[Cite as State v. Johnson, 2018-Ohio-169.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105560




                                       STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.


                             MARVIN F. JOHNSON, SR.

                                                      DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART; REVERSED IN PART;
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-594187-B

        BEFORE:          Laster Mays, J., Kilbane, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: January 18, 2018
                              -i-



ATTORNEY FOR APPELLANT

Gregory Scott Robey
Robey & Robey
14402 Granger Road
Cleveland, Ohio 44137


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Patrick J. Lavelle
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
 ANITA LASTER MAYS, J.:

       {¶1}   Defendant-appellant Marvin F. Johnson, Sr. (“Johnson”) appeals the trial

court’s denial of his motion to suppress evidence, as well as the trial court’s imposition of

an eight-year sentence, after initially imposing a six-year sentence. We affirm the trial

court’s denial of the motion to suppress but reverse the imposition of the eight-year

sentence.

I.     Background and Facts

       {¶2}      On April 29, 2015, Johnson entered a plea of not guilty to: (1) drug

trafficking, R.C. 2925.03; (2) drug possession, R.C. 2925.11; and (3) possession of criminal

tools, R.C. 2923.24. Each charge carried forfeiture specifications. Johnson rejected a

two-year prison term plea offer and filed a motion to suppress evidence, which was denied

by the trial court on December 14, 2015.

       {¶3}   Johnson pleaded no contest on December 15, 2015, and was found guilty.

Johnson suffers from a serious heart condition known as Wolff-Parkinson-White syndrome

and high blood pressure. The January 20, 2016 sentencing hearing was continued several

times due to Johnson’s health issues and retention of new counsel. On May 26, 2016,

Johnson was sentenced to a six-year prison term and declared to be indigent. The trial

court also placed Johnson on supervised release and electronic home detention so that

Johnson could undergo heart surgery scheduled for July 22, 2016. Johnson was directed to

report for jail on August 1, 2016.
       {¶4} Johnson’s retained counsel filed a motion for appointment of counsel as a

result of the trial court’s declaration of indigence on July 5, 2016. The trial court granted

the motion and appointed different counsel on July 6, 2016. On July 12, 2016, the trial

court vacated the order, sua sponte, because Johnson was represented by retained counsel

throughout the proceedings and had failed to include an affidavit of indigence with his

motion.

       {¶5} On July 14, 2016, the trial court set a bond hearing for July 25, 2016, after

Johnson reportedly tested positive for marijuana. Johnson did not appear because he was

recovering from the July 22, 2016 heart surgery, and counsel did not notify the trial court.

The trial court revoked Johnson’s bond and issued a capias.

       {¶6} Johnson was still under post-surgical medical care and did not report on

August 1, 2016, nor did counsel notify the trial court. After turning himself in, Johnson

was resentenced to an eight-year prison term on February 13, 2017, resulting in the instant

appeal.

II.    Assignments of Error

       {¶7} Johnson presents four assigned errors:

       I.     The trial court erred when it denied appellant’s motion to suppress
              evidence.

       II.    The trial court erred in imposing an eight-year prison term that is not
              supported by the record.

       III.   The trial court erred when it resentenced appellant to an increased
              prison term of eight years after initially imposing a six-year term.

       IV.    Johnson was denied the effective assistance of counsel when, at the
              resentencing hearing, trial counsel failed to object to an increased
              prison term of eight years; and when trial counsel failed to object to
              the issuance of a capias for Johnson’s failure to appear in court due to
              medical reasons.

III.   Discussion

       A.     Motion to Suppress

       {¶8} Johnson’s first assignment of error addresses the motion to suppress. The

hybrid nature of appellate review of a trial court’s denial of a motion to suppress,

involving mixed questions of law and fact, dictates that we give deference to the trial

judge’s findings of fact, but conduct a de novo review of application of the law to the facts

State v. Lennon, 8th Dist. Cuyahoga No. 104344, 2017-Ohio-2753, ¶ 45, citing State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8, and State v. Davis,

8th Dist. Cuyahoga No. 83033, 2004-Ohio-1908.

       {¶9}   Search warrant affidavits enjoy a presumption of validity. State v. Sheron,

8th Dist. Cuyahoga No. 98837, 2013-Ohio-1989, ¶ 29, citing State v. Roberts, 62 Ohio

St.2d 170, 178, 405 N.E.2d 247 (1980).

       In Roberts, the Ohio Supreme Court held that “a challenge to the factual
       veracity of a warrant affidavit must be supported by an offer of proof which
       specifically outlines the portions of the affidavit alleged to be false, and the
       supporting reasons for the defendant's claim.” Id., citing Franks v.
       Delaware, 438 U.S. 154, 171-172, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
       As the United States Supreme Court held in Franks, a challenge to the
       affiant’s veracity requires “allegations of deliberate falsehood or of reckless
       disregard for the truth.” Id. at 171. Such allegations must be supported by
       an “offer of proof [that] should include the submission of affidavits or
       otherwise reliable statements, or their absence should be satisfactorily
       explained.” Roberts at 178.

       In order to require a trial court to hold a hearing, a defendant must first make
       a “substantial preliminary showing” that the affiant included a false
       statement in the affidavit either knowingly and intentionally, or with reckless
       disregard for the truth. Id. at 177; Franks at 155. Even if a defendant
       makes a sufficient preliminary showing, a hearing is not required unless,
       without the allegedly false statements, the affidavit is unable to support a
       finding of probable cause. Id. at 178; Franks at 171-172.

Sheron at ¶ 30-31.

       {¶10} Franks requires (1) “allegations of deliberate falsehood” or of a “reckless

disregard for the truth”; (2) an “offer of proof”; (3) identification of the false affidavit

sections; (4) an explanation of the supporting rationale; and (5) sworn statements or an

explanation for their absence. Franks at 171.

       {¶11}    On February 12, 2015, a search warrant was issued for Johnson’s residence

in Euclid, Ohio. Johnson and the codefendant in this case were sleeping in the living

room at the time the warrant was executed. 1        Both were handcuffed while officers

searched the residence.

       {¶12} Johnson challenges paragraphs one, three, and four through nine of the

affidavit and asserts that:    (1) the affidavit contains materially false statements or

omissions that were made with a reckless disregard for the truth, and (2) that probable

cause was lacking because there was no evidence of ongoing drug trafficking. The trial

court denied the motion:

       Defendant’s motion to suppress is overruled. Upon review of testimony at
       hearing, court finds that search warrant was issued pursuant to fresh
       evidence set forth in the affidavit, including a controlled buy performed
       within appropriate time. Court further finds that background information,

       1   The codefendant is not a party to this appeal.
       while vague as to operative facts, was mere surplusage and did not form the
       basis for issuance of the search warrant.

See journal entry no. 92089300 (Dec.15, 2015), at p. 1.

       {¶13} Euclid Narcotics Detective Dave Carpenter (“Carpenter”) was the affiant of

the affidavit. Paragraph one of the affidavit states that “within the past year, the City of

Euclid Police Department has received complaints of suspected drug activity occurring” at

the premises.    Johnson denied that police received any complaints.             The second

paragraph states that, based on “this information” affiant was in contact with a confidential

informant (“CI”) who stated that he or she made purchases from a “black male” and

indicated a name for the seller, which is redacted.         Paragraph three references an

investigation of the “possible identity” of the seller, and learned from a telephone call from

a CMHA police officer that Johnson was selling drugs from the premises.

       {¶14}     Paragraphs four through nine recite:       (1) identification of Johnson’s

LEADS2 photograph by the CI, (2) contact by the CI within the past 48 hours stating

Johnson was selling heroin, (3) and the arrangement for the buy at affiant’s request. The

CI was searched, equipped with surveillance equipment, and driven to the premises by the

affiant, who listened to the transaction and the substance the CI obtained tested positive

for heroin.

       {¶15} Carpenter was the sole witness at the suppression hearing. Carpenter

testified, “approximately in March of 2014, we received information or a complaint from


        2LEADS is a statewide electronic reporting and criminal investigation
system used by law enforcement. Ohio Adm.Code 4501:2-10(W).
refused [sic] people, unidentified sources, of drug trafficking, specifically involving heroin

sales at 27195 Oriole Avenue, City of Euclid.” (Tr. 23.)

        {¶16} As a result of the call, the department checked the address history, auditor

information, and service calls to the address. Due to the small staff, Carpenter personally

conducted surveillance and observed a “male cutting the grass” and no “short-term

traffic.”   (Tr. 24.) He also followed Johnson once by car but discovered no illegal

activity.

        {¶17} Carpenter testified there were several telephone call complaints about drug

activity at the premises after the March 14, 2014 call, though this information was not

recounted in the affidavit. Carpenter also “received information from a person that could

be a CI that alleged that this person could also purchase drugs” from the residence. (Tr.

28.)    There were no written reports documenting the complaints.          The only records

consisted of basic property ownership information, service calls to Johnson’s address, and

Ohio Bureau of Motor Vehicle printouts.

        {¶18} Carpenter’s partner, Detective Jose Alcantara (“Alcantara”), was formerly a

police officer with the Cuyahoga Metropolitan Housing Authority (“CMHA”).

Fortuitously, Alcantara received a call from a former CMHA colleague “probably later in

the year, probably around October, November it started, we received a second complaint”

involving drug sales by Johnson. Carpenter “believe[d]” the CMHA contact was made in

November 2014 because Johnson’s LEADS record was run again on November 21,

2014.
       {¶19} Carpenter was not a party to Alcantara’s conversation with the CMHA

contact and did not take notes when informed of the call by Alcantara. Carpenter did write

down the names of Johnson and his female friend, address and phone number.

       {¶20} Carpenter explained, regarding the CI:

       I had been in contact with this particular confidential informant which we
       tried, attempted to do previous purchases; it just didn’t happen. Again, that
       doesn’t get documented if it doesn’t happen; didn’t document anything on
       that.

(Tr. 29.) The department frequently received complaints from individuals that were not

developed for prosecution.

       {¶21}     Carpenter reiterated that no physical evidence exists regarding the

department’s receipt of any of the alleged complaints regarding drug sales. “Initially,”

there was a “single complaint.” (Tr. 50.) No records exist regarding the “telephone tip,”

from Detective Alcantara’s former coworker at CMHA. (Tr. 52.)

       {¶22} The CI initially contacted Carpenter in May or June 2014, again during the

summer, and again during the fall. Carpenter met with the CI two or three times

beginning in the early fall of 2014 to attempt to set up a drug buy from Johnson.

Carpenter also contacted the CI several times by telephone and text message to contact

Johnson and initiate a buy.

       {¶23} Around February 8, 2015, shortly after the CI completed serving a 30-day jail

term for an undisclosed offense, Carpenter received a telephone call from the CI stating

that Johnson was currently selling heroin.

       {¶24} Carpenter recited the steps taken to protect the integrity of the controlled buy
that took place on February 10, 2015.          The CI was equipped with audio-visual

surveillance equipment. Carpenter drove the CI to Johnson’s residence.

        {¶25} Carpenter heard Johnson discussing the price of heroin on the audio monitor

but could not recall “off the top of [his] head” what the price was. (Tr. 38.) The CI

observed Johnson remove the heroin from a plastic bag, purchased the heroin and emerged

from the residence with a “paper-fold” containing “suspected heroin.” (Tr 40.) During

the purchase, Johnson informed the CI that he would sell the CI one gram of heroin for

$100.

        {¶26} Over defense counsel’s objections, still photographs of the video allegedly

taken during the transaction with Johnson were introduced into evidence. Defense argued

that the dispute centered on the inaccuracies in the affidavit and lack of probable cause and

not whether drugs were found as a result of the warrant execution.

        {¶27}    The CI contacted Carpenter 48 hours prior to execution of the search

warrant. The controlled buy took place on February 10, 2015, the search warrant was

issued on February 12, 2015, and the warrant was executed on February 13, 2015.

        {¶28} The weight of the controlled buy was .6 grams for $60, but it was not

charged in the instant indictment. Instead, Johnson was charged for the weight of the

heroin located as the result of the warrant, exceeding 50 grams but less than 250 grams.

        {¶29} Johnson argues that paragraph one of the affidavit fails to state dates and

times that drug sale complaints were made and other details documenting the occurrences.

 There is also a failure to specify what drugs were involved or any other information
supporting the representations. Johnson also challenges the delay between the March

2014 initial complaint and the February 2015 warrant, as well as that the failure to include

that surveillance revealed no drug activity.

       {¶30} The Franks challenge to paragraph three of the affidavit is that the affiant

did not receive information directly from the CMHA officer but received it from another

detective. The statement is cursory and does not indicate the foundation for the CMHA

officer’s representation.

       {¶31} Johnson makes a Franks argument as well as a Gates 3 probable cause

challenge to paragraphs four through nine. Johnson argues that the affiant’s testimony

demonstrated that there were several unsuccessful attempts to buy drugs from Johnson,

casting serious doubts as to the CI’s credibility. See State v. Graddy, 55 Ohio St.2d 132,

378 N.E.2d 723 (1978), rejecting bare minimum averments to establish a CI’s credibility.

He asserts there was no evidence that there were additional drugs present.

       {¶32}    Johnson’s reliance on Franks and Gates is misplaced.           His general

challenges to the affidavit do not overcome the presumption of validity afforded to the

warrant affidavit.    Sheron, 8th Dist. Cuyahoga No. 98837, 2013-Ohio-1989, ¶ 31.

Johnson has failed to make a substantial preliminary showing of the knowing, intentional,



        3As long as the “magistrate had a substantial basis for concluding that
probable cause existed, a reviewing court should uphold the warrant.” State v.
George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph two of the syllabus,
citing Illinois v. Gates, 462 U.S. 213, 294, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
The approach is also known as a “totality-of-the-circumstances” standard of review.
George at 327, Gates at 238.
or reckless inclusion of a false statement, or establish that, without the false statements, the

warrant “affidavit is unable to support a finding of probable cause.” Id., citing Roberts,

62 Ohio St.2d at 178, 405 N.E.2d 247 (1980), and Franks, 438 U.S. 155, 98 S.Ct. 2674, 57

L.Ed.2d 667 (1978). Removing the language deemed surplusage by the trial court, it is

beyond dispute that the controlled buy took place, heroin was purchased, and a search

warrant executed within a 36- to 48-hour time frame.

       {¶33}        The first assigned error is without merit.

       B.      Legality of Prison Term

               1.        Contrary to Law

       {¶34} Johnson argues that the trial court failed to consider the sentencing factors

of R.C. 2929.12(C)(3) in his second assigned error. The Ohio Supreme Court recently

clarified the current standard for appellate review of felony sentences:

       Applying the plain language of R.C. 2953.08(G)(2), we hold that 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. In other words, an appellate court need not apply
       the test set out by the plurality in State v. Kalish, 120 Ohio St.3d 23,
       2008-Ohio-4912, 896 N.E.2d 124.

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.

       {¶35}        Specifically, Johnson offers that the trial court did not consider that: (1)

none of the seriousness factors listed under R.C. 2929.12(B) apply; (2) Johnson did not

intend or expect to cause physical harm to person or property under R.C. 2929.12(C)(3);

(3) his conduct was mitigated due to documented heart disease, high blood pressure, and
kidney problems impacting his ability to work; and (4) Johnson’s last felony conviction

was in 2001, 15 years earlier and he expressed sincere remorse at sentencing (R.C.

2929.12(E)(3) and (5)). Finally, Johnson argues that the serious nature of his medical

condition made the offense less likely to recur (R.C. 2929.12(E)(4)).

      {¶36} Johnson shared the cited mitigation and sentencing factors with the trial

court. He also informed the court that a surgical heart ablation procedure requiring an

overnight stay and a full week of recovery was scheduled for July 22, 2016.             The

information was offered to the trial court for the purpose of mitigation of the sentence as

well as possible suspension of the sentence.

      {¶37}    For a sentence to be contrary to law, the sentence must fall “outside the

statutory range” for the offense or the record must reflect a failure by the trial court to

“consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and

the sentencing factors in R.C. 2929.12.” State v. Lee, 8th Dist. Cuyahoga No. 104190,

2016-Ohio-8317, ¶ 9, citing State v. Hinton, 8th Dist. Cuyahoga No. 102710,

2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist. Cuyahoga No. 100206,

2014-Ohio-1520, ¶ 13.

      {¶38}    Further, there is no mandatory duty for a trial court to explain its analysis

of the statutory sentences pursuant to our holding in State v. Kronenberg, 8th Dist.

Cuyahoga No. 101403, 2015-Ohio-1020, ¶ 27. A trial court is only required to indicate that

the statutory factors have been considered. Id., citing State v. Kamleh, 8th Dist. Cuyahoga

No. 97092, 2012-Ohio-2061, ¶ 61.
       {¶39} The sentence is within the statutory range, and the trial court considered the

sentencing factors at the sentencing hearing. However, we do find that Johnson poses a

proper challenge to the imposition of the eight-year sentence in February 2017.

               2.     Eight-Year Sentence

       {¶40} Johnson argues in the third assignment of error that the trial court erred in

resentencing him to an eight-year term. The trial court initially sentenced Johnson to a

six-year prison term, plus court costs on the first count, and six months on the third count

to be served concurrently, with forfeitures and a waiver of the mandatory fine. Following

the stated sentence, the trial court added to the entry:

       [E]xecution of sentence is stayed pending heart ablation procedure (per letter
       from Patrick J. Tchou, M.D., Cleveland Clinic). Defendant is to appear to
       begin serving sentence no later than August 1, 2016 at 9:00 a.m., or sentence
       will be vacated and new sentence will be imposed. Pending execution of
       sentence, defendant is to remain on bond. Conditions amended as follows:
       C.S.R. with home detention and electronic monitoring. Court notes
       objections of the state to stay of execution of sentence.

See journal entry no. 94295772 (May 26, 2016).

       {¶41} Johnson was directed to appear on July 25, 2016, for a violation hearing for

testing positive for marijuana. Due to the surgery on July 22, 2016, Johnson did not

appear and bail was revoked and a capias issued. Still under medical care, Johnson did

not report to jail on August 1, 2016. Counsel did not advise the court. An August 12,

2016 entry provided that Johnson was “remanded.” A December 8, 2016 entry reflected

that Johnson was in custody.

       {¶42}    A December 19, 2016 journal entry provided that, “at the request of
defendant” a “re-sentencing hearing is set” for January 9, 2017, at 9:00 a.m. A January 9,

2017 entry rescheduled that hearing to January 18, 2017, at defendant’s request.

       {¶43} There are no written requests for resentencing reflected in the record nor

motions to vacate the sentence, though Johnson did file motions requesting the

appointment of appellate counsel. He also submitted medical evidence of his surgeries

and his physician’s recommendation that his condition required the attention of a

cardiologist, and not a general physician.

       {¶44} On February 14, 2017, the trial court sentenced Johnson to an increased

sentence of 8 years for the trafficking offense, to run concurrently with six months on the

drug possession offense, with forfeiture specifications.

       {¶45} “A criminal sentence is final upon issuance of a final order,” not upon

execution of sentence.     State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553, 961

N.E.2d 671, ¶ 11, 13. A sentencing entry is a final order when, “the judgment entry sets

forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) the

time stamp indicating the entry upon the journal by the clerk.” State v. Wilson, 8th Dist.

Cuyahoga No. 105535, 2017-Ohio-8068, ¶ 24, citing State v. Lester, 130 Ohio St.3d 303,

2011-Ohio-5204, 958 N.E.2d 142, ¶ 14; Crim.R. 32.

       {¶46}     The trial court lacked authority to resentence appellant.          The state

concedes the error, and we agree that it has merit. The original sentence is still in effect.

       {¶47}       The fourth assigned error is moot in light of our findings.

Loc.R. 12(A)(1)(c).
IV.    Conclusion

       {¶48}    The trial court’s denial of the motion to suppress is affirmed. As the state

correctly observed, the trial court lacked jurisdiction to modify the sentence pursuant to

Carlisle. We hereby affirm in part, reverse in part, and remand the case for the limited

purpose of executing the original sentence.

       It is, therefore, ordered that appellee and appellant share the costs 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 common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



______________________________________
ANITA LASTER MAYS, JUDGE

MARY EILEEN KILBANE, P.J., and
TIM McCORMACK, J., CONCUR
