[Cite as State v. Johnson, 2012-Ohio-5879.]
                                  IN THE COURT OF APPEALS OF OHIO
                                     FOURTH APPELLATE DISTRICT
                                           ADAMS COUNTY


STATE OF OHIO,                                               :

        Plaintiff-Appellee,                                  :     Case No. 11CA925, 11CA926 &
                                                                               11CA927
        vs.                                                  :

JOHN JOHNSON,                                                :     DECISION AND JUDGMENT ENTRY


        Defendant-Appellant.                                 :

______________________________________________________________

                                                  APPEARANCES:

COUNSEL FOR APPELLANT:1                        Timothy Young, Ohio Public Defender, and E. Kelly
                                               Mihocik, Ohio Assistant Public Defender, 250 East Broad
                                               Street, Ste. 1400, Columbus, Ohio 43215

COUNSEL FOR APPELLEE:         C. David Kelley, Adams County Prosecuting Attorney, and
                              Kris D. Blanton, Adams County Assistant Prosecuting
                              Attorney, 110 West Main Street, Room 112, West Union,
                              Ohio 45693-1389
_________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 12-6-12
ABELE, P.J.

        {¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of

conviction and sentence. A jury found John Johnson, defendant below and appellant herein,

guilty of possessing a firearm while under a disability in violation of R.C. 2923.13. Appellant

assigns the following errors for review:



                 FIRST ASSIGNMENT OF ERROR:


        1
         Different counsel represented appellant during the trial court proceedings.
ADAMS, 11CA925, 11CA926 & 11CA927                                                                                            2

                   “MR. JOHNSON WAS NOT RELEASED FROM PRISON OR
                   ON POSTRELEASE CONTROL IN THE FIVE YEARS PRIOR
                   TO HIS CONVICTION FOR HAVING A WEAPON WHILE
                   UNDER A DISABILITY. THEREFORE, THE TRIAL COURT
                   COULD NOT IMPOSE A ONE-YEAR MANDATORY GUN
                   SPECIFICATION.”

                   SECOND ASSIGNMENT OF ERROR:

                   “AT THE TIME OF HIS ARREST, THERE WAS NO
                   PROBABLE CAUSE OR REASONABLE SUSPICION TO
                   TAKE MR. JOHNSON INTO POLICE CUSTODY.”

       {¶ 2} In 2009, appellant pled guilty to two counts of forgery in violation of R.C.

2913.31(A)(3). The trial court sentenced appellant to, inter alia, serve three years of community

control. (Case No. 20090073.) In a separate case from that same year, appellant pled guilty to

felonious assault in violation of R.C. 2903.11(A)(2). The trial court sentenced appellant to, inter

alia, serve five years community control. (Case No. 20090083.)

       {¶ 3} On April 14, 2011, Adams County Sheriff’s Deputy Mike Estep investigated the

theft report of a rifle. The victim, appellant’s half-brother, named appellant as a person of

interest. Early the next day, Deputy Estep learned that appellant was observed walking on

“Poplar Ridge Road” with a firearm. Deputy Estep, along with an off-duty Peebles police

officer, drove to that location in an unmarked car and observed appellant. While appellant was

detained concerning the theft of the weapons, the stolen rifle was found ten feet from appellant's

position.      Appellant later admitted that he possessed the rifle, but denied that he had stolen it.2

       {¶ 4} The Adams County Grand Jury returned an indictment that charged appellant with

having a firearm while under a disability, along with a firearm specification. Appellant pled not

guilty and proceeded to a trial. The jury, after hearing the evidence, found appellant guilty on



       2
            Appellant claimed that someone else had stolen the rifle, that he had retrieved it and was returning it to his
ADAMS, 11CA925, 11CA926 & 11CA927                                                                                       3

both charges. The trial court (1) revoked appellant’s community control sanctions from the two

earlier cases, and (2) sentenced appellant to serve a three year prison term for the charge in the

current case, as well as a one year prison term on the firearm specification for a total of nine

years in prison.

          {¶ 5} On October 12, 2011, appellant filed his Notice of Appeal (4th Dist. App. Case

No. 11CA926). He also filed Notices of Appeal regarding the revocation of community control

in Case No. 20090073 (4th Dist. No. 11CA925), as well as Case No. 20090083 (4th Dist. No.

11CA927). On December 13, 2011, this Court ordered that all three appeals be consolidated

and the matters are now before us for review.

                                                            I

          {¶ 6} Appellant’s first assignment of error involves the trial court’s imposition of the

mandatory one year sentence under the gun specification. Former R.C. 2929.14(D)(1)(a)(iii)

required the imposition of a one year mandatory jail sentence for anyone convicted of a felony

while in the possession of a firearm. The mandatory sentence did not apply, however, for a

conviction for possessing a weapon while under a disability unless both of the following were

satisfied:

          “(i) The offender previously has been convicted of aggravated murder, murder, or
          any felony of the first or second degree.

          (ii) Less than five years have passed since the offender was released from prison
          or post-release control, whichever is later, for the prior offense.” (Emphasis
          added.) Id. at (D)(1)(e).3

          {¶ 7} In the case sub judice, no question exists that the first criteria was satisfied.


half-brother.
          3
              These provisions were renumbered, although not substantively changed, by Am.Sub.H.B. No. 86, 2011 Ohio Laws
File 29, effective September 20, 2011.
ADAMS, 11CA925, 11CA926 & 11CA927                                                                      4

Appellant's felonious assault conviction in Case No. 20090083 is a second degree felony. See

R.C. 2903.11(D)(1)(a). The question, however, is about the second criteria. In other words,

had less than five years elapsed since appellant had been released from prison or post-release

control?

          {¶ 8} Appellant spent no time in prison from Case No. 20090083, and we find no

indication in the record that he was imprisoned for any other offense. Post-release control is

defined as a period of supervision after release from imprisonment. R.C. 2967.01(N); also see

State v. Stallings, 8th Dist. No. 97480, 2012-Ohio-2925, at ¶7. Absent imprisonment, there can

be no post-release control. Thus, it appears that in the absence of the second criteria for the

mandatory one year jail term, the trial court could not impose the mandatory term.

          {¶ 9} The appellee does not contest what it characterizes as a “literal interpretation” of

the statute. Instead, appellee argues that the issue is “not ripe” for review. We, however,

disagree with this view. We believe that the trial court imposed a one year prison sentence for a

gun specification when it could not do so, thus this appeal from that sentence is now ripe for

review.

          {¶ 10} Generally, a review of a sentence in a criminal case involves a two step process.

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124; see also State v. Moman,

4th Dist. No. 08CA876, 2009-Ohio-2510, at ¶6. First, a reviewing court will look to see whether

the trial court complied with all applicable rules and statutes. Kalish, supra at ¶4. If the court did

so, the reviewing court will then review the sentence under the abuse of discretion standard. Id.

          {¶ 11} In the case sub judice, we believe that because the trial court sentenced appellant

contrary to former R.C. 2929.14(D)(1)(e), the sentence does not comply with the first step in

Kalish. According, based upon the foregoing reasons appellant’s first assignment of error is
ADAMS, 11CA925, 11CA926 & 11CA927                                                                                           5

well taken and is hereby sustained.

                                                             II

       {¶ 12} In his second assignment of error, appellant asserts that the trial court erred by

overruling his motion to suppress evidence.

       {¶ 13} Our analysis begins with a recitation of the standard of review. Generally,

appellate review of a trial court decision on a motion to suppress involves mixed questions of

law and fact. State v. Colquitt, 188 Ohio App.3d 509, 2010-Ohio-2210, 936 N.E.2d 76, at ¶9 (4th

Dist.); State v. Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4th Dist. 1988). In hearing and

deciding such motions, trial courts assume the role of the trier of fact and are in the best position

to resolve any factual disputes and to evaluate witness credibility. In re A.J.S., 120 Ohio St.3d

185, 2008- Ohio-5307, 897 N.E.2d 629, at ¶50; State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, at ¶8. An appellate court will accept a trial court's factual

findings if competent and credible evidence supports the finding. State v. Roberts, 110 Ohio

St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶100; State v. Medcalf (1996), 111 Ohio App.3d

142, 145, 675 N.E.2d 1268 (4th Dist.) However, appellate courts will review de novo a trial

court's application of the law to those facts. State v. Williams, 86 Ohio App.3d 37, 41, 619

N.E.2d 1141 (4th Dist. 1993); State v. Angelo, 9th Dist. No. 24751, 2009-Ohio-6966, at ¶7.

       {¶ 14} At the outset, we note that appellant’s motion was somewhat vague. The motion

appears to argue that appellant's statement to authorities, in which he admitted that he possessed

the firearm, was not knowingly and voluntarily given. At the conclusion of the motion hearing,

the trial court attempted to nail down the pertinent “issue” with the defense and counsel replied

that this was a “standard motion to suppress and he would “just stand on my motion.”4 The


       4
           Counsel also suggested that he intended to argue that appellant's intoxication rendered his statement involuntary,
ADAMS, 11CA925, 11CA926 & 11CA927                                                                                                6

court overruled the motion.

         {¶ 15} On appeal, appellant raises two arguments. First, appellant asserts that the trial

court erred in overruling the motion because Deputy Estep’s stop was based solely on an

uncorroborated tip, and that such a tip cannot form the basis for a stop. That issue, however,

was neither raised in the motion nor at the motion hearing. Appellate courts will not generally

consider constitutional issues for the first time on appeal. State v. Cottrill, 4th Dist. No.

11CA3270, 2012-Ohio-1525, at ¶6; State v. Stephens, 4th Dist. No. 08CA776, 2009–Ohio–750, at

¶7; State v. Clark, 4th Dist. No. 07CA9, 2007–Ohio–6621, at ¶33. Thus, we must not speculate

on this issue when it was not fully developed during the trial court proceedings.

         {¶ 16} Appellant’s second argument asserts, in essence, that trial counsel's failure to

specifically raise that issue constitutes ineffective assistance of counsel.5

         {¶ 17} Criminal defendants have a right to the effective assistance from counsel.

McMann v. Richardson (1970), 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763; State v.

Sowards, 4th Dist. No. 09CA8, 2011-Ohio-1660, at ¶18. To establish constitutionally ineffective

assistance of counsel, a defendant must show that (1) counsel's performance was deficient, and

(2) such deficient performance prejudiced the defense and deprived him of a fair trial. See

Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; also see

State v. Issa (2001), 93 Ohio St.3d 49, 67, 752 N.E.2d 904. To establish the existence of


but admitted that he had no such evidence to present.
         5
             Appeals are to be decided on “the assignments of error,” App.R. 12(A)(1)(b), not supporting written arguments. See
Myers v. Wild Wilderness Raceway, L.L.C., 181 Ohio App.3d 221, 2009-Ohio-874, 908 N.E.2d 950, at ¶18, fn. 6 (4th Dist.);
Reynoldsburg City School Dist. Bd. of Edn. v. Licking Hts. Local School Dist. Bd., 10th Dist. No. 11AP–173, 2011-Ohio-5063, at
¶17. Here, appellant should have raised this issue in a separate assignment of error rather than including it as a
sub-argument in an unrelated assignment of error. Nevertheless, in the interests of justice we will consider the merits of the
argument.
ADAMS, 11CA925, 11CA926 & 11CA927                                                                                              7

prejudice, a defendant must show that a reasonable probability exists that, but for counsel's

alleged error, the result of the trial would have been different. State v. White (1998), 82 Ohio

St.3d 16, 23, 693 N.E.2d 772; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, at

paragraph three of the syllabus. It is important to note, however, that both prongs of the

Strickland test need not be analyzed if the ineffective assistance claim can be resolved under one

prong. See State v. Madrigal (2000), 87 Ohio St.3d 378, 389, 721 N.E.2d 52.

         {¶ 18} Although appellant is correct that scant evidence was adduced in the trial court to

show how the Sheriff’s Department learned of appellant's location on Poplar Ridge Road, it is

speculation to assume that had such evidence had been adduced, the outcome of the hearing

would have been otherwise. Any number of people could have observed appellant on the public

roadway.       Furthermore, the gist of Deputy Estep’s testimony is that he detained appellant for

purposes of the robbery investigation. Once again, the victim named appellant as a possible

suspect.6 Deputy Estep also testified that he had “investigated a prior complaint” regarding

appellant stealing from other “family members” and would, thus, have had reasonable suspicion

that he might do so again. Consequently, it appears that various sources and evidence, not some

uncorroborated tip, provided Deputy Estep with sufficient reason to detain appellant.

         {¶ 19} Thus, even if counsel had raised and argued the claim during the trial court

proceeding, we see no potential merit to this argument. Trial counsel need not raise meritless

arguments to fend off claims of constitutionally ineffective assistance. See e.g. State v. Mitchell,

2nd Dist. No. 24797, 2012-Ohio-3722, at ¶40; State v. Rossbach, 6th Dist. No. L-09-1300,

2011-Ohio-281, at ¶124.


         6
            Appellant apparently lived with his half-brother at the time. Authorities found no sign of forced entry when the
items were stolen and this could support the assumption that someone with access to the residence committed the crime.
ADAMS, 11CA925, 11CA926 & 11CA927                                                                   8

       {¶ 20} For all of these reasons, we find no merit to appellant’s second assignment of

error and it is hereby overruled.

       {¶ 21} Having sustained appellant’s first assignment of error, the trial court’s judgment is

affirmed in part, and reversed in part. The one year prison sentence imposed on the gun

specification is hereby vacated, and the remainder of appellant’s sentence is affirmed as

modified.

                                                              JUDGMENT AFFIRMED IN PART,

                                                              AND REVERSED IN PART

                                                              CONSISTENT WITH THIS

                                                              OPINION.

Harsha, J., Concurring:

       {¶ 22} I concur in judgment and opinion on the second assignment of error but concur in

judgment only regarding the first assignment of error. Because the appellant did not raise the

objection at the sentencing hearing that he now raises on appeal, I would apply a plain error

standard of review. See State v. Howard, 2012-Ohio-4690, ¶¶ 19-20, 27, and State v. Milliken,

2009-Ohio-1019, ¶¶ 27-30. Having done so, I agree with the principal opinion’s judgment.




                                       JUDGMENT ENTRY

        It is ordered that the judgment be affirmed, in part, and reversed, in part, with the one year
prison sentence on the gun specification vacated. Appellant to recover of appellee the costs
ADAMS, 11CA925, 11CA926 & 11CA927                                                                 9

herein taxed.
        The Court finds there were reasonable grounds for this appeal.
        It is ordered that a special mandate issue out of this Court directing the Adams County
Common Pleas Court to carry this judgment into execution.
        If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.
        The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
        A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

      McFarland, J.: Concurs in Judgment & Opinion
      Harsha, J.: Concurs in Judgment & Opinion as to Assignment of Error II and Concurs in
Judgment Only with Opinion as to Assignment of Error I

                                                              For the Court




                                                              BY:
                                            Peter B. Abele
                                            Presiding Judge



                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
