State v. Tutt
| Decision Date | 10 December 2015 |
| Docket Number | No. 102687.,102687. |
| Parties | STATE of Ohio, Plaintiff–Appellee v. Rasheed TUTT, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
P. Andrew Baker, Steve W. Canfil, Cleveland, OH, for Appellant.
Timothy J. McGinty, Cuyahoga County Prosecutor By: Mark D. Bullard, Assistant Prosecuting Attorney, Cleveland, OH, for Appellee.
Before: E.A. GALLAGHER, P.J., E.T. GALLAGHER, J., and STEWART, J.
, P.J.
{¶ 1} Defendant-appellant Rasheed Tutt appeals his convictions after he pled no contest to multiple counts of drug trafficking, drug possession, possessing criminal tools, possessing a defaced firearm, receiving stolen property and tampering with evidence arising out of his role in a drug trafficking operation. Tutt's convictions were based on evidence seized during a search of Tutt's residence after Cleveland police made two successful “controlled buys” of heroin outside the residence. Tutt claims that his no contest pleas to two of the counts—Count 3, trafficking in violation of R.C. 2925.03(A)(2)
, and Count 4, drug possession in violation of R.C. 2925.11(A) —were not knowingly, intelligently and voluntarily made and should be vacated because the trial court failed to inform him that these offenses carried mandatory prison sentences. He also contends that the trial court erred in denying his motion to suppress the evidence obtained during the search of his residence, claiming that there was no probable cause for the issuance of the search warrant. For the reasons that follow, we reverse Tutt's convictions on Counts 3 and 4, affirm his remaining convictions and remand the case for further proceedings consistent with this opinion.
{¶ 2} In March 2014, members of the Cleveland Police Department conducted two “controlled buys” of heroin outside Tutt's residence at 10812 Amor Avenue in Cleveland. Based on the affidavit of Detective Robert Sauterer, which set forth facts relating to the “controlled buys” and additional information Detective Sauterer discovered during his follow-up investigation, Cleveland police obtained a search warrant to search Tutt's residence. The search warrant authorized police to search the residence and its curtilage for:
Heroin, other narcotic drugs and/or controlled substances, and/or counterfeit controlled substances; instruments and paraphernalia used in the taking of drugs and/or preparation of illegal drugs for sale, use, or shipment including but not limited to scales and grinders; home safes, records of illegal transactions, including but not limited to computers and computer files and discs; articles of personal property, papers and documents tending to establish the identity of the persons in control of the premises; any and all evidence of communications used in the furtherance of drug trafficking activity, including, but not limited to, pagers, cellular telephones, answering machines, and answering machine tapes; any and all other contraband, including but not limited to money and weapons being illegally possessed therein; any and all evidence pertaining to the violations of the drug laws of the State of Ohio, to wit: Sections 2925.03
, 2925.11, and 2923.24 of the Ohio Revised Code.1
{¶ 3} The police executed the warrant that same day. Once inside the residence, they confiscated numerous items including several bags of heroin, crack cocaine and marijuana, a press, several scales and grinders with suspected drug residue and numerous cell phones, guns and ammunition. Tutt was subsequently indicted in Cuyahoga C.P. No. CR–14–583969–E for drug trafficking, drug possession, possessing criminal tools, possessing a defaced firearm, receiving stolen property and tampering with evidence.
{¶ 4} On September 5, 2014, Tutt filed a motion to suppress the evidence seized during the search arguing that the underlying affidavit failed to demonstrate probable cause for the issuance of the search warrant. After hearing argument on the issue, the trial court denied the motion.
{¶ 5} In October 2014, Tutt was re-indicted in Cuyahoga C.P. No. CR–14–589749–E and charged with the following offenses:
Count One—Trafficking in violation of R.C. 2925.03(A)(2)
, a fourth-degree felony, with a one-year firearm specification and various forfeiture specifications.
Count Two—Drug possession in violation of R.C. 2925.11(A), a fourth-degree felony, with a one-year firearm specification and various forfeiture specifications.
Count Three—Trafficking in violation of R.C. 2925.03(A)(2), a first-degree felony, with a one-year firearm specification and various forfeiture specifications.
Count Four—Drug possession in violation of R.C. 2925.11(A), a first-degree felony, with a one-year firearm specification and various forfeiture specifications.
Count Five—Trafficking in violation of R.C. 2925.03(A)(2), a fifth-degree felony, with a one-year firearm specification and various forfeiture specifications.
Count Six—Possessing criminal tools in violation of R.C. 2923.24(A)
, a fifth-degree felony, with various forfeiture specifications.
Count Seven—Possessing a defaced firearm in violation of R.C. 2923.201(A)(2), a first-degree misdemeanor, with a weapon forfeiture specification.
Count Ten—Receiving stolen property in violation of R.C. 2913.51(A), a fourth-degree felony.
Count Twelve—Tampering with evidence in violation of R.C. 2921.12(A)(1), a third-degree felony.
Count Seventeen—Having weapons under disability in violation of R.C. 2923.13(A)(2), a third-degree felony.2
{¶ 6} The state ultimately concluded that the having weapons while under disability charge (Count 17) was “not a proper charge” and agreed to dismiss it. On January 22, 2015, Tutt pled no contest to the remaining charges (Counts 1, 2, 3, 4, 5, 6, 7, 10 and 12).
{¶ 7} At the plea hearing, the trial court first identified the counts to which Tutt would be pleading no contest and the classification of each offense. The trial court then reviewed the sentence ranges and maximum sentences applicable to each of the counts, including the associated firearm specifications, with Tutt, as follows:
{¶ 8} The trial court also advised Tutt regarding postrelease control and the property that he would be forfeiting as a result of his pleas:
{¶ 9} Upon inquiry by the trial court, Tutt indicated that he understood the potential penalties he faced as a result of his pleas. The trial court then proceeded to advise Tutt of his constitutional rights and confirmed that Tutt understood the rights he was giving up by entering his no contest pleas, that no threats or promises had been made to induce Tutt to enter his pleas and that he was satisfied with his counsel. After Tutt entered his no contest pleas, the state offered three exhibits into evidence—the inventory of the items that were seized during the execution of the search warrant at Tutt's residence, a lab report setting forth the results of DNA testing performed on some of the seized items and a narcotics lab report detailing the test results of various suspected illegal substances confiscated during the search. The trial court found Tutt guilty of all the offenses to which he had pled no contest.3
{¶ 10} The trial court ordered a presentence investigation report and thereafter sentenced Tutt to an aggregate sentence of six years in prison—one year in prison on each of Counts 1, 2, 5, 6, 10 and 12, six months on Count 7, five years in prison on Counts 3 and 4 and one year on the firearm specifications, with the sentences on all counts to be served consecutive to the one-year sentence on the firearm specifications but concurrent to each other. The trial court also imposed five years of mandatory postrelease control and ordered forfeiture of the items referenced in the indictment.
{¶ 11} Tutt appealed his convictions, raising the following two assignments of error for review:
Compliance with Crim.R. 11(C)(2)(a)
{¶ 12} In his first assignment of error, Tutt argues that the trial court failed to comply with Crim.R. 11(C)(2)(a)
and that his no contest pleas on Counts 3 and 4 of the indictment—trafficking in violation of R.C. 2925.03(A)(2) with a one-year firearm specification and various forfeiture specifications (Count 3) and drug possession in violation of R.C. 2925.11(A) with a one-year firearm specification and various forfeiture specifications ...
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