State v. Johnson , 2021 Ohio 3410 ( 2021 )

[Cite as State v. Johnson, 2021-Ohio-3410.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2021-P-0032
Plaintiff-Appellee,
Criminal Appeal from the
-v- Municipal Court, Kent Division
ALENA LYNN JOHNSON,
Trial Court No. 2020 TRC 00242 K
Defendant-Appellant.
OPINION
Decided: September 27, 2021
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna,
OH 44266 (For Plaintiff-Appellee).
Shubhra N. Agarwal, 3732 Fishcreek Road, Suite 288, Stow, OH 44224 (For Defendant-
Appellant).
MARY JANE TRAPP, P.J.
{¶1} Appellant, Alena Lyn Johnson (“Ms. Johnson”), appeals from the judgment
of the Portage County Municipal Court, Kent Division, which accepted her plea of no
contest to operating a motor vehicle while intoxicated (“OVI”), and sentenced her to the
following: 180 days in jail, with credit for 3 days served and 177 days suspended on the
condition that she commits no alcohol and/or drug related offenses; completion of the 72-
hour driving impaired program (“DIP”), and payment of a $1,075 fine and court costs, with
$700 of the fine suspended, both within 180 days. The court also suspended her driver’s
license for 13 months, and she was given credit toward the suspension for the period
from January 24, 2020, to the date of sentencing. As a result, her administrative license
suspension was terminated.1
{¶2} Ms. Johnson’s appointed counsel filed a motion to withdraw on the basis
that there were no meritorious issues for appellate review. Her motion was accompanied
by an “Anders Brief” filed pursuant to the holding in Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
{¶3} In Anders, the Supreme Court of the United States held that “[i]f counsel is
convinced, after conscientious investigation, that the appeal is frivolous, * * * he may ask
to withdraw on that account.” Id. at 741, quoting Ellis v. United States, 356 U.S. 674, 675,
78 S.Ct. 974, 2 L.Ed.2d 1060 (1958). The Anders court delineated several requirements
that must be met in order for counsel to withdraw. For instance, the request to withdraw
must be accompanied by a brief identifying anything in the record that could arguably
support an appeal. Id. at 744. Furthermore, counsel must furnish his or her client with a
copy of the brief and request to withdraw and allow the client sufficient time to raise any
conceivable matters he or she chooses. Id. Once these requirements have been met,
the appellate court must examine the record fully to determine if the appeal is indeed
frivolous. Id. If the appellate court determines there are no meritorious issues, it may
grant counsel’s request to withdraw as counsel and affirm the trial court’s decision. Id.{¶4} In response to her counsel’s notification, Ms. Johnson filed a memo in which
she failed to raise any arguments in support of an appeal. Her memo requested this court
1. A review of the Portage County Municipal Court docket, case no. 2020TRC0022K reveals that despite
the trial court’s February 26, 2021, sentencing judgment entry allowing Ms. Johnson 180 days to complete
her sentence, her fine and court costs remain outstanding, and the DIP program, uncompleted. In her
memo filed with this court, Ms. Johnson admits she has not completed her sentence, citing her indigent
status.
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note that she was not granted a pretrial; her license was suspended from January 24,
2020, to February 21, 2021; 10 days before her suspension was lifted, she was pulled
over for not using her turn signal and was cited for driving under suspension; and she is
undergoing financial/economic hardship. She asserted, therefore, that her fine and court
costs as well as her completion of the DIP program would not be possible. She also
noted she has been homeless since March 2019, and she relocated from New Mexico to
Kent, Ohio in August of 2019. In addition, she had surgery in the spring of 2019 for a
broken ankle from which she is still recovering. She was working with a credit repair
group to settle outstanding balances on closed lines of credit and applied for two different
apartments. Due to her credit history, however, she has been unable to obtain housing.
Attached to her memo was a picture of her broken ankle, several rental applications, and
letters from the credit repair group.
{¶5} In her Anders brief, counsel sets forth two potential assignments of error:
(1) whether the trial court committed reversible and plain error in denying Ms. Johnson’s
motion to suppress, and (2) whether the trial court’s denial of Ms. Johnson’s motion to
suppress was against the manifest weight of the evidence.
{¶6} Counsel asserted that Ms. Johnson’s appeal is not moot even if her
sentence is satisfied by the time of this appeal due to the collateral legal consequences
of a misdemeanor OVI since it is an enhanceable offense and subjects her to further
penalties, such as employment rights, ability to obtain licenses for teaching,
auctioneering, embalming, and operating bingo games, as well as the ability to meet the
qualifications for approval to be an adoptive parent or foster caregiver. She is also subject
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to disabilities under federal law, including loss of financial aid and ineligibility for public
housing and government employment.
{¶7} At the outset, we note that Ms. Johnson’s plea of no contest would not act
to waive her assigned error on appeal. Unlike a plea of guilty, a plea of no contest does
not operate as a waiver of any trial court error concerning the suppression of evidence.
State v. Feliano, 11th Dist. Lake No. 2004-L-205, 2006-Ohio-1678, ¶ 13.
{¶8} “‘In order for an investigative stop to fall within constitutional parameters,
the police officer must be able to cite articulable facts that give rise to a reasonable
suspicion that the individual is currently engaged in or is about to engage in criminal
activity.’” State v. James, 11th Dist. Portage No. 2009-P-0082, 2010-Ohio-4556, ¶ 16,
quoting State v. Gray, 11th Dist. Geauga No. 99-G-2249, 2000 WL 973411, *2 (July 14,
2000), citing Terry v. Ohio, 392 U.S. 1, 6, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
{¶9} The trial court overruled Ms. Johnson’s motion to suppress, finding that the
“parties stipulate that [the] only basis for motion was basis to initiate stop. Court finds
that officer had reasonable and articulable basis to initiate stop of vehicle. Motion to
suppress overruled. Set matter for trial[.]”
{¶10} A review of the suppression hearing transcript reveals the officer did have
a reasonable and articulable basis to initiate a stop of Ms. Johnson’s vehicle. More
specifically, the officer testified that he was on patrol on East Main Street in the city of
Kent. He observed Ms. Johnson’s vehicle traveling on both eastside lanes. When the
vehicle went through a red light, the officer decided to follow it. The driver then made two
turns without signaling and ran a stop sign. This last violation was not clear on the officer’s
dash cam video. Ms. Johnson was cited for two OVI offenses in violation of R.C.
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4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(d), both first-degree misdemeanors, with a
blood alcohol concentration of .135, as well as failing to stop at a stop sign, a minor
misdemeanor, in violation of R.C. 4511.43. Ms. Johnson ultimately pleaded guilty to one
OVI offense in violation of R.C. 4511.19(A)(1)(d), and the remaining counts were
dismissed upon motion of the prosecutor.
{¶11} We agree with the trial court that the officer testified to multiple traffic
violations prior to initiating the stop. As we observed in State v. Armington, 2019-Ohio-
1713, 136 N.E.3d 6 (11th Dist.), violations of traffic laws not only give rise to a reasonable
suspicion that a crime is or about to occur, but they can form probable cause for a traffic
stop. Id. at ¶ 35. Thus, “[a] traffic stop is reasonable when an officer possesses probable
cause to believe an individual committed a traffic violation.” State v. Davis, 11th Dist.
Portage No. 2005-P-0077, 2006-Ohio-3424, ¶ 23, citing Whren v. United States, 517 U.S.
806, 809, 116 S.Ct. 1769, 135 L.E.2d 89 (1996). Furthermore, an officer is not required
to possess proof of a violation so long as the officer reasonably believes the conduct
observed constitutes a form of the offense in question. Id.{¶12} Lastly, we note that Ms. Johnson is free to file with the trial court a motion
to waive court costs at any time due to her indigent status. See State v. Moore, 11th Dist.
Lake No. 2018-L-070, 2019-Ohio-2396, ¶ 76 (appellant’s request to review the trial court’s
imposition of court costs was without merit since he was free to file a motion to waive
court costs in the trial court “any time” if was indigent).
{¶13} After a thorough and independent review of the record, including the
transcripts of the suppression and sentencing hearings and Ms. Johnson’s brief and
memo, we hold there was sufficient evidence upon which to convict and sentence her for
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an OVI and that there is no arguable error as to the trial court overruling the motion to
suppress in this case.
{¶14} As there are no arguable legal points on the merits of this matter, counsel’s
motion is granted, and the judgment of the Portage County Municipal Court, Kent Division,
is affirmed.
CYNTHIA WESTCOTT RICE, J.,
JOHN J. EKLUND, J.,
concur.
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