State v. Donley

Decision Date17 February 2017
Docket Number26655,NOS. 26654,26656,S. 26654
Citation85 N.E.3d 324,2017 Ohio 562
Parties STATE of Ohio, Plaintiff–Appellee v. Isreal DONLEY, Defendant–Appellant
CourtOhio Court of Appeals

MEAGAN D. WOODALL, Atty. Reg. No. 0093466 and HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorneys, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422, Attorneys for PlaintiffAppellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, 120 W. Second Street, Suite 706, Dayton, Ohio 45402, Attorney for DefendantAppellant

OPINION

FROELICH, J.

{¶ 1} Isreal E. Donley appeals from three separate judgments of the Montgomery County Court of Common Pleas. After Donley was found guilty by a jury of possession of cocaine and having weapons while under disability in Case No. 2014 CR 1142, he entered no contest pleas to 27 counts of having weapons while under disability in Case No. 2014 CR 2391 and a guilty plea to illegal conveyance of drugs of abuse into a detention facility in Case No. 2014 CR 3312. In a joint sentencing hearing, the trial court ordered that the sentences in Case Nos. 2014 CR 1142 and 2014 CR 2391 run concurrently, but that the sentence in Case No. 2014 CR 3312 run consecutively to the sentences in the other cases. Donley's aggregate sentence was 13 years in prison.

{¶ 2} Donley appeals from his convictions in all three cases. For the following reasons, the trial court's judgments in Case Nos. 2014 CR 2391 and 2014 CR 3312 will be affirmed. The trial court is instructed to file a nunc pro tunc entry correcting the nature of defendant's plea in Case No. 2014 CR 2391. The trial court is also instructed to file a nunc pro tunc entry in Case No. 2014 CR 3312, correcting its judgment entry so that it accurately reflects the trial court's consecutive sentencing findings. Defendant's conviction and sentence for possession of cocaine in Case No. 2014 CR 1142 will be affirmed; his conviction in that case for having weapons while under disability will be vacated.

I. Factual and Procedural History

{¶ 3} Donley's convictions stem from separate incidents on three dates in 2014: March 26 (Case No. 2014 CR 1142), May 14 (Case No. 2014 CR 3312), and July 8 (Case No. 2014 CR 2391).

{¶ 4} On March 26, 2014, Detective Patrick O'Connell of the Montgomery County R.A.N.G.E. Task Force observed a suspected drug transaction between the resident of a home and the driver of a white GMC Yukon. O'Connell relayed information about the transaction and the fact that the Yukon had a "very dark" window tint to Deputy Frederick Zollers, a uniformed officer with the Task Force. After the Yukon left the residence, Deputy Zollers initiated a traffic stop of the Yukon. Donley was the driver and sole occupant of the vehicle. Zollers ran Donley's identification through his computer system and arrested Donley on an outstanding juvenile court warrant. The vehicle was later towed by Sandy's Towing to a lot in Moraine. There, the Sandy's tow truck driver found a brown knit hat with a firearm under the hood of Donley's vehicle, and another Sandy's driver located a brown knit glove on the gas cap. Cocaine was discovered inside the glove.

{¶ 5} On April 4, 2014, Donley was indicted in Case No. 2014 CR 1142 for possession of cocaine (equal to or greater than 27 grams, but less than 100 grams) and for having weapons while under disability (prior felonious assault conviction in 2003) related to events on March 26, 2014. Donley was released on bond on April 9, 2014.

{¶ 6} At approximately 2:15 a.m. on May 14, 2014, State Highway Patrol Trooper Brenton stopped Donley for traffic violations. The trooper discovered that Donley had a misdemeanor warrant from juvenile court for a "DNA parenting evaluation." Trooper Brenton arrested Donley on the warrant and transported him to the Montgomery County Jail. While en route to the jail, Brenton asked Donley if he any illegal contraband on his person. Donley denied having any drugs. Upon being searched at the jail, a corrections officer found a clear plastic baggie rolled up in the front part of Donley's underwear. Inside the baggie were 27 capsules of suspected cocaine and 46 capsules of heroin. The amount of confiscated cocaine was 0.054 grams, and the amount of confiscated heroin was 1.009 grams. Donley was released from jail later that same day.

{¶ 7} At approximately 4:50 p.m. on July 8, 2014, Detective O'Connell obtained a search warrant for Donley's DNA, and the Task Force set up surveillance on Donley's residence based on its belief that Donley was trafficking in narcotics. A vehicle stopped at Donley's residence, and the officers observed Donley engage in conduct consistent with a drug transaction. When Donley left his residence in a Chevy Suburban, officers stopped the vehicle to obtain Donley's DNA sample. At 9:05 p.m. on the same day (July 8), Detective O'Connell obtained a second search warrant for Donley's residence. A search of the residence uncovered nine guns and several bulletproof vests hidden in an L-shaped enclosure above the kitchen cabinets.

{¶ 8} On July 17, 2014, Donley was indicted in Case No. 2014 CR 2391 for 27 counts of having weapons while under disability based on the nine weapons found on July 8. In Counts 1 through 9, the disability resulted from an aggravated assault conviction in 2000; in Counts 10 through 18, the disability resulted from a felonious assault conviction in 2003; and in Counts 19 through 27, the disability resulted from being under indictment for possession of cocaine in Case No. 2014 CR 1142 (above).

{¶ 9} On November 6, 2014, Donley was indicted in Case No. 2014 CR 3312 for illegal conveyance of drugs of abuse onto the grounds of a detention facility, possession of heroin, possession of cocaine, trafficking in cocaine, and trafficking in heroin based on events that occurred at the Montgomery County Jail on May 14, 2014.

{¶ 10} Donley filed motions to suppress in each of his cases. After separate hearings, the trial court denied the motions to suppress in Case Nos. 2014 CR 1142 and 2014 CR 2391. As discussed below, the motion in Case No. 2014 CR 3312 was later withdrawn.

{¶ 11} In February 2015, a jury trial was held on the charges of possession of cocaine and having weapons while under disability, based on the cocaine and weapon found in the Yukon (Case No. 2014 CR 1142). The jury found him guilty on both charges.

{¶ 12} On March 9, 2015 (while the motion to suppress in Case No. 2014 CR 3312 was still pending), Donley entered pleas in his two remaining cases. In Case No. 2014 CR 2391, Donley pled no contest to the 27 counts of having weapons while under disability, all felonies of the third degree. The State agreed that the sentences would run concurrently with the sentence imposed in Case No. 2014 CR 1142.

{¶ 13} With respect to Case No. 2014 CR 3312, Donley pled guilty to illegal conveyance of drugs of abuse on the grounds of a detention facility, in violation of R.C. 2921.36(A)(2), a felony of the third degree. In exchange for the plea, the State dismissed the remaining four charges in that case. Donley also moved to withdraw his motion to suppress, which the trial court granted.

{¶ 14} On March 18, 2015, the trial court conducted a joint sentencing hearing for each of Donley's three cases. In Case No. 2014 CR 1142, the trial court imposed ten years in prison for possession of cocaine and three years for having weapons while under disability, to be served concurrently. The court also suspended Donley's driver's license for five years and imposed a mandatory fine of $7,500. In Case No. 2014 CR 2391, the trial court merged, as allied offenses of similar import, all 27 counts of having weapons while under disability, and the court imposed a single sentence of 36 months in prison, to be served concurrently with Case No. 2014 CR 1142. In Case No. 2014 CR 3312, the trial court imposed a sentence of 36 months in prison for illegal conveyance, to be served consecutively to the sentences imposed in two other cases (2014 CR 1142 and 2014 CR 2391). Donley's aggregate sentence was 13 years in prison.

{¶ 15} At the sentencing hearing, the trial court made the statutory findings under R.C. 2929.14(C)(4) to support the imposition of consecutive sentences in Case No. 2014 CR 3312, but those findings were not included in the court's judgment entry for that case. On March 30, 2015, the trial court filed a "supplemental termination entry" in Case No. 2014 CR 3312, setting forth the statutory findings for imposing consecutive sentences.

{¶ 16} Donley appeals from the trial court's judgment entries in his three cases, raising a combined twelve assignments of error. We will address the cases separately.

II. Case No. 2014 CR 1142(Possession of Cocaine and Having Weapons under Disability)

{¶ 17} Donley's first through seventh assignments of error relate to his convictions in Case No. 2014 CR 1142 for possession of cocaine and having weapons while under disability.

A. Motion to Suppress

{¶ 18} Donley's first assignment of error claims that the trial court erred in overruling his motion to suppress evidence.

{¶ 19} In ruling on a motion to suppress, the trial court "assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses." State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994) ; State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-116, 2010 WL 169438, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial court's findings of fact if they are supported by competent, credible evidence. Retherford at 592, 639 N.E.2d 498. "Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard." Id.

{¶ 20} The State's evidence at the suppression hearing established the following facts.

{¶ 21} On March 26, 2014, Deputy Zollers, in...

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