[Cite as State v. Willis,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, : CASE NO. CA2012-08-155 Plaintiff-Appellee, : OPINION : 6/10/2013 - vs - :

LEDARYLE J. WILLIS, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2012-01-0075

Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

John T. Willard, P.O. Box 35, Hamilton, Ohio 45012, for defendant-appellant

S. POWELL, J.

{¶ 1} Defendant-appellant, Ledaryle J. Willis, appeals his convictions in the Butler

County Court of Common Pleas for carrying a concealed weapon, having a weapon while

under disability, and obstructing official business. For the reasons stated below, we affirm in

part and reverse in part the decision of the trial court.

{¶ 2} On January 4, 2012, Middletown Police Officer James Wilcox was patrolling the

downtown area of Middletown. Around 12:30 a.m., Officer Wilcox observed appellant riding Butler CA2012-08-155

a bicycle without a headlight or rear light. Officer Wilcox drove to a road close to appellant,

activated a spotlight, and pulled over. When Officer Wilcox's spotlight illuminated appellant,

appellant stood up on his bicycle, pedaled faster, and travelled around Officer Wilcox's

vehicle. Appellant traveled through two parking lots, over curbs, and behind Officer Wilcox's

vehicle several times. Eventually, a second police cruiser blocked appellant from riding out

of a parking lot. Officer Wilcox then bumped appellant's bicycle with his police cruiser's front

bumper and appellant fell to the ground.

{¶ 3} After appellant fell to the ground, Officer Wilcox placed appellant in handcuffs.

As he handcuffed appellant, Officer Wilcox asked him if he had any weapons on him and

appellant did not respond. Officer Wilcox searched appellant's front pocket and found a

loaded handgun magazine. Officer Wilcox also found a 9 mm handgun concealed inside a

blue sock tucked in the back of appellant's waistband.

{¶ 4} On March 7, 2012, the Butler County Grand Jury indicted appellant for carrying

a concealed weapon, having a weapon while under disability, and obstructing official

business. Thereafter, appellant's counsel filed a motion to suppress the evidence.

Subsequently, the trial court held a hearing and overruled the motion. On May 3, 2012,

appellant entered a plea of "no contest" to each charged offense. Appellant was sentenced

to an aggregate community control term for five years, a 90-day jail sentence with credit for

92 days served, and a fine of $500. Appellant was also ordered to pay the costs of

prosecution.

{¶ 5} Appellant now appeals, asserting four assignments of error.

{¶ 6} Assignment of Error No. 1:

{¶ 7} IT WAS ERROR FOR THE JUDGMENT ENTRY IN THE INSTANT CASE TO

REFLECT THAT THE APPELLANT PLED GUILTY TO THE CHARGES WHEN THE PLEA

SIGNED AT THE PLEA HEARING CLEARLY STATES THAT THE APPELLANT PLED NO -2- Butler CA2012-08-155

CONTEST.

{¶ 8} Appellant argues that his judgment of conviction entry inaccurately reflects the

type of plea he made to the charges. After the motion to suppress, appellant pled "no

contest" to carrying a concealed weapon, having a weapon while under disability, and

obstructing official business. While appellant pled "no contest" to these charges, the

judgment entry states that appellant entered a guilty plea. The state concedes that this was

in error and suggests that this court should order the trial court to issue a nunc pro tunc

judgment of conviction entry correcting the mistake.

{¶ 9} It is well settled that courts possess the authority to correct errors in judgment

entries so that the record speaks the truth. State ex rel. Fogle v. Steiner,

(1995); Crim.R. 36. Errors subject to correction by the court include a clerical error,

mistake, or omission that is mechanical in nature and apparent on the record and do not

involve a legal decision or judgment. State v. Miller,

,

. Nunc pro tunc entries are used to make the record reflect what the court actually decided

and not what the court might or should have decided or what the court intended to decide.

State v. Lester,

,

.

{¶ 10} In this case, the trial court committed a clerical error by stating that appellant

pled "guilty" to the charges when the record reflects that he pled "no contest." It is clear that

the trial court actually decided that appellant pled "no contest" and the error in the judgment

entry is purely clerical. Consequently, the trial court erred in stating that appellant pled

"guilty" to the charges and this matter is remanded to the trial court so that the court may

issue a nunc pro tunc entry to accurately reflect appellant's plea.

{¶ 11} Appellant's first assignment of error is sustained.

{¶ 12} Assignment of Error No. 2:

{¶ 13} IT WAS ERROR FOR THE TRIAL COURT NOT TO SUPPRESS ANY OR ALL -3- Butler CA2012-08-155

EVIDENCE SEIZED BY THE STATE AS THE RESULT OF THE UNWARRANTED AND

UNREASONABLE SEARCH AND SEIZURE OF THE APPELLANT WITHOUT PROBABLE

CAUSE.

{¶ 14} Appellant challenges the trial court's denial of his motion to suppress the

evidence on two bases. Appellant argues that Officer Wilcox had no authority to attempt to

stop him when he observed appellant riding a bicycle without a proper light because he only

committed a minor misdemeanor. Appellant also maintains that Officer Wilcox's actions were

unconstitutional because the officer had no basis to arrest and search him.

{¶ 15} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Burnside,

,

, ¶ 8. When

considering a motion to suppress, the trial court, as the trier of fact, is in the best position to

weigh the evidence in order to resolve factual questions and evaluate witness credibility.

State v. Eyer, 12th Dist. No. CA2007-06-071,

. In turn, the appellate

court must accept the trial court's findings of fact so long as they are supported by

competent, credible evidence. State v. Lange, 12th Dist. No. CA2007-09-232, 2008-Ohio-

3595, ¶ 4. After accepting the trial court's factual findings as true, the appellate court must

then determine, as a matter of law, and without deferring to the trial court's conclusions,

whether the trial court applied the appropriate legal standard. State v. Forbes, 12th Dist. No.

CA2007-01-001,

.

Traffic Stop

{¶ 16} We begin by addressing whether Officer Wilcox's attempts to stop appellant for

violating a traffic ordinance were constitutional. Initially, we note that appellant has waived

the constitutionality of Officer Wilcox's ability to stop appellant for violating a traffic ordinance.

While appellant's written motion to suppress argued that Officer Wilcox's stop was not based

on reasonable articulable suspicion, during the suppression hearing, appellant conceded that -4- Butler CA2012-08-155

he was not challenging the stop. The trial court acknowledged this concession, noting, "I

think the defense concedes that the officer's ability to stop the individual for having violated

this section is recognized constitutionally."

{¶ 17} In State v. McMullen, 12th Dist. No. CA2009-09-235,

, this

court found that a defendant waives a suppression argument on appeal when the defendant

raised it in his written motion to suppress but then concedes that it is not an issue during the

oral suppression hearing. In so holding, this court reasoned that a defendant must clearly

state the grounds on which he is challenging the submission of the evidence because, "[t]he

prosecutor must know the grounds of the challenge in order to prepare his case, and the

court must know the grounds of the challenge in order to rule on evidentiary issues at the

hearing and properly dispose of the merits." Id. at ¶ 24, citing Xenia v. Wallace,

(1988). Consequently, in light of appellant's counsel's deliberate statements

and acquiescence to the trial court's recognition of waiver, appellant waived this issue.

{¶ 18} Notwithstanding the wavier, Officer Wilcox was able to stop appellant when

appellant violated a traffic ordinance. The Fourth Amendment to the United States

Constitution insulates individuals from unreasonable searches and seizures. United States v.

Hensley,

,

(1985). A traffic stop initiated by a law

enforcement officer implicates the Fourth Amendment and must comply with the Fourth

Amendment's general reasonableness requirement. Whren v. United States,

,

(1996).

{¶ 19} One type of traffic stop that is permissible under the Fourth Amendment is

where a police officer stops a vehicle based on probable cause that a traffic violation has

occurred. State v. Moeller, 12th Dist. No. CA99-07-128,

, *2 (Oct. 23,

2000), citing

. Probable cause that a traffic violation has occurred arises where

the officer witnesses the traffic violation. Moeller at *2. Even a de minimus traffic violation -5- Butler CA2012-08-155

provides probable cause for a traffic stop. State v. Williams, 12th Dist. No. CA2009-08-014,

, ¶ 13. The Ohio Supreme Court has explained that where an officer has

probable cause to stop a motorist for any criminal violation, including a minor traffic violation,

"the stop is not unreasonable under the Fourth Amendment to the United States Constitution

even if the officer had some ulterior motive for making the stop, such as suspicion that the

violator was engaging in more nefarious criminal activity." State v. Williams, 12th Dist. No.

CA2009-08-014,

, ¶ 11, quoting Dayton v. Erickson,

(1996),

paragraph one of the syllabus.

{¶ 20} Section 474.05 of the City of Middletown Traffic Ordinances provides:

(a) Every bicycle when in use at the times specified in Ohio R.C. 4513.03 or a substantially similar municipal ordinance shall be equipped with the following:

(1) A lamp mounted on the front of either the bicycle or the operator * * *.

(2) A red reflector on the rear * * *.

(3) A lamp emitting either flashing or steady red light * * * in addition to the red reflector. If the red lamp performs as a reflector in that it is visible as specified in division (A)(2) of this section, the red lamp may serve as the reflector and a separate reflector is not required.

{¶ 21} R.C. 4513.03(A)(1) requires every vehicle other than a motorized vehicle that

operates upon a street or highway display lights during sunset to sunrise.

{¶ 22} We find that Officer Wilcox was able to stop appellant because he had probable

cause that appellant committed a traffic violation. Officer Wilcox testified that he observed

appellant riding a bicycle that did not have a headlight or a rear light and that this was in

violation of Section 474.05 of Middletown Traffic Ordinances. Additionally, any insinuation by

appellant that the stop was not justified because riding a bicycle without lights is "only a minor

misdemeanor" is meritless since even a de minimus traffic violation provides probable cause

-6- Butler CA2012-08-155

for a traffic stop. Accordingly, Officer Wilcox had a right to stop appellant upon his

observation of appellant riding a bicycle without a proper light.

Arrest and Search

{¶ 23} Next, we address the arrest and search of appellant. Appellant argues that

Officer Wilcox did not have probable cause to arrest and search him because he only

violated a traffic ordinance. The state advances many arguments as to why the arrest and

search of appellant was permissible. We will only address the constitutionality of the arrest

and search under the law regarding search incident to arrest because this analysis is

determinative.

{¶ 24} Generally, warrantless searches are per se unreasonable subject to "a few

specifically established and well-delineated exceptions." State v. Oglesby, 12th Dist. No.

CA2004-12-027,

, quoting Katz v. United States,

,

(1967). One such exception is a search incident to a lawful arrest. Chimel v.

California,

,

(1969). In order for a search to be conducted

pursuant to this exception, the arrest must be lawful.

{¶ 25} For a warrantless arrest to be lawful, the arresting officer must have probable

cause that the individual had committed an offense. Beck v. Ohio,

,

(1964). Probable cause is not subjective. State v. Abrams, 12th Dist. No. CA2007-

03-040,

. Rather, probable cause is viewed under an objective standard

and is present where, under the facts and circumstances within an officer's knowledge, a

reasonably prudent person would believe that the arrestee has committed a crime.

In

making this determination, we examine the totality of the facts and circumstances. State v.

Christopher, 12th Dist. No. CA2009-08-041,

, ¶ 16, citing Illinois v. Gates,

,

(1982).

{¶ 26} The surrounding facts and circumstances provided Officer Wilcox with probable -7- Butler CA2012-08-155

cause to arrest appellant without a warrant for obstructing official business in violation of R.C.

2921.31.1 After Officer Wilcox observed appellant operating a bicycle without a proper light,

he activated his spotlight and shined it on appellant. Appellant then stood up on his bicycle,

pedaled faster, and traveled away. Officer Wilcox testified appellant was obviously

"attempt[ing] to get away from [him]." Appellant attempted to ride into another parking lot but

a second police cruiser blocked the exit. Eventually, Officer Wilcox hit appellant's back

bicycle tire and caused appellant to fall to the ground. Consequently, the evidence shows

appellant, with purpose to prevent, obstruct, or hamper Officer Wilcox, engaged in actions

that hampered Officer Wilcox's performance of his lawful duties

{¶ 27} We note that while appellant was initially charged with resisting arrest but later

indicted for obstructing official business, this fact is of no consequence to our determination.

On appeal, our inquiry is whether a reasonably prudent person would have believed that

appellant committed an offense. This court has noted, "[t]he arresting officer's subjective

belief or motivation in the detention of an individual is not material to the legality of the

detention; the correct test is whether there was objective justification for the detention or

arrest." Oglesby, 12th Dist. No. CA2004-12-027,

, citing State v.

Robinette,

(1997). Therefore, while Officer Wilcox might have

believed that appellant committed the offense of resisting arrest, the evidence shows that

probable cause existed to arrest appellant for obstructing official business.

{¶ 28} We also find that Officer Wilcox's search of appellant was lawful. To be a valid

search incident to a lawful arrest, the search must be limited to the offender's person and the

area within his immediate control. State v. Gagaris, 12th Dist. No. CA2007-06-142, 2008-

Ohio-5418, ¶ 16, citing Chimel,

,

. In this case, Officer

1. R.C. 2921.31(A) provides that "[n]o person without privilege to do so and with purpose to prevent, obstruct, or -8- Butler CA2012-08-155

Wilcox testified that after he placed appellant in handcuffs, he searched appellant's person.

He found a loaded handgun magazine in appellant's front pocket as well as a 9 mm handgun

concealed inside a blue sock tucked in the back of appellant's waistband. Therefore, the

search of appellant was lawful.

{¶ 29} The trial court did not err in denying appellant's motion to suppress the

evidence. The initial stop, arrest, and search of appellant were lawful. Appellant's second

assignment of error is overruled.

{¶ 30} Assignment of Error No. 3:

{¶ 31} THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE THE OFFENSES

OF CARRYING A CONCEALED WEAPON AND HAVING WEAPONS UNDER DISABILITY

FOR SENTENCING.

{¶ 32} Appellant argues his convictions for having a weapon while under disability and

carrying a concealed weapon are allied offenses of similar import. Therefore, he maintains

that the trial court erred when it failed to merge these offenses. The state responds by

arguing that the offenses were not allied as they were committed with separate conduct. The

state also requests us to apply a plain error standard as appellant failed to object at trial.

{¶ 33} We begin by addressing the standard of review. At trial, appellant conceded

that his convictions were not allied offenses. In its brief, the state points to a recent Ohio

Supreme Court case which addressed the appellate standard of review regarding a trial

court's R.C. 2941.25 merger determination. State v. Williams,

, 2012-

Ohio-5699. In Williams, the Supreme Court held that "[a]n appellate court should apply a de

novo standard of review in reviewing a trial court's R.C. 2941.25 merger determination." Id.

at ¶ 28. The state urges us to limit the de novo review prescribed in Williams to apply only in

delay the performance by a public official of any authorized act within the public official's capacity, shall do any act that hampers or impedes a public official in the performance of the public official's lawful duties." -9- Butler CA2012-08-155

cases where a defendant objects to the imposition of multiple sentences for allied offenses at

trial.

{¶ 34} We agree with the state that an appellate court conducts a de novo review of a

trial court's allied offenses determination only where a defendant raises this issue at trial. In

Williams, the state was appealing a court of appeals decision that found that two of the

defendant's convictions were allied offenses.

. Importantly, the defendant

had raised this issue of allied offenses in the trial court. Id. at ¶ 7. Therefore, the only issue

before the Supreme Court in Williams was the standard of review regarding allied offenses

when that issue had been initially raised in the trial court and properly preserved for appellate

review.

{¶ 35} Therefore, this court will review appellant's allied offense argument for plain

error. See State v. Luong, 12th Dist. No. CA2011-06-101,

, ¶ 47. Plain error

exists where there is an obvious deviation from a legal rule that affected the outcome of the

proceeding. Crim.R. 52(B); State v. Blanda, 12th Dist. No. CA2010-03-050,

,

¶ 20, citing State v. Barnes,

(2002). The imposition of multiple

sentences for allied offenses of similar import amounts to plain error. Loung at ¶ 48, citing

State v. Underwood,

,

.

{¶ 36} Next, we address whether appellant's convictions for carrying a concealed

weapon and having a weapon while under disability are allied offenses. R.C. 2941.25, Ohio's

multiple-count statute, prohibits the imposition of multiple punishments for the same criminal

conduct. State v. Brown, 12th Dist. No. CA2009-05-142,

, ¶ 7. The statute

provides the following:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

- 10 - Butler CA2012-08-155

(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶ 37} The Ohio Supreme Court established a new two-part test for determining

whether offenses are allied offenses of similar import under R.C. 2941.25 in State v.

Johnson,

,

. The first inquiry focuses on whether it is

possible to commit both offenses with the same conduct. Id. at ¶ 48. It is not necessary that

the commission of one offense will always result in the commission of the other. Id. Rather,

the question is whether it is possible for both offenses to be committed by the same conduct.

Id., quoting State v. Blankenship,

(1988). Conversely, if the

commission of one offense will never result in the commission of the other, the offenses will

not merge.

.

{¶ 38} If it is possible to commit both offenses with the same conduct, the court must

next determine whether the offenses were in fact committed by a single act, performed with a

single state of mind.

, quoting State v. Brown,

, 2008-

Ohio-4569, ¶ 50. If so, the offenses are allied offenses of similar import and must be

merged.

. On the other hand, if the offenses are committed separately or

with a separate animus, the offenses will not merge. Id. at ¶ 51.

{¶ 39} "Animus" is defined for purposes of R.C. 2941.25(B) as "'purpose' or 'more

properly, immediate motive.'" State v. Lung, 12th Dist. No. CA2012-03-004, 2012-Ohio-

5352, ¶ 12, quoting State v. Logan,

(1979). If the defendant acted

with the same purpose, intent, or motive in both instances, the animus is identical for both

offenses. Lung at ¶ 12. Animus is often difficult to prove directly, but must be inferred from

the surrounding circumstances. State v. Caudill,

(12th Dist. 1983).

- 11 - Butler CA2012-08-155

{¶ 40} The state concedes, and we agree, that it is possible to commit the offenses of

carrying a concealed weapon and having a weapon while under disability with the same

conduct. R.C. 2923.12(A)(2) provides that "[n]o person shall knowingly carry or have,

concealed on the person's person or concealed ready at hand * * * [a] handgun other than a

dangerous ordinance." R.C. 2921.13(A)(3) provides that "* * * no person shall knowingly

acquire, have, carry, or use any firearm or dangerous ordnance, if * * * [t]he person is under

indictment for or has been convicted of any felony offense involving the illegal possession * *

* [or] trafficking in any drug of abuse * * *." Accordingly, it is certainly possible to commit both

carrying a concealed weapon and having a weapon while under disability with the same

conduct.

{¶ 41} We must now determine whether appellant committed the offenses with the

same conduct, i.e., a single act and a single state of mind. In a pre-Johnson decision, the

Supreme Court found that carrying a concealed weapon and having weapons while under

disability have different animi. State v. Rice,

(1982). We note that

while Johnson altered the analysis as to the first prong of the allied offenses test, the second

prong has consistently remained the same. Lung at ¶ 15. See State v. Young, 2d Dist. No.

23642,

, ¶ 46. Therefore, this analysis is instructive.

{¶ 42} The Court reasoned:

The intent, or animus, necessary to commit the crime of carrying a concealed weapon, is to carry or conceal, on the person, or ready at hand, a deadly weapon or dangerous ordnance. The gist of the offense is concealment. The gravamen of the offense of having a weapon while under disability is to 'knowingly * * * acquire have, carry, or use' a weapon while under a legal disability."

It maybe be concluded that there is a difference in the mental state required for both crimes.

(Citations omitted.)

.

{¶ 43} Accordingly, we find that the carrying a concealed weapon and having a

- 12 - Butler CA2012-08-155

weapon while under disability offenses were committed with separate animi. See State v.

Baker, 12th Dist. No. CA96-12-123,

(Aug. 18, 1997); State v. Dillingham,

12th Dist. No. CA2011-03-043,

, ¶ 28. Therefore, the trial court did not

commit plain error in failing to merge appellant's carrying a concealed weapon and having a

weapon while under disability convictions as they were not allied offenses of similar import.

{¶ 44} Appellant's third assignment of error is overruled.

{¶ 45} Assignment of Error No. 4:

{¶ 46} IT WAS ERROR FOR THE TRIAL COURT TO NEGLECT TO ADVISE THE

DEFENDANT/APPELLANT THAT WHEN COURT COSTS WERE IMPOSED THAT THE

FAILURE TO PAY SUCH COSTS COULD RESULT IN THE IMPOSITION OF COMMUNITY

SERVICE TO PAY THE SAME AT THE RATE NOT TO EXCEED 40 HOURS PER MONTH.

{¶ 47} Appellant argues the trial court erred when it imposed courts costs without

notifying him that if he should fail to pay court costs, he could be ordered to perform

community service.

{¶ 48} Appellant was sentenced in June 2012. At the time of his sentencing, R.C.

2947.23(A)(1) specified that in all criminal cases, a court shall include in the sentence court

costs and render a judgment against the defendant for such costs. When including these

costs in a defendant's sentence, the court must notify the defendant that if he fails to pay

court costs, the court may order him to perform community service in lieu of payment.

at

(A)(1)(a). The community service notification in this version of R.C. 2947.239(A)(1)(a) is

mandatory and must be provided by the trial court at sentencing. State v. Smith,

,

.

{¶ 49} If a trial court fails to notify the defendant of the possibility of court-ordered

community service if he fails to pay court costs, the proper remedy is to vacate the imposition

of costs and remand the case for proper community-service notification. State v. Weathers, - 13 - Butler CA2012-08-155

12th Dist. No. CA2012-02-036,

.2 While the defendant in Weathers

was sentenced before the modification of R.C. 2947.23 that applies to appellant, the

modification does not change any portion of the statute that affects our analysis.

{¶ 50} In the present case, the trial court imposed court costs during the sentencing

hearing but did not advise appellant that should he fail to pay the costs, he could be ordered

to perform community service. Therefore, the court erred when it failed to notify appellant as

required under R.C. 2947.23. Consequently, we reverse that portion of the trial court's

judgment imposing court costs, affirm the remainder of the trial court's judgment and remand

the matter to the trial court for the proper imposition of court costs in accordance with R.C.

2947.23(A)(1).

{¶ 51} Appellant's fourth assignment of error is sustained.

{¶ 52} Judgment affirmed in part, reversed in part, and remanded.

RINGLAND, P.J. and M. POWELL, J., concur.

2. {¶a} Recently, R.C. 2947.23 has undergone many revisions. Our decision today and our decision in Weathers are limited to the versions of R.C. 2947.23 that were in place during the defendants' sentencing.

{¶b} Additionally, we observe that while our decision in Weathers was interpreting a former version of R.C. 2947.23, we incorrectly used the most recent statute's subsection numbering system. Id. at ¶ 19. However, this does not affect the determination in Weathers that, under the version of R.C. 2947.23 that was effective during the defendant's sentencing, when a trial court fails to give a defendant the proper community service notification when imposing court costs, the remedy is to vacate the imposition of costs and remand the case for proper community-service notification. - 14 -