Fifth District Summary Week of November 10, 2014

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State of Ohio vs. Steven P. Bubenchick, Jr.: Mr. Bubenchik’s wife called Massilon Police Department stating that she was afraid her husband had harmed himself after she received a phone call from him where he said he would see her in the next lifetime. Three officers went to Mr. Bubenchik’s home for a “welfare check”, they saw two vehicles in the driveway, but there were no lights in the home and no movement inside. After attempting to make contact and receiving no response, the officers left.

Mr. Bubenchik’s wife called the police department again, expressing concern that her husband had harmed himself. The three officers went back to his home. One of the officers learned that Mr. Bubenchik was questioned earlier that day by a detective who investigates child sexual abuse cases.

The officers and Bubenchik’s parents attempted to make contact with whoever may be inside the house. After some time with no response, the parents asked if the officers to enter the home. They entered through an open window on the front porch and announced themselves while entering that they were there to check on his welfare and to make sure Mr. Bubenchik was ok. Shortly thereafter, the officers heard a gunshot from inside. The officers came back outside and scattered seeking cover. A man who was later identified as Mr. Bubenchik’s brother ran out the front door and was taken to the ground and handcuffed. While the officers were taking cover behind their cruisers, Mr. Bubenchick leaned out of his window with his firearm and yelled, “I’m going to kill you mother fuckers”, and began shooting at the officers. The officers did not return fire fearing someone else was inside. A SWAT team was called in to negotiate and about three hours later, Mr. Bubenchick put down his pistol, exited the home and surrendered to police.

Mr. Bubenchick was found guilty of two counts of attempted murder for two of the officers, three counts of felonious assault, and having weapons under disability as well as three firearm specifications. The court merged the felonious assault conviction with the attempted murder conviction for one of the officers. He was sentenced to 11 years incarceration for attempted murder, 11 years incarceration for each felonious assault, 36 months incarceration for having weapons under disability to run concurrently, 9 years incarceration on three firearm specifications and two years incarceration on each repeat violent offender specifications, for a total sentence of 48 years.

Mr. Bubenchick assigned a single error on appeal, that the trial court’s denial of his motion to suppress was an error. Specifically, he argued that the wife’s call to the police did not constitute exigent circumstances justifying a warrantless entry into the home, and his acts of shooting at the officers did not constitute a new criminal act. The appellate court disagreed.

Under Ohio law, the warrantless police entry into a private residence is not unlawful if made upon exigent circumstances such as the need to protect and preserve life or avoid serious injury. The emergency aid exception does not require probable cause, but the officers must have reasonable grounds to believe there is an immediate need to act in order to protect lives or property, and there must be some reasonable basis for associating an emergency with the location.

In this case, the appellate court found that the phone calls from Mr. Bubenchick’s wife, the two vehicles in the driveway, the officers and parents unable to get a response from inside the house, and the fact that Mr. Bubenchick was questioned for being involved in the serious charge of child sexual abuse were enough to suspect that Mr. Bubenchick might have harmed himself. This was reasonable grounds for the officers to believe that entry into the home was necessary to insure that Mr. Bubenchick had not done so.

State of Ohio vs. Shannon N. Arledge: Shannon Arledge was indicted for manufacture of drugs and possession of chemicals for the manufacture of drugs. Her sole assignment of error is that the trial court erred in overruling her motion to dismiss based on a violation of her statutory right to a speedy trial. The 5th district court of appeals had to determine whether a continuance of a jury trial that was made sua sponte by the trial court tolled the running of the speedy-trial clock. Ms. Arledge argues that this time was not tolled because sua sponte continuances are not granted upon the accused’s own motion but rather upon the court’s own initiative. However, the appellate court disagreed because the continuance was necessitated by Ms. Arledge’s own motion for exclusion of evidence based on discovery issues that was made the day before the scheduled trial.

In order for a delay to temporarily suspend the speedy-trial clock, Ohio law requires that the period of delay be “necessitated by reason of plea in bar or abatement, motion, proceeding, or action made or instituted by the accused.” When a period of delay results from a continuance that is connected with a motion or other action of the accused, the presumption is that the period of delay was “necessitated.” When the accused finds that his speedy-trial rights were nevertheless violated, they bear the burden to rebut the presumption by demonstrating that the period of delay was not necessitated by his own motion or action. It is not sufficient to point out that his speedy-trial time otherwise expired.

State of Ohio vs. Carl L. Gordon: Carl L. Gordon appealed after the trial court refused to suppress evidence found in an automobile he had been a passenger in during a traffic stop. He claims that the officer delaying the traffic stop for the arrival of a canine unit violated his right to be free of unreasonable searches and seizures under the state and federal constitutions. The appellate court held that it was irrelevant how long the stop was prolonged in order for the drug detection canine to arrive on scene because the officer had probable cause to search the vehicle under the automobile exception.

The officer needed reasonable and articulable suspicion of any criminal violation, including minor traffic violation to make a traffic stop constitutionally valid. Mr. Gordon claims that the stop was unjustified because there was no reason to suspect he had failed to first ascertain that leaving the lane could be done safely or that he had not stayed within his lane “as nearly as was practicable,” within the meaning of Ohio revised code.

The appellate court found this defense to be irrelevant in determining whether the officer had a reasonable and articulable suspicion to initiate the traffic stop, stating that “an officer is not required to determine whether someone who has been observed committing a crime might have a legal defense to the charge.” In this case, the officer had reasonable and articulable suspicion that the driver was speeding. It is the judge who is in the best position to determine the credibility of what the officer claimed to have observed.

In order to search the vehicle following a traffic stop the officer needed to have probable cause of criminal activity. In this case, the officer observed in plain view, marijuana flakes on the driver’s pant leg. This was sufficient to establish probable cause to believe the vehicle contained contraband and to search the vehicle without a warrant under the automobile exception. The officer in this case had five and a half years of experience as a State Trooper. He had been exposed to both burnt and raw marijuana at the state trooper academy and had encountered both burnt and raw marijuana over two hundred times during his tenure as a state trooper. The officer also heard conflicting stories from the driver and Mr. Gordon as to their destination and observed that both the driver and Mr. Gordon had bloodshot, glassy eyes. The appellate court found this was competent credible evidence for the trial court to determine there was sufficient probable cause to search the vehicle.

State of Ohio v. Shawn M. Hale: In Shawn M. Hale’s appeal he raised four assignments of error. The first three were addressed together due to having a common and interrelated issue between them. In his first assignment of error, Hale argues that he was not given an opportunity to review the pre-sentence investigation report; in his second assignment of error, Hale contends his attorney gave inaccurate advice; and in his third assignment of error he argues that his attorney did not advise him he could speak prior to the imposition of sentence. However, his arguments center exclusively upon matters not contained in the trial court record and, he refers to numerous statements and circumstances that were also not part of the record. The Supreme Court of Ohio has held that “a reviewing court cannot add matter to the record before it that was not part of the trial court’s proceedings, and then decide the appeal on the basis of the new matter.” Since Hale’s new material to support his claim that he was denied effective assistance of counsel cannot be considered, the court of appeals held that they could not review his first, second, and third assignments of error.

In his fourth assignment of error, Hale maintains that the trial court’s sentence was an abuse of discretion. The appellate court disagreed. The trial court’s sentencing for Mr. Hale’s charges complied with applicable rules and was within the statutory sentencing range permitted. The record also showed that the trial court considered the purposes and principles of sentencing and the seriousness and recidivism factors required by the Ohio Revised Code. It is enough that the record shows these considerations were made. The trial court is not required to provide its reasoning and has broad discretion.

For the fourth assignment of error Hale also cites to matters not contained in the trial court record. Specifically he cites to transcripts from prior hearings that were not filed in trial court. Absent these transcripts on record, the appellate court could not review the trial court’s decision and furthermore had to presume regularity in the trial court’s proceedings. There was no evidence that trial court’s sentence was an abuse of discretion and therefore the fourth assignment of error was also overruled.

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