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    STATE of Ohio, Plaintiff-Appellee v. Sean K. RIEVES, Defendant-Appellant
    No. 105386
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 15, 2018
    Paul A. Mancino, Jr., Mancino Mancino & Mancino, 75 Public Square Building, Suite 1016, Cleveland, Ohio 44113-2098, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Erin Stone, Assistant County Prosecutor, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Boyle, J., E.T. Gallagher, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, J.:

{¶ 1} Defendant-appellant, Sean Rieves, appeals his convictions and sentence. He raises six assignments of error for our review:

1. Defendant was denied due process of law when the court overruled his motion to suppress.
2. Defendant was denied due process of law when the court imposed a sentence beyond the agreed sentence.
3. Defendant was denied his constitutional rights when the court failed to advise defendant concerning self-incrimination when the court called upon defendant at sentencing to speak.
4. Defendant was denied due process of law when the court would not allow defendant to withdraw his plea of no-contest when he did not receive an agreed sentence.
5. Defendant was denied due process of law when the court failed to explain the effect of a no-contest plea.
6. Defendant was denied his Sixth Amendment rights when the court based its sentence on facts not alleged in the indictment nor admitted at the plea.

{¶ 2} We find no merit to Rieves's arguments and affirm the judgment of the trial court.

I. Procedural History and Factual Background

{¶ 3} In August 2016, Rieves was indicted on nine counts: four counts of trafficking in violation of R.C. 2925.03(A)(2) (fentanyl, heroin, cocaine, and marijuana), three counts of possession in violation of R.C. 2925.11(A) (fentanyl, heroin, and cocaine), one count of having a weapon while under disability in violation of R.C. 2923.13(A)(3), and one count of possessing criminal tools in violation of R.C. 2923.24(A). The trafficking counts carried juvenile specifications, and the trafficking and possession counts carried one-year firearm specifications and forfeiture specifications (gun, six cell phones, a scale, $6,780, a surveillance system, a drug press, a grinder, a blender, a laptop, an iPad, and promethezine). The weapons disability and possessing criminal tools counts carried a forfeiture specification for the gun, and possessing criminal tools also contained a furthermore clause that the tools were used in the commission of a felony. Rieves's wife was also indicted on all counts except the weapons disability count.

{¶ 4} After pleading not guilty to all charges, Rieves moved to suppress the evidence against him. Before the suppression hearing, the state placed its plea offer on the record. As part of the deal, Rieves would plead guilty to an amended indictment of three counts of trafficking (fentanyl, heroin, and cocaine) with the one-year firearm specification and forfeiture specifications, but without the juvenile specification (which would make each offense a lesser-degree felony by one level), and the weapons disability count. The state's offer was "packaged with the plea offer" to Rieves's wife, where she would plead guilty to permitting drug abuse and possessing criminal tools, both fifth-degree felonies (which meant that probation was mandatory because she did not have any prior felony convictions). In exchange, the state would request the court to nolle the remaining charges against Rieves. The state indicated that if Rieves went forward with his suppression motion, however, the plea offer was "off the table." Rieves rejected the state's plea deal and proceeded with his motion to suppress.

{¶ 5} At the close of the suppression hearing, the trial court denied Rieves's motion. Subsequently, Rieves pleaded no contest to the indictment preserving his right to challenge the court's denial of his suppression motion.

{¶ 6} The trial court held a joint sentencing hearing on the present case and Rieves's community control violation for a previous trafficking case. Rieves stipulated to the community control violation. The trial court gave him credit for time served and terminated his community control sanctions in his previous trafficking case.

{¶ 7} In the present case, the trial court merged the trafficking and possession counts for fentanyl, heroin, and cocaine, and the state elected to proceed with the three trafficking counts. The trial court then sentenced Rieves to one year in prison for the firearm specifications attached to the trafficking heroin and trafficking fentanyl counts and ordered that they be served consecutive to each other but concurrent to the one-year terms for each of the remaining firearm specifications (for a total of two years for all of the firearm specifications). The trial court also sentenced Rieves to ten years for trafficking heroin, eight years for trafficking fentanyl, six years for trafficking cocaine, 18 months for trafficking marijuana, 36 months for having a weapon while under disability, and six months for possessing criminal tools and ordered that they be served concurrent to each other (for a total of ten years), for an aggregate sentence of 12 years in prison.

{¶ 8} The trial court further ordered that all of the items listed in the indictment be forfeited. It imposed five years of mandatory postrelease control for trafficking heroin, three years of mandatory postrelease control for trafficking fentanyl and cocaine, and up to three years of postrelease control for the remaining three counts. The trial court also sentenced Rieves to a mandatory fine of $10,000 and imposed court costs. It is from this judgment that Rieves now appeals.

{¶ 9} We will address Rieves's assignments of error out of order for ease of discussion.

II. Motion to Suppress

{¶ 10} In his first assignment of error, Rieves contends that the trial court erred when it determined that police seized his property pursuant to a valid search warrant. Specifically, Rieves argues that Detective Witkiewicz's affidavit did not provide sufficient information to support a finding that there was probable cause to conduct a search of his home.

{¶ 11} The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures and provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Article I, Section 14, of the Ohio Constitution affords the same protection as the Fourth Amendment in felony cases. State v. Smith , 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, ¶ 10, fn. 1.

{¶ 12} "A neutral and detached judge or magistrate may issue a search warrant only upon a finding of probable cause." State v. Ingold , 10th Dist. Franklin No. 07AP-648, 2008-Ohio-2303, 2008 WL 2026441, ¶ 17 ; Crim.R. 41(C). In determining whether a search warrant is supported by probable cause, the issuing judge is confined to the averments contained in the supporting affidavit. Id. The affidavit must "name or describe the person to be searched or particularly describe the place to be searched, name or describe the property to be searched for and seized, state substantially the offense in relation thereto, and state the factual basis for the affiant's belief that such property is there located." Crim.R. 41(C).

{¶ 13} When determining whether probable cause exists for the issuance of a warrant, courts employ a "totality-of-the-circumstances" test, requiring issuing judges

to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [them], including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

State v. George , 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the syllabus, quoting Illinois v. Gates , 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

{¶ 14} Upon appellate review, the reviewing court should not substitute its judgment for that of the issuing judge by conducting a de novo review of whether the affidavit sufficiently provides probable cause for the warrant. George at 330, 544 N.E.2d 640, citing Gates . Instead, the duty of the reviewing court is simply to ensure that the issuing judge or magistrate had a substantial basis for concluding probable cause existed. George at paragraph two of the syllabus. Doubtful or marginal cases should be resolved in favor of upholding the warrant. George at 330, 544 N.E.2d 640 ; see also Gates at 237, fn. 10, 103 S.Ct. 2317.

{¶ 15} Thus, the question presented in this case is whether, when looking at the totality of the circumstances, Detective Witkiewicz's affidavit provided a substantial basis for the issuing judge to conclude there was a fair probability that police would find evidence of trafficking narcotics in a search of Rieves's home.

{¶ 16} In his affidavit, Detective Witkiewicz described the property to be searched and set forth his qualifications and experience in investigating drug trafficking and other drug offenses. He then made the following relevant averments:

8.) Affiant states that in late 2015, Detective Griffis of the Southeast Area Narcotics Task Force (SEALE) was advised by Parma Narcotics of a black male selling heroin throughout Cuyahoga County and possibly lived at an address in a SEALE community. The black male's name was Sean Rieves. Running Rieves through various law enforcement data bases provided addresses in Bedford Hts. and Maple Hts. as possible residences.
9.) Affiant states that in May 2016, SEALE Narcotics received a telephone call from an anonymous caller saying that Sean Rieves was selling narcotics, particularly heroin, and was residing at the house located at * * *, Maple Hts., Ohio, 44137 (said residence to be searched) with a female named Erica Rieves.
10.) Affiant states that on June 23, 2016, SEALE Detectives performed a trash pull from the residence located at * * *, Maple Hts., Ohio, 44137 (said residence to be searched) in order to look for signs of drug trafficking occurring at the residence. Affiant states that Detectives took 3 bags of garbage from the tree lawn of the residence. The garbage bags were taken to a secured location in order to examine for signs of drug trafficking.
11.) Affiant states that Detective Witkiewicz located eleven (11) sandwich baggies with corners ripped off inside the trash, two of which contained a white/tan powder residue consistent with heroin, and numerous used rubber gloves. Detectives also discovered a letter addressed to "Sean Rieves" with the address of * * *, Maple Hts., Ohio. Detectives also located a prescription receipt for "Erica Rieves." Affiant states that in his training and experience these plastic baggy tear offs are indicative of individuals packaging drugs for resale.
12.) Affiant states that in his training and experience, heroin and other narcotics are placed into the smaller sandwich style bags, and the drug trafficker tears and keeps the corner from the baggy containing the narcotics, discarding the empty portion of the baggy into the trash. The smaller bags of heroin or narcotics are now packaged for resale.
13.) Affiant states that by utilizing Sean Rieves personal identifiers such as name, date of birth and social security number the affiant checked for any criminal history involving Rieves. Affiant states that Rieves has been charged with robbery, felony assault, domestic violence, disorderly conduct, menacing, theft, criminal trespass, aggravated burglary, possession of drugs, kidnapping, weapons under disability, and aggravated robbery.

{¶ 17} Initially, we note that it is well established that the "trash pull" itself did not implicate Fourth Amendment concerns. In California v. Greenwood , 486 U.S. 35, 40, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), the United States Supreme Court held that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a suspect's home. This is because a person has no reasonable expectation of privacy in items left for trash collection in an area that is susceptible to open inspection and "accessible to animals, children, scavengers, snoops, and other members of the public." Id.

{¶ 18} Rieves argues, however, that the contents of the trash pull "added nothing to establish probable cause" in this case. Specifically, Rieves maintains that the affidavit did not provide probable cause because it was based on the trash-pull evidence and two anonymous, "stale" tips that did not contain any indicia of reliability. And because the anonymous tips were not reliable or otherwise corroborated, he maintains that the detective's affidavit was based only on the trash-pull evidence, which did not provide sufficient probable cause.

{¶ 19} Rieves cites to a Sixth Circuit case, United States v. Abernathy , 843 F.3d 243 (6th Cir. 2016), in support of his argument that trash-pull evidence cannot establish probable cause to search a home. After reviewing Abernathy , however, we find that it does not stand for Rieves's proposition. Further, we find Abernathy to be distinguishable.

{¶ 20} In Abernathy , police obtained a search warrant based on a detective's averment that he "had received information that the occupants of [a particular home] have been and are currently engaging in illegal drug activity." Id. at 247. The detective also conducted a trash pull. The detective found several marijuana roaches in the trash with marijuana residue inside, several plastic bags consistent with those used to package marijuana for resale with marijuana residue in the bags, and mail connecting the defendant to the address.

{¶ 21} The defendant in Abernathy moved to suppress the evidence and also moved for a hearing pursuant to Franks v. Delaware , 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), challenging the accuracy of certain representations by the detective in the affidavit. At the Franks hearing, the detective ultimately admitted that when he submitted the affidavit, he had no information that somebody was selling drugs out of the defendant's residence. The court found that the detective's statement in the affidavit that he "had received information that the occupants of [the home] have been and are currently engaging in illegal drug activity" violated Franks and struck it from the affidavit.

{¶ 22} Without the detective's statement that he had received information that the occupants of the home were engaging in illegal drug activity, the Sixth Circuit analyzed whether there was probable cause without it-which left only the evidence obtained from the trash pull. The court ultimately concluded that the evidence pulled from defendant's trash, standing alone, did not create a fair probability that drugs would be found in defendant's home. Id. at 254.

{¶ 23} But here, Rieves did not establish at the motion to suppress hearing that Detective Witkiewicz fabricated or misrepresented the facts in any part of his affidavit. Thus, the trash-pull evidence in this case was not "standing alone" as it was in Abernathy . There were two anonymous tips to police that Rieves was selling heroin. The first one stated that Rieves was selling heroin throughout Cuyahoga County and "possibly lived at an address in a SEALE community." The first tip was received in late 2015, which was six or seven months before Detective Witkiewicz requested the search warrant. Detective Witkiewicz averred that he conducted a search of Rieves's name "through various law enforcement data bases" and found "addresses in Bedford Hts. and Maple Hts. as possible references."

{¶ 24} The second anonymous tip, received by police in May 2016 (one month before the trash pull), stated that Rieves was selling narcotics, particularly heroin, and that he lived at a particular address, which was given, in Maple Heights. The anonymous tipster further stated that Rieves lived with a female named Erica Rieves.

{¶ 25} The "veracity, reliability and basis of knowledge [of an anonymous informant] are all highly relevant in determining probable cause." State v. Pustelnik , 8th Dist. Cuyahoga No. 91779, 2009-Ohio-3458, 2009 WL 2054313, ¶ 22, citing Gates , 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. " 'There must be some basis in the affidavit to indicate the informant's credibility, honesty or reliability.' " Id. at ¶ 22, quoting State v. Harry , 12th Dist. Butler No. CA2008-01-013, 2008-Ohio-6380, 2008 WL 5123968, ¶ 20. The anonymous tipsters in this case did not include any information to establish they were honest or that the information was reliable, i.e., the tipsters did not explain how they knew Rieves or how they knew that he was selling heroin, nor do they provide any details regarding Rieves's heroin trafficking operation. Thus, there is no question that the two anonymous tips in this case, standing alone, did not provide an adequate basis for a probable cause. See Gates at 2332-2333, 103 S.Ct. 2317 ("bare bones" affidavits do not provide a "substantial basis for determining the existence of probable cause").

{¶ 26} But "a deficiency in one of these principles does not negate probable cause if there is a strong showing on another or if there is some other indicia of reliability." Id. , citing Gates . Even where there is an absence of evidence in an affidavit regarding a tipster's reliability, corroboration of the informant's statements by police investigation can provide "sufficient indicia of the reliability and veracity of the informant's statements." Id. at ¶ 23. See also State v. Ross , 6th Dist. Lucas No. L-96-266, 1998 WL 15916 (Jan. 16, 1998) ("Even in cases involving anonymous informants, a tip is sufficient where certain important or key elements of the tip are corroborated by police observation or investigation."); State v. Goddard , 4th Dist. Washington No. 97CA23, 1998 WL 716662 (Oct. 2, 1998) (while affidavit was lacking in showing a basis for anonymous informant's knowledge and in establishing his veracity, the corroborating efforts by police officers made search constitutional).

{¶ 27} Moreover, with regard to informants' reliability and the basis of their knowledge, under the current test of Gates the correct inquiry for the issuing judge is not whether the affidavit includes reference to the informant's basis of knowledge, veracity, or reliability. See State v. Litteral , 12th Dist. Fayette No. CA98-02-002, 1999 WL 969 (Jan. 4, 1999). Rather, the issuing judge must determine whether, under the totality of the circumstances, there exists a fair probability that evidence of a crime or contraband will be found in a particular place. Id. This determination should be based upon a practical, commonsense evaluation of all the circumstances set forth in the affidavit. Gates at 230, 103 S.Ct. 2317. "[T]he focus of the probable cause inquiry is the totality of the circumstances presented in the affidavit, not each component standing alone." State v. Robinson , 7th Dist. Columbiana No. 10 CO 37, 2011-Ohio-6639, 2011 WL 6758464, ¶ 23. In this case, unlike the facts in Abernathy , the affidavit included two anonymous tips and the evidence from the trash pull.

{¶ 28} We find Abernathy to be distinguishable for another reason. The trash-pull evidence in Abernathy only consisted of several marijuana roaches with marijuana inside and several plastic bags that "were consistent with those used to package marijuana for resale," which also had marijuana residue in them. In examining the trash-pull evidence, the Sixth Circuit determined that this evidence only suggested that "a small quantity of marijuana might have recently been in the defendant's residence." Id. at 254. The court further explained:

[T]he connection between the small quantity of marijuana paraphernalia recovered from defendant's garbage and his residence is too logically attenuated to create a fair probability that more drugs were in the residence. Although the trash pull evidence certainly suggested that someone in the residence had smoked marijuana recently, that fact alone does not create an inference that the residence contained additional drugs. Drugs by their very nature "are usually sold and consumed in a prompt fashion," * * * and so the more probable inference upon finding drug refuse is that whatever drugs were previously in the residence had been consumed and discarded.

Id. at 255, citing United States v. Elliott , 576 F.Supp. 1579 (S.D.Ohio 1984).

{¶ 29} In the present case, however, the trash-pull evidence consisted of 11 plastic "tear offs." Detective Witkiewicz averred that in his "training and experience," drug traffickers place heroin and other narcotics into "smaller sandwich style bags" for resale and "tear off" the top corner of the bag, leaving the narcotics in the smaller bag and discarding the "empty portion of the baggy into the trash." A person using or consuming drugs would never have possession of the "tear off" portion of the bag. Instead, the drug user would only have possession of the smaller bag that contained (or had contained) the drug. Thus, unlike the trash evidence in Abernathy , which only indicated that someone consumed marijuana, the trash evidence here indicated that someone was selling drugs because "tear offs" would only be present in a drug trafficker's trash. Even though drugs are sold in "prompt fashion," it is likely drug traffickers would have more drugs in their home to sell.

{¶ 30} Rieves further argues that the first anonymous tip was "stale" because it was six or seven months old. And he maintains that the information obtained from the more recent anonymous tip "went stale" because police waited up to one month or more before searching the contents of his trash for contraband.

{¶ 31} Probable cause must exist at the time the application for a warrant is made. State v. Shropshire , 8th Dist. Cuyahoga No. 103808, 2016-Ohio-7224, 2016 WL 5888151, ¶ 25. There is no arbitrary time limit for when information offered to support a search warrant application becomes stale; instead, the information becomes stale "when enough time has elapsed such that there is no longer 'sufficient basis to believe * * * that the items to be seized are still on the premises.' " United States v. Lacy , 119 F.3d 742, 746 (9th Cir. 1997), quoting United States v. Gann , 732 F.2d 714, 722 (9th Cir. 1984). Although the trash pull may have come as much as one month or more after the most recent anonymous tip, the trash pull itself was completed on the day that Detective Witkiewicz applied for the warrant and, thus, some of the information used in support of the application was fresh. See State v. Brown , 8th Dist. Cuyahoga No. 105202, 2017-Ohio-8315, 2017 WL 4861580 (although the informant's information was over a month old, two trash pulls were conducted within a day of the warrant application).

{¶ 32} Rieves also argues that two cases from this court, State v. Williams , 8th Dist. Cuyahoga No. 98100, 2013-Ohio-368, 2013 WL 485122, and State v. Weimer , 8th Dist. Cuyahoga No. 92094, 2009-Ohio-4983, 2009 WL 3043979, support his argument that the trash-pull evidence was insufficient to establish probable cause. After reviewing these cases, we find them to be distinguishable from the instant case. See Williams at ¶ 18 (trash-pull evidence was not sufficient because there were upper and lower units in the home and there was nothing on the trash can identifying which unit it came from); Weimer at ¶ 33 (trash-pull evidence was not sufficient, standing alone, because defendant established that the detective misrepresented other facts in his affidavit).

{¶ 33} After reviewing the affidavit in this case, we conclude that under the totality-of-the-circumstances test, Detective Witkiewicz's affidavit provided a substantial basis for the issuing judge to conclude that there was a fair probability that contraband or evidence of heroin trafficking would be found in the home, i.e., probable cause existed. The tips included information that Rieves was trafficking narcotics, particularly heroin, throughout Cuyahoga County. The second tipster also gave an address in Maple Heights where Rieves was residing with a female named Erica Rieves.

{¶ 34} The detective explained in the affidavit that he collected the trash from the curb of the residence. The trash-pull evidence included 11 "tear offs" indicative of trafficking smaller bags of drugs, two of which contained "white/tan powder residue" consistent with heroin. The detective also said that he found mail addressed to Rieves in the trash as well as a prescription receipt for Erica Rieves. The detective included Rieves's criminal history in the affidavit, which was extensive and also included a conviction for drug possession. Thus, the trash-pull evidence corroborated the anonymous tips-which indicated that Rieves lived at the address with Erica Rieves and sold heroin.

{¶ 35} Our holding in this case is consistent with many other courts holding that when an anonymous tip is received by police, drugs, and/or drug paraphernalia found in the person's trash is sufficient corroborating evidence to establish probable cause. See State v. Quinn , 12th Dist. Butler No. CA2011-06-116, 2012-Ohio-3123, 2012 WL 2692458 (anonymous tip without any basis of knowledge or reliability standing alone was not sufficient to support probable cause but when it was coupled with evidence from a trash pull, probable cause to support a search warrant existed); State v. McGorty , 5th Dist. Stark No. 2007CA00257, 2008-Ohio-2643, 2008 WL 2572039 (search warrant was supported by probable cause when statements from an anonymous confidential informant were independently corroborated by marijuana residue found in defendant's trash); State v. Akers , 12th Dist. Butler No. CA2007-07-163, 2008-Ohio-4164, 2008 WL 3823715, ¶ 25 (probable cause for search warrant existed when bare-bones anonymous tip that defendant was selling methamphetamine, marijuana, and cocaine was partially corroborated by a evidence of a single sandwich bag containing marijuana remains in defendant's trash); State v. Baas , 10th Dist. Franklin No. 13AP-644, 2014-Ohio-1191, 2014 WL 1347637 (anonymous tip coupled with evidence from a trash pull was sufficient to support probable cause for a search warrant).

{¶ 36} In light of these cases and the fact that we are obligated to accord great deference to the probable cause determination made by the magistrate or judge who issues the search warrant and resolve any doubtful or marginal case in favor of upholding the search warrant, we conclude that the judge in this case, which we acknowledge is a close call, "had a substantial basis for concluding that probable cause existed" for issuing the search warrant. George , 45 Ohio St.3d 325, 544 N.E.2d 640, paragraph two of the syllabus, following Gates , 462 U.S. at 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527.

{¶ 37} Accordingly, Rieves's first assignment of error is overruled.

III. Effect of No Contest Plea

{¶ 38} In his fifth assignment of error, Rieves maintains that the trial court violated his due process rights when it failed to explain to him the effect of a no contest plea.

{¶ 39} The standard for reviewing whether the trial court accepted a plea in compliance with Crim.R. 11(C) is de novo. It requires an appellate court to review the totality of the circumstances and determine whether the plea hearing was in compliance with Crim.R. 11(C). State v. Cardwell , 8th Dist. Cuyahoga No. 92796, 2009-Ohio-6827, 2009 WL 4986105, ¶ 26, citing State v. Stewart , 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).

{¶ 40} The underlying purpose of Crim.R. 11(C) is to convey certain information to a defendant so that he or she can make a voluntary and intelligent decision regarding whether to plead guilty or no contest. State v. Ballard , 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981). Before accepting a felony plea, the trial court must inform the defendant of the nature of the charges, the maximum penalty involved, and the effect of the plea (i.e., the nonconstitutional requirements) set forth in Crim.R. 11(C)(2)(a) and (b) and notify the defendant of the constitutional rights the defendant is waiving under Crim.R. 11(C)(2)(c).

{¶ 41} The effect of a no contest plea is set forth in Crim.R. 11(B)(2), which provides:

The plea of no contest is not an admission of defendant's guilt [unlike a guilty plea], but is an admission of the truth of the facts alleged in the indictment, information, or complaint, and the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.

{¶ 42} With respect to the nonconstitutional requirements of Crim.R. 11, as set forth in Crim.R. 11(C)(2)(a) and (b), reviewing courts shall consider whether there was substantial compliance with the rule. State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14-17. Substantial compliance means that under the totality of the circumstances, defendants subjectively understand the implications of their plea and the rights they are waiving. Id. , citing State v. Nero , 56 Ohio St.3d 106, 564 N.E.2d 474 (1990).

{¶ 43} Furthermore, a defendant who challenges his or her plea on the basis that it was not knowingly, intelligently, and voluntarily entered into must show a prejudicial effect. Veney at ¶ 15. The test for prejudice is whether the plea would have otherwise been made. Id.

{¶ 44} In the present case, the record reveals that the trial court failed to substantially comply with Crim.R. 11(C)(2)(b) because it failed to ask Rieves if he understood that his plea was an admission of the truth of the facts alleged in the indictment. Nonetheless, the Ohio Supreme Court has held that unless a defendant asserts "actual innocence," he or she is presumed to understand the effect of the plea and "a court's failure to inform the defendant of the effect of [the plea] as required by Crim.R. 11 is presumed not to be prejudicial." State v. Griggs , 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, syllabus; see also State v. Taylor , 8th Dist. Cuyahoga No. 94569, 2010-Ohio-5607, 2010 WL 4684761, discretionary appeal not allowed , 128 Ohio St.3d 1462, 2011-Ohio-1829, 945 N.E.2d 524; State v. Thomas , 8th Dist. Cuyahoga No. 94788, 2011-Ohio-214, 2011 WL 193100, discretionary appeal not allowed , 128 Ohio St.3d 1484, 2011-Ohio-2055, 946 N.E.2d 241. Although the plea at issue in Griggs was a guilty plea, this court has "extended this presumption" to no contest pleas as well. State v. Musleh , 8th Dist. Cuyahoga No. 105305, 2017-Ohio-8166, 2017 WL 4550869, ¶ 18, citing State v. Anglen , 8th Dist. Cuyahoga No. 102022, 2015-Ohio-4070, 2015 WL 5736910.

{¶ 45} Here, Rieves did not assert "actual innocence" during his plea proceeding. Additionally, Rieves does not offer any argument as to how he was prejudiced in any way by the trial court's failure to determine if he understood the effect of his no contest plea nor is any prejudice apparent from the record.

{¶ 46} Rieves cites to several cases from this court in support of his argument that because the trial court failed to inform him of the effect of his no contest plea, we should vacate his plea: N. Royalton v. Semenchuk , 8th Dist. Cuyahoga No. 95357, 2010-Ohio-6197, 2010 WL 5239184 ; Parma v. Pratts , 8th Dist. Cuyahoga No. 94990, 2011-Ohio-728, 2011 WL 550114 ; and Cleveland v. Adams , 8th Dist. Cuyahoga No. 97523, 2012-Ohio-1063, 2012 WL 914833. Rieves further quotes Adams where this court stated "that when a trial court completely fails to comply with a rule in accepting a plea, a demonstration of prejudice is unnecessary." Id. at ¶ 9.

{¶ 47} The cases cited by Rieves, however, are misdemeanor cases. We have explained that when it comes to felonies, "the Ohio Supreme Court has consistently held that the court's failure to tell the defendant the effect of a plea * * * does not invalidate the plea unless appellant shows that he was prejudiced by the court's failure to substantially comply with the rule." State v. Simonoski , 8th Dist. Cuyahoga No. 98496, 2013-Ohio-1031, 2013 WL 1183322, ¶ 11, citing Griggs , 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51 ; State v. Jones , 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677 ; and Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621.

{¶ 48} "Unlike in felony cases, misdemeanor cases only require the court to advise the defendant of the effect of the plea." (Emphasis added.) Simonoski at ¶ 14. But in felony cases, the court is required to advise the defendant of the constitutional rights he or she is waiving by entering into the plea, as well as the nonconstitutional requirements pursuant to Crim.R. 11(C)(2)(a) and (b), which ensures that the defendant knowingly, intelligently, and voluntarily enters into his or her plea. Id. Therefore, the cases that Rieves relies on, Semenchuk , Pratts , and Adams , are not applicable here.

{¶ 49} Rieves further argues that we should vacate his plea based on State v. Jones , 2d Dist. Montgomery No. 25688, 2014-Ohio-5574, 2014 WL 7224690. In Jones , the Second District vacated the defendant's no contest plea in a felony case without a showing of prejudice where the trial court failed to inform the defendant of the effect of the plea. Id. at ¶ 15. This court, however, has already distinguished Jones when faced with the same argument. See Musleh , 8th Dist. Cuyahoga No. 105305, 2017-Ohio-8166, 2017 WL 4550869. We explained that in Jones :

[T]he state conceded that the trial court did not inform the defendant of the effect of his no contest plea but argued that the defendant subjectively understood the effect of his plea because the trial court had explained the maximum potential sentence the defendant could receive and the rights he was waiving upon entering his plea. Id. at ¶ 14. The court rejected the state's argument, reasoning that the effect-of-plea requirement "cannot be met simply by the informing the defendant of the maximum sentence and the right to a jury trial" and concluding that "[u]nder the facts and circumstances" of that case, the defendant's plea was not knowingly, intelligently and voluntarily entered. Id. at ¶ 5, 14. The Jones opinion does not indicate specifically what advisements were made to the defendant at the plea hearing in that case and did not apply the presumption in Griggs .

Id. at ¶ 19. Therefore, just as we found in Musleh , Jones does not support Rieves's arguments here.

{¶ 50} Accordingly, after a review of the record in this case, we conclude that Rieves did not establish that he was prejudiced by the trial court's failure to explain the effect of his no contest plea to him. We further note that at no time did Rieves assert that he was actually innocent of the charges.

{¶ 51} Rieves's fifth assignment of error is overruled.

IV. Purported Agreed Sentence

{¶ 52} In his second assignment of error, Rieves contends that the trial court violated his due process rights when it imposed a sentence "beyond the agreed sentence" of eight years. In his fourth assignment of error, he argues that the trial court violated his due process rights when it would not allow him to withdraw his plea when it did not impose the "agreed sentence." We will address these assignments of error together because they are related to the same facts that occurred at the plea and sentencing hearing.

A. Relevant Facts

{¶ 53} At the joint plea hearing, the trial court asked Rieves and his wife if anyone had threatened them with anything or promised them anything to get them to enter into the plea. Rieves's wife responded "no," and then Rieves stated, "No, just not for her to go to jail." The trial court apparently misunderstood Rieves, and replied, "Pardon? We did talk about a potential sentence of eight years." Rieves's defense counsel explained the misunderstanding and told the court that Rieves was referring to his wife going to jail, not himself. The trial court reassured Rieves that he was "accurate" on that point; his wife would not go to jail. The trial court then asked Rieves: "[i]s there anything else that you've been promised?" Rieves responded "no."

{¶ 54} At the sentencing hearing, the state informed the court that prison was mandatory and that it believed "a substantial prison sentence [was] warranted." The state informed the court that Rieves was on community control sanctions for drug trafficking when he was charged in this case. It further stated that Rieves's criminal history included felony domestic violence in 2009 (where he served one year in prison), attempted robbery in 2011 (where he served four years in prison), and the previous trafficking case for which he was still on community control sanctions and had violated the terms of those sanctions by committing the offenses in the present case. The state further noted that "there were three minor children in the home at the time the search warrant was executed."

{¶ 55} Defense counsel told the court that Rieves had a serious drug addiction and that he needed help with this addiction. Defense counsel stated that Rieves told him that he "didn't sell any of these drugs to anybody" and was not "selling drugs out of that house." Defense counsel then stated, "[s]o we would hope that the court might consider-I know that there was discussions had that if he pled in a certain way he could get six years, or if he pled this way he would be getting eight years. We would hope the court might consider giving him something less than the eight years."

{¶ 56} The court then questioned defense counsel about his statements that Rieves was not trafficking drugs. Defense counsel clarified that Rieves was in fact selling drugs, he was just not selling drugs out of his house or in that area.

{¶ 57} The court turned to Rieves next and asked him if he had anything to say. Rieves responded, "[n]othing further from me Judge. I'm sorry." The trial court then stated: "Mr. Rieves, you have an opportunity to address the court before I announce sentence. Is there anything you would like to say?" The following exchange then took place:

THE DEFENDANT: I just want to say on my behalf and my family's behalf, you know, I just ask that you be more lenient on the sentencing. I wasn't selling drugs. I wasn't selling no drugs, whether it was out of the house or giving it to other people or people dying at the hands of me or anything that I did or anything of that nature. I know Fentanyl is a serious drug when you hear about it, but, in all honesty, I didn't know what Fentanyl was until after I was doing research for this case. I never knew nothing about it. I just had a daughter a month ago. Her mother is in the back of the courtroom. I would just like you to be more lenient on me. I know eight years is a lot of time.
THE COURT: I'm not following you. You had a daughter?
THE DEFENDANT: Yes.
THE COURT: With someone other than [your wife]?
THE DEFENDANT: Yes.
THE COURT: Her mother is in the back of the courtroom here?
THE DEFENDANT: Yes.
THE COURT: And you didn't know what Fentanyl was?
THE DEFENDANT: No.
THE COURT: You weren't selling that to anybody?
THE DEFENDANT: I never gave nobody no Fentanyl. I never sold no Fentanyl to nobody. It was just like-actually, I got it, but I didn't even know the seriousness or whatever it was of Fentanyl. I never even heard of Fentanyl until I started sitting in here watching the news and hearing how serious it was, and then getting re-indicted and I'm saying this is what I'm being charged with. I knew it was brought to me as if it was heroin and not Fentanyl.
THE COURT: This was all a surprise to you?
THE DEFENDANT: I mean, no, it wasn't no surprise to me at all, no.

{¶ 58} At that point, the trial court informed Rieves that it was going to give him credit for time served in his previous trafficking case and terminate his community control sanctions. The trial court then stated:

The court did talk to your counsel and you about an agreed sentence here under certain terms, and you pled-after pleading no contest and preserving your appellate rights or entering into the plea agreement that was offered by the state of Ohio, you chose to enter the no contest option.
After we * * * took your no contest plea, the state put on the record the factual basis of that plea or of the charges. The court found you guilty of those charges.
And the assumption being that, you know, you were either going to be silent up here at sentencing or, you know, tell the truth and not come up here and manufacture a lie about 50 grams of Fentanyl being for personal use.
The court does not feel bound by its prior agreement given your behavior and lack of truthfulness up here.

{¶ 59} The trial court discussed the nine counts and imposed a sentence on each count, for a total of 12 years in prison. It then explained the following.

Mr. Rieves, it is clear from your behavior that you are not only a drug trafficker, you are a major drug trafficker. You had significant quantities of heroin, cocaine, and Fentanyl found in your residence along with quantities of marijuana.
I had you on probation for trafficking. I gave you a break, because I thought you were married and had three kids, despite the fact that you had just finished serving a four-year prison sentence. You have shown me no degree of remorse or responsibility. And, frankly, you deserve every minute of these 12 years to keep society safe from merchants of death that you are.

{¶ 60} After the trial court finished imposing the sentence, defense counsel then stated to the court, "[t]here was no discussion ever had that indicated that if he gave a dissertation that you were not satisfied with that the eight years that he agreed to plead to would be enhanced. The deal, as I understand it, I believe-[.]" The trial court interrupted defense counsel and stated: "[H]ere's how it works in a court of law. The court expects honesty. If he doesn't want to be honest, don't say anything; but to come up here and say that was for personal use is an affront to the intelligence of everyone in our criminal justice system." Defense counsel then informed the court that Rieves wished to withdraw his plea. The trial court responded, "[i]t's too late for that. If you don't like the sentence, you don't get to withdraw the plea."

B. Analysis

{¶ 61} The Due Process Clause of the Fourteenth Amendment requires that any plea of guilty or no contest in a criminal case must be entered knowingly, intelligently, and voluntarily. State v. Engle , 74 Ohio St.3d 525, 660 N.E.2d 450 (1996). When a trial court promises a certain sentence, the promise becomes an inducement to enter a plea, and unless that sentence is given, the plea is not voluntary. State v. Kelly , 8th Dist. Cuyahoga Nos. 91875 and 91876, 2010-Ohio-432, 2010 WL 457138, ¶ 21, citing State v. Allen , 6th Dist. Sandusky No. S-09-004, 2009-Ohio-3799, 2009 WL 2374285. Accordingly, a trial court commits reversible error when it participates in plea negotiations but fails to impose the promised sentence. State v. Triplett , 8th Dist. Cuyahoga No. 69237, 1997 WL 64051, 1 (Feb. 13, 1997).

{¶ 62} We first note that the transcript establishes that the state was not involved in any purported "agreed sentence." Neither the state nor defense counsel stated anything on the record indicating that the parties had agreed to a specific sentence. The state confirms this fact in its brief.

{¶ 63} It is apparent then that any alleged agreement was between the trial court and the defense. But the trial court's comment at the plea hearing-that "[w]e did talk about a potential sentence of eight years"-negates Rieves's argument that there was an agreed sentence. "Potential" does not amount to a promise.

{¶ 64} Moreover, Rieves stated at the plea hearing that the only thing that was promised to him in exchange for his plea was that his wife would not go to jail. When further asked by the trial court if there was anything else promised to him, Rieves replied that there was not.

{¶ 65} We also note that during the plea hearing, the trial court fully informed Rieves of the maximum sentence that he could receive for each offense and did not state anything about Rieves receiving a particular sentence. In fact, there was nothing said at the plea hearing about an agreed sentence-not from the trial court, defense counsel, or Rieves.

{¶ 66} We acknowledge that there were comments made at the sentencing hearing implying that the trial court had indicated it would impose a certain sentence if the defendant chose to plead no contest, but even defense counsel, when asking the court to consider a sentence "something less than the eight years," referred to the purported "agreement" as "discussions." Discussions, however, are not a promise.

{¶ 67} Crim.R. 32.1 provides: "A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." A defendant who seeks to withdraw a guilty plea after the imposition of sentence has the burden of establishing the existence of manifest injustice. State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. There is no manifest injustice in this case based on the record before us because the trial court's sentence simply does not constitute a clear or openly unjust act.

{¶ 68} We also find that Rieves's sentence is not contrary to law and is supported by the record. The trial court sentenced him within the permissible statutory ranges and considered the principles and purposes of felony sentencing set forth in R.C. 2929.11 and 2929.12. The record reflects that the trial court considered the fact that Rieves was on probation (for drug trafficking) at the time he was arrested in his case and that it also considered Rieves's criminal history, pointing out that Rieves had practically just gotten out of a four-year prison term when he committed the first trafficking case. The trial court further considered the quantities of the drugs, the fact that Rieves was convicted of trafficking four different kinds of drugs (heroin, cocaine, fentanyl, and marijuana), and the fact that Rieves did not show any remorse at the hearing because he denied even selling drugs to anyone.

{¶ 69} Accordingly, Rieves's second and fourth assignments of error are overruled.

V. Other Sentencing Issues

{¶ 70} In his remaining two assignments of error, Rieves raises issues relating to his sentence. In his third assignment of error, he argues that the trial court violated his constitutional right against self-incrimination when it failed to advise him at his sentencing hearing that "if he said something that the court disagreed with that the court was not bound by the agreed sentence." While this is a novel argument, it has no merit because there was no "agreed sentence."

{¶ 71} In his sixth assignment of error, Rieves maintains that the trial court violated his Sixth Amendment rights when it based his sentence on facts not alleged in the indictment or admitted at the plea hearing. He argues that the following comments: "Mr. Rieves, it is clear from your behavior that you are not only a drug trafficker, you are a major drug trafficker. You had significant quantities of heroin, cocaine, and fentanyl found in your residence along with quantities of marijuana[,]" show that the trial court based its sentence "on matters that were improperly alleged."

{¶ 72} Rieves cites to State v. Armetta , 8th Dist. Cuyahoga No. 84366, 2005-Ohio-3689, 2005 WL 1705738, in support of his argument that a trial court cannot base its sentence "upon a crime neither charged nor proven." In Armetta , however, the trial court based the defendant's sentence in part "on unsubstantiated allegations" made by the victim at the sentencing hearing that the defendant frequently engaged in drag racing and had recently been seen "buying and driving another race car." Id. at ¶ 8, 17.

{¶ 73} Unlike Armetta , the trial court's comments in this case-that Rieves was a "major drug trafficker"-were based on the amount of drugs that were found in Rieves's home and that he admitted to by pleading no contest and not on any unproven allegations.

{¶ 74} Accordingly, Rieves's third and sixth assignments of error are overruled.

{¶ 75} Judgment affirmed.

EILEEN T. GALLAGHER, P.J., and PATRICIA ANN BLACKMON, J., CONCUR

      According to the state's brief, when the parties were talking in the hallway, the trial court informed them that "it was his intent to sentence the appellant to eight years in prison if he pled no contest, but that he would sentence the appellant to less time if he accepted responsibility for his actions by pleading guilty." The state further informs us in its brief that "the judge did provide a specific number of years as to the lesser amount of time, but the [state] no longer recall[ed] the exact number."


source: Caselaw Access Project

author: TIM McCORMACK, P.J.:

license: Public Domain

text:
    CITY OF CLEVELAND, Plaintiff-Appellee v. Carl A. COLLINS, Defendant-Appellant
    No. 105804
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 15, 2018
    Carl A. Collins, pro se, 12621 Walnut Hill Drive, North Royalton, OH 44133, for Appellant
    Barbara A. Langhenry, Director of Law, City of Cleveland Law Department, Kimberly G. Barnett-Mills, Chief City Prosecutor, By: Karyn J. Lynn, Assistant City Prosecutor, 1200 Ontario Street, 8th Floor, Cleveland, OH 44113, Attorneys for Appellee
    BEFORE: McCormack, P.J., Boyle, J., and S. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   TIM McCORMACK, P.J.:

{¶ 1} Defendant-appellant Carl A. Collins, pro se, appeals from a judgment of the Cleveland Municipal Court, convicting him of operating a vehicle under the influence ("OVI") in violation of R.C. 4511.19(A)(1), OVI and refusing a chemical test with a prior conviction within 20 years in violation of R.C. 4511.19(A)(2), and driving under OVI suspension in violation of R.C. 4510.14. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

Procedural History and Substantive Facts

{¶ 2} On September 24, 2014, Collins was charged with OVI, OVI in connection with a refusal to submit to testing and having a prior conviction within 20 years, driving while under OVI suspension, and driving outside of marked lanes. Collins entered not guilty pleas to all of the charges and proceeded pro se on the matter. He filed a motion to suppress and a supplemental motion to suppress. The court held a hearing in which it heard testimony from Ohio State Trooper Hiram Morales and Collins, on his own behalf.

{¶ 3} Trooper Morales has been employed with the Ohio State Highway Patrol for 11 years, performing traffic enforcement and OVI apprehension. He has received training concerning detection and apprehension of impaired drivers and is familiar with the National Highway Traffic Safety Administrative ("NHTSA") manual and its standards. Trooper Morales has received training in the administration of field sobriety tests in accordance with the NHTSA standards, and he has conducted over 100 OVI stops.

{¶ 4} Trooper Morales testified that he was working at 1:11 a.m. on September 24, 2014, when he observed a vehicle drive outside of the marked lanes of I-90 approximately four times. He stopped the vehicle, approached the driver, and requested the driver's license and vehicle registration. When he ran a computer check of the driver's license, he learned that the driver, Carl Collins, was under an administrative license suspension ("ALS") for an OVI refusal on August 29, 2014. Trooper Morales asked Collins to exit the vehicle, and he inquired of Collins's suspension. When Collins exited the vehicle, the trooper observed Collins chewing gum and asked Collins to spit it out. When Collins spit out the gum, Trooper Morales smelled alcohol on Collins's breath. The trooper asked Collins if he had been drinking, and Collins replied that he had not.

{¶ 5} At this point, Trooper Morales asked Collins to perform certain field sobriety tests. He testified that Collins consented to taking the tests. The trooper first conducted the horizontal gaze nystagmus ("HGN") test. Trooper Morales testified concerning the NHTSA standard for this test:

First we ask the individual/suspect if there's any issue with their eyesight. Any eye condition or head trauma we should be aware of or the medical issues that the person has. Then we use a stimulus or a pen is placed slightly above eye level between 12 and 15 inches from the center of the individual's face.
* * *
We advised Mr. Collins that he has to follow the tip of the pen with his eyes only. He's not to move his head during the test. The pen is going to be moving from one side to the other at a slow pace. With each clue, there's a specific amount of time that we have to move the pen from one side on the other.

{¶ 6} The trooper testified that he administered the test in accordance with the NHTSA standards, allowing Collins to remove his eyeglasses. The trooper further testified regarding the clues of impairment from this test and explained what they meant and what he observed:

Witness: We are looking for smooth pursuit, in maximum deviation and onset prior to 45 degree[s] as well as vertical nystagmus. The defendant showed clues of lack of smooth pursuit, maximum nystagmus, and that's four clues out of a possible six clues.
Prosecutor: Okay. And how many clues need to be observed in order to indicate impairment?
Witness: Four.
Prosecutor: Okay. And you stated he had lack of smooth pursuit. What does that mean?
Witness: Basically, when you [are] looking for smooth pursuit, best way to explain it is * * * [i]f you move your eyes from one side to the other, it should be a smooth movement from one side [to] the other. The defendant's case, you can see jerking of the eye as they were going from one side to the other.
Prosecutor: What does that indicate to you?
Witness: The presence of alcohol in his system.
Prosecutor: In which eye or eyes did you obtain lack of smooth pursuit? Witness: On both. Right and left.
Prosecutor: You stated nystagmus with maximum. How would you describe what that means?
Witness: Again we are looking for involuntary jerking of the eyes. In a normal individual, you move your stimulus all the way to the side as far as eyes can go, allow the eyes to set and then you hold it there for four seconds, no more than 30 seconds and you [are] looking for again, involuntary jerking of the eyes.
Prosecutor: And in which eye or eyes did you observe that in Mr. Collins?
Witness: Both eyes, left and right.

{¶ 7} The trooper then conducted the walk-and-turn ("WAT") test. Trooper Morales testified concerning the NHTSA standard for this test. The trooper explained that an officer asks the suspect if he has any medical issues with his back or lower extremities that may prevent them from walking a straight line. He then instructs an individual as follows:

I tell the defendant not to start the test until the instructions are completed. Proceed to either use a straight line on the pavement or have the defendant imagine a straight line on the pavement. I usually allow the individual to use the front license plate of my patrol car as reference point for a straight line.
My first set of instructions, I'll ask the defendant when told to do so they have to place their left foot on the line, right foot in front of it touching heel to toe. Hands down to their side and to hold that position for the very next set of instructions.
Once the defendant is in the requested position, I'll demonstrate the fact that they have to take nine steps. First step from the initial position would be step number one. Because of distance restraints, I usually take three steps just to explain/demonstrate the test, but I make an emphasis to the defendant that they have to take nine steps heel to toe.
First step would be step number one. Once they reach their nin[th] step, the front foot, whichever it is, stays planted, the back foot comes around, take the few choppy steps, basically pivoting on just the front foot. Once they turn around, again, first step would be step number one. They take nine more steps.
Basically nine steps forward, turn around, as they were instructed, and walk back taking nine steps heel to toe. Before the test begins, I tell them to look down at their toes, count out loud every step, don't stop until that person [has] completed the test.
Then I'll ask them if they have any questions for me or if there's something within the test that they didn't understand.

{¶ 8} Trooper Morales testified that he considered Collins's age as a factor in taking the test, but NHTSA standards did not prohibit someone of his age (70 years old at the time) from performing the test. He asked Collins if he had any physical limitations that would prevent him from being able to take the test. The trooper testified that Collins advised the trooper that he "had some issues with his right leg." The trooper stated that he was going to give Collins a demonstration and Collins could then decide whether he could perform the test. According to the trooper, Collins "said he was going to give it a try." The trooper then asked Collins to perform the WAT test.

{¶ 9} Trooper Morales testified that he administered the WAT test after Collins indicated that he understood the trooper's instructions. The trooper observed three of a possible eight clues of impairment with Collins's performance-starting before instructions are complete, failing to touch heel-to-toe, and turning incorrectly. The number of clues indicative of impairment is two.

{¶ 10} Trooper Morales then administered the one-legged stand ("OLS") test. Once again, Collins emphasized his knee issue and, once again, the trooper told Collins that it was his choice as to whether to perform the test. The trooper also testified regarding the NHTSA standards for administration:

Again we ask the defendant, we already know if they have any issues with their back or knees based on the WAT test so again, I'll reiterate, that I'll give the explanation for the test and the defendant will let me know if they can do the test or not based upon their condition. I'll ask the defendant to put feet [his] together. Hand[s] to the side again. They're not going to start the test until told to do so.
When told to do so, they're going to raise whichever foot they prefer. It's their choice on the foot they're going to use. They're going to raise that foot approximately six inches from the ground. Toes are going to be pointed out. They're * * * looking down on their toes. Hands down to their side. When they're in an established position, they're going to start counting the following manner. One thousand, a thousand two, a thousand three, and so on so forth. That test is going to last 30 seconds.
In the meantime, if they drop their foot during those 30 seconds, they're told to bring their same foot back up and continue counting where they left off. * * *

{¶ 11} The trooper observed two clues of impairment-swaying while counting, and dropping his foot, to the point where Collins "basically almost fell." Two clues in this test are indicative of impairment.

{¶ 12} Finally, the trooper testified that Collins refused to take the portable breath test, and Collins was placed under arrest. According to Trooper Morales, Collins was under the influence of alcohol and not able to drive a motor vehicle. Trooper Morales engaged his dashboard camera to record the events of the evening, and the camera recorded the events without sound.

{¶ 13} Following the suppression hearing, and after viewing the trooper's dashboard camera, the court denied Collins's motion to suppress and scheduled the matter for trial.

{¶ 14} A jury trial commenced on March 9, 2017, following numerous continuances, delays, and Collins's interlocutory appeal of the trial court's denials of Collins's motion to suppress and motion to dismiss. At trial, Trooper Morales testified on behalf of the city, and Collins proceeded pro se and testified on his own behalf. The state introduced into evidence video footage from Trooper Morales's dashboard camera, which was played for the jury.

{¶ 15} Trooper Morales testified for the jury that he observed Collins's vehicle drive over the marked lanes of I-90 approximately four times, by "at least a tire's width," at almost 1:30 a.m. on September 24, 2014. The trooper initiated a traffic stop and ran Collins's driver's license through the Law Enforcement Automated Data System ("LEADS"), which showed that Collins was under an administrative license suspension for a "refusal" from a previous OVI stop in August 2014. When the trooper approached Collins, he observed Collins chewing gum. He asked him to spit the gum out, and when he did, the trooper smelled alcohol on Collins's breath. The trooper testified that Collins denied having been drinking.

{¶ 16} Trooper Morales then testified that he administered three field sobriety tests: HGN, WAT, and OLS. He testified at length regarding the NHTSA standards for administration of the tests and how he administered the tests on Collins in accordance with these standards. The trooper testified that Collins agreed to perform the tests, despite advising the trooper that he had issues concerning his knee. Trooper Morales stated that he took into consideration Collins's age in administering the test, but the NHTSA standards do not prohibit an individual over 65 years of age from performing the physical field sobriety tests, such as the WAT and the OLS tests. Trooper Morales testified that Collins demonstrated four clues of impairment during the HGN test, three clues of impairment during the WAT test, and two clues of impairment during the OLS test. In each test, the number of clues met or exceeded the number of clues indicative of impairment. Trooper Morales stated that Collins refused the portable breath test.

{¶ 17} On cross-examination, Trooper Morales testified that he did not recall Collins advising him that he had eye surgery a couple of months before the arrest.

{¶ 18} On his own behalf, Collins testified that he was returning from work on the morning in question and he had not been drinking. He stated that he believed the highway lanes were 12 feet apart when in reality they were only 10 feet wide. Collins indicated that he may have driven over the marked lanes because he assumed, incorrectly, that he had more room for his large car to travel within the lanes. Collins also testified that he told Trooper Morales that he had a "bad eye." He conceded that he believed he could perform the HGN test. Collins explained his knee problem and an injury to his "semicircular canals," which determine balance. Collins also testified that he was not drinking that morning because he is allergic to alcohol. Finally, Collins admitted on cross-examination that he was convicted of an OVI offense in 2002 and that he was under an ALS suspension for an OVI refusal at the time of the stop in question.

{¶ 19} The jury found Collins guilty of OVI in violation of R.C. 4511.19(A)(1), OVI and refusing a chemical test with a prior conviction within 20 years in violation of R.C. 4511.19(A)(2), and driving under OVI suspension in violation of R.C. 4510.14. The minor misdemeanor charge of a marked lanes violation was subsequently dismissed.

{¶ 20} Collins now appeals his conviction, assigning the following errors for our review:

I. The arresting officer had no valid reason for stopping the Defendant and initiating testing to determine whether or not the Defendant had consumed alcohol or was under the influence of an intoxicant.
II. The arresting officer misstated comments and answers given by the Defendant and proceeded to ask the Defendant if he would perform a list of test[s] to [e]nsure that he was capable of continuing to drive.
III. The arresting officer obtained the acquiescence of the Defendant to participating in the field sobriety test by telling the Defendant that he had to ascertain, through the tests, that the Defendant was capable of continuing to drive his vehicle.
IV. [The] court denied the Defendant's Motion to Suppress.
V. The court denied the Defendant's Motion to Dismiss even though the court proceedings prior to trial had continued far beyond the ninety (90) days required by law even though this Defendant had not signed or made any other indication that he was waiving his right to a speedy trial.

Law and Analysis

{¶ 21} In his pro se appeal, Collins essentially claims that the police unlawfully detained and arrested him, the trial court erred in denying his motion to suppress, and the trial court erred in denying his motion to dismiss based upon speedy trial grounds.

{¶ 22} In his first assignment of error, Collins argues that the police officer "had no valid reason" to stop him.

{¶ 23} The Fourth Amendment of the United States Constitution, as well as Article I, Section 14, of the Ohio Constitution, prohibit unreasonable searches and seizures lacking probable cause. Cleveland Hts. v. Brisbane , 2016-Ohio-4564, 70 N.E.3d 52, ¶ 14 (8th Dist.). This prohibition applies to the stopping of motor vehicles and the seizing of its occupants. Id. , citing Delaware v. Prouse , 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), paragraph two of the syllabus.

{¶ 24} "A police officer may effect a traffic stop of any motorist for any traffic infraction, even if the officer's true motive is to detect more extensive criminal conduct." State v. Bennett , 8th Dist. Cuyahoga No. 86962, 2006-Ohio-4274, 2006 WL 2381646, ¶ 21, citing United States v. Mesa , 62 F.3d 159, 162 (6th Cir.1995). Furthermore, "when conducting the stop of a motor vehicle for a traffic violation, an officer may detain the vehicle for a time sufficient to investigate the reason for which the vehicle was initially stopped." Id. , citing State v. Bolden , 12th Dist. Preble No. CA2003-03-007, 2004-Ohio-184, 2004 WL 77617, ¶ 17. This time period may include the time it takes to run a computer check on the driver's license, registration, and vehicle's plates. Bennett , citing Prouse .

{¶ 25} Where an officer stops a motorist after observing a violation of a traffic law, probable cause exists for the detention in order to issue a citation. Dayton v. Erickson , 76 Ohio St.3d 3, 11-12, 665 N.E.2d 1091 (1996) (determining that where a police officer stops a vehicle based on probable cause that a traffic violation has occurred or was occurring, the stop is not unreasonable under the Fourth Amendment to the United States Constitution).

{¶ 26} R.C. 4511.33(A)(1) provides that a vehicle "shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety." Thus, the driver must remain within the lane markings "unless the driver cannot reasonably avoid straying." State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 18.

{¶ 27} The Ohio Supreme Court held in Mays that a traffic stop is constitutionally valid when a law enforcement officer witnesses a motorist "drift" over lane markings, in violation of R.C. 4511.33 at syllabus (finding where the trooper observed appellant twice cross the white edge line, the trooper had reasonable suspicion and probable cause to stop the vehicle). "[W]hen an officer could reasonably conclude from a person's driving outside the marked lanes that the person is violating a traffic law, the officer is justified in stopping the vehicle." Id. at ¶ 20. A traffic stop is lawful even if the traffic violation is minor, or "de minimus." Strongsville v. Spoonamore , 8th Dist. Cuyahoga No. 86948, 2006-Ohio-4884, 2006 WL 2692712, ¶ 12.

{¶ 28} Here, Trooper Morales testified that he observed Collins drive outside of the marked lane approximately four times, "at least a tire's width." And the video footage of the trooper's dashboard camera appears to support the trooper's testimony, depicting at least two instances where Collins's vehicle appears to cross the right edge line. Collins claims that the width of the highway lane was only 10 feet, which is in violation of the federally mandated 12 feet width. He argues that this difference in the width of the lane somehow contributed to his inability to drive within the marked lanes. Collins's defense of his actions, however, is not relevant to whether a law enforcement officer had a reasonable and articulable suspicion to initiate a traffic stop. Mays at ¶ 17 ; Cleveland v. Martin , 2018-Ohio-740, --- N.E.3d ----, ¶ 7. "An officer is not required to determine whether someone who has been observed committing a crime might have a legal defense to the charge." Mays. The initial traffic stop of Collins's vehicle was therefore lawful.

{¶ 29} Collins also contends that Trooper Morales "had no valid reason" to "initiate testing" to determine whether he was under the influence of alcohol.

{¶ 30} A police officer may request a motorist to perform field sobriety tests after the officer has stopped the vehicle for a minor traffic offense, when "the request is separately justified by a reasonable suspicion based upon articulable facts that the motorist is intoxicated." Parma Hts. v. Dedejczyk , 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, 2012 WL 3133243, ¶ 29, citing State v. Evans , 127 Ohio App.3d 56, 62, 711 N.E.2d 761 (11th Dist.1998). Moreover, to evaluate the reasonableness of the request for field sobriety tests, we consider "the totality of the circumstances, viewed through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold." Dedejczyk at ¶ 29, citing State v. Dye , 11th Dist. Portage No. 2001-P-0140, 2002-Ohio-7158, 2002 WL 31862667, ¶ 18.

{¶ 31} In Evans , the court enumerated a nonexhaustive list of factors that courts may consider in evaluating whether an officer had reasonable suspicion to administer field sobriety tests under the totality of the circumstances:

(1) the time of day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning);
(2) the location of the stop (whether near establishments selling alcohol);
(3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.);
(4) whether there is a cognizable report that the driver may be intoxicated;
(5) the condition of the suspect's eyes (bloodshot, glassy, glazed, etc.);
(6) impairments of the suspect's ability to speak (slurred speech, overly deliberate speech, etc.);
(7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect's person or breath;
(8) the intensity of that odor, as described by the officer ("very strong," "strong," "moderate," "slight," etc.);
(9) the suspect's demeanor (belligerent, uncooperative, etc.);
(10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and
(11) the suspect's admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.

Evans at 63, 711 N.E.2d 761, fn. 2. "All of these factors, together with the officer's previous experience in dealing with drunken drivers, may be taken into account by a reviewing court in determining whether the officer acted reasonably." Id.

{¶ 32} Here, the incident occurred at almost 1:30 in the morning. Trooper Morales observed Collins's vehicle drive outside the marked lanes at least four times. When the trooper ran Collins's driver's license through LEADS, the computer showed that Collins was under an administrative license suspension for a "refusal" from a previous OVI stop that occurred approximately one month prior to this stop. When the trooper approached Collins, he observed Collins chewing gum. He asked him to spit the gum out, and when he did, the trooper smelled alcohol on Collins's breath. Collins denied having been drinking. Viewing the totality of circumstances through the eyes of a reasonable and prudent police officer, we believe the trooper reasonably suspected that Collins was driving while intoxicated and he was justified in extending the scope of the detention and requesting Collins to perform the field sobriety tests.

{¶ 33} In the second and third assignments of error, Collins makes certain statements concerning the stop: "The arresting officer misstated comments and answers given by the Defendant and proceeded to ask the Defendant if he would perform a list of test[s] to [e]nsure that he was capable of continuing to drive" and "The arresting officer obtained the acquiescence of the Defendant to participating in the field sobriety test[s] by telling the Defendant he had to ascertain, through the tests, that the Defendant was capable of continuing to drive his vehicle."

{¶ 34} We note that these assignments of error do not comply with App.R. 16(A)(7), which provides that an appellant's brief must include "[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies." The brief, at a minimum, must contain an argument that is supported by legal authority. Inner City Living, Inc. v. Ohio Dept. of Dev. Disabilities , 2017-Ohio-8317, 87 N.E.3d 253, ¶ 15, citing App.R. 16(A)(7). Where an appellant fails to comply with this rule, the reviewing court may disregard the assignment of error. Young v. Kaufman , 2017-Ohio-9015, --- N.E.3d ----, ¶ 44, citing App.R. 12(A)(2). Collins's second and third assignments of error are statements that do not include any legal support. We are therefore not obligated to consider them.

{¶ 35} Nevertheless, to the extent that Collins objects to the alleged "misstatements" of the trooper's testimony or what Collins did or did not say regarding his "acquiescence," we note that this testimony is a credibility issue and is therefore within the province of the jury. Where the appellant raises a factual issue, "the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. And the jury is free to believe all, some, or none of the testimony of each witness appearing before it. State v. Ellis , 8th Dist. Cuyahoga No. 98538, 2013-Ohio-1184, 2013 WL 1279850, ¶ 18.

{¶ 36} Here, the jury weighed the evidence and considered the credibility of the witnesses-Trooper Morales and Collins. In doing so, the jury determined Collins was guilty. We cannot substitute our own judgment for that of the factfinder on issues concerning witness credibility. State v. Awan , 22 Ohio St.3d 120, 489 N.E.2d 277 (1986).

{¶ 37} Collins's first, second, and third assignments of error are overruled.

{¶ 38} Collins contends in his fourth assignment of error that the trial court "denied Defendant's Motion to Suppress." Although Collins once again fails to present an argument that is supported by legal authority, we presume from Collins's brief that Collins objects to Trooper Morales's administration of the field sobriety tests. Collins states that the trooper "slavishly performed a useless procedure known as the Vertical Gaze Nystagmus ("VGN"), which cannot show jittering up or down due to the natural top to bottom dimension of the normal eye." Collins also generally argues "many other types of errors and oversights in the methods and evaluations" of Trooper Morales, without legal support, including an allegation that the NHTSA prohibits an officer from performing field sobriety tests on individuals 65 years and older.

{¶ 39} In moving to suppress the results of a field sobriety test, the defendant must provide an "adequate basis" to seek suppression of the results, which include stating the legal and factual bases " 'with sufficient particularity to place the prosecutor and [the] court on notice as to the issues contested.' " State v. Hunter , 8th Dist. Cuyahoga No. 91110, 2009-Ohio-1239, 2009 WL 712498, ¶ 24, citing State v. Shindler , 70 Ohio St.3d 54, 58, 636 N.E.2d 319 (1994) ; Crim.R. 47. Where the defendant establishes an adequate basis, the prosecutor then bears the burden of demonstrating substantial compliance; and if the prosecutor demonstrates substantial compliance, the burden then shifts to the defendant to overcome the presumption of admissibility. Hunter at ¶ 25.

{¶ 40} This court reviews a denial of a motion to suppress under a mixed standard of review that involves questions of law and fact. Cleveland v. Giering , 2017-Ohio-8059, --- N.E.3d ----, ¶ 12, citing State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In a motion to suppress, "the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility." State v. Curry , 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). The reviewing court must therefore accept the trial court's findings of fact in ruling on a motion to suppress if the findings are supported by competent, credible evidence. Giering ; Burnside . The reviewing court, however, must independently determine whether those facts satisfy the applicable legal standard. Id.

{¶ 41} Under R.C. 4511.19(D)(4)(b), an officer may testify concerning the results of the field sobriety test if the officer administered the test in "substantial compliance" with the testing standards. Therefore, "in order for the results of the field sobriety tests to be admissible, the city must demonstrate by clear and convincing evidence that the officer performing the testing substantially complied with accepted testing standards." State v. Hyppolite , 2016-Ohio-7399, 76 N.E.3d 539, ¶ 47, citing Middleburg Hts. v. Gettings , 8th Dist. Cuyahoga No. 99556, 2013-Ohio-3536, 2013 WL 4244642, ¶ 12 ; Dedejczyk , 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, 2012 WL 3133243, at ¶ 42. The city may demonstrate what the NHTSA standards are through competent testimony and/or by introducing the applicable portions of the NHTSA manual. State v. Boczar , 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 28 ; see State v. Jackman , 8th Dist. Cuyahoga No. 89835, 2008-Ohio-1944, 2008 WL 1822391, ¶ 24 ("Under Ohio law, the state is not required to introduce the NHTSA guidelines or expert testimony.").

{¶ 42} Substantial compliance is not defined in R.C. 4511.19(D)(4)(b) ; therefore, courts have some discretion in determining the " 'substantiability of the compliance.' " Hyppolite at ¶ 48, quoting State v. Perry , 129 Ohio Misc. 61, 2004-Ohio-7332, 822 N.E.2d 862, ¶ 45 (M.C.). Thus, a determination of whether the facts satisfy the substantial compliance standard is made on a case-by-case basis. Hyppolite ; Dedejczyk at ¶ 42.

{¶ 43} Trooper Morales conducted three field sobriety tests on Collins: the HGN test, the WAT test, and the OLS test. Regarding the HGN test, a police officer must instruct a suspect according to the NHTSA manual as follows:

"[A] police officer should instruct the suspect that they are going to check the suspect's eyes, that the suspect should keep their head still and follow the stimulus with their eyes, and that the suspect should do so until told to stop. After these initial instructions are provided, the officer is instructed to position the stimulus approximately 12 to 15 inches from the suspect's nose and slightly above eye level. The officer is then told to check the suspect's pupils to determine if they are of equal size, the suspect's ability to track the stimulus, and whether the suspect's tracking is smooth. The officer then checks the suspect for nystagmus at maximum deviation and for onset of nystagmus prior to 45 degrees."

Cleveland v. Krivich , 2016-Ohio-3072, 65 N.E.3d 279 (8th Dist.), ¶ 15, quoting State v. Secoy , 5th Dist. Muskingum No. CT20080065, 2009-Ohio-5100, 2009 WL 3086549, ¶ 16. Additionally, according to NHTSA standards, the officer must face a suspect away from flashing lights and traffic that is in close proximity to the subject. State v. Stritch , 2d Dist. Montgomery No. 20759, 2005-Ohio-1376, 2005 WL 678938, ¶ 23.

{¶ 44} In evaluating the suspect for impairment, the police officer should look for three indicators: "(1) if the eye cannot follow a moving object smoothly, (2) if jerking is distinct when the eye is at maximum deviation, and (3) if the angle of onset of jerking is within 45 degrees of center." Krivich , citing S. Euclid v. Bautista-Avila , 2015-Ohio-3236, 36 N.E.3d 246, ¶ 11 (8th Dist.).

{¶ 45} Our review of the record indicates that Trooper Morales substantially complied with NHTSA standards in administering the HGN test and found four out of the six clues of impairment. The trooper testified that Collins exhibited lack of smooth pursuit and nystagmus with maximum deviation in both eyes. On cross-examination, the trooper explained that the VGN is part of the HGN test and is "not taken into consideration as a clue." According to Trooper Morales, four clues indicate impairment.

{¶ 46} Regarding the WAT test, the NHTSA manual provides the following instructions:

[A]n officer is required to first instruct the suspect of the initial positioning, which requires the suspect to stand with his arms down at his side, and to place his left foot on a line (real or imaginary). The suspect's right foot is to be placed on the line ahead of the left foot, with the heel of the right foot against the toe of the left foot. The suspect is then told to remain in that position while further instructions are given.

Dedejczyk , 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, 2012 WL 3133243, at ¶ 52, citing State v. Clark , 12th Dist. Brown No. CA2009-10-039, 2010-Ohio-4567, 2010 WL 3733577, ¶ 43. Additionally, during this test, the suspect "walks while touching his heel to his toe for every step, counting the nine steps out loud while walking down the line, and making a turn with small steps with one foot while keeping the other foot on the line." Finally, the officer must demonstrate three heel-to-toe steps. Brookpark v. Key , 8th Dist. Cuyahoga No. 89612, 2008-Ohio-1811, 2008 WL 1747442, ¶ 89.

{¶ 47} Again, we find the record demonstrates that Trooper Morales substantially complied with the NHTSA standards concerning the WAT test. He properly instructed Collins regarding the process, and he demonstrated the test for Collins. The trooper testified that he observed three out of a possible eight clues of impairment during this test-beginning before instructed, not touching heel-to-toe, and incorrectly turning. Trooper Morales testified that two clues are indicative of impairment. The trooper stated that he took into consideration Collins's age (70 years old at the time of the incident) in the performance of the WAT test; however, there is no NHTSA prohibition on administering this test on someone of Collins's age.

{¶ 48} Concerning the OLS test, the NHTSA manual requires

the officer to instruct subjects to begin the test with their feet together and keep their arms at their side for the entire test. The officer must also tell the suspects that they must raise one leg, either leg, six inches from the ground and maintain that position while counting out loud for thirty seconds. NHTSA standards provide that the counting should be done in the following manner: "one thousand and one, one thousand and two, until told to stop."

Dedejczyk at ¶ 49, quoting Clark at ¶ 36.

{¶ 49} We find once again that Trooper Morales substantially complied with NHTSA standards in administering the OLS test. He testified that Collins indicated he had difficulty with his right leg, but the trooper gave Collins the option of not performing the test and Collins chose to proceed with the test. Trooper Morales observed two of the six possible clues of impairment-swaying while counting and dropping a foot. Two clues are indicative of impairment. The trooper stated, and the video depicts, that Collins "basically almost fell at one point in time."

{¶ 50} Based upon the uncontradicted testimony of Trooper Morales, we find that the trial court relied upon competent, credible evidence in determining that the trooper's administration of the field sobriety tests substantially complied with the NTHSA standards. Collins's fourth assignment of error is therefore overruled.

{¶ 51} In his final assignment of error, Collins contends that the trial court erred when it denied his motion to dismiss based upon speedy trial violations. He argues that speedy trial time was violated due to motions made by the prosecutor, delays in receiving discovery, and other extensions such as the prosecutor's or arresting officer's unavailability.

{¶ 52} R.C. 2945.71(B)(2) provides that a defendant charged on a first-degree misdemeanor must be brought to trial within 90 days after arrest or service of summons. The statutory speedy trial period begins to run on the date the defendant is arrested, although the date of arrest is not counted when calculating speedy trial time. State v. Wells , 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, 2013 WL 4680491, ¶ 44. If the defendant is not arrested for the offense, speedy trial time begins on the day he is served with the indictment. State v. Pirkel , 8th Dist. Cuyahoga No. 93305, 2010-Ohio-1858, 2010 WL 1712259, ¶ 12.

{¶ 53} Speedy trial time may, however, be tolled by certain events delineated in R.C. 2945.72. These events include: delay "necessitated by the accused's lack of counsel"; delay "necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused, and any continuances granted upon the accused's own motion"; the "period of any continuance granted on the accused's own motion" as well as the period of "any reasonable continuance granted" upon any other party's motion; and the time during which an appeal is pending. R.C. 2945.72(C), (E), (H), and (I).

{¶ 54} A defendant's demand for discovery tolls the speedy trial time until the state responds to the discovery, or for a reasonable time, whichever is sooner. State v. Shabazz , 8th Dist. Cuyahoga No. 95021, 2011-Ohio-2260, 2011 WL 1797269, ¶ 26, 31 ; R.C. 2945.72(E). This court has interpreted "reasonable response time" to mean 30 days. See Shabazz at ¶ 26 ; State v. Byrd , 8th Dist. Cuyahoga No. 91433, 2009-Ohio-3283, 2009 WL 1912699, ¶ 9 ;

State v. Barb , 8th Dist. Cuyahoga No. 90768, 2008-Ohio-5877, 2008 WL 4885042, ¶ 9. However, what is reasonable or necessary is determined on a case-by-case basis. Pirkel at ¶ 17, citing State v. Saffell , 35 Ohio St.3d 90, 518 N.E.2d 934 (1988).

{¶ 55} Moreover, motions filed by the defendant tolls the speedy trial time under R.C. 2945.72(E) for a "reasonable period" to allow the prosecution an opportunity to respond and the court an opportunity to rule. State v. Sanchez , 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 26. A motion to suppress evidence, for example, will toll the speedy trial time. State v. Gibson , 8th Dist. Cuyahoga No. 100727, 2014-Ohio-3421, 2014 WL 3867469, ¶ 20.

{¶ 56} Motions to continue that are filed by the prosecution may also toll speedy trial time so long as the trial record affirmatively demonstrates the necessity for a continuance and the reasonableness thereof. State v. Myers , 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186. Shabazz at ¶ 29. Specifically, a prosecutor's motion to continue based upon the unavailability of a witness will toll the speedy trial provisions if the length of the delay is reasonable. Shabazz citing Saffell ; see also State v. Lee , 48 Ohio St.2d 208, 357 N.E.2d 1095 (1976) (The reasonableness of a continuance is determined by examining the purpose and length of the continuance.). And finally, scheduling and docketing conflicts are reasonable grounds for extending an accused's trial date beyond the speedy trial time. Gibson at ¶ 19, citing Lee ; Saffell at 92, 518 N.E.2d 934.

{¶ 57} We must strictly construe any ambiguity in the record in favor of the accused. State v. Scahel , 8th Dist. Cuyahoga No. 102557, 2016-Ohio-18, 2016 WL 107894, ¶ 10.

{¶ 58} Here, Collins was cited on September 24, 2014. He was arraigned on September 29, 2014, at which time a judge was assigned and a pretrial scheduled for October 9, 2014. At this point, the speedy trial time was 15 days.

{¶ 59} During the October pretrial, Collins was not represented and he was informed of his right to counsel. He filed a demand for discovery, and the pretrial was continued at Collins's request until November 5, 2014. At the continued pretrial, Collins waived his right to counsel. The record indicates that discovery was ongoing and Collins requested a continuance until November 26, 2014.

{¶ 60} Collins contends that the trooper "kept forgetting" to bring to court the requested video demanded during discovery and this failure caused "several delays." We note, however, that there is no evidence in the record that the trooper caused any delays; rather, the court's docket indicates that the pretrials were continued at the defendant's request. Moreover, even if the trooper did, in fact, fail to turn over the video at some point during these pretrial proceedings, we cannot find this delay unreasonable, nor do we find it counted toward Collins's speedy trial time. The discovery demand was made on October 9, which tolls the speedy trial time for a reasonable response time of 30 days, and on November 12, 2014, Collins filed a motion to suppress, which also tolls the speedy trial time. The period of time between Collins's discovery demand and his motion to suppress was 34 days. Under the circumstances, we find Collins's speedy trial time was tolled during this period.

{¶ 61} On November 26, 2014, Collins filed a supplemental motion to suppress, which further tolled the speedy trial time. The city filed its timely opposition to Collins's motions to suppress and a response to Collins's discovery demand on December 3, 2014. The trial court held a hearing on Collins's motion on December 17, 2014, which was within 30 days of the filing of the motion and therefore presumptively reasonable. The court denied Collins's motion to suppress on January 7, 2015, which was also a reasonable time. All of this time was therefore tolled.

{¶ 62} On January 15, 2015, Collins filed his motion to dismiss for speedy trial violations pursuant to R.C. 2945.71. The period of time between the court's ruling on Collins's motion to suppress and Collins's filing of the motion to dismiss was 8 days, thereby providing a total of 23 days on the speedy trial clock. His motion to dismiss tolls the time period yet again, until the motion is ruled upon. There is no record in this case, however, of the court ruling on this motion. As such, it is deemed denied. State v. Carter , 8th Dist. Cuyahoga No. 104653, 2017-Ohio-5573, 2017 WL 2814010, ¶ 3. And in calculating the speedy trial time for the court to rule on Collins's motion, we apply a reasonable 30-day time period. See Gibson , 8th Dist. Cuyahoga No. 100727, 2014-Ohio-3421, 2014 WL 3867469, at ¶ 22. Thus, the time is tolled until February 15, 2015.

{¶ 63} The court's docket indicates that a bench trial scheduled for February 5, 2015, was continued at the prosecutor's request to February 19, 2015. There is no reason stated, and no apparent motion filed. And on February 19, the record shows that this hearing was continued per Collins's request and the court scheduled a jury trial for April 2, 2015. In strictly construing any ambiguity in the record in favor of Collins, we charge an additional 4 days to the city-from February 15, when the last tolling period ended, to February 19, when Collins requested a continuance that commenced a new tolling event. The speedy trial time up to this point was 27 days.

{¶ 64} On March 25, 2015, the prosecutor filed a motion to continue the jury trial scheduled for April 2, 2015. The prosecutor stated that it was the city's first continuance requested of the jury trial, noting that the trial was scheduled in his absence while he was on bereavement leave, and he was unavailable on that April date due to a conflict. The court continued the trial until April 30, 2015. Finding the record demonstrates the need for a continuance and the request is reasonable, we find the prosecutor's motion is a tolling event.

{¶ 65} We note, that even if we were to find the prosecutor's request unreasonable, thus charging the additional 28-day period to the state, Collins's speedy trial time would have amounted to 55 days at this point, which is within the statutory speedy trial time.

{¶ 66} On April 30, the trial was continued once again, this time at Collins's request, and the court rescheduled the trial for May 28, 2015. On this May date, Collins signed a waiver of speedy trial, consenting to a continuance of the matter beyond the statutory period. At this point, based on our calculations, and considering the numerous tolling events, only 27 days of speedy trial time had elapsed, which is well below the 90 days for a speedy trial.

{¶ 67} Collins's right to a speedy trial was therefore not violated. Accordingly, Collins's fifth assignment of error is overruled.

{¶ 68} Judgment affirmed.

MARY J. BOYLE, J., and SEAN C. GALLAGHER, J., CONCUR

      The city asserts in its appellee brief that the prosecutor requested this continuance due to its witness, Trooper Morales, attending training. The court's record, however, contains no explanation for the continuance.