[Cite as State v. Gomez, 2014-Ohio-3535.]


STATE OF OHIO                    )               IN THE COURT OF APPEALS
                                 )ss:            NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

STATE OF OHIO                                    C.A. No.      13CA010389

        Appellee

        v.                                       APPEAL FROM JUDGMENT
                                                 ENTERED IN THE
ONEILL GOMEZ, IV                                 COURT OF COMMON PLEAS
                                                 COUNTY OF LORAIN, OHIO
        Appellant                                CASE No.   10CR079878

                                 DECISION AND JOURNAL ENTRY

Dated: August 18, 2014



        WHITMORE, Judge.

        {¶1} Defendant, Oneill Gomez, appeals from the judgment of the Lorain County Court

of Common Pleas. This Court reverses.

                                             I

        {¶2} On January 24, 2010, Officers McCoy and Horning, of the Amherst Police

Department, met at the Motel 6 to investigate a complaint about the occupants in room 245.

When the officers knocked on the door, Gomez answered. The officers entered the room and

spoke with Gomez and the three other occupants. At some point thereafter, Gomez asked

permission to use the restroom. According to Officer Horning, he requested to search Gomez

and Gomez verbally consented. Heroin, Xanax, and other miscellaneous items were found in

Gomez’s pants pocket.

        {¶3} Gomez was indicted on: (1) trafficking in heroin, in violation of R.C.

2925.03(A)(2), a felony of the second degree; (2) possession of heroin, in violation of R.C.
                                                   2


2925.11(A), a felony of the second degree; (3) tampering with records, in violation of R.C.

2913.42(A)(1), a felony of the third degree; (4) identity fraud, in violation of R.C.

2913.49(B)(1), a felony of the fifth degree; (5) possession of Xanax, in violation of R.C.

2925.11(A), a misdemeanor of the first degree; and (6) possession of drug paraphernalia, in

violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree.

          {¶4} Gomez filed a motion to suppress the evidence, asserting that he did not consent

to the warrantless search. The court held a hearing and took the matter under advisement.

Subsequently, Gomez entered a plea of no contest. The court found Gomez guilty and sentenced

him to two years in prison. Gomez now appeals and raises one assignment of error for our

review.

                                                   II

                                         Assignment of Error

          THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT’S
          MOTION TO SUPPRESS, THEREBY VIOLATING HIS RIGHT TO BE
          SECURE FROM AN UNREASONABLE SEARCH AND SEIZURE UNDER
          THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED
          STATES CONSTITUTION, AND ARTICLE I, SECTION 14 OF THE OHIO
          CONSTITUTION.

          {¶5} In his sole assignment of error, Gomez argues that the court erred in denying his

motion to suppress.

          {¶6} The Ohio Supreme Court has held that:

          [a]ppellate review of a motion to suppress presents a mixed question of law and
          fact. When considering a motion to suppress, the trial court assumes the role of
          trier of fact and is therefore in the best position to resolve factual questions and
          evaluate the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366
          (1992). Consequently, an appellate court must accept the trial court’s findings of
          fact if they are supported by competent, credible evidence. State v. Fanning, 1
          Ohio St.3d 19 (1982). Accepting these facts as true, the appellate court must then
          independently determine, without deference to the conclusion of the trial court,
                                                 3


       whether the facts satisfy the applicable legal standard. State v. McNamara, 124
       Ohio App.3d 706 (4th Dist.1997).

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. Accord State v. Hobbs, 133 Ohio

St.3d 43, 2012-Ohio-3886, ¶ 6 (Burnside applied). Accordingly, this Court reviews the trial

court’s factual findings for competent, credible evidence and considers the court’s legal

conclusions de novo. State v. Conley, 9th Dist. Lorain No. 08CA009454, 2009-Ohio-910, ¶ 6,

citing Burnside at ¶ 8.

       {¶7} At the outset, we must note that the court failed to expressly rule on Gomez’s

motion to suppress. Despite the court not explicitly ruling on the motion, it is deemed denied.

There is a presumption that any outstanding motions were denied with the entry of a judgment of

conviction. See State v. Mollick, 9th Dist. Lorain No. CA99CA007381, 2000 WL 1197027, *1

(Aug. 23, 2000).

       {¶8} Because the court did not rule on Gomez’s motion to suppress prior to his change

of plea, we must consider whether his assignment of error has been waived. We acknowledge

that under certain circumstances, a plea of no contest prior to a ruling on a motion to suppress

may waive suppression errors on appeal. See State v. Daniel, 5th Dist. Fairfield No. 95CA33,

1996 WL 362895, *5 (June 10, 1996). Here, however, the record reflects that Gomez did not

waive his assignment of error. At the beginning of the change of plea hearing, defense counsel

reminded the court that it had held a suppression hearing and stated that the court had denied it.

The court then went on to explain to Gomez that his plea of no contest preserved his right to

appeal its decision on his motion to suppress. Further, the State has made no argument of

waiver. Based on the record, we cannot conclude that Gomez waived his assignment of error by

pleading no contest prior to the court journalizing its decision on his motion to suppress.
                                                4


       {¶9} At the suppression hearing, Officer Horning testified that he met Officer McCoy

at the Motel 6 to investigate a complaint. When the officers arrived at the motel, they knocked

on the door of room 245 and Gomez answered. According to Officer Horning, the officers

introduced themselves, explained that there had been a complaint, and asked to come inside the

room to talk. Officer Horning said Gomez gave them verbal permission to enter. Once inside,

Officers Horning and McCoy began gathering identification information from the occupants. At

some point, Gomez requested permission to use the restroom. Officer Horning testified that he

asked Gomez if he could pat him down first. According to Officer Horning, Gomez then put his

hand in his front pants pocket. Officer Horning ordered Gomez to remove his hand from his

pocket, which he did, and again asked permission to pat him down. Officer Horning testified

that Gomez then gave verbal consent to a pat down. During his pat down, Officer Horning felt

something in Gomez’s pants pocket, but could not tell what it was. Officer Horning then asked

Gomez if he could go into his pocket.        According to Officer Horning, Gomez gave him

permission to search his pocket and even offered to pull the objects out of his pocket for Officer

Horning.

       {¶10} Gomez testified that he did not give the officers permission to enter the motel

room, to pat him down, or to search his pocket. According to Gomez, the officers entered the

room when he opened the door, without saying anything. The officers ordered him to sit down

on the bed while they began collecting identification information from the occupants. Gomez

testified that he asked to use the restroom and one of the officers said yes. According to Gomez,

when he stood to go use the bathroom, one of the officers spun him against the wall and searched

him.
                                                  5


       {¶11} At the end of the suppression hearing, the court noted that the issue turned on the

credibility of the witnesses and said it would take the matter under advisement. The court never

entered a judgment denying Gomez’s motion to suppress, and therefore, never issued any

findings of fact. While we presume the court denied the motion, we cannot review the matter

without findings of fact. See State v. Payne, 9th Dist. Wayne No. 11CA0029, 2012-Ohio-305,

¶13-15. “This Court fully recognizes that in reviewing a trial court’s suppression ruling, ‘we

must defer to the credibility assessments of the trial court.’” Id. at ¶ 13, quoting State. v.

McGinty, 9th Dist. Medina No. 08CA0039-M, 2009-Ohio-994, ¶ 22. “It is imperative to this

Court’s application of law to the facts in this case that the trial court make a finding of credibility

as to the disputed facts. Due to our limited standard of review with regard to the facts, we are

not permitted to fill this gap.” State v. Martin, 9th Dist. Summit No. 24812, 2009-Ohio-6948, ¶

14, citing State v. Guysinger, 86 Ohio App.3d 592, 594 (4th Dist.1993).

       {¶12} Because the court made no findings of fact, we reverse the trial court’s judgment

and remand the matter for the trial court to set forth factual findings and to journalize its decision

on Gomez’s motion to suppress. Gomez’s sole assignment of error is sustained.

                                                  III


       {¶13} Gomez’s sole assignment of error is sustained. The judgment of the Lorain

County Court of Common Pleas is reversed, and the cause is remanded for further proceedings

consistent with the foregoing opinion.


                                                                                 Judgment reversed,
                                                                                and cause remanded.
                                                 6


       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     BETH WHITMORE
                                                     FOR THE COURT



BELFANCE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

PAUL GRIFFIN, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
