State v. Gamble

2018 Ohio 895

STATE OF OHIO, PLAINTIFF-APPELLEE, v. BENJAMIN GAMBLE, DEFENDANT-APPELLANT.

CASE NO. 16-17-02

COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY

March 12, 2018

OPINION

Appeal from Wyandot County Common Pleas Court

Trial Court No. 16-CR-0056

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

APPEARANCES:

Howard A. Elliott for Appellant

Eric J. Figlewicz for Appellee

ZIMMERMAN, J.

{¶1} Defendant-Appellant, Benjamin Gamble ("Gamble") appeals the judgment of the Wyandot County Common Pleas Court convicting him of one count of Illegal Assembly/Possession of Chemicals for Manufacture of Drugs and one count of Complicity for the Illegal Manufacture of Drugs, after a trial by jury. On appeal, Gamble asserts that the trial court erred: 1) by imposing a sentence on each of two charges despite the fact that the two charges had been merged after conviction; 2) by imposing a mandatory fine without considering his present and future ability to pay the mandatory fine; 3) by not dismissing the indictment where speedy trial time limits had been improperly exceeded; and 4) by failing to grant his motion to suppress due to his improper detention by law enforcement. For the reasons that follow, we affirm in part and reverse in part the judgment of the trial court, and remand this matter to the trial court for further proceedings consistent with this opinion.

Factual & Procedural Background

{¶2} On May 6, 2016, Gamble was arrested after law enforcement officers discovered methamphetamine ("meth") and materials to manufacture meth at his residence. On May 11, 2016, a two count indictment was filed in the Wyandot County Common Pleas Court against Gamble. (Doc. No. 1). Count I of the indictment alleged that Gamble knowingly assembled or possessed one or morechemicals that may be used in the manufacture of a methamphetamine, with the intent to manufacture methamphetamine, a controlled substance, in violation of R.C. 2925.041(A), a felony of the third degree. (Id.). Count II of the indictment alleged that Gamble did knowingly aid or abet Andrew Robert Inman in committing the offense of Illegal Manufacture of Drugs, by manufacturing methamphetamine with said offense being committed in the vicinity of a juvenile, in violation of R.C. 2923.03(A)(2), a felony of the first degree. (Id.).

{¶3} Gamble was arraigned on the charges in the trial court and executed an affidavit of indigency during his arraignment. (Doc. Nos. 3; 14).

{¶4} On May 31, 2016, Gamble's court appointed attorney filed a waiver of speedy trial in the trial court. (Doc. No. 16). The waiver contained the signatures of Gamble and his attorney. (Id.).

{¶5} Approximately two weeks later, Gamble filed a motion to suppress in the trial court, alleging that he was improperly detained based upon an unreliable "tip." (Id.). The trial court held a suppression hearing and permitted each side to submit written closing statements to the court prior to issuing its decision. (Doc. Nos. 34, 35, 36). Thereafter, the trial court issued its judgment entry overruling the motion to suppress. (Doc. No. 36). Specifically, the trial court found that the "tip" given to law enforcement was reliable. (Id. at a-17).

{¶6} On November 14, 2016, Gamble's court appointed counsel filed a motion to withdraw as counsel, advising the trial court that Gamble had retained his own counsel. (Doc. No. 38). On that same date, Gamble's new counsel filed a notice of appearance in the trial court. (Doc. No. 38).

{¶7} Thereafter, Gamble filed an "allegation and affidavit of indigency" in the trial court. (Doc. No. 48). Specifically, Gamble asserted that he was indigent and not able to pay any mandatory fine in the case. (Id.).

{¶8} A jury trial was scheduled for March 14, 2017. (Doc. No. 54). However, on February 21, 2017, Gamble's counsel filed a new motion to suppress/motion in limine in the trial court. (Doc. No. 65). Further, and prior to the scheduled jury trial, Gamble also filed a motion to dismiss the indictment for violating his speedy trial right. (Doc. No. 75). Gamble alleged that he did not waive his right to a speedy trial and did not authorize his court appointed counsel to waive his speedy trial rights on his behalf. (Id.). In response, the State argued that a speedy trial waiver was filed by Gamble in the trial court on May 31, 2016 and Gamble failed to mention said waiver in his motion to dismiss. (Doc. No. 76). On March 2, 2017 the trial court issued its judgment entry on the motion to dismiss, finding it not well taken. (Doc. No. 77).

{¶9} Nevertheless, the day before his jury trial, Gamble filed a response to the trial court's judgment entry denying his speedy trial motion. (Doc. No. 85).Gamble asserted that while a speedy trial waiver was on file, such waiver contained a "forged" signature. (Id.). The State responded and asserted that even if Gamble's signature was a "clever forgery," the waiver of speedy trial was valid because Gamble's court appointed counsel had waived Gamble's right to a speedy trial for purposes of trial preparation. (Doc. No. 88). The trial court scheduled a hearing on the speedy trial waiver issue. (Doc. No. 93).

{¶10} Gamble's jury trial commenced on March 14, 2017 as scheduled. However, during a recess in the proceedings the trial court conducted its hearing on Gamble's speedy trial issue. At the hearing, Gamble's court appointed counsel, Emily Beckley ("Beckley"), testified that she had Gamble sign a speedy trial waiver after explaining it to him at a pretrial. (3/16/2017 Tr., Vol. V, at 644-45). Beckley further testified that she signed the waiver after Gamble signed it. (Id. at 652). She also testified that the speedy trial waiver factored into her decision to file a motion to suppress on Gamble's behalf. (Id. at 652-53). The trial court found no issues with Gamble's waiver of speedy trial. (Doc. No. 96).

{¶11} Gamble's jury trial concluded with a finding of guilty on each count in the indictment. (Doc. No. 95). Further, and in regards to Count II, Complicity to Illegal Manufacture of Drugs, the jury found that Gamble committed the offense in the vicinity of a juvenile. (Id.). The trial court set Gamble's sentencing hearing for March 30, 2017.

{¶12} At Gamble's sentencing hearing, Gamble represented to the trial court that he wanted to fire his retained counsel. (Sentence, 3/30/2017 Tr. at 5). Gamble also requested additional time to retain another attorney prior to sentencing. (Id.). After a discussion with the trial court about his efforts to retain new counsel for sentencing and appeal, Gamble represented to the trial court that he would be able to retain counsel by April 13, 2017. (Id. at 10-11). Based on these representations, the trial court scheduled Gamble's sentencing hearing for April 13, 2017. (Id.).

{¶13} On April 13, 2017, Gamble appeared in the trial court for sentencing without counsel. (Sentence, 4/13/2017 Tr. at 3). Gamble informed the trial court that he was indigent and unable to hire an attorney. (Id.). As a result of this representation, the trial court had Gamble execute another affidavit of indigency. (Id.; Doc. No. 105). The trial court had standby counsel present (in the event that Gamble had not secured an attorney prior to sentencing) and after Gamble completed the affidavit of indigency in open court, the trial court appointed him a new attorney. (Id. at 4).

{¶14} Ultimately, the trial court sentenced Gamble to a prison term of thirty (30) months on Count I; and a mandatory prison term of eight (8) years on Count II. The trial court then merged Count I into Count II.¹ (Id. at 13-14). In addition to the prison term, the trial court also imposed a mandatory fine in the amount of $10,000.(Doc. No. 106). The trial court journalized its sentence on April 14, 2017, reflecting the same. (Id.at 4-5). From this judgment entry Gamble appeals, and presents the following assignments of error for our review:

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED BY IMPOSING A SENTENCE ON EACH OF TWO CHARGES DESPITE THE FACT THAT THE TWO CHARGES HAD BEEN MERGED AFTER CONVICTION.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED BY IMPOSING A MANDATORY FINE WITHOUT CONSIDERING THE PRESENT AND FUTURE ABILITY OF THE APPELLANT TO PAY SAME AFTER A MOTION AND AFFIDAVIT OF INDIGENCY HAD BEEN FILED PRIOR TO THE SENTENCING HEARING.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED IN NOT GRANTING A DISMISSAL OF THE INDICTMENT WHERE SPEEDY TRIAL TIME LIMITS HAD BEEN EXCEEDED AND THE CONSEQUENCES OF ANY TIME WAIVER FILED HAD NOT BEEN ADEQUATELY EXPLAINED TO THE APPELLANT.

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED IN FAILING TO GRANT A MOTION TO SUPPRESS EVIDENCE WHERE THE APPELLANT HAD BEEN DETAINED AND NOT PERMITTED TO LEAVE THE SCENE WHERE SUCH ATTENTION WAS BASED ON CORROBORATED STATEMENTS OF A TIP GIVEN TO LAW ENFORCEMENT.

Appellant's First Assignment of Error

{¶15} In his first assignment of error, Gamble argues that the trial court erred by imposing a sentence on each of two charges despite the fact that the two charges had been merged after conviction. For the reasons that follow, we agree.

Standard of Review

{¶16} "The Ohio Supreme Court has recognized that the 'imposition of multiple sentences for allied offenses of similar import is plain error.'" State v. Jones, 3rd Dist. Allen No. 1-11-60, 2012-Ohio-2694, ¶ 8 quoting State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31. "'When a defendant has been found guilty of offenses that are allied offense, R.C. 2941.25 prohibits the imposition of multiple sentences." Id. quoting State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512, ¶ 17. When a defendant has been found guilty of two or more allied offenses, the state must elect which offense it will pursue. Id. citing State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911 N.E.2d 882, ¶ 21. Thereafter, the trial court must merge the allied offenses into a single conviction and impose a sentence that is...