State v. Long ( 2012 )

[Cite as State v. Long, 2012-Ohio-3091.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee : NUNC PRO TUNC
:
- vs - : JUDGMENT ENTRY
:
GUY ALEXANDER LONG : FILED: July 2, 2012
:
Defendant-Appellant : CASE NO. 11CA95
For the reasons stated in our Memorandum-Opinion filed on June 27, 2012, the
judgment of the Court of Common Pleas of Richland County, Ohio is affirmed.
Due to a clerical error the language "Costs to" has been corrected to reflect
"Costs to Appellant"; therefore, this Judgment Entry shall speak and be in effect, nunc
pro tunc, as of June 27, 2012, the date of the former Judgment Entry of this Court,
which this Judgment Entry corrects and replaces.
IT IS SO ORDERED.
s/ Sheila G. Farmer______________
_s/ W. Scott Gwin________________
_s/ Julie A. Edwards _____________
JUDGES
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Julie A. Edwards, J.
-vs-
GUY ALEXANDER LONG Case No. 11CA95
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2011CR147H
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 27, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN C. NIEFT DALE M. MUSILLI
38 South Park Street 105 Sturges Avenue
Mansfield, OH 44902 Mansfield, OH 44903
Farmer, J.
Richland County, Case No. 11CA95 2
{¶1} On March 11, 2011, the Richland County Grand Jury indicted appellant,
Guy Alexander Long, on two counts of possession of drugs in violation of R.C. 2925.11,
one count of having a weapon under disability in violation of R.C. 2923.13, two counts
of receiving stolen property in violation of R.C. 2913.51, and one count of safecracking
in violation of R.C. 2911.13. Said charges arose from a search of appellant's residence
pursuant to a no-knock search warrant. Subsequently, appellant was charged with one
count of aiding and abetting tampering with evidence in violation of R.C. 2921.12.
{¶2} On May 18, 2011, appellant filed a motion to suppress, challenging the
search warrant. A hearing was held on June 17, 2011. The trial court denied the
motion.
{¶3} On September 13, 2011, appellant pled no contest to all the counts except
for one of the receiving stolen property counts which was dismissed. By sentencing
entry filed same date, the trial court sentenced appellant to an aggregate term of seven
years in prison.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "INEFFECTIVE ASSISTANCE OF COUNSEL."
I
{¶6} Appellant claims he was denied the effective assistance of trial counsel.
We disagree.
Richland County, Case No. 11CA95 3
{¶7} The standard this issue must be measured against is set out in State v.
Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, certiorari
denied (1990), 497 U.S. 1011. Appellant must establish the following:
{¶8} "2. Counsel's performance will not be deemed ineffective unless and until
counsel's performance is proved to have fallen below an objective standard of
reasonable representation and, in addition, prejudice arises from counsel's
performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623;
Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,
followed.)
{¶9} "3. To show that a defendant has been prejudiced by counsel's deficient
performance, the defendant must prove that there exists a reasonable probability that,
were it not for counsel's errors, the result of the trial would have been different."
{¶10} Appellant argues his trial counsel was ineffective for failing to attack the
sufficiency of the affidavit for the search warrant. Appellant argues the affidavit was
based on unsubstantiated anonymous tips that were not corroborated by any other
evidence.
{¶11} On May 18, 2011, trial counsel filed a motion to suppress, but based the
challenge on procedural irregularities in the search warrant itself.
{¶12} The affidavit attached to the search warrant states the following in
pertinent part:
{¶13} "2. On December 01, 2010, METRICH received information from a
concerned citizen stating that Guy Long is on Parole for Attempted Murder and is selling
Crack Cocaine from 109 Lind Avenue, Mansfield, Richland County, Ohio. According to
Richland County, Case No. 11CA95 4
this source of information Guy Long installed a security camera to watch this property.
Long is supplying numerous people with Crack Cocaine to sell in the City of Mansfield
area. Long operates a 2003 Chevy Malibu (EQR-2184) and 1998 Black Chevy Blazer
(FOH-1157). RM91803
{¶14} "3. On January 11, 2011, METRICH received information from C.I. '05-43'
stating that Guy Long is still selling Crack Cocaine from 571 West Cook Road,
Mansfield, Richland County, Ohio. According to the source of information, Long is in
possession of handguns. The source of information said that Guy Long had been
violent with them in the past and had struck them with a handgun. RM88733
{¶15} "4. On February 02, 2011, METRICH received information from a
concerned citizen stating that Guy Long is selling Heroin and Crack Cocaine from 109
Lind Avenue, Mansfield, Richland County, Ohio. The source of the information stated
that Long is operating a Black truck.
{¶16} "6. On February 4, 2011, METRICH received information from a
concerned citizen that Guy Long of 109 Lind Avenue, Mansfield, Richland County, Ohio
sells Crack Cocaine and Heroin from this residence. The source of information advised
that Long recently received a shipment of drugs from Cleveland and may have that
supply at this residence. Guy Long supplies other houses in the City of Mansfield with
drugs to sell according to this source. The source also stated that Guy Long is
aggressive.
{¶17} "9. C.I. '05-43' has provided valuable information to METRICH
Enforcement Officers which has been independently corroborated and proven reliable."
Richland County, Case No. 11CA95 5
{¶18} We find paragraphs 3 and 9 provide corroborative evidence that the
confidential informant had previously provided information that was "independently
corroborated and proven reliable."
{¶19} In State v. George (1989), 45 Ohio St.3d 325, paragraphs one and two of
the syllabus, the Supreme Court of Ohio set the standard for evaluating the quality of
the information in a search warrant affidavit as follows:
{¶20} "1. In determining the sufficiency of probable cause in an affidavit
submitted in support of a search warrant, '[t]he task of the issuing magistrate is simply to
make a practical, common-sense decision whether, given all the circumstances set forth
in the affidavit before him, 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.' (Illinois v. Gates [1983], 462 U.S. 213, 238–
239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 followed.)
{¶21} "2. In reviewing the sufficiency of probable cause in an affidavit submitted
in support of a search warrant issued by a magistrate, neither a trial court nor an
appellate court should substitute its judgment for that of the magistrate by conducting a
de novo determination as to whether the affidavit contains sufficient probable cause
upon which that court would issue the search warrant. Rather, the duty of a reviewing
court is simply to ensure that the magistrate had a substantial basis for concluding that
probable cause existed. In conducting any after-the-fact scrutiny of an affidavit
submitted in support of a search warrant, trial and appellate courts should accord great
deference to the magistrate's determination of probable cause, and doubtful or marginal
Richland County, Case No. 11CA95 6
cases in this area should be resolved in favor of upholding the warrant. (Illinois v. Gates
[1983], 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 followed.)"
{¶22} Based upon the template set forth in George, we find there was significant
verification of the credibility of the information to justify the issuance of the search
warrant. Therefore, we conclude that although trial counsel should have challenged the
affidavit on its face, there is no showing of actual prejudice to appellant given our review
of the affidavit.
{¶23} The sole assignment of error is denied.
{¶24} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Edwards, J. concur.
_s/ Sheila G. Farmer______________
_s/ W. Scott Gwin________________
_s/ Julie A. Edwards _____________
JUDGES
SGF/sg 601
[Cite as State v. Long, 2012-Ohio-3091.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
GUY ALEXANDER LONG :
:
Defendant-Appellant : CASE NO. 11CA95
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to
_s/ Sheila G. Farmer_____________
_s/ W. Scott Gwin______________
_s/ Julie A. Edwards ___________
JUDGES