[Cite as Cleveland v. Shevchenko, 2016-Ohio-5711.]



                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 104083




                               CITY OF CLEVELAND
                                                           PLAINTIFF-APPELLEE

                                                     vs.

                              IGOR P. SHEVCHENKO
                                                           DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Criminal Appeal from the
                                    Cleveland Municipal Court
                                    Case No. 2014-TRC-048839

        BEFORE: Laster Mays, J., E.A. Gallagher, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                          September 8, 2016
                               -i-
ATTORNEY FOR APPELLANT

Paul A. Mancino, Jr.
Mancino Mancino & Mancino
75 Public Square Building, Suite 1016
Cleveland, Ohio 44113-2098


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Director of Law

By: Marco A. Tanudra
Assistant City Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

I.      INTRODUCTION

        {¶1}    Defendant-appellant, Igor P. Shevchenko (“Shevchenko”), appeals his

conviction, after a no contest plea, for driving under the influence of alcohol or drugs

pursuant to R.C. 4511.19(A)(2). Shevchenko presents six assignments of error, most

notably, Shevchenko argues that the trial court erred in denying his motion to suppress

and improperly accepted his no contest plea without informing him of the effects of his

plea.

        {¶2}   Appellee city of Cleveland (“Cleveland”) disagrees that the motion to

suppress was improvidently denied. However, Cleveland concedes the trial court’s error

in failing to explain to Shevchenko the effect of his no contest plea in compliance with

Crim.R. 11(E), and requests that the plea be vacated as infirm, and the case be remanded

for a new plea hearing.

        {¶3} After a review of the record, we find that there is merit to Shevchenko’s

argument that the motion to suppress was improvidently denied, and reverse the trial

court’s judgment.

II.     BACKGROUND AND FACTS

        {¶4}     On September 17, 2014, Shevchenko was cited for: (1) driving under the

influence (R.C. 4511.19(A)(1)(a)); (2) driving under the influence with test refusal within
the past 20 years (R.C. 4511.19(A)(2)(b)); (3) operating a motor vehicle without a valid

license (R.C. 4510.12)); (4) failure to use turn signal during lane change (R.C. 4511.39);

and (5) seat belt violation (R.C. 4513.263(B)(1)).        Shevchenko plead not guilty to the

charges and subsequently filed a motion to suppress that was heard on May 28, 2015.

          A.     Motion to Suppress Hearing

          {¶5}   Trooper Patrick Reagan of the Ohio State Highway Patrol (“Trooper

Reagan”) testified that he has been a state trooper since September 2012 and that his

training included National Highway Traffic Safety Administration field sobriety test

administration. Trooper Reagan observed Shevchenko operating a 2003 Chevrolet S10

pickup truck in the westbound lane of Interstate 90 on September 17, 2014. He noticed

Shevchenko’s truck move from the left lane to the right lane without activating a turn

signal.

          {¶6}   Trooper Reagan testified that the improper lane charge only attracted his

attention, but it did not cause him to initiate a traffic stop.   Trooper Reagan continued to

follow Shevchenko and, “observed him go right of center with his right tires over the

hash line more than a tire width.”     (Tr. 9.)   Trooper Reagan initiated the stop 10 to 15

seconds after observing the marked lanes violation, and Shevchenko immediately

complied, properly signaling as he pulled over to the right berm.

          {¶7}   At approximately 1:20 a.m.: (1) Trooper Reagan approached the truck, (2)

requested that Shevchenko produce his license, insurance and registration; (3) conducted
field sobriety tests that   Shevchenko assertedly failed; and (4) arrested Shevchenko after

a refusal to take a breathalyzer test.

       {¶8} Trooper Reagan’s patrol vehicle was equipped with a video recording device

and microphone.      Shevchenko argued, and Trooper Reagan admitted, that the video,

which begins approximately one minute before Shevchenko was stopped, does not depict

the lane change failure to signal violation because Reagan’s recording device only “back

tracks one minute” upon activation of the overhead emergency lights. Reagan narrated the

video during the hearing, claiming it depicts a violation:

       [Trooper Reagan]: He’s going to be going right of the center with his
       right tires, going over the right hash line more than a tire width, and that’s
       the violation right there.

       [Prosecutor]: So this movement in the lane that we’re seeing, the
       movement within the lane that we saw, you did not cite him for?

       [Trooper Reagan]:      No.

       [Prosecutor]: You cited him for the initial improper turn?

       [Trooper Reagan]:      Yes.

       [Prosecutor]: That was not on the video?

       [Trooper Reagan]:      No.

       [Prosecutor]: Okay. But the violation that is picked up by the recording is
       the right tires going over the hash?

       [Trooper Reagan]:      Right.

(Tr. 20 and 21.)
       {¶9} On cross-examination, Trooper Reagan stated the violation occurred at mile

marker 166 yet the citation indicates marker 167.      He could not explain why the lane
change violation was not on the video, though the video automatically backtracks for one

minute when lights and sirens are activated. Trooper Reagan followed Shevchenko for at

least one mile, and observed Shevchenko’s right tires crossing the hash mark:

       [Defense Counsel]: Okay. But, you made no attempt to start [the video]
       after he drove at least a mile on the road, right?

       [Trooper Reagan]: Right. As soon as I observed the violation, I entered
       the traffic stop and then I turned on my overhead lights and I called in the
       traffic stop.

       [Defense Counsel]: Is the road I-90 going west, where you saw the
       vehicle, is the road completely straight, or is there a curve, or turn in it at
       all?

       [Trooper Reagan]:       There’s curves and bends on Interstate 90.

(Tr. 33 and 34.)     The trial court took the matter under advisement.

       {¶10} An oral ruling was issued by the trial court at a July 1, 2015 hearing. The

trial court noted that, at the suppression hearing:

       We went through essentially over the course of the hearing [the] reason for
       stop was an improper lane change. Defendant alleged that was not a part of
       the video and that — called that into question.

(Tr. 2 and 3.)     The trial court also determined that there was substantial compliance with

the field sobriety tests and the motion to suppress was denied. A written ruling followed.

       {¶11}     In response to Shevchenko’s motion for reconsideration of the motion to

suppress, the trial court issued a written ruling. On the issue of the traffic violations, the

trial court determined that the fact that the initial lane change violation is not captured by

the video does not reduce the evidentiary value as it is up to the trier of fact to determine

credibility. The trial court also cited this court’s decision in Strongsville v. Spoonamore,
8th Dist. Cuyahoga No. 86948, 2006-Ohio-4884, holding that a traffic stop is lawful even

if the alleged marked lanes violation is minor.

       {¶12}     On December 17, 2015, Shevchenko entered a no contest plea to

driving under the influence.   This appeal ensued.

III.   ASSIGNMENTS OF ERROR

       {¶13}     Appellant presents six assignments of error:

       I.    Defendant was denied due process of law when the court overruled
       his motion to suppress.

       II. Defendant was denied due process of law when the court overruled
       the motion to suppress the extensive interrogation of defendant without any
       warnings.

       III. Defendant was denied due process of law when the court did not
       explain to the defendant the effect of a no-contest plea.

       IV.    Defendant was denied due process of law when the court found
       defendant guilty on a plea of no-contest without any examination of the
       facts.

       V. Defendant was denied due process of law when the court proceeded
       to sentence defendant without advising him of right of allocution.

       VI. The court erred in sentencing defendant without a determination as to
       the number of prior convictions.

IV.    LAW AND ANALYSIS

       A.      Motion to Suppress

       {¶14}     We begin our analysis with appellant’s first assignment of error. We find

that the assigned error has merit.
      {¶15}     Shevchenko asserts that his due process rights were violated by the denial

of the motion to suppress:

      A motion to suppress presents a mixed question of law and fact. State v.
      Burnside, 100 Ohio St.3d 152, 2003 Ohio 5372, ¶8, 797 N.E.2d 71.
      “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. * * * Consequently, an appellate
      court must accept the trial court’s findings of fact if they are supported by
      competent, credible evidence. * * * Accepting these facts as true, the
      appellate court must then independently determine, without deference to the
      conclusion of the trial court, whether the facts satisfy the applicable legal
      standard.”

(Internal citations omitted.) Id.   Cleveland v. Cunningham, 8th Dist. Cuyahoga No.

95267, 2011-Ohio-2276, ¶ 12.

      {¶16}    In addition, as we have previously acknowledged:

      An appellant may challenge a trial court’s ruling on a motion to suppress by

      (1) challenging the court’s findings of fact, or (2) arguing that the trial court

      failed to correctly apply the law to the facts.          Where the appellant

      challenges the court’s factual findings, as in the instant case, the appellate

      court must determine whether the trial court’s findings of fact are against

      the manifest weight of the evidence. State v. Harris, 5th Dist. Perry No.

      14-CA-00032, 2015-Ohio-2480, ¶ 10. In other words, 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, 1 Ohio B.

      57, 437 N.E.2d 583 (1982).

Middleburg Hts. v. Wojciechowski, 8th Dist. Cuyahoga No. 102216, 2015-Ohio-3879, ¶ 9.
       {¶17} The Due Process Clause of the Fourteenth Amendment of the U.S.

Constitution, as well as Article I, Section 14 of the Ohio Constitution, affords protection

from unreasonable searches and seizures.      A traffic search is deemed to be a seizure

subject to due process protection.   Wojciechowski at ¶ 10.

       {¶18}     Shevchenko argues that the facts and circumstances of this case parallel

those of Wojciechowski, where we held that the motion to suppress was improvidently

denied. On May 12, 2013, Wojciechowski was cited by the Middleburg Heights police

officer Ryan Nagy (“Nagy”) for driving under the influence, prohibited blood alcohol

content, and weaving (R.C. 4511.19(A)(1)(a), R.C. 4511.19(A)(1)(d) and 4511.33(A),

respectively.) Wojciechowski at ¶ 3-4.

       {¶19}    Wojciechowski filed a motion to suppress on the ground that Nagy

“lacked the reasonable suspicion required for a lawful traffic stop.”       Id. ¶ 7.   We

observed in that case that:

       The Ohio Supreme Court has held that a traffic stop is constitutionally valid
       when a law enforcement officer witnesses a motorist “drift” over lane
       markings, in violation of R.C. 4511.33. [State v.] Mays” [119 Ohio St.3d
       406, 2008-Ohio-4539, 894 N.E.2d 1204] at syllabus. However, the Mays
       court further held that movement within one lane is not “a per se violation
       giving rise to reasonable suspicion, nor does inconsequential movement
       within a lane give law enforcement carte blanche opportunity to make an
       investigatory stop.” Id. at ¶ 20, citing State v. Hodge, 147 Ohio App.3d
       550, 2002-Ohio-3053, 771 N.E.2d 331 (7th Dist.). In Mays, the court
       determined that an officer had reasonable suspicion to effect a traffic stop
       because the officer observed the defendant’s vehicle twice cross over the
       white fog line “by approximately one tire width.” Id. at ¶ 2, 24.

Wojciechowski at ¶ 13.

       {¶20}   Officer Nagy followed the appellant for a while, but did not observe a
traffic violation until approximately one-half mile from the point where the dash-cam

video begins. Id. at ¶ 16.

       {¶21}      This court reviewed the video several times, but did not observe the

asserted violations. In sustaining the assigned error, we held:

       The video contradicts Nagy’s testimony when he points to specific places in
       the video where he declares Wojciechowski crossed over the lane line,
       when it is clear to us that Wojciechowski never crossed a single line.

       There are a few seconds in the video where Nagy moves beside
       Wojciechowski’s truck because he was trying to see the truck’s license
       plate. Nagy testified that Wojciechowski also crossed a lane line at this
       particular location. We are unable to verify whether Wojciechowski’s truck
       maintained a single lane or crossed the lane line during this portion of the
       film because the recording does not show the lane lines. If we had not
       previously observed inconsistencies between the video and Nagy’s
       testimony, we would have deferred to the trial court’s factual findings and
       affirmed the trial court’s judgment. However, ostensible discrepancies in
       the evidence compels us to find that the trial court’s judgment is not
       supported by competent, credible evidence.

Id. at ¶ 17-18.

       {¶22}      As this court did in Wojciechowski, this panel compared Trooper Reagan’s

testimony to the video.     Trooper Reagan conceded that the lane change violation is not

depicted in the video, stating that the lane change violation did not trigger the stop, “[I]t

just caught my attention with that and that’s what drew my attention to his vehicle.” (Tr.

9.)   The only evidence of the lane change violation is Trooper Reagan’s testimony.

Trooper Reagan continued to follow Shevchenko until he “observed him go right of

center with his right tires over the right hash lines more than a tire width.”   (Tr. 9.)
       {¶23}     Trooper Reagan initially stated that he cited Shevchenko for “OVI and

refusal with a prior conviction for the last 20 years and I believe he was also cited for

marked lanes.”     (Tr. 15.)   After a review of the citation, Trooper Reagan corrected his

response. Shevchenko was cited for the undocumented lane change violation, but not

for the videotaped marked lanes violation that Trooper Reagan specifically testified

provided cause to initiate the stop.

       {¶24}      The marked lanes violation, codified at R.C. 4511.33, that Trooper

Reagan states is portrayed in the video, was not charged in the citation.     Our review of

the video reveals Shevchenko proceeding properly on the highway, between the lane

lines. Upon reaching a portion of the highway that curved to the right, the truck shifts

slightly toward the right for a several seconds. Whether due to the distance, light or angle,

we do not observe that Shevchenko’s “right [truck] tires [crossed] over the right hash line

more than a tire width.”

       {¶25}     Based on a thorough review of the evidence, we find that “ostensible

discrepancies in the evidence compel us to find that the trial court’s judgment is not

supported by competent, credible evidence.” Wojciechowski at ¶18.

       {¶26} Shevchenko’s first assignment of error is sustained.

       {¶27}     In light of our determination that the motion to suppress should have been

granted, the remaining assignments of error are moot.

       {¶28}      The trial court’s judgment is reversed.   The case is remanded to the trial

court with instructions to grant the motion to suppress.
      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cleveland

Municipal Court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



__________________________________________
ANITA LASTER MAYS, JUDGE

EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR
