State v. Albertson

2021-Ohio-2125

STATE OF OHIO Plaintiff-Appellee/Cross-Appellant v. SHAWN ALBERTSON Defendant-Appellant/Cross-Appellee

No. 28722

Court of Appeals of Ohio, Second District, Montgomery

June 25, 2021

Criminal Appeal from Common Pleas Court Trial Court Case No 2018-CR-1312/1

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee/Cross-Appellant

SARA M. BARRY, West First Street, Suite 207, Dayton, Attorney for Defendant-Appellant/Cross-Appellee

OPINION

WELBAUM, J.

{¶ 1} Defendant-appellant, Shawn Albertson, appeals from his conviction in the Montgomery County Court of Common Pleas after a jury found him guilty of aggravated burglary, aggravated arson, felony murder, aggravated robbery, grand theft of a motor vehicle, grand theft of a firearm, and aggravated possession of drugs. In support of his appeal, Albertson contends that his trial counsel provided ineffective assistance during his motion to suppress hearing and during his trial. Albertson also argues that his convictions for aggravated burglary, aggravated arson, felony murder, and aggravated robbery were not supported by sufficient evidence and were against the manifest weight of the evidence. Albertson further claims that the trial court erred by failing to merge his grand theft of a firearm offense with his aggravated burglary and aggravated robbery offenses at sentencing. Albertson additionally contends that the trial court erred by ordering him to pay restitution without first considering his present and future ability to pay as required by R.C. 2929.19(B)(5). The State filed a cross-appeal asserting that the trial court erred by merging Albertson's aggravated burglary and aggravated robbery offenses with his aggravated arson and felony murder offenses. For the reasons outlined below, the judgment of the trial court will be affirmed in part, reversed in part, and the matter will be remanded to the trial court for the sole purpose of resentencing Albertson.

Facts and Course of Proceedings

{¶ 2} On August 31, 2018, a Montgomery County grand jury returned a nine-count indictment charging Albertson with the following offenses:

1. Aggravated Burglary, R.C. 2911.11(A)(1), first-degree felony;

2. Aggravated Arson (occupied structure), R.C. 2909.02(A)(2) second-degree felony;

3. Aggravated Arson (harm to person), R.C. 2909.02(A)(1), first-degree felony;

4. Felony Murder (aggravated arson occupied structure), R.C. 2903.02(B), unclassified felony;

5. Felony Murder (aggravated arson harm to person), R.C. 2903.02(B), unclassified felony;

6. Aggravated Robbery (serious physical harm), R.C. 2911.01(A)(3), first-degree felony;

7. Grand Theft (motor vehicle), R.C. 2913.02(A)(1), fourth-degree felony;

8. Grand Theft (firearm), R.C. 2913.02(A)(1), third-degree felony; and

9. Aggravated Possession of Drugs (methamphetamine), R.C. 2925.11(A), fifth-degree felony.

{¶ 3} The charges stemmed from allegations that on April 1, 2018, Albertson trespassed inside the Dayton residence of 75-year-old Gerald Manns, and stole money, a handgun, and several other items of Manns' personal property. It was also alleged that Albertson set fire to Manns' residence before leaving the scene and fleeing in Manns' truck. There is no dispute that Manns was subsequently found on the basement floor of his residence and that Manns died as a result of the fire. There is also no dispute that a few hours after the fire, detectives tracked Albertson to a hotel room in Butler Township wherein they discovered drugs, drugs paraphernalia, and several items of Manns' personal property. Albertson was later arrested and charged with the aforementioned offenses.

1. Motion to Suppress

{¶ 4} Albertson pled not guilty to the indicted charges and filed a motion to suppress. Albertson's motion to suppress challenged the admissibility of the evidence discovered in the Butler Township hotel room. In support of his motion, Albertson claimed that the evidence in the hotel room was inadmissible because it was seized via an invalid search warrant that lacked probable cause. The trial court held a hearing on the motion and heard testimony from one witness, Detective Eric Dingee of the Montgomery County Sheriffs Office. The following is a summary of Det. Dingee's suppression hearing testimony.

{¶ 5} On April 1, 2018, Det. Dingee responded to Manns' residence on Merrimac Avenue in Dayton, Ohio, to investigate a suspicious fire and the death of Manns. At that time, Det. Dingee met with Manns' son, Frank Manns. Frank advised Det. Dingee that his father's house looked as though it had been ransacked. Frank also told Det. Dingee that his father's cell phone, .357 magnum handgun, and gray Chevy Silverado truck were missing from the residence.

{¶ 6} Shortly after Det. Dingee learned that Manns' truck was missing, a private citizen reported that a suspicious Chevy Silverado truck was blocking his driveway on Foster Avenue. The truck in question was located only 10 minutes from Manns' residence and was later identified as Manns' missing truck. A witness on Foster Avenue reported that the driver of the truck was a white male. The witness observed the driver transfer items of property from inside the truck into a white Ford Explorer. The witness reported that a white female was driving the Explorer and that the Explorer had a broken rear driver-side window that was covered with green tape. The witness reported that the male and female drove away in the Explorer, leaving Manns' truck behind.

{¶ 7} After learning this information, Det. Dingee and his partner, Det. Kyle Baranyi, drove around to various hotels, clubs, and parking lots in Montgomery County in search of a white Ford Explorer with green tape on the rear driver-side window. A little after midnight on April 2, 2018, the detectives located the Explorer parked at a Days Inn hotel in Butler Township. After locating the Explorer, the detectives ran the vehicle's license plate and learned that the vehicle was registered to an individual named Ashley Payton. Because the vehicle was parked in front of room numbers 138 and 139, Det. Dingee made contact with the hotel clerk in order to determine who was renting those two rooms. The hotel clerk provided Det. Dingee with registration forms, which showed that room number 139 was registered to an individual named Nancy Dalton. The detectives also conducted a Facebook search on the vehicle's owner, Payton, and discovered that Payton was associated with Dalton on Facebook.

{¶ 8} In order to make contact with the occupants of room 139, Det. Dingee and Det. Baranyi requested the assistance of a uniformed officer. Dep. David Posma later arrived on the scene and knocked on the hotel room door with the two detectives standing beside him. After Dep. Posma applied two series of knocks to the door, a white female, later identified as Dalton, opened the curtain to the hotel room's window. At that time, Dep. Posma identified himself to Dalton and asked Dalton if she would come to the door. When Dalton opened the hotel room door, Det. Dingee and Det. Baranyi identified themselves and asked if they could come inside the hotel room to discuss a suspicious fire and death that they were investigating. Dalton responded "yes, come in," and motioned all three officers inside the hotel room. Trans. Vol. I, p. 21.

{¶ 9} As soon as Det. Dingee walked inside the hotel room, he observed duffle bags sitting near the front door. One of the duffle bags was open and it contained gallon-sized Ziploc bags that contained several smaller Ziploc bags. The smaller Ziploc bags contained a tannish substance that Det. Dingee believed was methamphetamine or heroin. The Ziploc bags were in Det. Dingee's plain view and Det. Dingee did not have to manipulate the duffle bag in order to see what was inside.

{¶ 10} While inside the hotel room, the detectives asked Dalton if she was driving the Ford Explorer with the green tape on the rear driver-side window. Dalton advised that she was, and that the vehicle belonged to her daughter. Det. Baranyi also asked Dalton if anyone else was in the hotel room. In response, Dalton looked behind her and a white male, later identified as Albertson, walked out of the bathroom. Albertson walked out of the bathroom without any order or show of force from the officers. The officers did not spread out in the hotel room, but stood together in one location side by side.

{¶ 11} Although the officers were not conducting a search, they were nevertheless looking around the hotel room. As Albertson sat beside Dalton on the bed, Det. Dingee noticed that the nightstand next to the bed had its top drawer open. Det. Dingee could see that a handgun was inside the drawer in plain view. Dep. Posma also saw the handgun and immediately told Albertson not to touch it. Dep. Posma then picked up the handgun from the drawer for purposes of officer safety. Without any questioning, Albertson told the detectives that the gun was a pellet gun. After confirming that the gun was a pellet gun, Dep. Posma placed the gun on a seat behind him.

{¶ 12} In addition to the pellet gun, Det. Dingee observed pill bottles, collectible coins, and a glass pipe for smoking methamphetamine lying on top of the nightstand in plain view. While Det. Dingee was talking to Dalton and Albertson about the fire at Manns' residence, Det Baranyi whispered to him that one of the pill bottles on the nightstand had Manns' name on it. After this advisement, Det. Dingee looked over at the pill bottles on the nightstand and personally observed the name "Gerald Manns" on one of the pill bottles. Det....