State v. Arrazzaq , 2012 Ohio 4365 ( 2012 )

[Cite as State v. Arrazzaq, 2012-Ohio-4365.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110831
TRIAL NO. B-1100359
Plaintiff-Appellee, :
O P I N I O N.
vs. :
ULEMA ARRAZZAQ, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Common Pleas Court
Judgment Appealed From Is: Affirmed in Part, Vacated in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: September 26, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Elizabeth E. Agar, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
D INKELACKER , Judge.
{¶1} After his motion to suppress was denied, defendant-appellant Ulema
Arrazzaq pleaded no contest to trafficking in cocaine, possession of cocaine, carrying
a concealed weapon, and having a weapon while under a disability. Both drug
offenses carried firearm specifications. In one assignment of error, he claims that
the trial court improperly denied his motion to suppress. While we disagree with
Arrazzaq’s position on the motion to suppress, an error in his sentence requires us to
vacate his sentence in part and remand this case for correction of the sentencing
error.
Facts and Procedure Below
{¶2} Arrazzaq was parked in the parking lot of a motel when spotted by
Hamilton County Deputy Sheriff Dan Bremerer. Bremerer saw Arrazzaq engaging in
suspicious activity in the front seat—appearing to slouch to avoid being seen—and he
also noticed that the car did not have a properly displayed front license plate. Bremerer
testified that the motel is known as a hot spot for criminal activity. Bremerer waited for
Arrazzaq to pull out of the parking lot, but lost sight of him shortly thereafter. Bremerer
saw him about ten minutes later and, having run the plates, had learned that Arrazzaq
was driving with an expired license.
{¶3} Bremerer initiated a traffic stop, and was soon joined by Deputy Stephen
Boster. Although Bremerer had made the determination that he would have to do an
inventory search of the car since Arrazzaq could not legally drive it from the scene,
Boster asked for Arrazzaq’s consent to search the vehicle. According to Boster, he asked
Arrazzaq if he had a “problem with me looking inside your vehicle?” Boster said that
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Arrazzaq’s exact response was “go ahead and do your thing.” During the search, the
deputies found crack cocaine and a handgun.
{¶4} At the hearing on the motion to suppress, Arrazzaq testified and denied
consenting to the search. Arrazzaq stated that when Boster had asked for permission to
search the car, he had said, “No, sir. There’s no reason for you to search my vehicle.”
{¶5} The trial court denied Arrazzaq’s motion to suppress, and he pleaded no
contest to all counts in the indictment.
The Motion to Suppress
{¶6} In his sole assignment of error, Arrazzaq claims that the trial court
improperly denied his motion to suppress. In particular, he argues that the warrantless
search of his vehicle was improper, that he did not voluntarily consent to the search, and
that the search was not justified under the inventory exception to the warrant
requirement. We conclude that the trial court properly denied the motion to suppress.
{¶7} Appellate review of a motion to suppress involves a mixed question of
law and fact. See State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. When considering a motion to suppress, the trial court is the trier of fact and is in
the best position to resolve factual questions and to evaluate the credibility of witnesses.
Id. An appellate court must accept the trial court's findings of fact if they are supported
by competent, credible evidence. Id. The appellate court must then determine, without
any deference to the trial court, whether the facts satisfy the applicable legal standard.
Id.{¶8} A search conducted without a warrant issued upon probable cause is per
se unreasonable, subject to a few specifically established exceptions. See Schneckloth v.
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Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). One of those
exceptions is a search conducted after the subject has given consent. Id.{¶9} In this case, Deputy Boster testified that he had asked Arrazzaq if he
could search the vehicle and that Arrazzaq had consented to that search. In contrast,
Arrazzaq testified that he had told Boster that he did not have permission to search the
vehicle. Arrazzaq testified that there had been no reason for the deputies to search the
vehicle, and that he had not consented. He testified that the deputies searched the
vehicle over his objections.
{¶10} So, in this case, the question becomes one of determining which version
of events to credit. Matters as to the credibility of evidence are for the trier of fact to
decide. State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 116. This
is particularly true regarding the evaluation of witness testimony. State v. Williams, 1st
Dist. Nos. C-060631 and C-060668, 2007-Ohio-5577, ¶ 45, citing Bryan, supra. We will
not reverse a decision because the trial court chose one credible version of events over
another.
{¶11} Because the record supports the conclusion that Arrazzaq consented to
the search of his vehicle, we conclude that the trial court properly denied his motion to
suppress. While Arrazzaq also argued that the deputies conducted an improper
inventory search of the vehicle, the record does not support this argument. The deputies
testified that Arrazzaq consented to the search of the vehicle prior to their initiation of
the inventory search.
{¶12} For the foregoing reasons, Arrazzaq’s sole assignment of error is
overruled.
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Failure to Impose License Suspension
{¶13} While we have rejected Arrazzaq’s argument with regard to his motion to
suppress, a review of the record has revealed that the trial court failed to impose a
mandatory driver’s license suspension upon his convictions for the drug offenses.
{¶14} R.C. 2925.03(D)(1) provides that for an offender who violates R.C.
2925.03(A), the trial court “shall suspend the driver's or commercial driver's license or
permit of the offender in accordance with division (G) of this section.” In this case, the
trial court did not impose any type of license suspension on Arrazzaq. When a trial court
fails to include a mandatory driver's license suspension as part of an offender's sentence,
that part of the sentence is void. Resentencing of the offender is limited to the
imposition of the mandatory driver's license suspension. State v. Harris, 132 Ohio St.3d
318, 2012-Ohio-1908; 972 N.E.2d 509, paragraph one of the syllabus.
{¶15} Arrazzaq’s sentence is void to the extent that the trial court’s judgment
did not include the required driver’s license suspension. Therefore, we must vacate that
portion of the judgment of the trial court, and remand this case for the limited purpose
of allowing the trial court to impose the required driver’s license suspension. In all other
respects, including the trial court’s determination of guilt, the judgment of the trial court
is affirmed.
Judgment affirmed in part, vacated in part, and cause remanded.
HILDEBRANDT, P.J., and CUNNINGHAM, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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