[Cite as State v. Roberson, 2012-Ohio-1237.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                   GREENE COUNTY

STATE OF OHIO                                     :
                                                  :      Appellate Case No. 2010-CA-66
        Plaintiff-Appellee                        :
                                                  :      Trial Court Case No. 2009-CR-834
v.                                                :
                                                  :
CORDERO D. ROBERSON                       :       (Criminal Appeal from
                                                  :      (Common Pleas Court)
        Defendant-Appellant               :
                                                  :

                                               ...........
                                     DECISION AND ENTRY
                        Rendered on the         23rd     day of March, 2012
                                               ...........

PER CURIAM:

        {¶ 1} This appeal has been submitted on a brief filed by assigned counsel under the

authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, (1967)

counsel not having found any potential assignments of error having arguable merit. We

conclude that there is one potential assignment of error – that the trial court erred in overruling

defendant-appellant Cordero Roberson’s motion to suppress – that is not so lacking in

arguable merit as to be wholly frivolous. Accordingly, the Anders brief filed on Roberson’s

behalf is rejected, and new appellate counsel will be assigned.
                                                                                         2


                                 I. The Suppression Hearing

       {¶ 2} Fairborn police officers Shane Hartwell and Joseph Pence were dispatched to

1800 Ironwood Drive, in Fairborn, on a report of domestic violence by a man against a

woman. The report was that the man had threatened the woman with a firearm.

       {¶ 3} Hartwell and Pence arrived at about the same time. By prior arrangement, the

alleged victim met them outside the residence. The victim, identified at the hearing only as

Ms. Austin, confirmed that a gun had been involved. She told the officers that Roberson,

who was staying with her at the time, was in the shower in the bathroom. She said that the

gun was either on his person, in the bathroom, or in one of two bags in the living room that

belonged to Roberson. She identified herself as a tenant of the apartment, and gave the

officers permission to enter and contact Roberson. For her safety, she remained outside the

apartment.

       {¶ 4} The officers entered the apartment after failing to get a response from outside

the door. Both officers entered with their guns drawn. “Upon going inside the apartment,

we stood inside the front living room and multiple announcements were made for Mr.

Roberson to come out and speak with us.” Hartwell knocked on the bathroom door. The

officers could hear loud music coming from the bathroom, and the sound of the shower

running. Roberson did not emerge from the bathroom at this time.

       {¶ 5} The officers determined that no one was in the living room or in an attached

kitchen.     They did not look in the bedroom.

       {¶ 6} The officers decided to check the bags, one of which was a book bag, and one

of which was a suitcase. The suitcase was open, but a flap was covering the contents.

Hartwell found a Colt .380 semiautomatic firearm wrapped inside a pair of men’s underwear,
                                                                                             3


underneath the suitcase flap. Hartwell rendered the gun safe, making sure that it was not

loaded.

          {¶ 7} Pence then knocked on the door to the bathroom, yelling for Roberson, who

finally emerged from the bathroom. Pence handcuffed Roberson and talked to him in the

kitchen, while Hartwell contacted dispatch to run the serial number on the gun. Hartwell was

told that the gun had been reported stolen. At about this time, Pence gave Roberson oral

warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

          {¶ 8} Hartwell explained his decision to search the bags for a weapon:

                 Q. Okay. When you searched that bag – why did you search the bag

                 looking for the gun?

                 A. Because we wanted to make sure that he didn’t have it on him and

                 was in the bathroom arming himself while we’re making our

                 announcements.

                 Q. Okay. So if you had searched the bag and not found the gun, what

                 would have been your assumption?

                 A. That he would have had the gun.

                 ***

                 Q. The question was this, Officer Hartwell, if you had not found the

                 gun that the victim reported that the Defendant had pulled on her in that

                 bag, what would your fear have been? Let me put it that way.

                 A. That he would have had the gun on him and we would approach in

                 a totally different way.

          {¶ 9} Pence explained the decision this way:
                                                                                         4


                Q.   Why didn’t you just barge into the bathroom without

                looking in the suitcase? Why didn’t you just go on in there?

                A. If he had a weapon, going into a small bathroom like that would

                have been – it would have been unsafe. It could have ended with us

                being shot.

       {¶ 10}     On cross-examination, Hartwell was questioned about the need to search the

suitcase, considering that it was in the living room with them:

                Q. Okay. So when you entered the apartment Miss Austin was outside and

                you had your guns drawn, correct?

                A. Correct.

                Q. And you secured the living room, the kitchen, and all the area that you

                could see, correct?

                A. Correct.

                Q. And the bag was sitting on the floor, correct?

                A. Yes.

                Q. And the bag – there was no one that could get to the bag besides yourself

                and Officer Pence, correct?

                A. Correct.

                Q. So the bag was secure. No one could get to the bag besides yourself and

                Officer Pence?

       A. Well, I mean, someone could have got to it if they wanted to.

       Q. But they would have to get through you or Officer Pence to get to that bag,

       correct?
                                                                                          5


         A. No. Once we had seen off to the kitchen, we were staying back basically between

         the front door and the bags making our announcements for Mr. Roberson to come out

         of the bathroom.

         Q. Okay. Either yourself or Officer Pence could have secured that bag, stood beside

         it to make sure that no one opened that bag, is that correct?

         A. I mean, there’s a potential that someone could have come out and fought their way

         to it, yes.

         Q. But you could have secured that bag. Is it possible for you to have secured that

         bag?

         A. Looking back, we could have maybe pulled [it] out into the hallway.

{¶ 11}     Pence was also cross-examined on the same subject:

         Q. And, in this case, Miss Austin was outside, correct?

         A. Correct.

         Q. And you had secured the living room, correct?

         A. Correct.

         Q. And you had your guns drawn so you yourself, were as secure as you could be,

         correct?

         A. Correct.

         Q. And instead of – and you were standing by the suitcase, correct?

         A. Correct.

         Q. So no one could come and open that suitcase? No one could get into the contents

         of that suitcase without going through yourself or Officer Hartwell, correct?

         A. That is correct.
                                                                                                     6


       {¶ 12} When questioned at the scene, Roberson initially denied that there had been any kind

or argument or dispute between himself and Austin. Later, he admitted that there had been an

argument, but denied having made threats or having pulled a gun on Austin. He said “he knew

nothing of any type of weapon nor did he own one.”

       {¶ 13} Roberson was taken into custody and transported to the Fairborn Police Department.

While there, Pence administered written Miranda warnings. Roberson said that he had purchased

the gun from a friend, and it was his.

       {¶ 14} Roberson was charged by indictment with Receiving Stolen Property, in violation of

R.C. 2913.51(A), a felony of the Fourth Degree.

       {¶ 15} After his motion to suppress was overruled, Roberson pled no contest, was found

guilty, and was sentenced to community control sanctions for a period of time not exceeding five

years. He is appealing from his conviction and sentence.



                        II. The Suppression Issue Is Not Wholly Frivolous

       {¶ 16} The procedure that must be followed when assigned appellate counsel concludes that

there are no assignments of error to present to the court is set forth in Anders v. California, supra, at

386 U.S. 738, 744, 87 S.Ct. 1396, 181 L.Ed.2d 493:

               The constitutional requirement of substantial equality and fair process can only be

       attained where counsel acts in the role of an active advocate in behalf of his client, as opposed

       to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that

       dignity. Counsel should, and can with honor and without conflict, be of more assistance to

       his client and to the court. His role as advocate requires that he support his client's appeal to

       the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a
                                                                                                     7


       conscientious examination of it, he should so advise the court and request permission to

       withdraw. That request must, however, be accompanied by a brief referring to anything in

       the record that might arguably support the appeal. A copy of counsel's brief should be

       furnished the indigent and time allowed him to raise any points that he chooses; the court —

       not counsel — then proceeds, after a full examination of all the proceedings, to decide

       whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw

       and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision

       on the merits, if state law so requires. On the other hand, if it finds any of the legal points

       arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the

       indigent the assistance of counsel to argue the appeal. [Footnote omitted; emphasis added.]

       {¶ 17} In short, in order to accept a brief filed under the authority of Anders v.California and

affirm, we must find that the appeal is wholly frivolous, in the sense that there are no issues that the

appellant can raise that have arguable merit.

               {¶ 18} At the conclusion of the suppression hearing, the State declared that it was

       submitting the issue to the trial court. The trial court indicated that it would like some

       argument, but it is not clear whether the trial court was referring to the State, both counsel, or

       just to defense counsel, who responded.

               {¶ 19} Roberson acknowledged that the officers had Austin’s consent to enter the

       premises. Roberson argued that with Austin waiting outside, and with two officers inside the

       living room with guns drawn, they could wait for Roberson to emerge from the bathroom, and

       lacked exigent circumstances to search the suitcase without a warrant.

               {¶ 20}    The State responded as follows:

                        * * * . I think it’s a narrow issue, Your Honor. I think the Defense admits
                                                                                                        8


       that the Officers entered the residence properly with permission. The issue is whether

       or not once the Officers were there and standing outside the door of the bathroom and

       had the bags secured that eliminated any exigent circumstances, and, thus, the Officers

       should have waited for the Defendant to come out of the bathroom and then gone and

       got a search warrant or whatever, which I understand that’s the Defendant’s position.

                   The State’s position is that that’s asking, in any situation, Officers to put their

       self [sic] at an unnecessary risk at the time, when they’d just been given information

       that this individual had taken a gun and specifically had threatened to kill.1 That’s

       obviously the information received.

       {¶ 21}           In considering whether a claim that the trial court should have suppressed

the evidence has any arguable merit, the following exchange is of interest:

                   THE COURT: That raises an interesting question. Reasonable suspicion to

       believe a person is armed, certainly under the Terry exception requires – allows a frisk

       as opposed to a full blown search. Should the Officers had [sic] frisked the bags

       opposed to searching the bags under that exception?

                   MR. HUNTER [representing the State]: You know something, I’m not sure,

       Your Honor. I’m not going to act like I know. I would have to research that. I

       don’t know the answer. The State’s position is this, it’s the Court’s call. * * * .

       {¶ 22} The trial court gave the State a week to submit any case law to support its

position.       The State did not do so, but Roberson did submit authorities.                  In a written

decision, the trial court overruled Roberson’s motion to suppress. The trial court cited


            1
            We have found no evidence in the record that Roberson threatened to kill Austin.
                                                                                            9


authorities in its decision.

        {¶ 23} We have reviewed all of the authorities cited in both the trial court’s decision

and in Roberson’s submission of authorities to the trial court. We conclude that the issue of

whether the police officers could properly look inside Roberson’s suitcase under the

circumstances presented by the evidence in the record is not wholly frivolous. We emphasize

that in reaching this conclusion, we are not deciding the issue on its merits, merely that it is

not wholly frivolous for Anders purposes.

        {¶ 24} The Anders brief filed on Roberson’s behalf is rejected.         New appellate

counsel will be assigned. New counsel shall file a brief asserting an assignment of error

based on the issue identified in this decision and entry, along with any other assignments of

error that counsel, in his or her professional judgment, should deem worthy of asserting.

        {¶ 25} IT IS SO ORDERED.




                                      THOMAS J. GRADY, Presiding Judge




                                      MIKE FAIN, Judge




                                      MICHAEL T. HALL, Judge
                                    10




Copies mailed to:

Elizabeth A. Ellis
Greene County Prosecutor’s Office
61 Greene Street
Xenia, OH 45385

Scott Bissell
P.O. Box 92
Bellbrook, OH 45305

Hon. Stephen Wolaver
Greene County Common Pleas Court
45 N. Detroit Street
Xenia, OH 45385-2998

Cordero D. Roberson
1961 N. 15th Avenue
Milwaukee, WI 53205


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