State v. Khaliq , 2017 Ohio 7136 ( 2017 )

[Cite as State v. Khaliq, 2017-Ohio-7136.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 15-CA-64
OMRAN A. KHALIQ
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Common
Pleas Court, Case No. 2014CR00305
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 4, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT MICHAEL R. DALSANTO
Licking County Prosecutor 3 South Park Place, Suite 220
Newark, Ohio 43055
By: PAULA M. SAWYERS
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 15-CA-64 2
Hoffman, P.J.
{¶1} Defendant-appellant Omran A. Khaliq appeals his conviction and sentence
entered by the Licking County Court of Common Pleas. Plaintiff-appellee is the state of
Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} At all times relevant herein, Appellant and Andrea Jagodzinski were
involved in a custody dispute concerning their minor child. During the proceedings,
Jagodzinski hired a private investigator relative to Appellant's sale of counterfeit items.
{¶3} Cerise Allen, an agent of Silvania Investigative Services, forwarded the
results of her private investigation to the Newark Police Department. As a result, on
November 6, 2013, the Newark Police Department executed a search warrant for
Appellant's residence for evidence relating to trademark counterfeiting. During the search
of Appellant's home, the Newark Police Department seized a small bag containing a white
powder later identified as cocaine. The officers also seized numerous items believed to
be counterfeit goods.
{¶4} On November 26, 2013, Appellant called the Licking County Sheriff's Office
and left a telephone message for Captain David Starling. Captain Starling received the
message upon returning to his office. An audio recording of the message was played at
trial herein as Exhibit 31. Appellant stated on the message, in pertinent part,
Uh, Mr. Starling, how ya doin' man? This is Ramon, used to be
“Smith,” it's Omran Khaliq now. Uh don't mind if you call me Ramon, but the
Smith thing, that's not me anymore.
Licking County, Case No. 15-CA-64 3
Uh, I need you to call me back as soon as you can. 740–344–7814
an uh, uh you can contact me on my cell phone, I don't even know the
number. 740–644–3622, uh, that's my girlfriend's number and she can give
you my number to call me on my cell.
Uh, I need some serious, um, help with uh this Newark Police
Department, and uh, I need a number to internal affairs, you know, I'm, I'm
just sick and tired of this man, I gotta do this the right way this time, um, I'm
fed up man, you know what I'm sayin', and I'm just, I'm just letting you know
I'm real fed up and if nobody's gonna do something about um this damn
Newark Police Force with their bullshit I'm gonna have to do something my
damn self, you know what I'm sayin'?
I got kids, I care about ‘em, I love ‘em, I love people, I love life, but
you know what ... before I let mother fuckers destroy my life, some shits
gotta happen man, you feel me? I know, people don't understand, you can
only keep doin’ certain things to certain people man and pressure bursts
pipes, you know? I see why mother fuckers grab shit, guns and run up in
these motha fuckin' buildings shootin' mother fuckers and shit, I can
understand it. I can understand peoples ya know, they just get too fed up
and if you ain't strong, ya know what I mean, you can just go out the back
door doin' some crazy shit so I understand, ya know, the shit with the kids
shootin' kids at school. I can't understand that shit, ya know it's a little
different, but grown people, I can understand it. They get fed up, ya know,
and they gotta take matters into they own hands.
Licking County, Case No. 15-CA-64 4
I need some help man. I need some real, serious help. Newark is on
some bullshit, they always on some bullshit, you know it, the Sheriff's
department knows it, they know how Newark Police are, and I'm sick and
tired of it bro. I gotta get some help or somethin's gonna happen man I'm
tellin' ya. I'm not goin' out like this, I'm not going to have these mother
fuckers disrupting my life when I done made a change ya know what I'm
sayin, doin' things better, coaching biddy wrestling, tryin' to get my life
together, tryin' to keep my family structured, it's not gonna happen man. I'm
done with it. I'm 44 years old ... ya know what I mean? So, it either 44 ...
you know what I mean? Magnum, or somebody gonna do somethin' about
this man. That's where I'm at with it ... 44 Magnum.
Appellant's Merit Brief, 12–13.
{¶5} On December 11, 2013, Appellant made another telephone call to the
Newark City Law Director's Office. Casey Osborne, the receptionist for the Law Director's
Office, answered the phone and Appellant asked to speak with Mike King, the Assistant
Law Director. Appellant identified himself to Osborne as “Sergeant Davis.” Tr. at 314–
315. When Casey Osborne inquired as to the subject matter of the telephone call,
Appellant answered, “A case that we have, it's confidential.” Id. When transferred to
Assistant Law Director King, Appellant announced himself as Omran Khaliq. Osborne
could overhear the conversation and Appellant state his true name. Id.
Licking County, Case No. 15-CA-64 5
{¶6} As a result, the Licking County Grand Jury indicted Appellant on one count
of illegal possession of cocaine, in violation of R.C. 2925.11(A), a felony of the fourth
degree; one count of engaging in trademark counterfeiting, in violation of R.C.
2913.34(A)(4), a misdemeanor of the first degree; one count of attempting to influence,
intimidate or hinder a public servant in the discharge of his or her duty, in violation of R.C.
2921.03, a felony of the third degree; and one count of impersonating a peace officer, in
violation of R.C. 2921.51(B), a misdemeanor of the fourth degree.
{¶7} Following a jury trial, Appellant was found not guilty of possession of
cocaine, but guilty as to the remaining counts. On August 3, 2015, the trial court
sentenced Appellant to eighteen months in prison.
{¶8} Appellant filed a direct appeal to this Court in State v. Khaliq, Licking App.
No. 15CA64, 2016-Ohio-7859, assigning as error:
“I. THE STATE DID NOT PRESENT SUFFICIENT EVIDENCE THAT
THE APPELLANT'S THREAT WAS AN ‘UNLAWFUL THREAT’ IN
VIOLATION OF R.C. § 2921.03. R. AT 175.
“II. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING
TO INSTRUCT THE JURY ON THE CRESS DEFINITION OF ‘UNLAWFUL
THREAT.’ R. AT 175.
“III. THE JURY'S VERDICT CONVICTING THE APPELLANT OF
INTIMIDATION WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE BECAUSE (A) TAKEN AS A WHOLE,
THE APPELLANT'S WORDS DID NOT CONSTITUTE A THREAT AT ALL;
Licking County, Case No. 15-CA-64 6
(B) THE APPELLANT'S WORDS WERE TOO UNEQUIVOCAL,
UNCONDITIONAL, NOT IMMEDIATE, AND NOT SPECIFIC ENOUGH TO
CONSTITUTE AN R.C. § 2921.03 VIOLATION; (C) THE INFERENCE
THAT THE APPELLANT THREATENED THE NEWARK POLICE
DEPARTMENT IS MANIFESTLY OUTWEIGHED BY THE INFERENCE
THAT HE WAS VENTING HIS FRUSTRATION, ASKING FOR HELP, AND
EXPRESSING THE SERIOUSNESS OF THE SITUATION; (D) THE
APPELLANT DID NOT KNOWINGLY ATTEMPT TO INFLUENCE,
INTIMIDATE, OR HINDER THE NEWARK POLICE DEPARTMENT
BECAUSE HE NEVER CALLED THEM AND NEVER REQUESTED THAT
ANYONE TO RELAY THIS SUPPOSED THREAT TO THEM. R. AT 175.
“IV. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
THE APPELLANT'S MOTION FOR MISTRIAL. R. AT 193.
“V. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
SENTENCED THE APPELLANT TO EIGHTEEN MONTHS IN PRISON. R.
AT 194.
“VI. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT WHEN IT DENIED THE DEFENDANT'S REQUEST FOR
ORAL HEARING ON DEFENDANT'S FIRST MOTION TO SUPPRESS
EVIDENCE. R. AT 42.
“VII. TRIAL COUNSEL WAS INEFFECTIVE AND TRIAL
COUNSEL'S INEFFECTIVENESS PREJUDICED APPELLANT WHEN
Licking County, Case No. 15-CA-64 7
SHE FAILED TO ATTACH SUPPORTING DOCUMENTATION TO THE
DEFENDANT'S FIRST MOTION TO SUPPRESS. R. AT 26.
“VIII. THE TRIAL COURT ABUSED ITS DISCRETION TO THE
PREJUDICE OF THE APPELLANT WHEN IT DENIED THE DEFENDANT
LEAVE TO FILE HIS THIRD MOTION TO SUPPRESS EVIDENCE. R. AT
156.”
{¶9} Via Opinion and Judgment Entry of November 6, 2016 in State v. Khaliq,
Licking App. No. 15-64, 2016 Ohio 7859, this Court overruled Appellant’s first, second,
third and fourth assigned errors. This Court further found Appellant’s February 17, 2016
Merit Brief a non-conforming brief pursuant to the appellate rules and the rules of this
Court. This Court sua sponte struck assignments of error five, six, seven and eight for
non-compliance to our appellate rules.
{¶10} Appellant filed a motion to reopen his appeal asserting he was denied the
effective assistance of appellate counsel due to counsel’s failure to file a conforming brief,
and to file a complete record on appeal.
{¶11} This Court granted the motion to reopen as to the fifth, sixth, seventh and
eighth assignments of error. We hereby incorporate our analysis and disposition as to
Appellant’s first, second, third, and fourth assigned errors, and proceed to address the
remaining arguments raised on appeal.
V.
{¶12} In the fifth assignment of error, Appellant maintains the trial court abused
its discretion in sentencing Appellant to eighteen months in prison.
Licking County, Case No. 15-CA-64 8
{¶13} We review felony sentences using the standard of review set forth in R.C.
2953.08. Id. at ¶ 11. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify,
or vacate a sentence and remand for resentencing where we clearly and convincingly find
either the record does not support the sentencing court's findings under R.C. 2929.13(B)
or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to
law. Id. See, also, State v. Bonnell, 140 Ohio St. 3d 209, 2014–Ohio–3177, 16 N.E.2d
659, ¶ 28.
{¶14} R.C. 2929.12 lists general factors that must be considered by the trial court
in determining the sentence to be imposed for a felony, and gives detailed criteria which
do not control the court's discretion but which must be considered for or against severity
or leniency in a particular case. The trial court retains discretion to determine the most
effective way to comply with the purpose and principles of sentencing as set forth in R.C.
2929.11. R.C. 2929.12.
{¶15} Under R.C. 2929.11(A), the “overriding purposes” of felony sentencing are
to protect the public from future crime by the offender, and others and to punish the
offender using the minimum sanctions the court determines accomplish those purposes
without imposing an unnecessary burden on state or local government resources. To
achieve these purposes, the sentencing court shall consider the need for incarcerating
the offender, deterring the offender and others from future crime, rehabilitating the
offender, and making restitution to the victim of the offense, the public, or both. R.C.
2929.11(A).
{¶16} Among the various factors the trial court must consider and balance under
R.C. 2929.12 are: (1) serious physical, psychological, or economic harm to the victim as
Licking County, Case No. 15-CA-64 9
a result of the offense; (2) whether the offender has a history of criminal convictions; (3)
whether the offender has not responded favorably to sanctions previously imposed by
criminal convictions; and (4) whether the offender shows genuine remorse for the offense.
R.C. 2929.12.
{¶17} R.C. 2929.11 and 2929.12 require consideration of the purposes of felony
sentencing, as well as the factors of seriousness and recidivism. See State v. Mathis, 109
Ohio St. 3d 54, 846 N.E.2d 1, 2006–Ohio–855, ¶ 38.
{¶18} In the case at bar, the trial court noted Appellant was not amenable to
community control. The trial court specifically stated on the record and in the sentencing
entry it considered the principles and purposes of sentencing. The trial court remarked as
to Appellant’s veiled threats made during the sentencing hearing, and the charges on
which the sentence was based.
{¶19} Upon review, we find the trial court's sentence complies with the applicable
rules and statutes. The sentence was within the statutory range. Furthermore, the record
reflects the trial court considered the purposes and principles of sentencing and the
seriousness and recidivism factors as required in Sections 2929.11 and 2929.12 of the
Ohio Revised Code. Therefore, the sentence is not clearly and convincingly contrary to
law.
{¶20} The fifth assigned error is overruled.
VI. and VII.
{¶21} In the sixth and seventh assignments of error, Appellant argues in the
alternative. Appellant maintains the trial court erred in denying his request for oral hearing
Licking County, Case No. 15-CA-64 10
as to the first motion to suppress and/or trial counsel was ineffective in failing to attach
supporting documentation to the first motion to suppress.
{¶22} On July 11, 2014, Appellant filed his first motion to suppress evidence
seized pursuant to the search warrant executed on November 6, 2013. The trial court
denied the motion to suppress without granting an oral hearing, citing Franks v. Delaware,
438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
{¶23} Appellant asserts his motion to suppress presented allegations of deliberate
falsehood or reckless disregard for the truth. We disagree.
{¶24} In State v. Jackson, Ninth Dist. App. No. 14CA100953, 2015-Ohio-3520,
the Ninth District held,
“There is * * * a presumption of validity with respect to the affidavit
supporting [a] search warrant.” Franks, 438 U.S. at 171, 98 S. Ct. 2674. “In
Franks v. Delaware * * *, the United States Supreme Court squarely
addressed the issue of when a defendant, under the Fourth Amendment, is
entitled to a hearing to challenge the veracity of the facts set forth in the
warrant affidavit after the warrant has been issued and executed.” State v.
Roberts, 62 Ohio St. 2d 170, 177, 405 N.E.2d 247 (1980).
To mandate an evidentiary hearing, the challenger's attack must be
more than conclusory and must be supported by more than a mere desire
to cross-examine. There must be allegations of deliberate falsehood or of
reckless disregard for the truth, and those allegations must be accompanied
by an offer of proof. They should point out specifically the portion of the
Licking County, Case No. 15-CA-64 11
warrant affidavit that is claimed to be false; and they should be
accompanied by a statement of supporting reasons. Affidavits or sworn or
otherwise reliable statements of witnesses should be furnished, or their
absence satisfactorily explained. Allegations of negligence or innocent
mistake are insufficient.
Franks at 171, 98 S. Ct. 2674.
Moreover, “[e]ven if a defendant makes a sufficient preliminary
showing, a hearing is not required unless, without the allegedly false
statements, the affidavit is unable to support a finding of probable cause.”
State v. Cubic, 9th Dist. Medina No. 09CA0005–M, 2009-Ohio-5051, 2009
WL 3068751, ¶ 11, citing Roberts at 178, 405 N.E.2d 247, quoting Franks
at 171–172, 98 S. Ct. 2674.
{¶25} Appellant’s motion to suppress asserts the affidavit in support of the search
warrant included “untrue” or “limited” statements. Appellant does not allege deliberate
falsehood or reckless disregard for the truth. The motion was not supported by affidavits
or sworn, reliable statements of witnesses; nor did Appellant explain the failure to attach
affidavits or statements of witnesses. We find the trial court did not error in denying the
motion without granting Appellant an oral hearing.
{¶26} In the alternative, Appellant alleges the ineffective assistance of counsel in
failing to attach supporting documentation to the motion to suppress.
{¶27} In order to establish a claim of ineffective assistance of counsel, a defendant
must first demonstrate his trial counsel's performance was so deficient it was
Licking County, Case No. 15-CA-64 12
unreasonable under prevailing professional norms. Strickland v. Washington (1984), 466
U.S. 668, 687, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The defendant must then establish
“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.” Id. at 693.
A fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action ‘might
be considered sound trial strategy.
Michel v. Louisiana (1955), 350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83.
{¶28} Even debatable trial tactics and strategies do not constitute ineffective
assistance of counsel. State v. Clayton (1980), 62 Ohio St. 2d 45, 402 N.E.2d 1189.
{¶29} We find Appellant has not demonstrated the ineffective assistance of trial
counsel herein. Appellant has not demonstrated the outcome of the trial would have been
otherwise but for counsel’s alleged error and had an oral hearing been granted. We are
Licking County, Case No. 15-CA-64 13
not convinced a reasonable probability exists the motion to suppress would have been
granted based upon the record as it existed at the time of the trial court’s decision.
Because Appellant’s claim for ineffective assistance of counsel is necessarily based on
documentation outside the record, Appellant cannot meet the second prong of Strickland,
demonstrating prejudice.
{¶30} The sixth and seventh assigned errors are overruled.
VIII.
{¶31} In the eighth assignment of error, Appellant maintains the trial court abused
its discretion in denying leave to file a third motion to suppress evidence as untimely.
{¶32} Ohio Rule of Criminal Procedure 12(E) requires all pretrial motions be filed
within thirty-five days of the arraignment or seven days before trial, whichever date is
earlier. In the interest of justice, a trial court may extend the time for making pretrial
motions. The decision as to whether to permit leave to file an untimely motion to suppress
is within the sound discretion of the trial court. Akron v. Milewski, 21 Ohio App. 3d 140,
142, 614 N.E.2d 748 (1993).
{¶33} On July 11, 2014, Appellant filed his first motion to suppress the evidence
seized pursuant to the execution of the search warrant. On September 19, 2014, the trial
court denied the motion finding Appellant failed to offer evidence of material falsity. The
matter was set for trial on October 14, 2014.
{¶34} On October 15, 2014, the trial court continued the trial, appointing new
counsel to represent Appellant on October 20, 2014. On December 30, 2014, newly
appointed trial counsel filed a second motion to suppress on behalf of Appellant. The
State moved to dismiss as the motion was not supported by affidavits or sworn
Licking County, Case No. 15-CA-64 14
statements, and was outside the time allotted for pretrial motions. The trial court granted
the State’s motion to dismiss via Judgment Entry of January 5, 2015.
{¶35} On March 3, 2015, Appellant moved the trial court to substitute counsel and
to continue the trial, citing a breakdown in communication. The trial court granted the
motion and continued the trial until May 12, 2015.
{¶36} On March 27, 2015, new trial counsel filed a third motion to suppress,
without affidavits or sworn statements regarding material falsity. The State again filed a
motion to dismiss the motion as untimely. Appellant filed a motion for leave to file the
motion under Rule 12(E). At the time, trial was scheduled for May 13, 2015. Appellant
was arraigned on May 6, 2014.1
{¶37} Upon review of the record, we find the trial court did not abuse its discretion
in denying Appellant leave to file a third motion to suppress without supporting affidavits
or sworn statements and outside of the time set by rule and the trial court for the filing of
pretrial motions.
{¶38} The eighth assigned error is overruled.
1 On June 30, 2014 at a pretrial conference hearing, Appellant was granted additional
time to file pretrial motions, including a motion to suppress, through July 11, 2014.
Licking County, Case No. 15-CA-64 15
{¶39} Appellant’s convictions and sentence in the Licking County Court of
Common Pleas are affirmed.
By: Hoffman, P.J.
Wise, John, J. and
Delaney, J. concur