[Cite as State v. Smith, 2012-Ohio-113.]




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

STATE OF OHIO                                  :
                                               :    Appellate Case No. 2010-CA-80
        Plaintiff-Appellee                     :
                                               :    Trial Court Case No. 08-CR-926
v.                                             :
                                               :
SHELDON SMITH                                  :    (Criminal Appeal from
                                               :    (Common Pleas Court)
        Defendant-Appellee                     :
                                               :
                                           ...........

                                           OPINION

                          Rendered on the 13th day of January, 2012.

                                            .........

STEPHEN K. HALLER, Atty. Reg. #0009172, and ELIZABETH A. ELLIS, Atty. Reg.
#0074332, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio
45385.
      Attorneys for Plaintiff-Appellee

SHELDON SMITH, Inmate #A617-224, Chillicothe Correctional Institution, Post
Office Box 5500, Chillicothe, Ohio 45601
       Defendant-Appellant, pro se

                                            .........

HALL, J.

        Sheldon Smith appeals pro se from the trial court’s denial of his R.C. 2953.21

motion for post-conviction relief.

        In his sole assignment of error, Smith contends the trial court erred in denying
                                                                                        2


his motion on the basis that his claims were barred by res judicata.

       On May 27, 2009, a search warrant was obtained to search the defendant’s

residence at 2936 Louisiana Drive in Xenia, Ohio. The defendant was seen leaving

his place of business known as the L.A. Sports Bar and Grill in a vehicle driven by

Donald Harrington. (Suppression hearing transcript, April 23, 2009, at 12.) Detectives

contacted Smith when the vehicle stopped at a fast-food establishment. The

defendant voluntarily accompanied the detectives to the Louisiana Drive location

where thirteen kilograms of cocaine and a large quantity of cash, later determined to

be almost $600,000, were located. (Id. at 46-47.) Smith was advised of his Miranda

rights and waived them. (Id. at 21-25.) He showed the detectives where the drugs

and money were located. According to one of the detectives, Smith said, “‘You can’t

miss it. It’s downstairs.’ * * * [I]t was all over the downstairs recreational room floor.”

(Id. at 20). Smith began cooperating with the investigators. Later that day, he

directed authorities to an additional forty-two kilograms       of cocaine at a “stash”

house that he rented, and those drugs too were part of his drug enterprise.

(Transcript of proceedings, August 20, 2009, at 213, 218.) Smith entered a

no-contest plea to numerous drug-related charges on June 1, 2009. Sentencing was

delayed while the court conducted hearings unrelated to this appeal.

       On October 2, 2009, counsel for the defendant filed a “Request for Leave” to

reopen the motion to suppress. (Doc. #93). That filing states, in part: “Defendant

states that there has been new (sic) discovered evidence which will demonstrate that

material statements within the affidavit [for the search warrant] are false thus

rendering the warrant invalid.” (Id. at 1). A motion to vacate the defendant’s plea was
                                                                                                            3


filed at the same time based on the same arguments. (Doc. #92). The memorandum

in support of that motion specifically refers to information in the search-warrant

affidavit attributed to one Reginald “Tuffy” Brooks. On October 28, 2009, a

supplement to the October 2, 2009 motions was filed. (Doc. #95). Attached to that

filing is a copy of an ACE (Greene County Agencies for Combined Enforcement) task

force report of the investigation, which is the same report Smith attached to his

petition for post-conviction relief. In response to those October 2, 2009 motions, the

court conducted a hearing and spent considerable time with counsel, and in camera,

to review audio recordings of conversations involving Brooks. The trial court

determined that          “affiant’s statements in the search warrant are an accurate

recitation of the conversations recorded.” (Doc. #100 at 2). The request to reopen the

motion to suppress, based on allegations of false information submitted by the

detective as supplied by Reginald Brooks, was denied. (Id.).

        The matter was set for disposition on October 30, 2009. The trial court

imposed an aggregate sentence of twenty years in prison. On direct appeal, this

court affirmed. See State v. Smith, Greene App. No. 2009-CA-81, 2010-Ohio-6229.

        Smith filed the present post-conviction relief action on July 7, 2010, raising
                  1
several arguments. (Doc. #124). The petition alleged that it “centers around an

Ineffective Assistance of Counsel Claims, of events that happen (sic) outside of Trial

Court Records.” The petition stated three claims: (1) that trial counsel did not bring

to the court’s attention the investigative report indicating that the ACE task force

         1
            In addition to Smith’s pro-se filing, the record contains a petition for post-conviction relief filed by
 counsel on Smith’s behalf. (Doc. #125). Counsel’s petition later was withdrawn, leaving only Smith’s pro
 se filing. (Doc. #142).
                                                                                       4


would not work with Tuffy Brooks because of Brooks’ criminal history, (2) that trial

counsel failed to advise the defendant of his right to have a jury trial on a forfeiture

issue, and (3) that there were several other issues but because of time Smith would

file an amendment. Although the second page of the defendant’s filing is notarized, it

is effectively a notarized legal argument and does not specify if it is based on

personal knowledge. Nor does it set forth that the facts would be admissible in

evidence or demonstrate that the defendant is competent to testify to the facts, all of

which are required for the filing to be considered as evidence in response to a motion

for summary judgment.

       On July 20, 2010, Smith filed a motion to amend, seeking to add additional

arguments. In that filing, the defendant renewed         his argument that there was

evidence that “Tuffy” Brooks was not a credible source for the search-warrant

affidavit. The defendant also raised a new argument that the search-warrant affidavit

was based on false information because the facts attributed to CS # 3, admitted by

the State to be Carlos Anderson, are denied by an affidavit of Carlos Anderson

attached to the motion to amend. (Doc. #130).

       The State opposed post-conviction relief, as well as the motion to amend, and

moved for summary judgment. Following briefing, the trial court sustained the State’s

motion for summary judgment and denied Smith post-conviction relief. Although the

trial court did not explicitly rule on Smith’s motion to amend his post-conviction relief

filing, it implicitly granted the motion by addressing his additional arguments in its

November 23, 2010 judgment entry. Therein, the trial court stated, in relevant part:

       “In the instant case, the Defendant is seeking post-conviction relief on the
                                                                                       5


following grounds:

       “(1). Trial Counsel failed to bring to the court’s attention by way of a police

report that Reginald ‘Tuffy’ Brooks had made contact with Det. Fred Meadows in an

effort to secure a favor for Tony Thomas. Also, trial counsel failed to bring to the

court’s attention that Dir. Bruce May refused to work with Tuffy Brooks due to Tuffy’s

criminal history and the fact that Tuffy was being investigated for murder and other

crimes.

       “(2). Trial Counsel failed to advise Defendant about his rights in the forfeiture

phase of sentencing.

       “(3). Trial Counsel never filed any petition with the Trial Court in regards to the

forfeiture of his property.

       “(4). Police Misconduct in the use of confidential sources in obtainment of

search warrant; and

       “(5). Trial Counsel failed to call any of the 4 men to testify during Defendant’s

suppression hearing.

       “Defendant’s petition raises no substantive ground for relief because the

claims he advances are barred by res judicata. The alleged claims raised by

Defendant were or could have been addressed at trial and therefore could have

been raised on direct appeal. Also, the facts alleged and presented by Defendant, if

proved, do not entitle him to relief sought.” (Doc.#143 at 4).

       On appeal, Smith contends the trial court erred in denying his motion for

post-conviction relief on the basis of res judicata and without an evidentiary hearing.

Although Smith’s pro-se brief touches on a range of issues, his appellate argument
                                                                                                        6


focuses on the fourth ground for relief cited by the trial court: police misconduct in
                                                           2
the use of confidential sources to obtain a search warrant. There are two parts to

his police-misconduct argument. First, the defendant reiterates that the information

from Reginald “Tuffy” Brooks is not credible because the task force previously had

been unwilling to work with Brooks. Second, Smith claims the affiant, detective Craig

Polston, lied in his search-warrant affidavit about having obtained key information

from a confidential source identified as “CS #3.”

       We note that the defendant has not provided any new or different factual

information about Tuffy Brooks. His lawyers previously challenged both Brooks’

veracity and the accuracy of the detective’s inclusion of statements attributed to

Brooks in the search-warrant affidavit. Moreover, the trial court went to considerable

length to listen to the audio recordings of Brooks when Brooks did not know that he

was being recorded. There can be no doubt, from the search-warrant affidavit itself,

that Reginald Brooks is a burglar, thief, and robber. But these issues were fully

addressed to and by the trial court. Brooks’ lack of credibility was argued to this court

in the defendant’s direct appeal. We agree with the trial court that res judicata

prevents the appellant from re-litigating the issue.

       The second part of appellant’s police-misconduct argument involves detective

         2
             Appellant does not renew his argument to the trial court that he had been denied a jury trial on
 the forfeiture proceedings or that he was misinformed of his right to a jury trial on that issue. Nevertheless,
 a jury waiver was filed that is signed by counsel and countersigned by the defendant. (Doc #53). A “Rule
 11 notification and Waiver for No Contest Plea,” signed by the defendant, also states that he is waiving his
 right to a jury trial. (Doc. #60). Finally, the indictment contained forty forfeiture specifications. On October
 30, 2009, a forfeiture hearing began but after some twenty pages of transcript testimony a recess was
 taken. Upon resuming, the state and the defense entered into an agreement. Some of the items were to
 be forfeited and some were to be returned to the defendant’s mother. Thus, the defendant has waived any
 right to have a jury determine the forfeiture. Likewise, he did not raise the issue on direct appeal.
                                                                                   7


 Polston’s search-warrant affidavit, which states at paragraph seventeen:

        “On May 23, 2008 an interview was conducted by Detectives Lon Etchison

and Josh Julian, ACE Task Force[,] with a confidential source, hereafter referred to

as CS #3. * * * CS #3 stated that [Donald] Harrington works at the L.A. Lounge for

Sheldon Smith and also sells quantities of cocaine for Sheldon Smith. CS #3

informed the detective that the cocaine found at 1152 Glover Drive was delivered to

Carlos Anderson at the L.A. Lounge parking lot by Donald Harrington. Harrington

took the quantity of cocaine from a vehicle owned by Sheldon Smith that was

described as an older green four door vehicle. CS #3 told the detectives that

Harrington was familiar with Smith’s drug trafficking business from working at L.A.

Lounge and Smith had been Harrington’s boss since the L.A. Lounge opened. CS #3

told the detectives that after receiving the money for the cocaine Harrington took the

money and placed it back in the green vehicle. CS #3 stated he/she purchased

cocaine from Harrington numerous times at the L.A. Lounge and Harrington would

always remove the cocaine from the vehicle and place the money back in the back

seat or trunk area of the green vehicle. Harrington has told CS #3 that he has seen

several hundred thousand dollars of U.S. currency and kilograms of cocaine at the

residence of Sheldon Smith in Xenia. Harrington bragged to CS #3 that Smith

obtains fifty to sixty kilograms of cocaine from his Mexican connection each month. *

* *.”

        In the proceedings below, Smith moved to suppress evidence obtained as the

result of a warrant that was issued based on Polston’s affidavit. Arguing against

suppression, but after completion of the evidentiary hearing, the State suggested to
                                                                                      8


the trial court that CS #3 was “none other than Carlos Anderson.” (Doc. #32 at 10,

filed May 7, 2009). On direct appeal, this court upheld the trial court’s denial of

Smith’s motion to suppress. In so doing, this court relied, in part, on the information

police had obtained from CS #3, reasoning:

       “With regard to CS 3, he admitted to police that he had purchased cocaine

from Donald Harrington numerous times, thereby making a statement against his

penal interests and adding to his reliability. CS 3 also told police that Harrington sold

drugs for Sheldon Smith out of the L.A. Lounge. His basis for knowing this

information presumably came from his prior purchases of cocaine from Harrington.

CS 3 additionally stated that Harrington always put the money in an older green

vehicle owned by Smith. Police independently confirmed that Smith owned a green

1992 Honda Accord, which helped to corroborate CS 3's claim. Police also

established that Smith’s mother was the president of the L.A. Lounge and owned its

liquor license. CS 3 further told police that Harrington had admitted seeing several

hundred thousand dollars in cash and kilograms of cocaine in Smith’s residence.

Harrington also told CS 3 that Smith obtains fifty to sixty kilograms of cocaine each

month. CS 3 knew this information because Harrington told him, and Harrington

presumably knew it because he sold drugs to CS 3 and others for Smith. Although

CS 3 did not indicate when Harrington had seen the money and kilograms of cocaine

in Smith’s residence, we find it noteworthy that Harrington bragged to CS 3 about

Smith receiving fifty to sixty kilograms of cocaine each month. The substantial size

and regularity of this delivery gave the magistrate a reasonable basis for concluding

that drugs remained present in Smith’s home at the time of the warrant request.”
                                                                                     9


      To put the facts related in paragraph seventeen of the affidavit in perspective,

examination of other facts is necessary. A fair reading of the entire record reveals

that it is undisputed that Donald Harrington worked for Sheldon Smith at the L.A.

lounge. The defendant himself provided information that led to the issuance of a

search warrant for the 1549 East Main Street address in Xenia where an additional

forty-two kilograms of the defendant’s cocaine were located. The defendant’s

information was listed in the affidavit for the 1549 East Main Street warrant, at ¶ 22,

as being from confidential source #4. (State Exhibit 4, suppression hearing, April 23,

2009.) Thus, it was Sheldon Smith, himself, who admitted to detectives that for over

a year he was distributing between twenty-five and fifty kilograms of cocaine a month

that he obtained from several Hispanic males. (State’s Exhibit 4, at ¶22) Moreover,

Carlos Anderson was known to be a drug trafficker before detectives searched

Smith’s home. (Transcript of proceedings, September 16, 2009, at 41.) Three

hundred grams of cocaine were found in Anderson’s house. (Search warrant

affidavit, at ¶16). Donald Harrington admitted to being a significant drug trafficker.

(Transcript of Proceedings September 16, 2009,          at 44.) In an interview with

authorities on July 1, 2008, Sheldon Smith identified a picture of Carlos Anderson.

(Id. 53). Anderson was convicted of drug dealing. (Id. at 53-54). Smith admitted that

Donald Harrington was involved with at least five kilograms of his cocaine. (Id. at 63).

The net result of this undisputed or admitted information is that Smith was a major

drug dealer, Harrington worked for Smith, Harrington was part of Smith’s drug

distribution network, and Carlos Anderson was an admitted drug trafficker.

      In the January 13, 2010 affidavit accompanying Smith’s post-conviction relief
                                                                                   10


filings, Carlos Anderson averred:

       “I Carlos Anderson, depose the following to be true under the penalty of

Perjury of the Laws of the State of Ohio;

       “1) I have never been a Confidential Informant, or worked with The Xenia

Police Department, Task Force, or any other Law Police Department, Local, or

Federal.

       “2) I have never given an interview to a Detective Lon Etchison or Josh Julian

of Ace Task Force, on 5/23/2008, giving them information on Sheldon Smith.

       “3) I have no knowledge of any Sheldon Smith, business dealings, or personal

dealings.

       “4) I have recently come into the knowledge that I was listed as CS #3

(CONFIDENTIAL SOURCE), [i]n a[n] Affidavit for Search Warrant, taken out by Det.

Craig Polston, to search a property listed as: 2396 Louisiana Drive Xenia (Greene

County), Ohio, which is not true. Said statements [were] used to secure a search

warrant of the above listed property.

       “5) My name was revealed as CS #3, during a suppression hearing, when my

name was turned over by the State of Ohio, as a Confidential Source. (Which is

totally untrue).”

(Anderson affidavit, attached to Doc. #130).

       Anderson’s affidavit does not deny the underlying factual information that the

detective included in the application for the search warrant. It just denies that he is

the source of that information. Nor does the defendant independently supply factual

information of his own denying that he was a major drug dealer with a Mexican
                                                                                                   11


connection, or that Donald Harrington worked for him and was involved in Smith’s

drug-distribution network, or that Harrington had seen several hundred thousand

dollars of currency and kilograms of cocaine at Smith’s residence. There is a reason

he has not denied those facts. They are true. Almost $600,000 and thirteen

kilograms of cocaine were found in Smith’s residence. “Throughout the month of May

2008, Sheldon Smith conspired with Donald Harrington on at least two separate

occasions to arrange the sale of multiple kilograms of cocaine to Carlos Anderson.”
                                                                                              3
(Rendition of Facts, Transcript of No-Contest Plea, June 1, 2009, at 21).                         “Two

nearly (sic) years Sheldon Smith received hundreds of kilograms of cocaine from his

drug suppliers and he would use a network of people to distribute that cocaine.

Those people include, but not limited to, Donald Harrington and Carlos Anderson.”

(Id. at 23.) “Throughout the month of May 2008, Sheldon Smith conspired with

Donald Harrington on at least two separate occasions to arrange the sale of multiple

kilograms of cocaine to Carlos Anderson.* * * The proceeds of those cocaine sales

were returned to Shelton (sic) Smith.” (Id. at 22-23.) This leads to the inescapable

conclusion that either detective Craig Polston, the affiant, was informed of the facts

in paragraph seventeen of the search-warrant affidavit by CS#3 or he is clairvoyant

and able to predict specific, multiple facts that were later found to be accurate.

       A singular question remains: was Carlos Anderson CS #3? Regardless of the

answer to this question, however, Anderson’s affidavit fails to provide Smith with

         3
          We realize that “a statement of facts by a prosecutor does not constitute evidence.” State v.
 Green, 81 Ohio St.3d 100, 104, 1998-Ohio-454. However Green and its progeny deal with a situation
 where evidence is required to have been introduced. We use the rendition of facts only to highlight that the
 defendant has not provided evidence to contradict the drug dealing aspects of paragraph seventeen
 because that information is accurate.
                                                                                                      12


grounds for post-conviction relief. If Anderson provided the information attributable to

CS #3, but he now denies it, then his affidavit is false and unhelpful to Smith. On the

other hand, if Anderson was not CS #3, then his affidavit is true but still unhelpful. If

CS #3 was not Anderson, this does not undermine the factual information contained

in detective Polston’s affidavit or the reliability of that information, which was largely

corroborated and ultimately proved to be accurate. If Anderson was not CS #3, then

someone other than Anderson provided the information upon which Polston relied.

The only argument Smith can make that could lead to the conclusion that Polston

provided false information in the affidavit is if one were to speculate that Polston

made up the accurate information that he, Polston, attributed to Anderson, but that

the information was not provided by Anderson. The trial court was not required to

believe in mythology or clairvoyance. Because Anderson’s affidavit does not

controvert the underlying factual information in Polston’s search-warrant affidavit, the

trial court correctly held that “the facts alleged and presented by Defendant, if

proved, do not entitle him to [the] relief sought.”4 For this reason, and regardless of

the true identity of CS #3, we continue to believe that Polston’s affidavit was

sufficient to support the issuance of a search warrant and the trial court did not

abuse its discretion in overruling the motion for post conviction relief. Accordingly,

         4
            Parenthetically, we reject the notion that res judicata precludes Smith’s reliance on Anderson’s
 affidavit. The affidavit is dated January 13, 2010, and was not part of the original record below. We see no
 indication in the record that Smith could have raised the issues presented by Anderson’s affidavit without
 it. Because Anderson’s affidavit is outside the record, the trial court erred in denying this aspect of Smith’s
 motion for post-conviction relief on the basis of res judicata. See, e.g., State v. Harris, Champaign App.
 No. 07-CA-32, 2008-Ohio-5165, ¶7 (recognizing that res judicata only bars post-conviction claims that
 were or could have been raised at trial or on direct appeal). As set forth above, however, the trial court
 properly denied Smith’s R.C. 2953.21 motion on the alternative basis that Anderson’s affidavit did not
 provide substantive grounds for relief.
                                                   13


Smith’s assignment of error is overruled.

      Judgment affirmed.

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

FAIN, J., concurs.

GRADY, P.J. concurs in judgment only.




Copies mailed to:

Stephen K. Haller
Elizabeth A. Ellis
Sheldon Smith
Hon. Stephen Wolaver
