author: CYNTHIA WESTCOTT RICE, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Edward Eugene THOMAS, Defendant-Appellant.
    NO. 2017-A-0059
    Court of Appeals of Ohio, Eleventh District, Ashtabula County.
    Decided March 19, 2018
    Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
    Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Defendant-Appellant).
   CYNTHIA WESTCOTT RICE, J.

{¶ 1} Appellant, Edward Eugene Thomas, appeals from the judgment of the Ashtabula County Court of Common Pleas, concluding he violated his community control sanctions and imposing a 36-month term of imprisonment. At issue is whether the trial court committed error in rendering its written judgment and failing to afford appellant an opportunity for allocution before entering sentence. For the reasons that follow, we affirm in part, reverse in part, and remand the matter for further proceedings.

{¶ 2} On February 4, 2016, appellant was indicted on two counts of illegal assembly or possession of chemicals for the manufacture of drugs, in violation of R.C. 2925.041(A), felonies of the third degree. Ultimately, appellant pleaded guilty to one count and, on October 27, 2016, he was sentenced to two years intensive community control with zero days jail-time credit. Appellant was also informed that, should he violate his community-control sanction, the court could impose a prison term of up to 36 months.

{¶ 3} On June 15, 2017, an arrest warrant was issued for appellant due to an allegation that he violated his community-control sanctions. The matter came on for hearing on August 17, 2017, at which time, testimony was taken from John Grzincic, appellant's supervisor with the adult parole authority; as well as appellant's former girlfriend, Tonya Durkin. Mr. Grzincic testified the adult parole authority became involved in the alleged violation after it received a complaint stating appellant had assaulted Ms. Durkin. Based upon the complaint, the adult parole authority filed for a violation of one or more of the conditions of appellant's community control sanctions; namely, the condition that appellant obey all federal, state, and local laws and ordinances and conduct himself as a reasonable, law-abiding citizen.

{¶ 4} Ms. Durkin testified she was with appellant and appellant's father on the night of the incident. She was highly intoxicated and dancing with appellant's father at a bar located in Geneva-on-the-Lake. Later, as they were preparing to leave in appellant's car, appellant became angry and "popped" Ms. Durkin in the mouth. As she attempted to exit the vehicle, appellant grabbed her, which, she testified, left scratch marks on her back and broke her necklace. Appellant exited the vehicle and left the scene. Police were called and appellant was arrested.

{¶ 5} After hearing evidence, the trial court found appellant in violation of his community-control sanctions and ordered him to serve the 36-month term. This appeal follows. Appellant assigns the following as error:

{¶ 6} "The trial court erred when it violated the rights afforded appellant under Crim.R. 32 and the U.S. Supreme Court case Gagnon v. Scarpelli ."

{¶ 7} Appellant submits two issues for this court's review. He first contends the trial court erred when it failed to give him an opportunity for allocution prior to entering sentence, pursuant to Crim.R. 32(A)(1). He also contends the trial court erred in failing to provide him a written statement of the evidence it relied upon in finding he violated community control. We shall address the second issue first.

{¶ 8} "A defendant is entitled to due process when his community control is revoked as the result of a violation of a condition imposed on that control." State v. Cunningham , 2d Dist. Clark Nos. 2014-CA-99, 2015-Ohio-2554, 2015 WL 3932447, ¶ 11 citing Gagnon v. Scarpelli , 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The due process rights to which an alleged violator is entitled in a community control revocation hearing are: (1) written notice of the claimed violations of community control; (2) disclosure of evidence against him; (3) an opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a neutral and detached hearing body; and (6) a written statement by the fact finder as to the evidence relied upon and the reasons for revoking community control. Gagnon, supra , at 786, 93 S.Ct. 1756, quoting Morrissey v. Brewer , 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

{¶ 9} Appellant contends the trial court failed to provide a written statement of the evidence upon which it relied in concluding he violated his community control. We do not agree.

{¶ 10} In its August 17, 2017 judgment entry, the trial court observed:

{¶ 11} Upon inquiry by the Court, the evidence was taken on the record and based on the evidence the Court finds and concludes that the defendant has in fact violated the terms of community control, in that the defendant on or about 6/3/17, in the vicinity of Jolley Drive, Geneva-on-the-Lake, Ohio the Defendant caused or attempted to cause physical harm to Tanya Durkin.
{¶ 12} The Court further finds that his actions were in violation of condition Number One, which REQUIRES him TO CONDUCT himself AS A RESPONSIBLE LAW ABIDING CITIZEN.

{¶ 13} Appellant does not take issue with the sufficiency of the evidence or the substance of the court's determination. Because the court provided appellant with a written basis of the evidence upon which it relied as well as the condition appellant violated, we conclude the court complied with Gagnon .

{¶ 14} Next, appellant argues he was denied his right to allocution prior to the court's imposition of the 36-month term of imprisonment. In support, appellant cites State v. Heinz , 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965. In Heinz , the Court was asked to resolve whether a prosecutor is entitled to represent the state, i.e., notice and an opportunity to be heard, in community-control violation hearings. The Court responded in the affirmative, stating:

{¶ 15} The prosecuting attorney has the authority to prosecute all complaints, suits, and controversies in which the state is a party, and because the state is a party to community control violation proceedings, because it has the burden of proving that a violation occurred, because it maintains an interest in ensuring that the proper sentence is imposed to punish and rehabilitate the offender while protecting the safety of the public, and because it is responsible for preserving error for appeal, the state, through the prosecuting attorney, is entitled to notice and an opportunity to be heard in all such hearings. Id. at ¶ 2.

{¶ 16} With respect to the issue of being heard, the Court observed:

{¶ 17} R.C. 2929.19(A) and Crim.R. 32(A)(2) direct the trial court at the time of imposing sentence to afford the prosecuting attorney the right to appear and speak on behalf of the state, because it has an interest in ensuring that a proper sentence is imposed to punish and rehabilitate the offender while protecting the public, R.C. 2929.11(A). These same statutes apply when the court decides the appropriate sentence for a community control violation. Heinz , supra , at ¶ 19.

{¶ 18} Although Heinz implicitly recognizes a violator's right to some form of allocution, by noting that R.C. 2929.19(A), which requires the court to "ask the offender whether the offender has anything to say as to why sentence should not be imposed upon the offender," applies to the proceedings. The Court, however, was not asked to address the application of Crim.R. 32(A)(1), which requires the court to "address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment." Accordingly, Heinz appears to be directly limited to a prosecutor's rights during a violation hearing.

{¶ 19} Subsequent to Heinz , however, the Court explicitly held "that a trial court must afford an offender an opportunity for allocution at a community-control-revocation hearing before imposing a sentence for violating the conditions of community control." State v. Jackson , 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d 1237, ¶ 1. In Jackson , the Court underscored that a community-control-revocation hearing is also a sentencing hearing and, as such, both R.C. 2929.19(A) and Crim.R. 32(A)(1) apply during violation hearings. Jackson , supra , at ¶ 11.

{¶ 20} The state points out that this court, in State v. Gibson , 11th Dist. Portage No. 2013-P-0047, 2014-Ohio-433, 2014 WL 530242, concluded "there is no right of allocution at a probation revocation hearing." Id. at ¶ 40 ; see also State v. Payne , 2015-Ohio-5073, 53 N.E.3d 872, ¶ 34 (relying on Gibson , this court again held an offender has no right to allocution at a revocation hearing). While this court's previous precedent held an offender was not entitled to allocution at a revocation hearing, those cases are overruled to the extent they conflict with the Supreme Court's holding in Jackson , supra .

{¶ 21} That said, the state does not dispute the court failed to offer appellant the opportunity to make a statement. Instead, the state emphasizes, appellant was afforded his right to allocution during the original hearing. And, it maintains the court was not required to afford appellant an opportunity at the violation hearing because it purportedly informed appellant at his original sentencing hearing that, in the event of a violation of community control, it would impose the 36-month sentence. The state's position misconstrues the nature of the violation-hearing procedure.

{¶ 22} In Heinz , the Court emphasized that the revocation of community control is an exercise of the sentencing court's criminal jurisdiction. To wit, pursuant to R.C. 2929.15(B)(1), "the court may extend the term of the offender's community control or impose a more restrictive sanction or a prison term if the conditions of community control are violated." Heinz , supra , at ¶ 15. As such, " '[f]ollowing a community control violation, the trial court conducts a second sentencing hearing . At this second hearing, the court sentences the offender anew and must comply with the relevant sentencing statutes." Id. , quoting State v. Fraley , 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17 ; see also Jackson , supra , at ¶ 11. Accordingly, the substance and procedure of the original sentencing hearing is of no moment; after a court finds a violation, a violator, pursuant to Jackson and the relevant statutes and rules upon which it relied, is entitled to make a statement anew prior to the court's imposition of sentence.

{¶ 23} With these points in mind, the question of remedy must be addressed. In Jackson , supra , the court noted that a court's failure to give a violator an opportunity for allocution requires resentencing, absent invited or harmless error. The Court stated that even though Jackson did not identify what he would have stated as mitigation, such a showing is unnecessary. Id. at ¶ 16. The Court observed that requiring a violator to proffer what he would have stated to establish the lack of harmless error would require him to present new evidence outside the record. Id. The court appeared to conclude that such a burden would be inequitable. Regardless of this point, this court has previously held that " '[t]he failure to grant allocution is not harmless error when a defendant is denied the opportunity to address evidence introduced and considered by the trial court at sentencing.' " State v. Brown , 166 Ohio App.3d 252, 2006-Ohio-1796, 850 N.E.2d 116, ¶ 11, quoting State v. Castle , 4th Dist. Lawrence No. 03CA24, 2004-Ohio-1992, 2004 WL 845111, ¶ 9.

{¶ 24} Here, the error was neither invited nor harmless. Furthermore, the trial court denied appellant his opportunity for allocution. We therefore conclude the matter must be reversed and remanded for resentencing on the violation.

{¶ 25} Appellant's assignment of error is sustained in part and overruled in part.

{¶ 26} Because we hold the trial court did not err in finding appellant in violation of his community control, that aspect of the proceedings is affirmed. To the extent, however, the trial court did not give appellant the opportunity to address the court in mitigation prior to imposing sentence, the matter is reversed and remanded for resentencing on the violation. The judgment of the Ashtabula County Court of Common Pleas is therefore affirmed in part, reversed in part, and remanded.

DIANE V. GRENDELL, J., TIMOTHY P. CANNON, J., concur.


source: Caselaw Access Project

author: PIPER, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Kimball Lee PETTIFORD, Defendant-Appellant.
    NO. CA2017-05-010
    Court of Appeals of Ohio, Twelfth District, Fayette County.
    March 19, 2018
    Jess C. Weade, Fayette County Prosecuting Attorney, 110 East Court Street, 1st Floor, Washington C.H., Ohio 43160, for plaintiff-appellee
    Steven H. Eckstein, 1208 Bramble Avenue, Washington C.H., Ohio 43160, for defendant-appellant
   PIPER, J.

{¶ 1} Defendant-appellant, Kimball Pettiford, appeals his convictions in the Fayette County Court of Common Pleas for possession of heroin, possession of drug abuse instruments, and illegal possession of drug abuse paraphernalia.

{¶ 2} The Washington Courthouse Police Department received a report of a possible drug overdose and responded to Pettiford's home. Upon arrival, Pettiford was located lying on his back and unresponsive on his front porch. While waiting for the medical responders to arrive, the responding officer observed through a closed screen door a dog leash looped through itself to form a tourniquet, as well as hypodermic syringes sitting on the table within six to seven feet inside Pettiford's home. Police announced their presence, but no one answered inside the home.

{¶ 3} Pettiford regained consciousness and claimed that he had been consuming alcohol and that he had not been inside the house the entire day. Police placed Pettiford in a police cruiser after he refused medical assistance. Police then seized the dog leash, hypodermic syringes, a cup, a spoon, and a cotton ball. Officers also seized a white piece of paper containing a powder substance and a small rock near the paper. Officers performed a field test of the seized substances, and the test was positive for heroin.

{¶ 4} Pettiford was arrested and later indicted for possession of heroin, drug instruments, and drug abuse paraphernalia. Pettiford pled not guilty, and filed a motion to suppress the items seized from his home. After a hearing on the matter, the trial court overruled the motion to suppress. Pettiford's defense counsel later moved to withdraw from representation, claiming a breakdown in communication after Pettiford blamed counsel for the trial court's denial of the motion to suppress. The trial court granted defense counsel's motion to withdraw, and appointed Pettiford new counsel.

{¶ 5} Pettiford ultimately pled no contest to the charges, and the trial court found him guilty on each. The state and Pettiford submitted an agreed sentence, which was accepted by the trial court, of six months on count one, 90 days on count two, and 30 days on count three, with all sentences to be served concurrently. Pettiford now appeals his convictions, raising the following assignments of error.

{¶ 6} Assignment of Error No. 1:

{¶ 7} THE TRIAL COURT ERRED IN APPLYING THE PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT IN DENYING PETTIFORD'S MOTION TO SUPPRESS IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.

{¶ 8} Pettiford argues in his first assignment of error that the trial court erred in denying his motion to suppress.

{¶ 9} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When considering a motion to suppress, the trial court assumes the role of the trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Id. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Id. Accepting these facts as true, the appellate court must then independently determine, as a matter of law, and without deference to the trial court's conclusions, whether the trial court applied the proper legal standard. Id.

{¶ 10} The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their * * * houses * * * against unreasonable searches and seizures." Warrantless searches are per se unreasonable unless one of the well-delineated exceptions applies. State v. Kelley , 12th Dist. Butler No. CA2009-03-092, 2009-Ohio-5924, 2009 WL 3721018.

{¶ 11} If an individual does not act to preserve the privacy afforded by the Fourth Amendment, "such as by leaving an object in the plain view of the public, then the state has not 'searched' within the meaning of the Constitution, because the individual has exposed those objects to others rather than keeping them to himself." State v. Buzzard , 112 Ohio St.3d 451, 2007-Ohio-373, 860 N.E.2d 1006, ¶ 15.

{¶ 12} Although society generally respects a person's expectations of privacy in a dwelling, what a person chooses voluntarily to expose to public view thereby loses its Fourth Amendment protection. Id. at ¶ 15. Instead, the "police are free to observe whatever may be seen from a place where they are entitled to be." Id. "Simply put, the Fourth Amendment does not itself 'draw the blinds the occupant could have drawn but did not.' " Id. , quoting State v. Smith , 37 N.J. 481, 496, 181 A.2d 761 (N.J.1962).

{¶ 13} These Fourth Amendment principles are inherent in the plain view doctrine. Buzzard , 2007-Ohio-373, 112 Ohio St.3d 451, 860 N.E.2d 1006. The doctrine represents the requirement that an individual must protect his or her privacy, and should an officer observe items in plain view when lawfully on the property, no warrant is required. Id. Thus, it is well-established that pursuant to the plain view doctrine, a police officer lawfully on a person's property may seize evidence in plain view without a warrant. State v. Young , 12th Dist. Warren, 2015-Ohio-1347, 31 N.E.3d 178.

{¶ 14} The plain view doctrine authorizes the warrantless seizure of evidence if the initial intrusion leading to the discovery of the evidence was lawful and the incriminating or illegal nature of the items was immediately apparent. State v. Simmons , 12th Dist. Butler, 2013-Ohio-5088, 5 N.E.3d 670, ¶ 18. The "immediately apparent" requirement is satisfied when police have probable cause to associate an object with criminal activity. Young , 2015-Ohio-1347, 31 N.E.3d 178. The requisite probable cause may arise from the character of the property itself or the circumstances in which it is discovered, and police officers may rely on their specialized knowledge, training, and experience in establishing probable cause to identify items as contraband. Id.

{¶ 15} Another exception to the warrant requirement occurs when officers encounter exigent circumstances. The Ohio Supreme Court applies exigent circumstances as an exception to the warrant requirement for instances of both search and seizure. State v. Moore , 90 Ohio St.3d 47, 734 N.E.2d 804 (2000). "The exigencies of [a] situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." State v. Fletcher , 12th Dist. Brown, 2017-Ohio-1006, 86 N.E.3d 591, ¶ 33. This exception justifies a warrantless entry into a residence in certain situations, including when entry is necessary to protect the safety and well-being of police officers or others. Id. The Fourth Amendment considers a warrantless entry reasonable as long as the circumstances, when viewed objectively, justify the entry. Brigham City v. Stuart , 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006).

{¶ 16} "The exigent circumstances doctrine requires probable cause plus exigent circumstances to effectuate a warrantless entry of [a] home." State v. Wilson , 12th Dist. Clinton No. CA2006-03-008, 2007-Ohio-353, 2007 WL 210367, ¶ 22. "Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that [an] offense has been committed." State v. Perez , 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 73. In determining whether probable cause exists, a court must look at the "totality of the circumstances." State v. Christopher , 12th Dist. Clermont No. CA2009-08-041, 2010-Ohio-1816, 2010 WL 1660489, ¶ 16. Probable cause is viewed under an objective standard. State v. Watson , 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-2321, 2015 WL 3672548, ¶ 14.

{¶ 17} During the hearing on Pettiford's motion to suppress, the state presented evidence that officers seized the items from Pettiford's house with constitutional authority. First, and regarding plain view, the record is clear that officers were legally on the premises because they were responding to an emergency call that someone had overdosed at Pettiford's residence. Upon arrival, officers located Pettiford on the front porch of his home and were legally on the premises as first responders to offer emergency assistance.

{¶ 18} The responding officer testified at the hearing that when he arrived at Pettiford's residence, he observed the unresponsive Pettiford lying on the porch. The officer then approached to check Pettiford's vital signs, entering the porch area necessarily. Once there, the officer could see into the living room through the open front door and closed screen door. The officer testified that the items of contraband were approximately six to seven feet away from him when he initially made his observation. The officer clearly observed a dog leash fashioned into a tourniquet and well as hypodermic syringes. The officer seized the items he observed in plain view, and only those items.

{¶ 19} In addition to being on the premises legally, we also find that the incriminating or illegal nature of the items was immediately apparent and that officers had probable cause to associate the objects with criminal activity. The officer testified that the dog leash was looped through itself to be used as a tourniquet and that he also observed syringes on the table. Tourniquets and syringes are drug paraphernalia commonly used to assist in the injection of heroin, and the nature of the items was immediately apparent to associate them with drug use. Thus, the requirements for application of the plain view doctrine are clearly present.

{¶ 20} Moreover, we find that there was probable cause to establish the existence of exigent circumstances during the time that officers provided emergency assistance to Pettiford and during the time officers entered the home. The responding officer testified that he and other officers did not know if anyone else was in the home as they provided aid to Pettiford. The officer further testified that part of his decision to enter the home while waiting for the life squad to arrive was specific to not knowing if anyone else was in the home.

{¶ 21} This evidence supports the warrantless entry into Pettiford's home and seizure of the contraband in plain view. The officers were unaware if anyone else was in the home at the time they arrived and began offering emergency assistance to Pettiford. It was reasonable for officers to objectively question their safety or the safety of others given that Pettiford had exited his house after a drug overdose, was unresponsive, and could not inform officers if anyone else was inside the home.

{¶ 22} It was also reasonable for officers to objectively question whether anyone else in the home also overdosed and required medical assistance. The record clearly indicates the presence of multiple syringes and the existence of additional drugs on the table in the home. The police would have been remiss to not check the home for others potentially in need of medical attention. While police announced their presence and received no response, a person suffering from an overdose would not be able to answer or to indicate the need for attention. It was up to the police to ascertain whether anyone in the home needed assistance based on the circumstances objectively present at the time. Moreover, it was necessary for officers to investigate whether there were children inside who needed assistance. Any of these reasons support the officers' entrance into the home to determine the circumstances therein as they related to their safety or the safety of others.

{¶ 23} We also recognize the possibility that someone inside the home, even if not a threat to officers or otherwise in need of medical care, could have interfered with the officers' ability to seize the contraband had officers stopped to secure a warrant. The testifying officer clearly observed multiple syringes, thus indicating the possibility that someone else was in the home and had reason to remove the suspected drugs and drug paraphernalia because they were incriminating evidence. While Pettiford relies on the fact that the responding officer announced his presence twice and received no answer from the house, it is entirely reasonable for an officer to believe that another drug user in the house would not willingly acknowledge his or her presence at an obvious crime scene.

{¶ 24} The dissent would have the police walk away from an unsecured residence with drugs and syringes inside or, in the alternative, have new officers called to the scene and enter the residence for the undaunting task of guarding the immediately-apparent contraband in order that the responding officers can leave to obtain a search warrant for purposes of entering and seizing the contraband being guarded. Such a suggestion is unworkable and inconsistent with the very rationale which carved out the plain view and exigent circumstance exceptions to the requirement of a warrant.

{¶ 25} The finding of probable cause for exigent circumstances is based on the totality of the circumstances, and is an objective determination. The circumstances were such that officers arrived after an emergency call, found Pettiford unresponsive, tried to provide medical assistance, and did not know if anyone else was inside the home as a threat, someone in need of medical assistance, or someone who could destroy evidence. As such, there was probable cause to support the officers' entrance into Pettiford's home based upon exigent circumstances.

{¶ 26} After reviewing the record, we find that the warrantless search was nonetheless reasonable based on the plain view doctrine and exigent circumstances. As such, Pettiford's first assignment of error is overruled.

{¶ 27} Assignment of Error No. 2:

{¶ 28} TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN VIOLATION OF PETTIFORD'S RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

{¶ 29} Pettiford argues in his second assignment of error that he received ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, appellant must show his trial counsel's performance was deficient, and that he was prejudiced as a result. State v. Clarke , 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, 2016 WL 5874478, ¶ 49 ; Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Trial counsel's performance will not be deemed deficient unless it fell below an objective standard of reasonableness. Strickland at 688, 104 S.Ct. 2052. To show prejudice, appellant must establish that, but for his trial counsel's errors, there is a reasonable probability that the result of his trial would have been different. Id. at 694, 104 S.Ct. 2052.

{¶ 30} The failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. State v. Burns , 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, 2014 WL 5316515, ¶ 7.

{¶ 31} After reviewing the record, we find that Pettiford received effective assistance of counsel. The record is clear that defense counsel argued the motion to suppress and presented cogent arguments as to why the motion should be granted. While the trial court overruled the motion, its decision does not render defense counsel's assistance in the matter deficient. There is no indication in the record that the results of the motion to suppress would have been different had defense counsel taken a different approach or presented other evidence. This is especially true where the items seized were clearly in plain view and exigent circumstances existed to permit officers to perform the warrantless seizure of the drugs and related paraphernalia.

{¶ 32} Having found that Pettiford received effective assistance of counsel, we overrule his second assignment of error.

{¶ 33} Judgment affirmed.

RINGLAND, P.J., concurs.

M. POWELL, J., dissents.

{¶ 34} I dissent from the majority's affirmance of the trial court's denial of Pettiford's motion to suppress.

{¶ 35} The trial court denied Pettiford's motion to suppress the warrantless seizure of the heroin, drug abuse instruments, and drug paraphernalia (the "contraband") based upon the plain view doctrine and the exigent circumstances exception to the Fourth Amendment's warrant requirement. However, the record does not establish that the plain view doctrine or exigent circumstances authorized the warrantless entry into Pettiford's home to seize the contraband. Thus, the motion to suppress should have been granted.

{¶ 36} This case involves a warrantless entry into a person's home and a warrantless seizure of contraband. "Where there is no search warrant, the burden falls on the state to show that a search comes within one of the judicially recognized exceptions." State v. Akron Airport Post No. 8975 , 19 Ohio St.3d 49, 51, 482 N.E.2d 606 (1985). See also Xenia v. Wallace , 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988) ; State v. Taylor , 77 Ohio App.3d 223, 225, 601 N.E.2d 541 (12th Dist. 1991). Thus, Pettiford is not required to establish that the seizure of the contraband was illegal. Rather, it is incumbent upon the state to show that either the plain view doctrine or the exigent circumstances exception to the warrant requirement authorized the warrantless seizure of the contraband under the Fourth Amendment.

{¶ 37} The United States Supreme Court has described the plain view doctrine as follows:

It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view, its incriminating character must also be "immediately apparent." * * * Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.

(Citations omitted.) Horton v. California , 496 U.S. 128, 136-137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). See also State v. Spence , 12th Dist. Butler No. CA2002-05-107, 2003-Ohio-4237, 2003 WL 21904788, ¶ 24 ; Ohio Dept. of Liquor Control v. Fraternal Order of Eagles Aerie 2293 , 112 Ohio App.3d 94, 98, 677 N.E.2d 1254 (10th Dist. 1996) ; and State v. Wangul , 8th Dist. Cuyahoga No. 79393, 2002 WL 228844, at *4 (Feb. 14, 2002).

{¶ 38} Because the requirements of the plain view doctrine that an officer be "lawfully located in a place from which the object can be plainly seen" and that the officer "have a lawful right of access to the object itself" oftentimes coincide, it is easy to confuse these two elements as one and the same. However, as the facts of this case illustrate, there are occasions where these elements do not coincide, thus requiring that they be independently satisfied. Accordingly, a police officer must not only be constitutionally located in a place from which the item to be seized is plainly visible, but he must also be able to access the item consistent with the Fourth Amendment. It is upon the legal right of access element of the plain view doctrine that the seizure of the contraband in this case fails to satisfy constitutional muster.

{¶ 39} The police had a lawful right to be on Pettiford's porch as an incident of their response to the report of Pettiford's apparent overdose. It was from this lawful vantage point that the police observed, in open view, the contraband in Pettiford's home that was eventually seized. This observation did not violate the Fourth Amendment. In fact, this observation, in conjunction with Pettiford's condition when the police arrived on the scene, established probable cause to enter Pettiford's home and seize the contraband.

Nonetheless,
the limits on the [plain view] doctrine are implicit in the statement of its rationale. The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle * * * that no amount of probable cause can justify a warrantless search or seizure absent "exigent circumstances." Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.

(Emphasis sic.) Coolidge v. New Hampshire , 403 U.S. 443, 468, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

{¶ 40} In commenting upon these implicit limitations of the plain view doctrine, the Fourth Appellate District has observed that "while the observation of something that is in 'open view' does not amount to a search, this discovery does not justify a subsequent warrantless seizure absent some specific exception to the warrant requirement." State v. Bradford , 4th Dist. Adams No. 09CA880, 2010-Ohio-1784, 2010 WL 1632318, ¶ 36. Hence, the officer's mere observation of the contraband lying on Pettiford's coffee table, through the screen door on Pettiford's porch, did not justify the warrantless entry into Pettiford's home to access and seize that contraband.

{¶ 41} The state relies upon the plain view doctrine and our opinion in State v. Young , 12th Dist. Warren, 2015-Ohio-1347, 31 N.E.3d 178, to argue that the lawful presence of the police on Pettiford's porch, within the curtilage of the home, was all that was necessary to justify their warrantless entry into the home to seize the contraband. In Young , we held that a police officer was lawfully within the curtilage of Young's home when the officer entered the rear patio to conduct a "knock and talk." While on the patio, the officer observed a garbage can sitting on the patio with an open trash bag containing evidence of the manufacture of methamphetamine. We determined that the plain view doctrine applied to the seizure of the evidence because a "knock and talk" provided a legitimate law enforcement purpose for the officer to be within the curtilage of the home on the patio. Young provides an excellent contrast to this case, illustrating the "lawful right of access to the object" element of the plain view doctrine. The evidence seized pursuant to the plain view doctrine in Young was outside on the patio where the officer had a right to be, thus providing the officer with a lawful right of access to the evidence. In this case, the evidence was inside the home. Although the responding officer had a right to be on Pettiford's front porch, that right did not extend to the interior of the home. "[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." State v. Fletcher , 12th Dist. Brown, 2017-Ohio-1006, 86 N.E.3d 591, ¶ 33.

{¶ 42} Exigent circumstances may also serve as an exception to the Fourth Amendment's warrant requirement where " 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." Mincey v. Arizona , 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Thus, the establishment of exigent circumstances by the state would provide a legitimate basis for the warrantless entry into Pettiford's home. Once legitimately in the home, the police would have a "lawful right of access" to the contraband, all of the necessary elements of the plain view doctrine would be satisfied, and the warrantless seizure of the contraband would comport with the Fourth Amendment.

{¶ 43} The state did not argue exigent circumstances in the trial court or on appeal, instead relying entirely upon the plain view doctrine as justification for the entry into Pettiford's home and the seizure of the contraband. Nonetheless, the trial court found exigent circumstances, apparently related to preservation of the evidence and Pettiford's medical condition. Preservation of evidence and response to a medical emergency may serve as exigent circumstances. However, the evidence on the record does not support the existence of the exigent circumstances relied upon by the trial court in denying Pettiford's motion to suppress.

{¶ 44} The test for "[w]hether exigent circumstances are present is determined through an objective test that looks at the totality of the circumstances confronting the police officers at the time of the entry." State v. Enyart , 10th Dist. Franklin No. 08AP-318, 2010-Ohio-5623, 2010 WL 4681889, ¶ 21, citing United States v. MacDonald , 916 F.2d 766, 769 (2d Cir. 1990). "[A] warrantless entry to prevent the destruction of evidence is justified if the government demonstrates: '(1) a reasonable belief that third parties are inside the dwelling; and (2) a reasonable belief that these third parties may soon become aware the police are on their trail, so that the destruction of evidence would be in order.' " Enyart at ¶ 21, quoting United States v. Lewis , 231 F.3d 238, 241 (6th Cir. 2000). Other factors a court may consider in determining whether exigent circumstances existed include the degree of urgency, the time it would take to get a warrant, and the ready destructibility of the evidence. State v. Norman , 12th Dist. Warren, 2014-Ohio-5084, 21 N.E.3d 1153, ¶ 51. Regarding the existence of the need to preserve evidence as an exigent circumstance, we have observed that

Because marijuana and other narcotics are "easily and quickly hidden or destroyed," the Ohio Supreme Court has recognized that there are times where a "warrantless search may be justified to preserve evidence." However, "[n]otwithstanding the ease in which narcotics can be destroyed, a warrantless entry into the home of a suspected drug trafficker, effected without an objectively reasonable basis for concluding that the destruction of the evidence is imminent, does not pass constitutional muster." The "mere possibility of the loss or destruction of evidence is an insufficient basis for the warrantless entry of a house to prevent the destruction of evidence." Rather, there must be a "real likelihood" that the evidence is in danger of being destroyed.

(Citations omitted.) Norman at ¶ 52.

{¶ 45} In this case, the evidence establishes nothing beyond a "mere possibility" that third persons were present in Pettiford's home who might dispose of the contraband before the police could obtain a search warrant, thus, failing to justify the warrantless entry into Pettiford's home and the seizure of the contraband.

{¶ 46} Rather than securing Pettiford's home while a search warrant was obtained, the responding officer and his supervisor entered Pettiford's residence and seized the contraband, because, as the officer testified, "The evidence that we observed was in plain view and at that point we were unsure if anyone else was inside the residence." The only evidence concerning the presence of third parties in Pettiford's home was the testimony of the responding officer. The officer testified at the suppression hearing that upon arrival at Pettiford's home he called into the home to announce his presence. No one responded. After the emergency services squad administered first aid to Pettiford, Pettiford refused transport to the hospital, and the police placed him in custody in a police cruiser, the officer and his supervisor again called into the residence to announce their presence. Once again, there was no response. The officer testified that he heard no sounds from Pettiford's home indicating anyone's presence. In addition to the officer's testimony, the initial report was of a single person, apparently overdosed, on the front porch of the residence, which was exactly what the officer discovered upon arrival on the scene. Furthermore, prior to the officer's entry into Pettiford's home, Pettiford was conscious and interacting with the police. Yet, the record does not reflect that the police inquired of him if others were present in the home or that he volunteered such information. Objectively, these facts, wholly lacking any indicia of a third-party presence in Pettiford's home, fail to establish a "reasonable belief" that a third party was present in the home who presented a danger of destroying the evidence.

{¶ 47} In Norman , we rejected a claim of exigent circumstances based upon a concern that other persons may have been present in a basement apartment with access to guns and marijuana, finding that the concern was not based upon "positive, specific evidence supporting a reasonable belief." Norman , 2014-Ohio-5084 at ¶ 56, 21 N.E.3d 1153. In finding that the state had failed to establish that a risk of the destruction of evidence justified a warrantless entry into the basement apartment, we observed,

We find that the totality of the circumstances in this case does not support a finding of exigent circumstances as there was no basis for Velde or Workman to believe, or even suspect, that there was anyone in the basement or that there was a real likelihood that the marijuana in the basement was in danger of being destroyed. At the motion to suppress hearing, both Velde and Workman testified that the whereabouts of appellant were unknown. Although both Velde and Workman testified it was "possible" appellant was in the basement, and therefore could have been destroying evidence, neither Velde nor Workman heard any noise coming from the basement or saw anyone entering or exiting the basement. Velde admitted that she "didn't really think that there was anyone in the basement." Workman testified her sole basis for believing someone was down in the basement stemmed from the absence of the basement's second tenant, appellant, rather than from any noises or observations she made while at the scene.

Id. at ¶ 53.

{¶ 48} As this case and Norman demonstrate, it is common that the police are unable to conclusively exclude the presence of others within an area sought to be searched. Just as in this case, police will frequently be concerned in these situations that the lack of indicia that others are present is because any other such persons are unwilling or unable to reveal their presence. However, this uncertainty is not a "reasonable belief" supported by "positive, specific evidence," but rather a "concern" supported by a "possibility." Finding that the exigent circumstances exception is established upon the latter is not only contrary to well-established law, but would represent a gross expansion of the exception to include circumstances that are not truly "exigent."

{¶ 49} Neither was Pettiford's medical treatment established as an exigent circumstance. Although the trial court found that the warrantless entry into the home and the seizure of the contraband was constitutional because of "medical information also as [Pettiford] was actively being treated by the squad," the record does not support this finding. First, the responding officer's sole expressed concern for immediate action was that he did not know if others were present in the residence. Neither the officer, the responding emergency medical services personnel, nor anyone else testified that there were concerns related to Pettiford's medical treatment and that seizure of the contraband was necessary to facilitate Pettiford's treatment. Furthermore, contrary to the trial court's finding that Pettiford was being "actively treated," by the time the officer and his supervisor entered Pettiford's home, Pettiford was conscious, interacting with the officer, refusing further medical treatment, and in police custody in a police cruiser. There is no evidence that Pettiford received any further medical treatment after receiving first aid from the responding emergency medical services personnel. Based upon the objective totality of the circumstances, the record does not establish that Pettiford's medical treatment was an exigent circumstance justifying the warrantless entry into Pettiford's home and seizure of the contraband.

{¶ 50} The police were lawfully present on Pettiford's porch and lawfully observed the contraband from that vantage point through the screen door. Their observations gave rise to probable cause to search and seize that visible contraband. However, their observations did not provide them with lawful access to the contraband, absent a search warrant or some exception to the Fourth Amendment's warrant requirement. Rather than securing the premises while a search warrant was obtained, the police entered Pettiford's home and seized the contraband. The record does not establish that any exception to the warrant requirement applied to justify the warrantless entry of Pettiford's home and the seizure of the contraband. I therefore find that the trial court erred in denying Pettiford's motion to suppress, and would sustain the first assignment of error, find the second assignment of error moot, and reverse and remand the matter for further proceedings.

{¶ 51} With regard and respect for my colleagues in the majority, I dissent.

      The dissent's reasoning would require a warrant despite the observation of illegal contraband, and would prohibit the seizure of that contraband, thereby destroying the very purpose and logic behind the plain view exception to the warrant requirement. This exception is firmly rooted in constitutional jurisprudence. Ker v. California , 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

      The need to protect persons and property inside a residence, as well as preventing the destruction of evidence, can justify exigent circumstances as reasonable for entering a residence without a warrant. State v. A Bay Luong , 12th Dist. Butler, 2012-Ohio-4519, 977 N.E.2d 1075.

      As discussed in the dissent, the state did not argue exigent circumstances at length in its brief. However, the absence of such argument does not amount to the absence of exigent circumstances. The trial court addressed exigent circumstances, the responding officer testified about exigent circumstances, and exigent circumstances are objectively present based on what occurred on the night in question.

      I would not, as the majority suggests, "have the police walk away from an unsecured residence with drugs and syringes inside." The proper course would have been to secure the residence and obtain a search warrant. Though obtaining a warrant would have been inconvenient, the Fourth Amendment was intended as an inconvenience to state actors intruding upon the basic personal liberties protected by the Amendment. The responsibility of the judiciary is to insure compliance with the Fourth Amendment, not to relieve the police of the inconvenience incident to compliance.


author: Hoover, P.J.

text:
    STATE EX REL. David L. DEEM, et al., Relators-Plaintiffs/Appellees, v. VILLAGE OF POMEROY, et al., Respondents-Defendants/Appellants.
    No. 17CA3
    Court of Appeals of Ohio, Fourth District, Meigs County.
    RELEASED March 19, 2018
    Lawrence E. Barbiere and Katherine L. Barbiere, Schroeder, Maundrell, Barbiere & Powers, Mason, Ohio, for respondents-defendants/appellants.
    Michael M. Hollingsworth, Michael M. Hollingsworth, Attorney at Law Co., LPA, Athens, Ohio, for relators-plaintiffs/appellees.
    DECISION AND JUDGMENT ENTRY
   Hoover, P.J.

{¶ 1} Defendants-Appellants, the Village of Pomeroy ("the Village"), its mayor and members of the Pomeroy Village Council, in their official capacity, and Shannon Spaun, in his official and individual capacity, (collectively "Appellants"), appeal the judgment of the Meigs County Court of Common Pleas determining that they were not immune from negligence claims asserted by plaintiffs-appellees, David and Jamie Deem (collectively "Appellees").

{¶ 2} On appeal, Appellants argue that the trial court erred in (1) determining that the Village, its mayor and members of the Pomeroy Village Counsel, and Spaun, in his official capacity, were not entitled to immunity under R.C. 2944.02 and 2944.03; and (2) Spaun, in his individual capacity, was not entitled to immunity under R.C. 2944.03.

{¶ 3} Upon review of the record, we conclude that the trial court did not err in determining that the Village, its mayor and members of the Pomeroy Village Counsel, and Spaun, in his official capacity, were not entitled to immunity under R.C. 2944.02 and 2944.03; but it did err in failing to properly consider whether Spaun was entitled to individual immunity under R.C. 2944.03.

{¶ 4} Accordingly, we affirm in part, reverse in part, and remand the judgment of the trial court.

I. Facts and Procedural History

{¶ 5} In 1994, Appellees moved into a 100-year-old home in Pomeroy, Ohio. The home has three bedrooms and one and one-half baths. There is a covered deck in the backyard, which Appellees later converted into additional living space ("the addition"). Next to Appellees' home is the Meigs County Historical Society & Museum. It consists of two buildings, the newer of which is commonly referred to as "the museum annex." Appellees' home and the historical society sit at the foot of a steep wooded hill.

{¶ 6} Between October 24, 2011 and November 23, 2011, the hill behind Appellees' home slid twice, causing severe damage to their property. Appellees claim that the slides were caused by a leaking water pipe that the Village negligently failed to repair. In October 2013, Appellees filed a complaint against Appellants, Hylant Administrative Services, LLC, The Ohio Plan, Inc., and Laurie O'Malley, individually and as an employee of Hylant Administrative Services, LLC, and The Ohio Plan, Inc. alleging (1) negligence against the Village and its employees; (2) spoliation; (3) bad faith denial of their insurance claim; (4) intentional infliction of emotional distress; (5) conspiracy; and (6) deprivation of constitutional rights under 42 U.S.C. § 1983. They also petitioned for a writ of mandamus directing the Village to commence appropriation proceedings to address the taking of their property.

{¶ 7} In their complaint, Appellees alleged that the water department's employees negligently failed to discover and fix a leaking water pipe at the top of the hill behind the museum annex between October 20, 2011 and October 24, 2011, despite the fact that their employees had information that would place an ordinary water department worker on notice that there was a leak. Specifically, they alleged that the employees negligently failed to find and repair a broken valve on the water pipe leading up the hill prior to the first hill slide.

{¶ 8} Appellees further alleged that when the employees were trying to locate and fix the water leak, they negligently broke the water pipe with a backhoe. The broken water line allegedly caused large amounts of water and mud to flow toward Appellees' home, eventually causing damaging mudslides.

{¶ 9} Finally, Appellees alleged that despite warnings from engineers and others that the hill must be repaired and stabilized immediately, the Village failed to take any action after the first hill slide which caused the hill to further deteriorate and slide a second time on November 23, 2011. Appellees also alleged that the Village failed to take necessary measures to remedy the hill after the second slide thereby causing additional damage to their property.

{¶ 10} Between December 2013 and November 2014, Appellees filed two amended complaints, clarifying the nature of some of their claims and adding Ruth Spaun, in her individual capacity, and former Pomeroy Mayor Mary McAngus as defendants. Both defendants moved to dismiss the claims against them, arguing that the statute of limitations had expired. The trial court agreed; and the claims against them were dismissed. Ohio Plan, Inc., Ohio Risk Management, Inc., Hylant Administrative Services, LLC, and O'Malley were also dismissed from the suit after they successfully moved for summary judgment.

{¶ 11} In August 2016, Appellants moved for summary judgment. As relevant here, they argued that the Village was immune from Appellees' negligence claims because their claims related to a governmental function, as opposed to a proprietary one. Specifically, they argued that Appellees' allegations related to flood control measures, as opposed to the establishment, maintenance, and operation of a municipal corporation water supply system. They further argued that even if Appellees' allegations related to the establishment, maintenance, and operation of a municipal corporation water supply system and therefore subjected the Village to liability, immunity was restored because the Village's handling of the slides involved discretionary decisions under R.C. 2744.03(A)(3) and 2744.03(A)(5). Finally, they argued that Spaun was immune from individual liability because his acts or omissions were neither manifestly outside the scope of his employment or official responsibilities nor done with malicious purpose, in bad faith, or in a wanton or reckless manner, as required under R.C. 2744.03(A)(6).

{¶ 12} In October 2016, Appellees filed a memorandum in opposition to summary judgment, arguing that their claims related to a propriety function, as opposed to a governmental function. Specifically, they argued that their allegations related to the establishment, maintenance, and operation of a municipal corporation water supply system, as opposed to flood control measures. They further argued that the Village's immunity was not restored under R.C. 2744.03(A)(3) and 2744.03(A)(5) because the Village's handling of the situation did not involve discretionary decisions under R.C. 2744.03(A)(3) and 2744.03(A)(5). Finally, they argued Spaun was liable in his individual capacity because his actions were done in bad faith, or in a wanton or reckless manner, as required under R.C. 2744.03(A)(6).

{¶ 13} On February 16, 2017, the trial court denied Appellants' motion for summary judgment, concluding that the Village was not immune from Appellees' negligence claims because their allegations concerned the alleged negligent performance of a proprietary function and did not involve the exercise of discretion, as contemplated by R.C. 2744.03(A)(3) and R.C. 2744.03(A)(5). It did not address whether Spaun was entitled to individual immunity under R.C. 2944.03.

{¶ 14} Appellants timely appealed.

II. Assignment of Error

THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT TO DEFENDANTS/APPELLANTS VILLAGE OF POMEROY, OHIO, JACKIE WELKER, (former) MAYOR, IN HIS OFFICIAL CAPACITY, RUTH SPAUN, PHIL OLINGER, LUKE ORTMAN, ROBERT PAYNE, IN THEIR OFFICIAL CAPACITIES, AND SHANNON SPAUN IN HIS INDIVIDUAL CAPACITY.

III. Law and Analysis

A. Standard of Review

{¶ 15} We review the trial court's decision on a motion for summary judgment de novo. Smith v. McBride , 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. Accordingly, we afford no deference to the trial court's decision and independently review the record and the inferences that can be drawn from it to determine whether summary judgment is appropriate. Harter v. Chillicothe Long-Term Care, Inc. , 4th Dist. Ross No. 11CA3277, 2012-Ohio-2464, 2012 WL 1997821, ¶ 12 ; Grimes v. Grimes , 4th Dist. Washington No. 08CA35, 2009-Ohio-3126, 2009 WL 1830761, ¶ 16.

{¶ 16} Summary judgment is appropriate only when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C) ; DIRECTV, Inc. v. Levin , 128 Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶ 15. In ruling on a motion for summary judgment, the court must construe the record and all inferences therefrom in the nonmoving party's favor. Civ.R. 56(C). The party moving for summary judgment bears the initial burden to demonstrate that no genuine issues of material fact exist and that they are entitled to judgment in their favor as a matter of law. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). To meet its burden, the moving party must specifically refer to "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action," that affirmatively demonstrate that the nonmoving party has no evidence to support the nonmoving party's claims. Civ.R. 56(C) ; Dresher at 293, 662 N.E.2d 264. Moreover, the trial court may consider evidence not expressly mentioned in Civ.R. 56(C) if such evidence is incorporated by reference in a properly framed affidavit pursuant to Civ.R. 56(E). Discover Bank v. Combs , 4th Dist. Pickaway No. 11CA25, 2012-Ohio-3150, 2012 WL 2832550, ¶ 17 ; Wagner v. Young , 4th Dist. Athens No. CA1435, 1990 WL 119247, *4 (Aug. 8, 1990). Once that burden is met, the nonmoving party then has a reciprocal burden to set forth specific facts to show that there is a genuine issue for trial. Dresher at 293, 662 N.E.2d 264 ; Civ.R. 56(E).

B. Political Subdivision Tort Liability

{¶ 17} "The Political Subdivision Tort Liability Act, as codified in R.C. Chapter 2744, sets forth a three-tiered analysis for determining whether a political subdivision is immune from liability."

Cater v. Cleveland , 83 Ohio St.3d 24, 28, 697 N.E.2d 610 (1998). The first tier involves determining whether the political subdivision is generally immune from liability under R.C. 2744.02(A)(1). Elston v. Howland Local Schools , 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10 ; see also Hortman v. Miamisburg , 110 Ohio St.3d 194, 2006-Ohio-4251, 852 N.E.2d 716, ¶ 12.

{¶ 18} Once immunity is generally established, "the second tier of analysis is whether any of the five exceptions to immunity in subsection (B) apply." Id. at ¶ 12. Only when one of the exceptions listed in R.C. 2744.02(B) applies do courts move to the third tier. Terry v. Ottawa Cty. Bd. of Mental Retardation & Dev. Disabilities , 151 Ohio App.3d 234, 2002-Ohio-7299, 783 N.E.2d 959, ¶ 13 (6th Dist.) ; Dolan v. Glouster , 173 Ohio App.3d 617, 2007-Ohio-6275, 879 N.E.2d 838, ¶ 17 (4th Dist.) ; see also Gotherman & Babbit, Ohio Municipal Law (2d Ed.1992), Section 32.4 ("The defenses and immunities provided to a political subdivision by R.C. 2744.03(A) only become relevant if one of the five exceptions to immunity in R.C. 2744.02(B) applies to render the subdivision vulnerable to liability").

{¶ 19} If an exception to the general immunity provision does apply, "under the third tier of analysis, immunity can be reinstated if the political subdivision can successfully argue that any of the defenses contained in R.C. 2744.03 applies." Hortman at ¶ 12.

{¶ 20} Here, the parties do not dispute that the Village is entitled to the general grant of immunity under R.C. 2744.02(A)(1). Instead, they dispute whether the exception to immunity found in R.C. 2744.02(B)(2) applies and, if so, whether R.C. 2744.03(A)(3) or 2744.03(A)(5) reinstates immunity. Thus, we begin by considering the applicability of R.C. 2744.02(B)(2).

1. The Exception to Immunity Found in R.C. 2744.02(B)(2) Applies

{¶ 21} R.C. 2744.02(B)(2) provides,

Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:
* * *
Except as otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.

(Emphasis added.)

{¶ 22} A "proprietary function" includes, but is not limited to, "[t]he establishment, maintenance, and operation of a utility, including, but not limited to * * * a municipal corporation water supply system" and "[t]he maintenance, destruction, operation, and upkeep of a sewer system." (Emphasis added.) R.C. 2744.01(G)(2)(c)-(d). By contrast, a "governmental function" includes, but is not limited to, "[t]he provision or nonprovision, planning or design, construction or reconstruction of a public improvement , including, but not limited to, a sewer system" and "[f]lood control measures." (Emphasis added.) R.C. 2744.01(C)(2)(r).

{¶ 23} Although the planning and design of sewer systems is expressly defined as a governmental function, the statute does not limit such "public improvements" to sewer systems. Thus, while R.C. 2744.01(G)(2)(c) provides that the establishment, maintenance and operation of a utility, including a municipal corporation water supply system is a proprietary function, "we believe the planning and design of such a system is a governmental function, much like the planning and design of a sewer system is a governmental function under R.C. 2744.01(C)(2)(l)." Matter v. Athens , 2014-Ohio-4451, 21 N.E.3d 595, ¶ 23 (4th Dist.).

{¶ 24} "Determining whether an allegation of negligence relates to the maintenance, operation, or upkeep of a * * * system or, instead, the design, construction, or reconstruction of a * * * system is not always a simple inquiry." Essman v. City of Portsmouth , 4th Dist. Scioto No. 09CA3325, 2010-Ohio-4837, 2010 WL 3852247, ¶ 32. "[W]hen remedying the * * * problem would involve little discretion, but, instead, would be a matter of routine maintenance, inspection, repair, removal of obstructions, or general repair of deterioration, then the complaint is properly characterized as a maintenance, operation, or upkeep issue." Id ., citing Martin v. Gahanna , 10th Dist. Franklin No. 06AP-1175, 2007-Ohio-2651, 2007 WL 1560283, ¶ 17 and Zimmerman v. Summit Cty. , 9th Dist. Summit No. 17610, 1997 WL 22588 (Jan. 15, 1997). In contrast, "[w]hen remedying a problem would require a city to, in essence, redesign or reconstruct the * * * system, then the complaint presents a design or construction issue." Id. , citing Zimmerman at *9.

{¶ 25} In their complaint, Appellees allege that the Village (1) failed to discover and fix the leaking water pipe at the top of the hill behind the museum annex between October 20, 2011 and October 24, 2011, prior to the first hillside; (2) failed to repair a broken handle on a valve on the water line leading up to the hill behind their home; (3) negligently caused the break of the water line behind their home by hooking and pulling the water line with a backhoe when they were trying to locate and fix the water leak at the top of the hill; (4) failed to take any action whatsoever to repair the hill side and stabilize the hill prior to the first hill slide; (5) failed to take any action after the first hill slide to divert water and prevent future damages; and (6) failed to take any action after the second hill slide to prevent further damages.

{¶ 26} Appellants argue that "[d]uring the events giving rise to the lawsuit, [the Village] w[as] engaged in flood control measures pursuant to R.C. 2744.01(C)(2)(r)." Appellants' Brief, p. 14. However, "[n]ormal maintenance does not constitute flood control measures." Hedrick v. City of Columbus , 10th Dist. Franklin Nos. 92AP-1030, 92AP-1031, 1993 WL 104713, *4 (Mar. 30, 1993). Thus, Appellees' claim that the Village (1) failed to discover and fix the leaking water pipe at the top of the hill behind the museum annex between October 20, 2011 and October 24, 2011, prior to the first hillside; (2) failed to repair a broken handle on a valve on the water line leading up to the hill behind their home; and (3) negligently caused the break of the water line behind their home by hooking and pulling the water line with a backhoe when they were trying to locate and fix the water leak at the top of the hill, do not relate to "flood control measures" as prescribed in R.C. 2744.01(C)(2)(r).

{¶ 27} Furthermore, while R.C. 2744.01(C)(2)(r) includes flood control measures as a governmental function, it does not specify the absence of flood control measures as a governmental function. "[T]he absence of flood-control measures or planning could have been codified, but was not." Seiler v. Norwalk, 192 Ohio App.3d 331, 2011-Ohio-548, 949 N.E.2d 63, ¶ 103. Compare R.C. 2744.01(C)(2)(l) (including the nonprovision of a public improvement as a governmental function) with R.C. 2744.01(C)(2)(r) (including only flood control measures as a governmental function. Thus, Appellees' claims that the Village (1) failed to take any action whatsoever to repair the hill side and stabilize the hill prior to the first hill slide; (2) failed to take any action after the first hill slide to divert water and prevent future damages; and (3) failed to take any action after the second hill slide to prevent further damages, could not constitute "flood control measures," as prescribed in R.C. 2744.01(C)(2)(r). Seiler at ¶ 103. Instead, Appellees' allegations relate to the Village's proprietary function of maintaining and operating its water supply system. E.g. , Columbia Gas of Ohio, Inc. v. Lucas Cty. Sanit. Engineers , 6th Dist. Lucas No. L-15-1322, 2017-Ohio-4108, 2017 WL 2417092, ¶ 8 (damages Columbia Gas sustained when city employees punctured its gas line while responding to a suspected water main leak involved the alleged negligent performance of a proprietary function).

{¶ 28} Importantly, the evidence in the record demonstrates a logical nexus between the Village and its proprietary function of maintaining and operating a municipal corporation water supply system and the resulting loss to Appellees' property. Compare Calet v. East Ohio Gas Co. , 2017-Ohio-348, 83 N.E.3d 218, ¶¶ 15-16 (9th Dist.) (summary judgment improper where plaintiff presented evidence that could support the conclusion that hole in sidewalk that caused Plaintiff to fall existed for the purpose of allowing the City to engage in the proprietary function of maintaining the City's water supply system as opposed to the condition of the sidewalk) with Plank v. City of Bellefontaine , 3rd Dist. Logan No. 8-17-18, 2017-Ohio-8623, 2017 WL 5565181, ¶ 16. (concluding that unlike the plaintiff in Calet , there was "no evidence to support that the [City's] proprietary function of maintaining and operating its water department (pursuant to R.C. 2744.01(G)(2)(c) ) was the proximate cause of [plaintiff's] harm.")

{¶ 29} For instance, Appellees' neighbors, Bill and Rilla Smith, stated in their affidavits that they noticed loss of water pressure in their home, which sits at the top of the hill, on Thursday, October 20, 2011. Bill investigated and discovered water coming out of the ground, at the top of the hill and on the side of the hill near the museum annex. Rilla's son notified the Water Department of the issue; but no one investigated. The issue persisted the following day; and after notifying the water department again, two workers, one of whom was Spaun, responded to the scene.

{¶ 30} According to Bill, he tried to get the workers to investigate the water leak but was told that "the leaking water line was [his] responsibility, not that of the Village." Deposition of Bill Smith, p. 2. After inspecting the Smith's basement, Spaun told Bill that "he cracked the meter and there was no water pressure on either side of the meter" and that "the blockage was somewhere in the lines of the house."Id. at p. 3. The workers left, without restoring water pressure to the Smith's home or addressing the water leak outside. Over the course of the weekend, they observed the water eat away at the hillside.

{¶ 31} David stated at his deposition that on Monday, October 24, 2011, he heard a noise coming from his backyard. He initially thought it was an animal; but upon inspection, he saw water, mud, and leaves sliding down the hill toward the museum annex. When workers arrived on scene, they began searching for the leak. Shortly thereafter, David overheard workers admit that they had accidently broken the water line with their backhoe. After that, David observed the water, mud, and debris changed course and begin flowing toward his house. Eventually, the debris-which included a large tree root-piled up against the rear of Appellees' home, causing severe damage. John Musser, the former Mayor of Pomeroy, investigated the incident and "learned that a Village pipeline in fact had been leaking on October 21, 2015 when Mr. Smith showed Village water department worker Shannon Spaun the place where water had been coming out of the ground and also told him about the lack of water pressure in the Smith residence." Affidavit of John Musser, p. 4.

{¶ 32} David stated that the following day, Paul Hellman, the Village Administrator, and Mitch Altier, an engineer, came to the site to discuss how to stabilize the hill. The engineer suggested possible ways to stabilize the hill and prevent further damage. For example, he suggested that the Village cut down trees, but leave the stumps, to minimize any damage. Within the next day or so, a tree service, paid for by the Village, came and cut down the top of one tree that was up against David's home. But based on the engineer's suggestions, Appellees paid the company to remove additional trees. Despite these measures, the hill slid again on November 23, 2011, causing further damage to Appellees' home.

{¶ 33} Because Appellees' allegations concern the alleged negligent performance of a proprietary function and their evidence demonstrates a logical nexus between the Village and its proprietary function of maintaining and operating a municipal corporation water supply system and the resulting loss to Appellees' property, we conclude that the exception to immunity set forth in R.C. 2744.02(B)(2) applies.

2. Neither R.C. 2744.03(A)(3) Nor 2744.03(A)(5) Reinstate the Village's Immunity

{¶ 34} R.C. 2744.03(A) provides:

In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
* * *
(3) The political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee.
* * *
(5) The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.
* * *.

{¶ 35} "[T]he focus of subsection (A)(3) is that the employee be engaged in policy-making, planning, or enforcement." Elston , 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 27. The focus of subsection (A)(5) is that the employee be engaged in "activities that involve weighing alternatives or making decisions that involve a "high degree of official judgment or discretion."

Leasure v. Adena Local School Dist. , 2012-Ohio-3071, 973 N.E.2d 810, ¶ 31 (4th Dist.). "Routine decisions that require little judgment or discretion and that, instead, portray inadvertence, inattention, or unobservance do not create a defense to liability." Tadijanac v. Jefferson Twp. Bellville Fire Dept. , 5th Dist. Richland No. 14CA20, 2014-Ohio-4332, 2014 WL 4823848, ¶ 48, citing Frenz v. Springvale Golf Course & Ballroom, 8th Dist. Cuyahoga No. 97593, 2012-Ohio-3568, 2012 WL 3222236.

{¶ 36} Appellants argue that the Village's immunity is reinstated under R.C. 2744.03(A)(3) because the allegations against it, including "failure to install trenches and blocks, failure to stabilize the hill, remove trees, and failure to take other precautionary measures were decisions, pursuant to (A)(3), within the discretion and policy-making, planning and enforcement powers attendant to the offices held within the Village." Appellants' Brief, p. 16. This argument is without merit, however, as Appellees' allegations focus on the Village's alleged negligent maintenance of a specific portion of a water line as opposed to broader policy-making, planning, or enforcement concern. E.g. , Calet , 2017-Ohio-348, 83 N.E.3d 218, ¶ 17 (9th Dist.) ( R.C. 2744.03(A)(3) argument meritless where plaintiff's theory of the case focused on the City's alleged negligent maintenance of specific portion of its water system as opposed to broader policy making or planning concern.)

{¶ 37} Appellants also argue that the Village's decision "to install trenches and blocks, install new trees or remove trees, install hill stabilizers, or take other precautionary measures are all discretionary decisions, under R.C. 2744.03(A)(5)." Appellants' Brief, p. 16. This argument is also without merit, as the Village has provided no evidence of any specific decision that it made regarding these alleged failures that involved weighing alternatives or a high degree of official judgment or discretion. E.g., East Ohio Gas Co. v. Akron , 2012-Ohio-3780, 976 N.E.2d 276, ¶¶ 10-11 (9th Dist.) (supervisor's determination that late-night water main break should receive attention the next morning was an exercise of judgment or discretion in determining how to use personnel under R.C. 2744.03(A)(5) where supervisor determined that by the time he initiated overtime procedures to call in a foreman or inspector and assemble a crew, the break would receive no earlier attention than if the inspector on duty the following morning went to the scene immediately); Giebner v. Summit County , 9th Dist. Summit No. 20756, 2002 WL 388908, *5 (March 13, 2002) (political subdivision's immunity was not reinstated under R.C. 2744.03(A)(5) where plaintiff alleged that political subdivision negligently installed water valve box and political subdivision failed to point to portions of the record showing that the alleged manner in which the water valve box was installed was the result of it exercising its discretion on how to use supplies, materials, personnel, or other resources). See generally Hall v. Fort Frye Local School District Board of Education , 111 Ohio App.3d 690, 694-695, 676 N.E.2d 1241 (4th Dist.1996) (noting that a party raising an immunity defense must present evidence tending to prove the underlying facts upon which the defense is based).

{¶ 38} Because Appellants failed to present evidence of a discretionary decision as contemplated by R.C. 2744.03(A)(3) or 2744.03(A)(5), neither subsection reinstates the Village's immunity.

C. Tort Liability for Political Subdivision Employees

{¶ 39} Appellees also assert claims against Spaun, in his individual capacity. Specifically, they allege that Spaun acted negligently, recklessly, wantonly and/or with malice or in bad faith in failing to discover or fix the water leak prior to the first hill slide.

{¶ 40} For claims against individual employees, the three-tiered analysis used to determine whether a political subdivision is immune is not used. Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 17. Instead, R.C. 2744.03(A)(6) provides that an employee is personally immune from liability unless "(a) [t]he employee's acts or omissions were manifestly outside the scope of the employee's employment or official responsibilities; (b) [t]he employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; [or] (c) [c]ivil liability is expressly imposed upon the employee by a section of the Revised Code." In these instances, allegations of negligence are insufficient to overcome the immunity granted to an employee of a political subdivision who acts within his or her official duties. Fabrey v. McDonald Village Police Dept. , 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994).

{¶ 41} During the proceedings below, the trial court failed to consider Spaun's individual immunity under R.C. 2744.03(A)(6). Specifically, the trial court failed to discuss whether Spaun's acts or omissions were manifestly outside the scope of his employment or official responsibilities; whether Spaun's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or whether civil liability was expressly imposed upon him under another section of the Revised Code. "While it is true that an appellate court reviews a trial court's summary judgment decision de novo, we will not consider issues raised in summary judgment proceedings that the trial court failed to rule on." Tree of Life Church v. Agnew , 7th Dist. Belmont No. 12 BE 42, 2014-Ohio-878, 2014 WL 903318, ¶ 27, citing Conny Farms, Ltd. v. Ball Resources, Inc. , 7th Dist. Columbiana No. 09 CO 36, 2011-Ohio-5472, 2011 WL 5053625, ¶ 15.

{¶ 42} Because the trial court did not consider Spaun's individual immunity under R.C. 2744.03(A)(6), we decline to do so for the first time on appeal. The trial court must evaluate whether Spaun is entitled to immunity under R.C. 2744.03(A)(6) before this Court will review the issue.

IV. Conclusion

{¶ 43} Based on the foregoing, the judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED.

Abele, J.: Concurs in Judgment and Opinion.

McFarland, J.: Dissents.

      The complaint also named Jane Doe, council member, officer or employee, in her official and individual capacities, Janet Doe, council member, officer or employee, in her official and individual capacities, and John Doe, council member, officer or employee, in his official and individual capacities, as defendants.

      The case was initially removed to federal court, but the United States District Court for the Southern District of Ohio remanded the case back to the Meigs County Court of Common Pleas in June 2014 after determining that Appellees' § 1983 claims were not ripe for review.