[Cite as State v. Glenn, 2011-Ohio-6703.]




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

STATE OF OHIO                                   :
                                                :    Appellate Case No. 24614
        Plaintiff-Appellee                      :
                                                :    Trial Court Case No. 10-CR-3667
v.                                              :
                                                :    (Criminal Appeal from
DWAYNE A. GLENN                                 :    (Common Pleas Court)
                                                :
        Defendant-Appellant                     :
                                                :
                                            ...........

                                            OPINION
                                          rd
                        Rendered on the 23 day of December, 2011.

                                             .........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County
Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorneys for Plaintiff-Appellee

WILMER J. DECHANT, JR., Atty. Reg. #0085084, 257 Regency Ridge Drive,
Centerville, Ohio 45459
      Attorney for Defendant-Appellant

                                             .........

        HALL, J.

        {¶ 1} Dwayne A. Glenn appeals from his conviction and sentence for the

offense of Carrying a Concealed Weapon, a fourth-degree felony.

        {¶ 2} After a hearing, the trial court overruled the defendant’s motion to
                                                                                    2


suppress. The court determined that there was probable cause for the defendant’s

arrest. Thus, the 9mm handgun found in his waistband during the search incident to

that arrest was constitutionally obtained. Thereafter, the defendant entered a

no-contest plea to the concealed weapon charge, preserving his right to pursue this

appeal. Glenn’s appointed appellate counsel filed a brief pursuant to Anders v.

California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, asserting the

absence of any non-frivolous issue for our review. Counsel also requested

permission to withdraw. The Anders brief raises the potential issue whether the

Dayton Police had probable cause to arrest the defendant, though counsel

concluded that this issue is frivolous. Despite being given a specific opportunity from

this Court to do so, Glenn has not filed a brief of his own.

       {¶ 3} Upon review, we agree with appellate counsel that the potential issue

he raised does not have arguable merit. The evidence presented to the trial court at

the motion-to-suppress hearing revealed that on November 11, 2010, police were

dispatched to the apartment building at 24 Arnold Place on a report of a theft in

progress. The officers who responded spoke with witnesses and completed a report.

(Tr. 32). Detective Matthew Locke was assigned to investigate, and on November 16,

2010, Locke confirmed with the apartment manager that the defendant was one of

the persons involved in removing appliances from a vacant apartment. The manager

told Locke that he confronted the defendant, but the defendant denied breaking and

entering, saying that he was just helping a guy move some stuff. (Tr. 36). The

apartment manager told Locke that the apartments were furnished and that tenants

were therefore not allowed to remove the appliances. The defendant lived with his
                                                                                    3


mother in one of the apartments, and it would be reasonable to infer he knew that

tenants did not own the appliances.

      {¶ 4} After the manager confirmed the defendant’s identity at the district

police station, the detective, a uniformed officer, and the manager went to the nearby

apartment building to see if they could locate the defendant. They saw the defendant

outside the apartment building, and the detective and officer approached. They

asked the defendant for his name, and after a brief hesitation, he told them it was

Dwayne. (Tr. 22). Locke told the defendant that he was under arrest, and the

defendant broke to run. (Tr. 13). The officer grabbed the defendant’s coat, and within

about 20 feet, the detective and the officer were able to wrestle the defendant to the

ground. When they rolled him over to be handcuffed, the defendant stated that he

had a gun on him. The officer then located a loaded 9mm handgun hidden in the

defendant’s waistband.

      {¶ 5} After the hearing, the trial court said: “there was probable cause in this

case and accordingly [I] would agree that the stop was proper and, therefore, the

stop being proper you have in effect, a search incident to a lawful arrest.” (Tr. 112).

We agree.

      {¶ 6} In order to have probable cause for an arrest, a police officer must be

aware of facts sufficient to create a fair probability that the person to be arrested

committed a crime. State v. McCoy, Montgomery App. No. 20006, 2004-Ohio-5833,

at ¶16, citing Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. Here,

there is simply no other reasonable conclusion except that detective Locke had

probable cause to arrest the defendant. We see no arguable merit in the potential
                                                                                  4


claim that the arrest and search of the defendant was constitutionally unsound.

Therefore we agree with appellate counsel that no non-frivolous issue exists

regarding the trial court’s denial of the motion to suppress.

       {¶ 7} Finally, pursuant to our responsibilities under Anders, we independently

have reviewed the record in this case. We agree with the assessment of appointed

appellate counsel that there are no non-frivolous issues for our review.

       {¶ 8} Counsel’s request to withdraw from further representation is granted,

and the judgment of the Montgomery County Common Pleas Court is affirmed.

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

FAIN and FROELICH, JJ., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Carley J. Ingram
Wilmer J. Dechant, Jr.
Dwayne A. Glenn
Hon. Timothy N. O’Connell
