State v. Highley

[Cite as State v. Highley, 2023-Ohio-3569.]

COURT OF APPEALS

LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

: Hon. W. Scott Gwin, P.J.

Plaintiff-Appellee : Hon. Patricia A. Delaney, J.

: Hon. Andrew J. King, J.

-vs- :

:

JOSHUA D. HIGHLEY : Case No. 2023CA00026

:

Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common

Pleas, Case No. 2022CR00548

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 2, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH W. OSWALT RICHARD D. HIXSON

20 South Second Street 3808 James Court

Fourth Floor Suite 2

Newark, OH 43055 Zanesville, OH 43701

Licking County, Case No. 2023CA00026 2

King, J.

{¶ 1} Defendant-Appellant, Joshua D. Highley, appeals his March 22, 2023

consecutive sentence by the Court of Common Pleas of Licking County, Ohio. He also

challenges the trial court's denial of his motion to suppress. Plaintiff-Appellee is the state

of Ohio. We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On September 1, 2022, the Licking County Grand Jury indicted Highley on

one count of aggravated possession of methamphetamine in violation of R.C. 2925.11,

one count of aggravated trafficking in methamphetamine in violation of R.C. 2925.03, and

one count of having weapons while under disability in violation of R.C. 2923.13. The

charges arose from a motor vehicle stop for fictious license plates and suspended driver's

license.

{¶ 3} On October 13, 2022, Highley filed a motion to suppress, claiming an illegal

expanded search of his vehicle. A hearing was held on November 23, 2022. By judgment

entries filed November 23, 2022 and January 31, 2023, the trial court denied the motion.

{¶ 4} On March 22, 2023, Highley pled no contest to the charges. By judgment

entry filed March 22, 2023, the trial court found appellant guilty, and sentenced him to an

aggregate term of five to six years in prison; minimum two years and maximum three

years on the trafficking count and three years on the weapons count, to be served

consecutively.

{¶ 5} Highley filed an appeal with the following assignments of error:

I

Licking County, Case No. 2023CA00026 3

{¶ 6} "THE TRIAL COURT ERRED IN GRANTING DEFENDANT/APPELLANT'S

MOTION TO SUPPRESS EVIDENCE."

II

{¶ 7} "THE TRIAL COURT'S IMPOSITION OF CONSECUTIVE SENTENCES IS

CONTRARY TO LAW AND UNSUPPORTED BY THE RECORD."

III

{¶ 8} "THE TRIAL COURT COURT ERRED WHEN IT SENTENCED

DEFENDANT/APPELLANT TO A MINIMUM SENTENCE OF TWO YEARS AND A

MAXIMUM SENTENCE OF THREE YEARS ON COUNT TWO, AS THE PRESUMPTIVE

RELEASE PROVISIONS OF R.C. 2967.271 ARE UNCONSTITUTIONAL."

I

{¶ 9} In his first assignment of error, Highley claims the trial court erred in denying

his motion to suppress. We disagree.

{¶ 10} As stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio St.3d

165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:

"Appellate review of a motion to suppress presents a mixed question

of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

797 N.E.2d 71, ¶ 8. In ruling on a motion to suppress, "the trial court

assumes the role of trier of fact and is therefore in the best position to

resolve factual questions and evaluate the credibility of witnesses." Id.,

citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On

appeal, we "must accept the trial court's findings of fact if they are supported

Licking County, Case No. 2023CA00026 4

by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d

19, 20, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then

"independently determine as a matter of law, without deference to the

conclusion of the trial court, whether the facts satisfy the applicable legal

standard." Id.

{¶ 11} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,

699, 116 S.Ct. 1657, 134 L.Ed.2d 94 (1996):

We therefore hold that as a general matter determinations of

reasonable suspicion and probable cause should be reviewed de novo on

appeal. Having said this, we hasten to point out that a reviewing court

should take care both to review findings of historical fact only for clear error

and to give due weight to inferences drawn from those facts by resident

judges and local law enforcement officers.

{¶ 12} The Fourth Amendment to the United States Constitution guarantees "[t]he

right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures." The stop of a vehicle and the detention of its

occupants by law enforcement, for whatever purpose and however brief the detention

may be, constitutes a seizure for Fourth Amendment purposes. Delaware v. Prouse, 440

U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), citing United States v. Martinez-

Fuerte, 428 U.S. 543, 556-558, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). "Where a police

Licking County, Case No. 2023CA00026 5

officer stops a vehicle based upon probable cause that a traffic violation has occurred or

was occurring, the stop is not unreasonable under the Fourth Amendment to the United

States Constitution[.]" Dayton v. Erickson, 76 Ohio St.3d 3, 11-21, 665 N.E.2d 1091

(1996). Officers may search the vehicle without a warrant under the automobile

exception, which:

"allows police to conduct a warrantless search of a vehicle if there is

probable cause to believe that the vehicle contains contraband and exigent

circumstances necessitate a search or seizure." State v. Mills, 62 Ohio

St.3d 357, 367, 582 N.E.2d 972 (1992), citing Chambers v. Maroney, 399

U.S. 42, 48, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). A vehicle's mobility is

the traditional exigency for the automobile exception to the warrant

requirement. Id., citing California v. Carney, 471 U.S. 386, 393, 105 S.Ct.

2066, 85 L.Ed.2d 406 (1985). Therefore, "[i]f a car is readily mobile and

probable cause exists to believe it contains contraband, the Fourth

Amendment * * * permits police to search the vehicle without more."

Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d

1031 (1996), citing Carney at 393.

Additionally, "the smell of marijuana, alone, by a person qualified to

recognize the odor, is sufficient to establish probable cause to search a

motor vehicle, pursuant to the automobile exception to the warrant

requirement. There need not be other tangible evidence to justify a

warrantless search of the vehicle." Id. [Chambers v. Maroney] at 48. See

Licking County, Case No. 2023CA00026 6

also State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255 (reaffirming that

the smell of [burnt] marijuana in the passenger compartment of a vehicle

establishes probable cause for a warrantless search of the passenger

compartment, but not of the trunk). " 'When there is probable cause to

search for contraband in a car, it is reasonable for police officers * * * to

examine packages and containers without a showing of individualized

probable cause for each one.' " State v. Vega, 154 Ohio St.3d 569, 2018-

Ohio-4002 116 N.E.3d 1262 ¶ 14[,] quoting Wyoming v. Houghton, 526 U.S.

295, 302,119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).

State v. Graves, 5th Dist. Ashland No. 22COA001, 2022-Ohio-4130, ¶ 43-44.

{¶ 13} In United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d

572 (1982), the Supreme Court of the United States held: "the scope of the warrantless

search authorized by that [automobile] exception is no broader and no narrower than a

magistrate could legitimately authorize by warrant. If probable cause justifies the search

of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its

contents that may conceal the object of the search."

{¶ 14} In his motion to suppress, Highley did not contest probable cause to stop

him; he argued the officers did not have probable cause to expand their search and open

containers in his vehicle.

{¶ 15} Detective Kyle Boerstler with the Licking County Sheriff's Office and

assigned to the Central Ohio Drug Enforcement Task Force, testified he received

Licking County, Case No. 2023CA00026 7

information from a confidential source that Highley was in possession of a large amount

of methamphetamine and was at the home of a known drug dealer; the detective was

informed of the vehicle Highley would be driving. November 23, 2022 T. at 10. Detective

Boerstler and others went to the residence. Id. The detective located the vehicle in the

area and ran the license plates and Highley's driver's license; the plates were fictitious

and his driver's license was suspended. Id. Detective Boerstler observed Highley exit

the residence, enter the vehicle, and drive away. T. at 12. A marked cruiser stopped

Highley. T. at 13. Detective Boerstler, who was following in an unmarked vehicle,

observed Highley's right arm "so far under the driver's seat" that he was either "stuffing a

gun or something under the seat at that time." T. at 12-13.

{¶ 16} Detective Boerstler was trained in detecting the odor of raw and burnt

marijuana. T. at 8-9. Upon approaching Highley's vehicle, he detected an immediate

distinct strong odor of marijuana. T. at 14. Highley denied the vehicle was his and

claimed he knew nothing about what was inside the vehicle. T. at 23. Highley was

removed from the vehicle and a loaded firearm was found under the driver's seat. T. at

17; State's Exhibits 1C and 1D. A panda backpack was located on the floorboard of the

front passenger compartment containing methamphetamine. T. at 18-19; State's Exhibits

1G and 1H. A lockbox was located in the trunk which also contained methamphetamine.1

T. at 19-20; State's Exhibits 1I and 1J. The detective did not have a search warrant. T.

at 29-30. He explained had nothing been found in the vehicle, it still would have been

1No testimony was given as to whether the lockbox was unlocked or locked during the

suppression hearing. The state recited the facts at the change of plea hearing which

were agreed to by both parties; the state mentioned the lockbox was unlocked.

Appellant's Brief at 5; March 22, 2023 T. at 10.

Licking County, Case No. 2023CA00026 8

impounded and towed because of the fictitious plates and the driver's suspended license,

and because the vehicle was parked on business property. T. at 21-22. An inventory

search would have been conducted pursuant to police department policy to safeguard

any property in the vehicle and the drugs and weapon would have been found. T. at 22-

23, 33; State's Exhibit 3.

{¶ 17} Detective Hayden Walpole also with the Licking County Sheriff's Office and

assigned to the Central Ohio Drug Enforcement Task Force, testified he was in a marked

cruiser and pulled Highley over after receiving a radio call from Detective Boerstler on the

fictitious plates and suspended driver's license. T. at 35-36. Highley stopped his vehicle

in a car wash bay of a business. T. at 36. Detective Walpole removed Highley from his

vehicle. T. at 37-38. Highley told him he had some "roaches" in the vehicle, but the

vehicle belonged to his buddy; any contents in the vehicle belonged to someone else. T.

at 38.

{¶ 18} Detective Todd Green with the Newark Police Department and assigned to

the Central Ohio Drug Enforcement Task Force, testified he had observed Highley driving

the subject vehicle "numerous times." T. at 45. He was also trained in detecting the odor

of raw and burnt marijuana. T. at 44. When he approached Highley's vehicle, he detected

a strong odor of raw marijuana. T. at 46. Detective Green read Highley his Miranda

rights. Id. A tow truck was called because the vehicle was parked in a business car wash

bay, it had fictitious plates, Highley did not have a valid driver's license, and he was under

arrest; "[s]o the tow truck's called for three or four different reasons." T. at 48.

{¶ 19} In its January 31, 2023 judgment entry denying the motion to suppress, the

trial court found:

Licking County, Case No. 2023CA00026 9

the State possessed sufficient reasonable suspicion to stop the defendant

on the basis of the fictitious plates on the vehicle and his own lack of a

driver's license. On the basis of the smell of raw marijuana, the State further

possesses the ability to search the entire vehicle, and pursuant to the City

of Newark Police Department's impoundment policy to search the entire

vehicle and every locked container in it.

{¶ 20} We agree. Here, detectives received a confidential tip that Highley was in

possession of a large amount of methamphetamine and was at the home of a known drug

dealer; they were told what vehicle Highley would be driving. Prior to stopping his vehicle,

Highley made furtive movements under his driver's seat. Upon conducting an

uncontested valid stop of the vehicle, the detectives detected a strong odor of raw

marijuana. Highly admitted to having "roaches" in the vehicle. The marijuana odor and

admissions gave the detectives probable cause to search for contraband in the vehicle,

including the panda backpack. The detectives found methamphetamine in the backpack

and a loaded weapon under the driver's seat; they had probable cause to search the

entire vehicle for additional contraband. In addition, the contraband would have been

discovered because the vehicle was subject to an inventory search for towing purposes.

{¶ 21} Because there is ample evidence to support the detectives' actions, we

decline to review the state's argument relative to Highley's lack of standing to challenge

the expanded search.

Licking County, Case No. 2023CA00026 10

{¶ 22} Upon review, we find the trial court did not err in denying Highley's motion

to suppress.

{¶ 23} Assignment of Error I is denied.

II

{¶ 24} In his second assignment of error, Highley claims the trial court erred in

sentencing him to consecutive sentences. We disagree.

{¶ 25} This court reviews felony sentences using the standard of review set forth

in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31.

Subsection (G)(2) sets forth this court's standard of review as follows:

(2) The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the

sentence or modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence

and remand the matter to the sentencing court for resentencing. The

appellate court's standard for review is not whether the sentencing court

abused its discretion. The appellate court may take any action authorized

by this division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

Licking County, Case No. 2023CA00026 11

section 2929.14, or division (I) of section 2929.20 of the Revised Code,

whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶ 26} "Clear and convincing evidence is that measure or degree of proof which is

more than a mere 'preponderance of the evidence,' but not to the extent of such certainty

as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus.

{¶ 27} R.C. 2929.14(C)(4) governs consecutive sentences and states the

following:

(4) If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

Licking County, Case No. 2023CA00026 12

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶ 28} R.C. 2953.08(G)(2) requires this court to review the record de novo and

decide whether the record clearly and convincingly does not support the consecutive-

sentence findings. State v. Gwynne, --- Ohio St.3d ---, 2022-Ohio-4607, --- N.E.3d ---, ¶

1. When imposing consecutive sentences, a trial court must state the required findings

at the sentencing hearing. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16

N.E.3d 659, ¶ 29. Because a court speaks through its journal, the court should also

incorporate its statutory findings into the sentencing entry. Id. While a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing

and incorporate its findings into its sentencing entry, "it has no obligation to state reasons

to support its findings." Id. at ¶ 37. As long as the reviewing court can discern that the

trial court engaged in the correct analysis and can determine the record contains evidence

to support the findings, consecutive sentences should be upheld. Id. at ¶ 29.

Licking County, Case No. 2023CA00026 13

{¶ 29} Our review is a two-step process. The first step is whether the trial court

made the requisite findings under R.C. 2929.14(C)(4); the second step is whether the trial

court's decision to impose consecutive sentences is not clearly and convincingly

supported by the record. Gwynne at ¶ 25-26. We are required "to focus on both the

quantity and quality of the evidence in the record that either supports or contradicts the

consecutive-sentence findings." Id. at ¶ 29.

{¶ 30} In his appellate brief at 10, Highley admits that the trial court recited the

requisite statutory findings on the record regarding consecutive sentences and the

sentences are within the statutory range; he argues the record does not support the trial

court's imposition of consecutive sentences. He points out he did not have any violations

while on pretrial release, "was becoming a productive member of society by obtaining

employment," and despite his criminal history, had never been to prison.

{¶ 31} During the sentencing hearing, the trial court stated it was imposing

consecutive sentences because "consecutive sentences are necessary to protect the

public, not disproportionate to the seriousness of your conduct or the danger you pose to

the public, and that your criminal history necessitates consecutive sentences." March 22,

2023 T. at 20. The trial court journalized this finding in its judgment entry on sentencing

filed March 22, 2023.

{¶ 32} The record demonstrates the trial court received and reviewed a

presentence investigation report, and heard statements from the prosecutor and defense

counsel. The presentence investigation report revealed Highley's criminal history which

included twenty-six misdemeanor and felony convictions spanning twelve years, from

2010 to 2022. While most of the offenses were traffic violations and driving under

Licking County, Case No. 2023CA00026 14

suspension, he had several convictions for driving under the influence of alcohol and/or

drugs, and convictions for possession of drug paraphernalia, possession of drug

instruments, aggravated possession of drugs, and trafficking in drugs. Highley received

treatment in lieu of prison time. The trial court noted Highley "had enough treatment in

the past for you to realize what was going on and to know what you needed to do. You

chose just to do something else." March 22, 2023 T. at 20. When Highley was stopped

by the detectives, his vehicle contained methamphetamine, marijuana, a digital scale,

drug paraphernalia, and a semiautomatic handgun. Id. at 10. While Highley may have

never done prison time, he has now upgraded to second degree felony drug convictions

and added a loaded weapon to the mix.

{¶ 33} After reviewing the entire record de novo and weighing the quality and

quantity of the evidence, we do not clearly and convincingly find that the evidence in the

record did not support the consecutive-sentence findings. In fact, there was ample

evidentiary support for the trial court to find that consecutive service was necessary to

protect the public from future crime or to punish Highley, consecutive sentences were not

disproportionate to the seriousness of Highley's conduct and to the danger he posed to

the public, and consecutive sentences were necessary to protect the public from future

crimes.

{¶ 34} Upon review, we find the trial court's imposition of consecutive sentences is

not contrary to law.

{¶ 35} Assignment of Error II is denied.

III

Licking County, Case No. 2023CA00026 15

{¶ 36} In his third assignment of error, Highley claims his indefinite sentence under

the Reagan Tokes Act, codified in R.C. 2967.271, is unconstitutional because the

presumptive release provisions of the statute violate the doctrine of separation of powers,

his right to a jury trial, and due process principals under the federal and state constitutions.

We disagree.

{¶ 37} We rejected the same challenges in State v. Householder, 5th Dist.

Muskingum No. CT2021-0026, 2022-Ohio-1542, ¶ 6:

For the reasons stated in the dissenting opinion of The Honorable W.

Scott Gwin in State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-

Ohio-5501, we find the Reagan Tokes Law does not violate Appellant's

constitutional rights to trial by jury and due process of law, and does not

violate the constitutional requirement of separation of powers. We hereby

adopt the dissenting opinion in Wolfe as the opinion of this Court. In so

holding, we also note the sentencing law has been found constitutional by

the Second, Third, Sixth, and Twelfth Districts, and also by the Eighth

District sitting en banc. See, e.g., State v. Ferguson, 2nd Dist. Montgomery

No. 28644, 2020-Ohio-4153; State v. Hacker, 3rd Dist. Logan No. 8-20-01,

2020-Ohio-5048; State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2022-

Ohio-1350; State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-

Ohio-3837; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-

470. Further, we reject Appellant's claim the Reagan Tokes Act violates

Licking County, Case No. 2023CA00026 16

equal protection for the reasons stated in State v. Hodgkin, 12th Dist.

Warren No. CA2020-08-048, 2021-Ohio-1353.

{¶ 38} The Supreme Court of Ohio recently upheld the constitutionality of the

Reagan Tokes Law, finding it is not violative of the separation of powers doctrine, a

defendant's right to a jury trial, and a defendant's procedural due process rights, and is

not void for vagueness. State v. Hacker, ___ Ohio St.3d ___, 2023-Ohio-2535, ¶ 25, 28,

40, 41.

{¶ 39} Assignment of Error III is denied.

{¶ 40} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By King, J.

Gwin, P.J. and

Delaney, J. concur.