traffic violations. But as we pointed out in
State v. Simmons, 2d Dist. Montgomery No. 23991, 2011-Ohio-5561, ¶ 16, fn. 1, we don’t know
what the traffic violations were that the trial court found to have been de minimus in Spillers,
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because the defendant in that case testified that he had not committed any irregularities while
driving, and the trial court did not specify the traffic violations that it found him to have
committed, only stating that they were de minimus.
{¶ 12} Pence also contends that Deputy Beller did not have sufficient suspicion or
probable cause to prolong the traffic stop in order to conduct field sobriety tests and then arrest
Pence on suspicion of a DUI. The trial court found that a number of facts supported Deputy
Beller’s decision, including: Pence’s glassy, bloodshot eyes, the presence of a moderate odor of
alcohol, Pence’s admission that he had earlier consumed two beers, Pence’s flush face, Pence’s
inability to concentrate when the deputy asked for his driver’s license and registration, and
Pence’s failure to turn off his vehicle before exiting it. The trial court’s findings are supported
by the testimony of Deputy Beller.
{¶ 13} Deputy Beller testified regarding Pence’s poor performance on the field sobriety
tests. Pence’s performance, along with the other observations made by Deputy Beller, supported
the decision to arrest Pence under suspicion of Operating a Vehicle Under the Influence.
Therefore, we conclude that the trial court did not err in overruling Pence’s motion to suppress.
{¶ 14} Pence’s first three assignments of error are overruled.
IV. Pence Has Failed to Demonstrate How The Trial Court’s
Judgment Is Against the Manifest Weight of the Evidence
{¶ 15} On page 2 of his brief, Pence identified the following Fourth Assignment of
Error:
THE DECISION OF THE TRIAL COURT WAS AGAINST THE
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MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 16} At no point in his brief, however, does Pence discuss this assignment of error or
make an argument regarding this assignment of error. Furthermore, Pence does not cite to any
portion of the record to support this assignment of error. Therefore, the Fourth Assignment of
Error is overruled.
V. Conclusion
{¶ 17} All of Pence’s assignments of error having been overruled, the judgment of the
trial court is Affirmed.
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DONOVAN, J., concurs.
FROELICH, P.J., concurring:
{¶ 18} The Appellant obviously had the right to be represented by counsel at his plea
and sentencing. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). No
person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony,
unless he was represented by counsel at his trial or plea or knowingly and intelligently waived the
right to counsel. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
{¶ 19} In fact, the Appellant had been represented throughout the proceedings by
retained counsel. At the hearing, the following dialogue occurred:
THE COURT: This is the State of Ohio v. Paul Pence. This is Case No.
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13 TRC 6034 before the Court for status conference today. The matter is
scheduled for trial by jury tomorrow. The record will reflect that Attorney Ross
is here on behalf of the State of Ohio. Mr. Pence is here as well. Mr. Pence, you
got the Court’s Entry that was filed, the ruling on the Motion to Suppress?
MR. PENCE: Correct
THE COURT: All right, and so you are aware that, you were made aware
because the Entry contained information that Mr. Potter’s license is suspended?
MR. PENCE: Yes, the last paragraph. I did not receive that letter ‘til last
week ago yesterday (sic). I had contacted Mr. Potter’s offer – office. He had
said that it would be reinstated by today, and it isn’t.
THE COURT: OK, so you’re choosing to proceed today without counsel?
MR. PENCE: I, yes, Your Honor.
THE COURT: OK, was there something more you wanted to say?
MR. PENCE: Well, I had contact - I just didn’t get a phone call from Mr.
Potter’s office ‘til yesterday morning about 10:30, and I had no timing to have
anyone to counsel me today.
THE COURT: Well, Mr. Pence, the Court had a conversation with you in
late September, I think.
MR. PENCE: Yes, yes, Your Honor, you – I met with you in your
chambers and you had made that comment that I probably should seek new
counsel, but at that time, I thought he – he advised me that he was A-OK and he
would be able to continue. I deeply feel that he’s capable but he’s, I - why his
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registration or license was not renewed, I do not know and I, didn’t, wasn’t aware
of that ‘til I got the letter. And then he said that was gonna be taken care of, and
here it is today and it’s not taken care of.
THE COURT: So, Mr. Ross, have you spoken with Mr. Pence today?
MR. ROSS: Yes, I have.
THE COURT: And did you make an offer?
MR. ROSS: Yes, we had talked about, he indicated his desire in lieu of
going to trial, to entering a no contest plea to the OVI. The State would dismiss
the marked lanes violation. Mr. Pence also indicated that he, it was his intention
to possibly appeal the Court’s ruling on the Motion to Suppress decision and he
was intending to ask the Court for a stay of the, whatever sentence pending his
pursuit of an appeal.
{¶ 20} Later, after the court personally addressed the Appellant about his trial rights,
the following took place:
THE COURT: You have the right to a lawyer, Mr. Pence. Do you
understand that?
MR. PENCE: Yes.
THE COURT: And you’re choosing to proceed today without counsel?
MR. PENCE: Today, yes.
THE COURT: All right. Do you understand this charge has mandatory
sanctions? There will be a mandatory fine of $375.00, a mandatory suspension of
your operator’s license for six months, mandatory confinement for 72 hours.
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That can be in the county jail or a driver’s intervention program. All of those
sanctions are required.
MR. PENCE: Yes.
THE COURT: The maximum possible sanctions here are a fine of
$1,075.00, a three-year driver’s license suspension and 180 days in jail. Do you
understand that?
MR. PENCE: The maximum?
THE COURT: That’s the maximum, yes.
MR. PENCE: Yes.
THE COURT: Do you have any questions about the penalties you face?
MR. PENCE: No, Your Honor.
THE COURT: Any questions about the rights you’re waiving?
MR. PENCE: No.
THE COURT: Any questions about what it means to plead no contest?
MR. PENCE: No.
THE COURT: And are you sure this is how you want to proceed?
MR. PENCE: Yes Your Honor.
{¶ 21} After the plea was accepted, and the court orally pronounced sentence, which
included a 35-day jail sentence with 30 days suspended (which was stayed pending appeal), and a
two-year license suspension, the court gave the Appellant an entry to review and sign. Mr.
Pence responded:
MR. PENCE: Your Honor, can I make a phone call?
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THE COURT: Make a phone call for what?
MR. PENCE: For advice of counsel or make a phone -
THE COURT: I don’t understand your question.
MR. PENCE: On the charges. I mean, before I sign this.
THE COURT: No, you need to sign it. The Court has sentenced you, Mr.
Pence.
MR. PENCE: Okay.
THE COURT: I don’t understand why you’d need to make a phone call at
this time. You indicated you were waiving your right to counsel, did you not?
MR. PENCE: Well, I do not have counsel here.
THE COURT: I understand that. We’ve already talked about that and you
told the Court you wanted to proceed without counsel. (pause)
MR. PENCE: I have any driving privileges whatsoever?
{¶ 22} A waiver of counsel for a petty offense must comply with Crim.R. 44. The
waiver of counsel must affirmatively appear on the record, and a knowing and voluntary waiver
may not be presumed from a silent record. Garfield Heights v. Brewer, 17 Ohio App.3d 216,
479 N.E.2d 309 (8th Dist.1984). This court must indulge every reasonable presumption against
the waiver of fundamental constitutional rights, including the right to be represented by counsel.
State v. Dyer, 117 Ohio App.3d 92, 95, 689 N.E.2d 1034 (2d Dist.1996).
{¶ 23} Although the Appellant tersely responded that he would proceed without counsel,
there is little indication in the record to establish he fully understood and intelligently
relinquished his right to counsel. To be valid, a defendant’s waiver of counsel must be made
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with an understanding of the nature of the charge against him, the statutory offense, the range of
allowable punishments, possible defenses available to him, mitigating circumstances, and all
other facts necessary for a broad understanding of the case against him. State v. Martin, 103
Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 277, ¶ 40, citing State v. Gibson, 45 Ohio St.2d
366, 377, 345 N.E.2d 399 (1976). An inquiry which touches only upon some of the factors will
not adequately establish an effective waiver of counsel. State v. McQueen, 124 Ohio App.3d
444, 706 N.E.2d 423 (10th Dist.1997).
{¶ 24} Moreover, the Appellant’s statement that he had “no timing to have anyone
counsel me today” and his request to make a phone call “for advice of counsel” raise issues about
any knowing, voluntary and intelligent waiver.
{¶ 25} These are the concerns that occasioned our September 25 Entry soliciting
possible additional briefing, see, e.g., C. Miller Chevrolet, Inc. v. Willoughby Hills, 38 Ohio
St.2d 298, 301, 313 N.E.2d 400 (1974), fn. 3, to which there was no response.
{¶ 26} It may well be that counsel and the Appellant decided to forego any additional
argument (and I do not imply any specific result if the issues were raised). We rarely expand our
review beyond the Assignments of Error. Cf. State v. DeWitt, 2d Dist. Montgomery No. 23735,
2010-Ohio-6476, ¶ 56-58 (Froelich, J., concurring in part and dissenting). And based on the
adversary system, I concur.
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Copies mailed to:
Marc Ross
Wilfred L. Potter
Hon. Denise L. Moody