[Cite as State v. Guerrero-Sanchez, 2017-Ohio-8185.]




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

 STATE OF OHIO                                         :
                                                       :
         Plaintiff-Appellee                            :   Appellate Case No. 27327
                                                       :
 v.                                                    :   Trial Court Case No. 2016-CR-714
                                                       :
 JOSE R. GUERRERO-SANCHEZ                              :   (Criminal Appeal from
                                                       :   Common Pleas Court)
         Defendant-Appellant                           :
                                                       :

                                              ...........

                                              OPINION

                           Rendered on the 13th day of October, 2017.

                                              ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, 120 West Second Street, Suite 706,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                            .............




WELBAUM, J.
                                                                                       -2-




       {¶ 1} Defendant-appellant, Jose R. Guerrero-Sanchez, appeals from his

conviction in the Montgomery County Court of Common Pleas after he pled no contest to

two counts of aggravated possession of drugs.        In support of his appeal, Guerrero-

Sanchez contends the trial court erred by overruling his motion to suppress statements

and evidence and by sentencing him to the maximum prison term for one of his offenses.

For the reasons outlined below, the judgment of the trial court will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On March 11, 2016, the Montgomery County Grand Jury returned an

indictment charging Guerrero-Sanchez with two counts of aggravated possession of

drugs in violation of R.C. 2925.11(A). The first count alleged that Guerrero-Sanchez

possessed fentanyl in an amount equal to or exceeding 50 times the bulk amount, but

less than 100 times the bulk amount, which is a felony of the first degree. The second

count was a fifth-degree felony involving the possession of methamphetamine. The

charges stemmed from Homeland Security Officers discovering a small plastic bag of

methamphetamine and 1,063 grams of fentanyl in a hotel room occupied by Guerrero-

Sanchez.

       {¶ 3} After pleading not guilty to the charges, on April 18, 2016, Guerrero-Sanchez

filed two motions to suppress.     One of the motions was directed at the statements

Guerrero-Sanchez made during his encounter with the officers, whereas the other motion

was directed at the drug evidence seized in the hotel room. The trial court held a hearing

on both motions on June 23, 2016, during which the State presented testimony from the
                                                                                         -3-


two Homeland Security Officers, Agent Raymond Swallen and Detective Josh Walters.

Guerrero-Sanchez also testified at the hearing in his defense.

       {¶ 4} At the hearing, Agent Swallen testified that on March 1, 2016, he was

checking local hotels for illegal activity when he observed three men engaging in

suspicious behavior outside the Comfort Inn at 42 Prestige Plaza in Miamisburg, Ohio.

Swallen testified that he followed the men inside the Comfort Inn, but could not locate

them. In an effort to try and identify the men, Swallen asked the desk clerk for the hotel’s

guest registration information. Swallen testified that when he checks guest registrations

he typically looks for “local people or people connected to the border.” Trans. (June 23,

2016), p. 35. When checking Comfort Inn’s guest registration Swallen noticed one of the

guests, Guerrero-Sanchez, had a Santa Ana, California address. Swallen testified that

the address caught his attention because it was close to the border and near an area

where he had made drug seizures.

       {¶ 5} Next, Swallen testified that he ran Guerrero-Sanchez’s name and address

through federal data bases “DICE” and “DARTS.” Swallen also contacted Agent Joe

Belke and asked him to check Guerrero-Sanchez’s phone number.                 According to

Swallen, the data bases revealed that Guerrero-Sanchez’s phone number was linked to

a methamphetamine delivery. In light of this information, Swallen contacted Detective

Walters and advised him that he wanted to do a “knock and talk” at Guerrero-Sanchez’s

hotel room. Id. at 36. Swallen testified that a “knock and talk” is “where you knock on

the door and ask somebody if they’re willing to talk to you.” Id.

       {¶ 6} After Walters arrived on the scene, Swallen testified that he walked up to

room 308 at the Comfort Inn and knocked on the door. According to Swallen, Guerrero-
                                                                                        -4-


Sanchez opened the door 10 to 15 seconds after he knocked. Upon Guerrero-Sanchez

opening the door, Swallen testified that he identified himself as a law enforcement officer

and showed Guerrero-Sanchez his Homeland Security credentials. Swallen then asked

Guerrero-Sanchez if he could talk to him and if he would let him in the hotel room.

Swallen testified that Guerrero-Sanchez verbally responded “yes,” opened the door, and

then motioned for Swallen to come inside the room.

      {¶ 7} When Swallen walked into the hotel room he immediately observed a black

gun sitting on a desk. Swallen testified that he asked Guerrero-Sanchez if the gun was

his and Guerrero-Sanchez verbally answered “no, that’s a BB gun.” Trans. (June 23,

2016), p. 38.   Detective Walters, who was standing in the hallway listening to the

conversation, testified that when he heard Swallen ask about a gun he walked into the

room as well.

      {¶ 8} After asking about the gun, Swallen testified that Guerrero-Sanchez put on a

pair of jeans and sat on the couch in the hotel room.         Thereafter, Swallen asked

Guerrero-Sanchez to turn on the light located behind him and Guerrero-Sanchez

complied without hesitation. Swallen then asked if there were any more lights, and

Guerrero-Sanchez pointed to a light by the bed, which Swallen turned on. When all the

lights were turned on, Swallen testified that he observed a glass pipe and a small plastic

bag containing a crystal-like substance that appeared to be methamphetamine on a

nightstand between the two beds in the hotel room. Upon seeing the methamphetamine,

Swallen testified that he asked Guerrero-Sanchez if he would allow him to search the

hotel room, and Guerrero-Sanchez responded “yes.” Id. at 40.

      {¶ 9} Once he obtained Guerrero-Sanchez’s consent to search the hotel room,
                                                                                        -5-


Swallen looked around the room and observed a box for a digital scale, vacuum sealed

bags, and a suitcase with a lock on it. Swallen testified that he asked Guerrero-Sanchez

if he had a key to the suitcase and that Guerrero-Sanchez provided him with a key.

When Swallen unlocked and opened the suitcase he observed a block wrapped up in

tinfoil that appeared to be United States currency and drugs, later identified as fentanyl,

banded together.

       {¶ 10} Swallen testified that he asked Guerrero-Sanchez about the drugs in the

suitcase and that Guerrero-Sanchez responded “it’s not mine, there was two other people

here last night and it was the females.” Trans. (June 23, 2016), p. 40. Swallen testified

that there was no evidence of anyone else being in the hotel room, as Guerrero-Sanchez

was in the room alone and only one of the beds appeared to have been slept in.

       {¶ 11} Continuing, Swallen testified that throughout the encounter, Guerrero-

Sanchez had no difficulty understanding English or answering his questions. Swallen

testified that Guerrero-Sanchez never asked him to repeat himself and that Guerrero-

Sanchez responded to his questions in an immediate, conversational pace without delay.

Despite there being no indication of a language barrier, Swallen testified that once he

asked Guerrero-Sanchez about the drugs in the suitcase, Guerrero-Sanchez suddenly

claimed he could not speak English.

       {¶ 12} Swallen further testified that no weapons were drawn or displayed during

the encounter, which he claimed lasted only 20 minutes.           Detective Walters also

confirmed that no weapons were drawn during the encounter and testified that Guerrero-

Sanchez permitted Swallen inside the hotel room and consented to a search. Detective

Walters also confirmed that Guerrero-Sanchez provided Swallen with a key to the
                                                                                        -6-


suitcase containing the fentanyl and that Guerrero-Sanchez appeared to speak and

understand English without difficulty.

       {¶ 13} Both Swallen and Walters testified that Guerrero-Sanchez was not

Mirandized during the encounter at the hotel room. However, both officers testified that

Guerrero-Sanchez was not handcuffed or placed in custody prior to the search of the

suitcase. Walters specifically testified that Guerrero-Sanchez was handcuffed prior to

being transported to the office of the Drug Enforcement Agency (“DEA”) for questioning.

Walters also testified that while transporting Guerrero-Sanchez, he did not ask him about

the drugs found in the hotel room, but only discussed the benefits of cooperating with law

enforcement. Walters testified that once Guerrero-Sanchez arrived at the DEA office, a

Spanish-speaking agent read him his Miranda rights and Guerrero-Sanchez thereafter

requested to speak to an attorney.

       {¶ 14} Guerrero-Sanchez testified to a much different version of events. Through

a Spanish-speaking interpreter, Guerrero-Sanchez testified that on the day in question,

he was sleeping when he woke up to a knock on his hotel-room door. He claimed that

he initially did not see anyone through the peephole of the door, so he went back to sleep,

but then heard someone knock again. When he finally opened the door, Guerrero-

Sanchez claimed that it was Detective Walters who had been knocking.

       {¶ 15} Upon opening the door, Guerrero-Sanchez testified that Walters and

Swallen pushed him into the room and sat him on the sofa while he was wearing only his

underwear. Thereafter, Guerrero-Sanchez testified that Walters and Swallen started

searching the hotel room. During the search, Guerrero-Sanchez testified that the officers

moved around the beds and mattresses and found the suitcase in question. According
                                                                                        -7-


to Guerrero-Sanchez, the suitcase did not require a key to be opened.           Guerrero-

Sanchez claimed that he could not have handed the officers a key because he was

handcuffed during the search.

      {¶ 16} Guerrero-Sanchez also testified that the officers continually asked him

“where’s the money?” Trans. (June 23, 2016), p. 62. Guerrero-Sanchez testified that

he does not speak or understand even a small amount of English, and that he only

recognized the word “money” during the encounter.         As a result, Guerrero-Sanchez

testified that he did not understand what the officers were asking him and that he did not

know his rights or whether his rights were ever explained to him. He claimed a Spanish-

speaking officer was not provided until after he was transported to the DEA office.

      {¶ 17} With respect to his background, Guerrero-Sanchez testified that he is 36

years old and has lived and worked in the United States for 16 years, mostly in California.

He testified that Spanish is his primary language and that he was educated in Mexico

where he completed 11 years of schooling. Guerrero-Sanchez also testified that he

came to Dayton to look for a place to live, and that he was able to drive himself from

California to Dayton despite his alleged language barrier.

      {¶ 18} After the foregoing testimony was heard by the trial court, on August 25,

2016, a supplemental suppression hearing was held at the request of the State. At the

supplemental hearing, the State presented testimony from Officer Jeremiah Lockhart.

Officer Lockhart testified that he is a corrections officer at the Montgomery County Jail

and that Guerrero-Sanchez is an inmate worker in the “B Pod” of the jail. Lockhart

testified that he has personally interacted with Guerrero-Sanchez over the past five

months for four to five days a week, and that all their interactions have been conducted
                                                                                     -8-


in English, with the exception of the occasional Spanish greeting “Buenos Dias.”

According to Lockhart, Guerrero-Sanchez demonstrated no difficulty understanding or

speaking English. Furthermore, Lockhart testified that Guerrero-Sanchez spoke and

understood English well enough to serve as a translator for his Spanish-speaking

cellmate.

       {¶ 19} On October 3 and 24, 2016, the trial court issued a written decision and

entry overruling Guerrero-Sanchez’s motion to suppress his statements. On October 27,

2016, the trial court also issued a written decision and entry overruling Guerrero-

Sanchez’s motion to suppress the drug evidence seized from the hotel room. As a result

of the trial court’s decision, Guerrero-Sanchez pled no contest to the charges in the

indictment and the trial court found him guilty as charged.

       {¶ 20} For the first-degree-felony count of aggravated possession of drugs

involving fentanyl, the trial court sentenced Guerrero-Sanchez to the maximum prison

term of 11 years. In sentencing him to the maximum prison term, the trial court found

that Guerrero-Sanchez had committed the worst form of the offense given the amount

and type of drug, and the fact that the drug has caused several overdose deaths in

Montgomery County.

       {¶ 21} For the fifth-degree-felony count of aggravated possession of drugs

involving methamphetamine, the trial court sentenced Guerrero-Sanchez to 12 months in

prison. The trial court ordered the 12-month prison term to be served concurrently with

the 11-year prison term for a total sentence of 11 years in prison.

       {¶ 22} Guerrero-Sanchez now appeals from his conviction and sentence, raising

two assignments of error for review.
                                                                                           -9-




                                First Assignment of Error

       {¶ 23} Guerrero-Sanchez’s First Assignment of Error is as follows:

       THE TRIAL COURT ERRED WHEN IT OVERRULED GUERRERO-

       SANCHEZ’S MOTION TO SUPPRESS.

       {¶ 24} Under his First Assignment of Error, Guerrero-Sanchez contends that the

trial court erred in overruling the motion to suppress his statements and the drug evidence

discovered in his hotel room. In support of this claim, Guerrero-Sanchez contends that

his statements should have been suppressed because they were involuntary as a result

of him not understanding English and were made without the benefit of Miranda warnings.

He also claims that the drugs discovered in his hotel room should have been suppressed

because he did not voluntarily consent to the search of his hotel room.



                                   Standard of Review

       {¶ 25} “In ruling on a motion to suppress, the trial court ‘assumes the role of the

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate

the credibility of the witnesses.’ ” State v. Prater, 2012-Ohio-5105, 984 N.E.2d 36, ¶ 7

(2d Dist.), quoting State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d

Dist.1994). “As a result, when we review suppression decisions, ‘we are bound to accept

the trial court’s findings of fact if they are supported by competent, credible evidence.

Accepting those facts as true, we must independently determine as a matter of law,

without deference to the trial court’s conclusion, whether they meet the applicable legal

standard.’ ” Id., quoting Retherford.
                                                                                         -10-




                   Guerrero-Sanchez’s Statements Were Voluntary

        {¶ 26} Guerrero-Sanchez first claims the statements he made to Agent Swallen

and Detective Walters should have been suppressed because his statements were

involuntary due to his inability to understand the English language.

        {¶ 27} “Whether a statement was made voluntarily and whether an individual

knowingly, voluntarily, and intelligently waived his or her Miranda rights are distinct

issues.” (Citations omitted.) State v. Lovato, 2d Dist. Montgomery No. 25683, 2014-

Ohio-2311, ¶ 30. “Regardless of whether Miranda warnings were required and given, a

defendant’s statement may have been given involuntarily and thus be subject to

exclusion.” Id., citing State v. Kelly, 2d Dist. Greene No. 2004-CA-20, 2005-Ohio-305,

¶ 11.

        {¶ 28} “In determining whether a pretrial statement is involuntary, a court ‘should

consider the totality of the circumstances, including the age, mentality, and prior criminal

experience of the accused; the length, intensity, and frequency of interrogation; the

existence of physical deprivation or mistreatment; and the existence of threat or

inducement.’ ” State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶

13, quoting State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two

of the syllabus, overruled on other grounds, Edwards v. Ohio, 438 U.S. 911, 98 S.Ct.

3147, 57 L.Ed.2d 1155 (1978).

        {¶ 29} “ ‘[C]oercive police activity is a necessary predicate to the finding that a

confession is not “voluntary” within the meaning of the Due Process Clause of the

Fourteenth Amendment.’ ” State v. Banks-Harvey, 2d Dist. Montgomery No. 26786,
                                                                                           -11-

2016-Ohio-4715, ¶ 8, quoting Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515,

93 L.Ed.2d 473 (1986). “ ‘Evidence of use by the interrogators of an inherently coercive

tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep) will

trigger the totality of the circumstances analysis.’ ” Id., quoting State v. Clark, 38 Ohio

St.3d 252, 261, 527 N.E.2d 844 (1988). “A confession is voluntary ‘absent evidence that

[the defendant’s] will was overborne and his capacity for self-determination was critically

impaired because of coercive police conduct.’ ” Id., quoting State v. Jackson, 2d Dist.

Greene No. 02CA0001, 2002-Ohio-4680, ¶ 20. (Other citation omitted.)

       {¶ 30} In this case, the trial court indicated that its decision to overrule the motion

to suppress Guerrero-Sanchez’s statements was based on the credibility of the

witnesses. Accordingly, it is clear from the record that the trial court found the officers’

testimony more credible than Guerrero-Sanchez’s and relied on the officers’ testimony

when issuing its decision.

       {¶ 31} The testimony of Agent Swallen, Detective Walters, and Officer Lockhart

indicate that Guerrero-Sanchez understands and speaks the English language.

Specifically, Swallen and Walters testified that Guerrero-Sanchez communicated with

them in English throughout the encounter without a problem and that Guerrero-Sanchez

did not mention a language barrier until after Swallen asked him about the drugs in the

suitcase. Guerrero-Sanchez’s ability to speak and understand English is buttressed by

the testimony of Officer Lockhart, who testified that Guerrero-Sanchez had no difficulty

understanding and speaking English with him while incarcerated at the Montgomery

County Jail, and that Guerrero-Sanchez acted as an English translator for his Spanish-

speaking cellmate. We also note that Guerrero-Sanchez testified that he has been living
                                                                                         -12-


in the United States for 16 years, almost half his life, and that he has been able to obtain

employment and travel across the country without any difficulty. Accordingly, there is

competent and credible evidence in the record supporting the finding that Guerrero-

Sanchez understood what the offers were saying during the encounter at the hotel room.

       {¶ 32} We further note that the officers’ testimony also indicates that the encounter

in the hotel room was not coercive in nature. There is no indication that Guerrero-

Sanchez was subject to any threats or mistreatment. Moreover, the officers testified that

the whole encounter lasted no more than 20 minutes without any weapons drawn, and

that Guerrero-Sanchez was not handcuffed until he was transported to the DEA office.

       {¶ 33} When considering the officers’ testimony, the totality of the circumstances

do not indicate that Guerrero-Sanchez’s statements were rendered involuntary as the

result of a language barrier or any coercive police conduct. Rather, the totality of the

circumstances indicate that Guerrero-Sanchez understands and speaks the English

language at a level sufficient to have understood Swallen’s questions and that he

voluntarily complied with the officers at the hotel room and answered their questions.

       {¶ 34} For the foregoing reasons, Guerrero-Sanchez’s argument that his

statements were involuntary and should have been suppressed is overruled.



       Guerrero-Sanchez’s Statements Are Not Suppressible Under Miranda

       {¶ 35} Guerrero-Sanchez also contends that his statements to Agent Swallen and

Detective Walters should have been suppressed because the officers failed to administer

Miranda warnings.

       {¶ 36} “Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)]
                                                                                         -13-


requires police to give a suspect certain prescribed warnings before custodial

interrogation commences and provides that if the warnings are not given, any statements

elicited from the suspect through police interrogation in that circumstance must be

suppressed.”    State v. Petitjean, 140 Ohio App.3d 517, 523, 748 N.E.2d 133 (2d

Dist.2000). Police are not required to administer Miranda warnings to every person they

question, even if the person being questioned is a suspect. State v. Biros, 78 Ohio St.3d

426, 440, 678 N.E.2d 891 (1997), citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct.

711, 50 L.Ed.2d 714 (1977). Rather, Miranda warnings are required only for custodial

interrogations. Id., citing Mathiason at 494. (Other citation omitted.)

       {¶ 37} “An individual is in custody when there has been a formal arrest or a

restraint of freedom of movement such that a reasonable man would believe that he is

under arrest.” State v. Wenzler, 2d Dist. Greene No. 2003-CA-16, 2004-Ohio-1811,

¶ 15, citing Biros at 440. “The subjective views of the interviewing officer and the suspect

are immaterial to the determination of whether a custodial interrogation was conducted.”

(Citations omitted.) In re L.G., 2017-Ohio-2781, 82 N.E.3d 52, ¶ 13 (2d Dist.). “The

inquiry whether a person is subject to custodial interrogation is an objective question,

focusing on how a reasonable person in the suspect's position would have understood

the situation.” (Citations omitted.) Id. “General, on-the-scene questioning of persons

concerning events that have happened does not ordinarily fall within the ambit of custodial

interrogation, because the compelling atmosphere inherent in the process of in-custody

interrogation is not present.” State v. Barnett, 2d Dist. Montgomery No. 14019, 1994 WL

567551, *4 (Aug. 31, 1994), citing Miranda at 477-478.

       {¶ 38} As previously noted, the trial court relied on the officers’ testimony when
                                                                                        -14-


overruling Guerrero-Sanchez’s motion to suppress his statements.          In applying the

officers’ testimony to the relevant law, we find that Guerrero-Sanchez’s statements were

not elicited during a custodial interrogation, as a reasonable person in Guerrero-

Sanchez’s position would not have believed that he was under arrest at the time the

statements were made.

       {¶ 39} According to the officers’ testimony, Guerrero-Sanchez permitted the

officers inside the hotel room after Agent Swallen knocked on the door, identified himself,

and asked to speak with him. After Guerrero-Sanchez answered the door, he put on a

pair of jeans, sat on the couch, and proceeded to communicate with the officers voluntarily

while under no physical constraints or threats of force. We note that after Swallen saw

the glass pipe and methamphetamine on the nightstand, he proceeded to ask for

Guerrero-Sanchez’s permission to search the hotel room as opposed to arresting him or

physically constraining him in anyway. As a further matter, neither Swallen nor Walters

had their weapon drawn or showing during the encounter. Most importantly, the officers

indicated that Guerrero-Sanchez was not placed in handcuffs until after the drugs were

discovered in the suitcase. Accordingly, the officers’ testimony indicates that Guerrero-

Sanchez was not in custody until after the fentanyl was found.           As a result, the

statements elicited from Guerrero-Sanchez prior to those drugs being found were not

obtained in violation of Miranda.

       {¶ 40} The officers’ testimony also indicates that once Guerrero-Sanchez was in

custody he was not asked any further questions about the drugs found at the hotel room.

Rather, Detective Walters testified that the only discussion he had with Guerrero-Sanchez

after he was in custody concerned the benefits of cooperating with the authorities. We
                                                                                      -15-

find that said discussion does not qualify as an interrogation requiring Miranda warnings

because it was not designed or reasonably likely to elicit an incriminating response from

Guerrero-Sanchez, but rather was a casual conversation. See State v. Tucker, 81 Ohio

St.3d 431, 436-438, 692 N.E.2d 171 (1998).

      {¶ 41} Since Guerrero-Sanchez was not in custody when he discussed the drugs

with the officers, his statements are not suppressible under Miranda.       Accordingly,

Guerrero-Sanchez’s argument that his statements should be suppressed as a result of

not being Mirandized is overruled.



              Guerrero-Sanchez Voluntarily Consented to the Search

      {¶ 42} For his third claim, Guerrero-Sanchez contends that the drug evidence

found in his hotel room should have been suppressed because he did not voluntarily

consent to the warrantless search of his hotel room.

      {¶ 43} Searches conducted without a warrant are per se unreasonable, subject to

only a few specifically established and well recognized exceptions. State v. Posey, 40

Ohio St.3d 420, 427, 534 N.E.2d 61 (1988);    Schneckloth v. Bustamonte, 412 U.S. 218,

219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Katz v. United States, 389 U.S. 347, 357, 88

S.Ct. 507, 19 L.Ed.2d 576 (1967). One such exception is a search conducted pursuant

to voluntary consent. Id. In order to rely upon the consent exception to the Fourth

Amendment’s warrant requirement, the State must prove by “ ‘clear and positive

evidence’ that the consent was ‘freely and voluntarily given’ ” and not “ ‘the product of

duress or coercion, express or implied.’ ”    Posey at 427, quoting Bumper v. North

Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). (Other citation
                                                                                        -16-


omitted.)

      {¶ 44} “ ‘[W]hether a consent to search was in fact “voluntary” or was the product

of duress or coercion, express or implied, is a question of fact to be determined under the

totality of the circumstances.’ ” Id., quoting Schneckloth at 227. “The following factors

are generally used in Ohio to decide if a defendant’s consent to search has been given

voluntarily: ‘(1) whether the defendant’s custodial status was voluntary; (2) whether

coercive police procedures were used; (3) the extent and level of the defendant’s

cooperation with the police; (4) the defendant’s awareness of his or her right to refuse

consent; (5) the defendant’s education and intelligence; [and] (6) the defendant’s belief

that no incriminating evidence will be found.’ ” State v. Mabry, 2d Dist. Montgomery No.

26242, 2015-Ohio-4513, ¶ 15, quoting State v. Black, 2d Dist. Montgomery No. 23524,

2010-Ohio-2916, ¶ 36-41. We note that the State’s burden to prove voluntary consent

is heavier when it appears the defendant does not readily speak and understand the

English language. State v. Rodriguez, 8th Dist. Cuyahoga No. 98422, 2013-Ohio-491,

¶ 21, citing United States v. Hernandez, 443 Fed.Appx. 34, 40 (6th Cir.2011).

      {¶ 45} Guerrero-Sanchez contends that he did not voluntarily consent to the

search of his hotel room because he did not speak or understand English and therefore

did not understand what Agent Swallen and Detective Walters were saying during the

encounter. He also claims that Swallen and Walters used coercive police procedures

during the encounter such as pushing him into the hotel room when he answered the

door, sitting him on the couch, and handcuffing him prior to the search.        Guerrero-

Sanchez further claims that he was not cooperative during the encounter and that he was

unaware of his right to refuse consent.
                                                                                          -17-


       {¶ 46} In overruling Guerrero-Sanchez’s motion to suppress the drug evidence

found in his hotel room, the trial court relied on the testimony of Agent Swallen, Detective

Walters, and Officer Lockhart. As previously discussed, the officers’ testimony provides

competent and credible evidence supporting the fact that Guerrero-Sanchez spoke

English and understood what the officers were saying. Guerrero-Sanchez’s intelligence

and education are not otherwise at issue, as Guerrero-Sanchez is an employable 36-

year-old who completed 11 years of schooling.

       {¶ 47} Swallen and Walters’ testimony also establishes that no coercive measures

were used to obtain Guerrero-Sanchez’s consent and that Guerrero-Sanchez was

cooperative throughout the encounter. Unlike Guerrero-Sanchez’s version of events,

Swallen testified that he knocked on the hotel-room door and requested to speak with

Guerrero-Sanchez, who opened the door and motioned for Swallen to come inside.

Instead of pushing Guerrero-Sanchez in the room, forcing him to sit on the couch, and

handcuffing him, Swallen testified that when he walked in the room Guerrero-Sanchez

put on a pair of jeans, sat on the couch, and voluntarily responded to Swallen’s questions

before consenting to a search of the hotel room. The officers also testified that they did

not have their weapons drawn or showing and that Guerrero-Sanchez was not handcuffed

prior to giving his consent to search. As a further matter, there is no indication that the

officers used any threats of force or false claims to obtain Guerrero-Sanchez’s consent.

       {¶ 48} The fact that Guerrero-Sanchez was allegedly unaware of his right to refuse

the officers’ request to talk and search the hotel room does not by itself render the consent

involuntary.   “An individual’s knowledge of the right to refuse consent ‘is not a

prerequisite of a voluntary consent.’ ” Mabry, 2d Dist. Montgomery No. 26242, 2015-
                                                                                         -18-

Ohio-4513 at ¶ 16, quoting Schneckloth, 412 U.S. at 234, 93 S.Ct. 2041, 36 L.Ed.2d 854.

“In fact, ‘[t]he [United States Supreme] Court has rejected in specific terms the suggestion

that police officers must always inform citizens of their right to refuse when seeking

permission to conduct a warrantless consent search.’ ” Id., quoting United States v.

Drayton, 536 U.S. 194, 206, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). “In other words,

‘while the knowledge of the right to refuse consent is one factor to be considered, it is not

the sine qua non of a voluntary consent.’ ”         Id., quoting State v. Watts, 2d Dist.

Montgomery No. 21982, 2007-Ohio-2411, ¶ 17, citing Ohio v. Robinette, 519 U.S. 33, 39,

117 S.Ct. 417, 136 L.Ed.2d 347 (1996).

       {¶ 49} In light of the factors to be taken into consideration and the officers’

testimony, we find that the totality of the circumstances indicate that Guerrero-Sanchez

voluntarily consented to the search at issue. Because the trial court found the officers’

testimony credible, and said testimony supports a finding of voluntary consent, the trial

court did not err in overruling Guerrero-Sanchez’s motion to suppress the drug evidence

seized from the hotel room.        Accordingly, Guerrero-Sanchez’s argument that the

evidence found in his hotel room should have been suppressed is overruled.

       {¶ 50} Guerrero-Sanchez’s First Assignment of Error is overruled.



                              Second Assignment of Error

       {¶ 51} Guerrero-Sanchez’s Second Assignment of Error is as follows:

       THE TRIAL COURT ERRED WHEN IT SENTENCED GUERRERO-

       SANCHEZ TO ELEVEN YEARS IN PRISON ON COUNT I [aggravated

       possession of drugs, to wit: fentanyl].
                                                                                         -19-


        {¶ 52} Under his Second Assignment of Error, Guerrero-Sanchez contends that

the trial court erred in sentencing him to the maximum 11-year prison term for the count

of aggravated possession of drugs that stemmed from his possession of 1,063 grams of

fentanyl. Specifically, Guerrero-Sanchez claims the trial court’s finding that his conduct

was the worst form of the offense is not supported by the record because said finding was

based solely on the type and quantity of drug he possessed. Guerrero-Sanchez claims

this was improper because the type and quantity of drug are already accounted for as

part of the possession offense under R.C. 2925.11(A) and (C)(1)(d). Since the type and

quantity of drug are already accounted for, and since this is his first felony conviction to

which none of the more serious factors in R.C. 2929.12(B) apply, Guerrero-Sanchez

claims there is nothing in the record supporting the maximum sentence imposed by the

trial court.

        {¶ 53} The Supreme Court of Ohio has made clear that felony sentences are to be

reviewed in accordance with the standard set forth in R.C. 2953.08(G)(2). State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, 16. Accord State

v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.). Pursuant to the plain language

of R.C. 2953.08(G)(2), “an appellate court may vacate or modify a felony sentence on

appeal only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is otherwise

contrary to law.” Marcum at ¶ 1.

        {¶ 54} The Supreme Court further explained that:

        [S]ome sentences do not require the findings that R.C. 2953.08(G)

        specifically addresses.   Nevertheless, it is fully consistent for appellate
                                                                                        -20-


       courts to review those sentences that are imposed solely after consideration

       of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally

       deferential to the sentencing court. That is, an appellate court may vacate

       or modify any sentence that is not clearly and convincingly contrary to law

       only if the appellate court finds by clear and convincing evidence that the

       record does not support the sentence.

Id. at ¶ 23.

       {¶ 55} This is a very deferential standard of review, as the question is not whether

the trial court had clear and convincing evidence to support its findings, but rather,

whether we clearly and convincingly find that the record fails to support the trial court’s

findings. Rodeffer at ¶ 31, citing State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21

(8th Dist.).   Under this standard of review “ ‘appellate courts are prohibited from

substituting their judgment for that of the trial judge.’ ” (Emphasis omitted.) State v.

Withrow, 2016-Ohio-2884, 64 N.E.3d 553, ¶ 37 (2d Dist.), quoting State v. Overholser,

2d Dist. Clark No. 2014-CA-42, 2015-Ohio-1980, ¶ 38 (Welbaum, J., dissenting). “As

a result, we must affirm the decision of the trial court even though we might be persuaded

that the trial court’s decision in this regard ‘constitutes an absence of the exercise of

discretion[.]’ ” Id., quoting State v. Adams, 2d Dist. Clark No. 2014-CA-13, 2015-Ohio-

1160, ¶ 35 (Hall, J., dissenting).

       {¶ 56} In this case, the trial court was not required to make any findings under the

specific statutes addressed in R.C. 2953.08(G)(2). Furthermore, Guerrero Sanchez’s

prison sentence is not clearly and convincingly contrary to law, as the sentence was within

the authorized statutory range, see R.C. 2929.14(A)(1), and the trial court expressly
                                                                                         -21-


stated at the sentencing hearing that it had considered “the purposes and principles of

sentencing in the Revised Code, [and] the seriousness and recidivism factors contained

therein * * *.” Trans. (Nov. 1, 2016), p. 108. See State v. Walden, 2d Dist. Clark No.

2014-CA-84, 2016-Ohio-47, ¶ 7, quoting State v. Martin, 2d Dist. Clark No. 2014-CA-69,

2015-Ohio-697, ¶ 8 (“ ‘a maximum sentence is not contrary to law when it is within the

statutory range and the trial court considered the statutory purposes and principles of

sentencing as well as the statutory seriousness and recidivism factors’ ”).

       {¶ 57} Because the trial court was not required to make any of the findings

addressed in R.C. 2953.08(G)(2) and the 11-year prison sentence is not clearly and

convincingly contrary to law, the threshold issue in this case is whether there is clear and

convincing evidence that the record does not support the maximum sentence imposed by

the trial court. Again, “an appellate court may vacate or modify any sentence that is not

clearly and convincingly contrary to law only if the appellate court finds by clear and

convincing evidence that the record does not support the sentence.” Marcum, 146 Ohio

St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231 at ¶ 23.

       {¶ 58} In sentencing Guerrero Sanchez to the maximum prison term, the trial court

considered the factors under R.C. 2929.12 to determine whether the conduct constituting

his offense was more or less serious. Although none of the enumerated “more serious”

factors applied in this case, the statute nevertheless instructs the trial court to also

consider “any other relevant factors, as indicating that the offender’s conduct is more

serious than conduct normally constituting the offense[.]” R.C. 2929.12(B). Here, the

court considered the fact that this is Guerrero Sanchez’s first felony conviction, but also

“considered that the drug amount, the type of drug * * * in this case, was fentanyl, a drug
                                                                                          -22-


being trafficked which is the cause of many many deaths in this county, overdose deaths.”

Trans. (Nov. 1, 2016), p. 108. The record indicates that Guerrero had 1,063 grams of

fentanyl in his possession, which is greater than 50 times the bulk amount but less than

100 times the bulk amount. Based on these considerations, the trial court found that

Guerrero’s aggravated possession of drugs offense was the worst form of the offense,

warranting the maximum prison term.

       {¶ 59} As previously noted, Guerrero Sanchez claims the record does not support

the maximum sentence because he has no prior felony convictions and the type and

quantity of drug he possessed are already accounted for in the offense itself. In other

words, Guerrero-Sanchez maintains that the type and quantity of drug are not proper

factors to consider when determining whether his offense is more serious under the R.C.

2929.12 analysis.

       {¶ 60} A similar argument was raised by the appellant in State v. Sieng, 10th Dist.

Franklin No. 06AP-852, 2007-Ohio-1502. In Sieng, the defendant claimed the trial court

improperly considered the large quantity of cocaine in his possession and the potential

harm to the community as factors making his drug trafficking offense more serious than

conduct normally constituting the offense under the R.C. 2929.12 analysis. Id. at ¶ 12-

16. In response, the Tenth Appellate District noted that appellant cited “no authority for

the proposition that a trial court is precluded from considering the quantity of a drug in its

analysis of the seriousness of the offender’s conduct” and ultimately found the argument

unpersuasive.     Id. at ¶ 13 and 15. The Sieng court held that the quantity of the drug

and the potential harm to the community were relevant as part of the trial court’s

consideration of “other relevant factors” that made the offense more serious pursuant to
                                                                                         -23-

R.C. 2929.12(B). Id. at 15-16.

      {¶ 61} In reaching this conclusion, the Sieng court relied on this court’s decision in

State v. Barger, 2d Dist. Champaign No. 2006-CA-12, 2006-Ohio-5559. In Barger, the

trial court sentenced the defendant to more than the minimum sentence for trafficking

between 1,000 and 5,000 grams of marijuana. Id. at ¶ 1. The trial court explained that

the amount of drugs sold made the defendant’s offense more serious, noting that it was

“the largest marijuana sale known to Champaign County.” Id. at ¶ 16. On appeal, the

defendant in Barger challenged his sentence under R.C. 2929.12 arguing that the amount

of the controlled substance had already been accounted for by it being classified by the

legislature as a third degree felony. Id. at ¶ 17. We, however, held that the trial court

had properly considered the relevant statutory sentencing factors, including the fact that

“the amount of the controlled substance involved was substantial.” Id. at ¶ 26.

      {¶ 62} In addition to Barger, the Sieng court relied on the Fourth District Court of

Appeals’ decision in State v. Sideris, 4th Dist. Athens No. 04CA37, 2005-Ohio-1055. In

Sideris the court held that, although not an enumerated factor under R.C. 2929.12(B), the

trial court could properly consider the fact the defendant had a large quantity of drugs in

his possession as part of its consideration of “other relevant factors” demonstrating the

seriousness of the defendant’s offenses. Sideris at ¶ 27.

      {¶ 63} Other Ohio courts have similarly affirmed sentences in which the trial court,

in considering the R.C. 2929.12 factors, discussed the drug quantity at the sentencing

hearing. See, e.g., State v. Hull, 2017-Ohio-157, 77 N.E.3d 484, ¶ 42 (11th Dist.) (“The

trial court’s finding that the amount of drugs in Hull’s possession was unusually large for

a Lake County drug-related offense is well within the court’s bailiwick and is relevant as
                                                                                      -24-


‘any other factor * * * indicating the offender’s conduct is more serious than conduct

normally constituting the offense[.]’ ”); State v. Carter, 11th Dist. Portage No. 2003-P-

0007, 2004-Ohio-1181, ¶ 47; State v. Kail, 3d Dist. Wyandot No. 16-03-06, 2003-Ohio-

6312, ¶ 11; State v. McGinnis, 9th Dist. Medina No. 05CA0061-M, 2006-Ohio-2281, ¶ 51-

52.

      {¶ 64} Based on the foregoing authority, we do not find that it was inappropriate

for the trial court to consider the amount of fentanyl when sentencing Guerrero-Sanchez

to a maximum sentence. Under the circumstances of this case, we also do not find that

it was inappropriate for the trial court to find that Guerrero-Sanchez’s offense was more

serious as a result of him possessing fentanyl. We note that Guerrero Sanchez was

convicted of possessing “a compound, mixture, preparation, or substance included in

schedule I or II.” R.C. 2925.11(C)(1). Fentanyl is one of many schedule II drugs listed

under R.C. 3719.41(B)(9). As noted by the trial court, fentanyl has caused an epidemic

of overdose deaths in Montgomery County. Because of this, the trial court essentially

determined that fentanyl stands apart from the other schedule I and II drugs, and is a

more serious form of the offense due to its negative impact on Montgomery County. The

impact on the community is a proper factor to consider during sentencing. State v.

Sanders, 8th Dist. Cuyahoga No. 97120, 2012-Ohio-1540, ¶ 38 (finding the trial court’s

discussion about the harm to the community is not an improper factor to consider when

imposing a maximum sentence). Accord Sieng, 10th Dist. Franklin No. 06AP-852, 2007-

Ohio-1502 at ¶ 17.

      {¶ 65} Although the prison sentence imposed by the trial court is debatable given

that this was Guerrero-Sanchez’s first felony conviction, we nevertheless cannot say that
                                                                                        -25-


we find by clear and convincing evidence that the record does not support the trial court’s

decision to impose the maximum prison term.            The record indicates that Guerrero-

Sanchez had a large amount of fentanyl in his possession, 1,063 grams, and that the

fentanyl was banded together with $2,330.         The record also indicates that vacuum

sealed bags and a box for a digital scale were discovered in Guerrero-Sanchez’s hotel

room. From these facts, the trial court could have reasonably concluded that the fentanyl

was being prepared for sale to others and would have contributed to the epidemic of

overdose deaths in Montgomery County. Simply stated, the issue is not whether this

court disagrees with the trial court’s finding that possessing the large amount of fentanyl

at issue constitutes the worst form of the offense, as we may not substitute our judgment

for that of the trial court’s. Rather, we must determine if the trial court’s more serious

findings are unsupported by the record, and they are not. Accordingly, we must defer to

the trial court’s sentencing decision.

       {¶ 66} Guerrero-Sanchez’s Second Assignment of Error is overruled.



                                          Conclusion

       {¶ 67} Having overruled both assignments of error raised by Guerrero-Sanchez,

the judgment of the trial court is affirmed.



                                         .............



HALL, P.J. and FROELICH, J., concur.
                         -26-




Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
Robert Alan Brenner
Hon. Gregory F. Singer
