COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67767 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION ARTHUR DAY : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 2, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-307979 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DAVID C. SHELDON, Assistant 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES R. WILLIS Courthouse Square Bldg., #350 310 Lakeside Avenue, N.W. Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: Appellant, Arthur Day, appeals his conviction for two counts of aggravated drug trafficking in violation of R.C. 2925.03, with specifications and possession of criminal tools in violation of R.C. 2923.24. On February 23, 1994, appellant was arrested in Cleveland, Ohio, by Metropolitan Housing Authority officers for consumption of an intoxicating beverage in a motor vehicle in violation of R.C. 4307.64, a fourth degree misdemeanor. Two CMHA officers observed the appellant drinking from a whiskey bottle and driving a car at 4:00 a.m. on Unwin Road, a public street that runs through a housing project. The officers stopped appellant's vehicle and asked him to step out of his car. As the appellant opened the car door, one of the officers noticed a cognac bottle on the front seat of the vehicle and then arrested the appellant for consumption of an intoxicating beverage in a motor vehicle. Following the arrest one of the officers searched the appellant for weapons and found five rocks of crack cocaine in the appellant's front pocket. The other officer inventoried the vehicle and found $6,884 in cash, a pager and a mobile phone. Initially, appellant appeared in Cleveland Municipal Court on the misdemeanor charge. Appellant had filed a motion to suppress evidence claiming the CMHA officers illegally stopped his vehicle and improperly seized the liquor bottle found inside. Both parties - 3 - here agree that the municipal court held a hearing on appellant's motion to suppress, heard testimony from one of the CMHA officers who participated in the arrest, and denied the motion. Appellant now specifically claims that the municipal court would not allow him to testify during the hearing which resulted in his conviction for consumption of an intoxicating beverage in a motor vehicle. A transcript of the municipal court's hearing however, was not filed either with the court of common pleas or with this court, and therefore is not part of the record before us. Nor was the municipal court's journal entry denying the motion to suppress made part of the record. Moreover, we note that appellant never appealed from his municipal court conviction of consumption of an intoxicating beverage in a motor vehicle. After his conviction on the misdemeanor charge, the grand jury indicted appellant for two counts of aggravated drug trafficking and one count of possession of criminal tools in the Cuyahoga County Common Pleas Court. Again, appellant filed a motion to suppress evidence in the trial court. Appellant's motion claimed that (a) his arrest was illegal; (b) the liquor bottle was improperly seized and (c) the drugs, cash, pager and mobile phone were improperly seized. The common pleas court trial judge conducted a hearing on the motion to suppress and determined the principles of res judicata required the court to accept the municipal court's ruling on appellant's initial motion to suppress. Therefore, the trial court did not address the - 4 - issues of probable cause for the stop and the seizure of the liquor bottle because those issues had been previously determined by a court of competent jurisdiction and no appeal had been taken from the municipal court's ruling. However, the trial court proceeded with the hearing to determine if the drugs, cash, pager and mobile phone were properly seized. After taking testimony from the CMHA officers the trial court denied appellant's motion to suppress. Following a jury trial, appellant was found guilty of two counts of aggravated trafficking (counts one and two) and possession of criminal tools (count three). The court then sentenced the appellant to five to fifteen years for counts one and two, to run concurrently and eighteen months for count three to run consecutive to counts one and two. The court also imposed a mandatory three year term of actual incarceration on counts one and two. On appeal, two assignments of error are presented for our review. Appellant's first assignment of error states: THE COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND FOR THE RETURN OF ILLEGALLY SEIZED PROPERTY. Appellant maintains that the trial court erred when it denied his motion to suppress. Specifically, appellant claims that he was not given the opportunity for a full and fair litigation of his Fourth Amendment claims in the common pleas court because he was not permitted to testify at the municipal court hearing. Moreover, - 5 - appellant argues that the court of common pleas was not bound by the ruling in the municipal court pursuant to res judicata. Initially, we note that the appellant never appealed the municipal court's ruling on his motion to suppress. Thus, issues relating to that hearing cannot be considered since they are not properly presented to us on this appeal. Here, we must consider whether or not the principles of res judicata or collateral estoppel required the common pleas court to accept the municipal court determination on the motion to suppress. This appears to be an issue of first impression for our court. Although originally a civil doctrine, the federal rule of collateral estoppel has been a part of criminal jurisprudence for over seventy-five years. See U.S. v. Oppenheimer (1916), 242 U.S. 85, 87-88. This rule is incorporated in the Fifth Amendment's guaranty against double jeopardy and is fully applicable to the states through the Fourteenth Amendment to the United States Constitution. Ashe v. Swenson (1970), 397 U.S. 436, 445. In Ashe, the United States Supreme Court defined the concept in the following manner: "'[c]ollateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties, in any future lawsuit. * * *" Id. 397 U.S. at 443. Therefore, in order for collateral estoppel to apply two conditions must be met: (a) the issues must be identical and (b) - 6 - the parties or their privies must be the same. Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 112; State v. Crago (1994), 93 Ohio App.3d 621, 637. In the present case, the motion to suppress filed in municipal court is almost identical to the one filed in common pleas court and the issues raised in those motions are identical because they arose from the same arrest which formed the basis of charges in both courts. We will next consider the second prong of the test: whether the parties are identical. The motion to suppress filed in the municipal court named the city of Cleveland as a party, while the motion to suppress filed in the common pleas court named the state of Ohio as a party. Cities have been traditionally regarded as subordinate governmental instrumentalities created by the state to assist in the carrying out of state governmental functions. Reynolds v. Sims (1964), 377 U.S. 533, 575; State v. Horton (1993), 91 Ohio App.3d 464, 469. Accordingly, the City of Cleveland is deemed to be the same sovereign as the State of Ohio in the present case. Having determined that the issue and the parties are identical in both proceedings, we conclude that the common pleas court is bound by the earlier municipal court ruling. The syllabus of Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 191, states in part: "1. ***. A prior judgment estops a party, or a person in privity with him, from subsequently - 7 - relitigating the identical issue raised in the prior action." (Citations omitted.) Appellant complains of a denial of due process alleging he was precluded from testifying in the municipal court suppression hearing. We note initially that no appeal was taken from that proceeding and, further, that the party asserting the truth of a proposition bears the burden of proof and that appellant is charged by appellate rule to transmit those portions of the record which support claimed error. This was not done in this case. Neither did appellant raise the alleged due process denial for consideration by the able common pleas court judge in the felony prosecution. Clearly, appellant knew at the time of the misdemeanor suppression hearing he had been arrested on felony drug charges and that when he raised the issue of probable cause for arrest in the municipal court, it was a critical stage of the criminal proceedings against him. Appellant should not be afforded two opportunities to litigate the issue of probable cause for arrest, once in the municipal court on the misdemeanor charges and again in the common pleas court on the felony charges. Since that issue had been decided adversely to appellant by a court of competent jurisdiction, a final appealable order existed. No appeal having been taken from the ruling on that important issue, the parties become bound by it and the common pleas court justifiably and - 8 - rightfully refused to relitigate it. The trial court did not err in denying the motion to suppress evidence. This assignment of error is overruled. II. Appellant's second assignment of error states: THE COURT DENIED DEFENDANT DUE PROCESS IN ARBITRARILY SENTENCING HIM TO SERVE CONSECUTIVE SENTENCES THAT TOTALLED ELEVEN YEARS FOR A SINGLE POSSESSION OF A QUANTITY OF COCAINE. Appellant maintains that the trial court denied him due process when it arbitrarily sentenced him to serve consecutive sentences that totalled eleven years for a single possession of a quantity of cocaine. Specifically, appellant asserts that his sentence for aggravated trafficking, to be served consecutive to two five to twenty five year sentences was arbitrary. Appellant has misstated his sentence. The trial judge sentenced appellant in accordance with law to terms of five to fifteen years on counts one and two concurrently, but consecutive with a term of eighteen months on count three. The court also imposed a mandatory three year term of actual incarceration on counts one and two. Therefore, appellant's second assignment of error is overruled. Judgment of the trial court is affirmed. - 9 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, J., CONCURS; JOHN T. PATTON, C.J., DISSENTS (See Dissenting Opinion, John T. Patton, C.J., attached) JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67767 STATE OF OHIO : : Plaintiff-appellee : DISSENTING : JOURNAL ENTRY -vs- : AND : OPINION ARTHUR DAY : : Defendant-appellant : : DATE NOVEMBER 2, 1995 PATTON, C.J., DISSENTING: I respectfully dissent from the majority's disposition of appellant's first assignment of error. I would find that the appellant did not receive his constitutional right to due process. Consequently, I would reverse the decision of the trial court in part. I agree with the facts as the majority has set them out. I also agree with the majority's initial analysis of case law concerning the civil doctrine of collateral estoppel. However, I believe the majority has not set forth the entire law relating to collateral estoppel and therefore its analysis is incomplete. As a consequence, the appellant has been denied his right to due process. - 2 - I acknowledge the appellant never appealed the municipal court's ruling on his motion to suppress. Therefore, the issue of whether or not he was provided with a fair hearing at the municipal court level is not properly before us. However, it must be determined whether the court of common pleas was bound by a ruling made by the municipal court with respect to a similar motion to suppress pursuant to collateral estoppel, within the context of res judicata. In Ashe, the United States Supreme Court defined collateral estoppel in the following manner: [Collateral estoppel] means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties, in any future lawsuit. * * *" Id. 397 U.S. at 443. Therefore, in order for collateral estoppel to apply the issues must be identical and the parties or their privies must be the same. Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 112; State v. Crago (1994), 93 Ohio App.3d 621, 637. In the present case, the motion to suppress filed in municipal court is almost identical to the motion to suppress filed in the court of common pleas. We note that the scope of charges filed in the courts is quite different. In the municipal court the appellant was charged with a fourth degree misdemeanor. In the common pleas court the appellant was indicted on felony charges. Even though the penalties involved were substantially more severe in the common pleas court, we nonetheless hold that - 3 - the issues raised in the motions to suppress were identical because they arose from the same transaction, the arrest, upon which both charges found their basis. Furthermore, I agree with the majority's analysis that the parties are the same for purposes of collateral estoppel. Therefore, under the principles of collateral estoppel, a court of common pleas is bound by a municipal court's ruling if the parties and the issues are identical and proper due process procedures were followed. Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 201. As the supreme court stated in Goodson: The main legal thread which runs throughout the determination of the applicability of res judicata, inclusive of the adjunct principle of collateral estoppel, is the necessity of a fair opportunity to fully litigate and to be "heard" in the due process sense. Accordingly, an absolute due process prerequisite to the application of collateral estoppel is that the party asserting the preclusion must prove that the identical issue was actually litigated, directly determined, and essential to the judgment in the prior action. (citation omitted). Collaterally estopping a party from relitigating an issue previously decided against it violates due process where it could not be foreseen that the issue would subsequently be utilized collaterally, and where the party had little knowledge or incentive to litigate fully and vigorously in the first action due to the procedural and/or factual circumstances presented therein. Id. at 201. Therefore, in order to determine if appellant was afforded his right to due process we must apply Goodson, supra which - 4 - states the following propositions of law: (1) to apply collateral estoppel the party estopped must have been afforded a fair opportunity to fully litigate and to be "heard" in the due process sense; (2) the party asserting the preclusion must prove that the identical issue was actually litigated in the prior action and (3) a violation of due process occurs when the estopped party had very little knowledge or incentive to litigate fully and vigorously in the first action due to the procedure and/or the factual circumstances. Applying Goodson, supra, to the facts in this case, we must first address whether the trial court determined if appellant was afforded a fair opportunity to fully litigate and to be heard in the due process sense. I believe the majority has not fully reviewed the record in this case. The majority claims that appellant did not inform the trial court he was denied due process by the municipal court's refusal to let him testify. This is clearly wrong, the transcript of the second motion to suppress hearing explicitly shows that the appellant informed the trial court that he was denied the opportunity to testify at his motion to suppress hearing before the municipal court. In fact, the appellant read to the trial court the portion of the transcript of the municipal court hearing into the record which showed that he requested to testify and the municipal court would not permit him to do so. [TR. 49- 51] - 5 - Therefore, I find the trial court was aware that appellant was denied the chance to testify at his first motion to suppress even though he vigorously requested to do so. Moreover, I note the trial court did not have before it either a journal entry from the municipal court denying appellant's motion to suppress or a copy of the hearing transcripts from the municipal court. Without the full hearing transcript to review I find the trial court could not properly determine if appellant was afforded his due process rights in the proceeding below. Next, I address whether the state proved that the identical issue was actually litigated in the prior action. The evidence before the court on this issue was the motion to suppress filed in municipal court, the motion to suppress filed in common pleas court and verbal representations by counsel. I find with this information before it the trial court could have concluded that the same issue was previously litigated, but as stated above it could not conclude that appellant received his right to due process. Finally, I address whether a violation of due process occurred because the appellant did not have the incentive to fully and vigorously litigate the first action due to the fact that he was only charged with a fourth degree misdemeanor. At the time of appellant's first hearing he was not indicted on the felony charges. Therefore, he was only formally charged with a fourth degree misdemeanor for which he received a $25 fine. - 6 - Clearly, appellant did not have the same incentive to vigorously litigate his case as he did once he was formally charged and faced a possible penalty of incarceration. Goodson, 2 Ohio St.3d 193, 201. Nor did appellant have the incentive to appeal the municipal court's ruling denying his motion to suppress. Therefore, the facts in this case show that appellant was not afforded his constitutional right to due process in a sense that would allow principles of collateral estoppel to apply. As I previously stated, the trial court did not have before it either a journal entry from the municipal court denying appellant's motion to suppress or a copy of the hearing transcripts from the municipal court. I recognize the trial court was given a verbal representation from appellant's counsel that the motion to suppress filed in municipal court was denied. Nevertheless, I would hold in this case the verbal representations from counsel were not sufficient for the trial court to determine if the appellant's due process rights were satisfied. Accordingly, I would find that the trial court had an obligation to determine that appellant's right to due process were met in the proceedings below and it clearly failed to do so. Therefore, applying the principles set forth by the Ohio Supreme Court in Goodson, supra, I would find that the appellant's right to due process was violated. Furthermore, I find in the criminal context collateral estoppel in a double jeopardy case to be somewhat analogous to - 7 - the situation in the present case, bearing in mind the differences in the standards of proof for a motion to suppress and the determination of double jeopardy claim. A federal court has noted the following concerning the application of the doctrine of collateral estoppel in a criminal case: " * * *[i]n order to apply * * * collateral estoppel principles in criminal cases, the court must examine the record of the prior proceedings and conclude whether a rational jury could have grounded its verdict on an issue other than that which the defendant is seeking to foreclose from consideration. The defendant carries the burden of proving that the previous jury necessarily decided the issue that he seeks to foreclose in his favor. * * * "When there is more than one possible reason for the first jury's verdict, and the court cannot say for certain which reason the jury grounded its verdict upon, a second prosecution using evidence of actions upon which the defendant has been acquitted is not prohibited. * * * United States v. White (D.D.C. 1990), 757 F.Supp. 45, 47. See, State v. Crago (1994), 93 Ohio App.3d 621, 637. Therefore, in criminal collateral estoppel cases a trial court has a duty to examine the record of the prior proceedings to ensure that the issues and the parties are identical in both cases and the trial court has an obligation to determine that the collaterally estopped party's right to due process were not violated. As set forth in my civil analysis, in the present case the trial court failed to examine the record of the prior - 8 - proceedings and therefore failed to determine whether the appellant's right to due process was violated. .