[Cite as State v. Smith,
2012-Ohio-113.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
: Appellate Case No. 2010-CA-80
Plaintiff-Appellee :
: Trial Court Case No. 08-CR-926
v. :
:
SHELDON SMITH : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellee :
:
...........
OPINION
Rendered on the 13th day of January, 2012.
.........
STEPHEN K. HALLER, Atty. Reg. #0009172, and ELIZABETH A. ELLIS, Atty. Reg.
#0074332, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio
45385.
Attorneys for Plaintiff-Appellee
SHELDON SMITH, Inmate #A617-224, Chillicothe Correctional Institution, Post
Office Box 5500, Chillicothe, Ohio 45601
Defendant-Appellant, pro se
.........
HALL, J.
Sheldon Smith appeals pro se from the trial court’s denial of his R.C. 2953.21
motion for post-conviction relief.
In his sole assignment of error, Smith contends the trial court erred in denying
2
his motion on the basis that his claims were barred by res judicata.
On May 27, 2009, a search warrant was obtained to search the defendant’s
residence at 2936 Louisiana Drive in Xenia, Ohio. The defendant was seen leaving
his place of business known as the L.A. Sports Bar and Grill in a vehicle driven by
Donald Harrington. (Suppression hearing transcript, April 23, 2009, at 12.) Detectives
contacted Smith when the vehicle stopped at a fast-food establishment. The
defendant voluntarily accompanied the detectives to the Louisiana Drive location
where thirteen kilograms of cocaine and a large quantity of cash, later determined to
be almost $600,000, were located. (Id. at 46-47.) Smith was advised of his Miranda
rights and waived them. (Id. at 21-25.) He showed the detectives where the drugs
and money were located. According to one of the detectives, Smith said, “‘You can’t
miss it. It’s downstairs.’ … [I]t was all over the downstairs recreational room floor.”
(Id. at 20). Smith began cooperating with the investigators. Later that day, he
directed authorities to an additional forty-two kilograms of cocaine at a “stash”
house that he rented, and those drugs too were part of his drug enterprise.
(Transcript of proceedings, August 20, 2009, at 213, 218.) Smith entered a
no-contest plea to numerous drug-related charges on June 1, 2009. Sentencing was
delayed while the court conducted hearings unrelated to this appeal.
On October 2, 2009, counsel for the defendant filed a “Request for Leave” to
reopen the motion to suppress. (Doc. #93). That filing states, in part: “Defendant
states that there has been new (sic) discovered evidence which will demonstrate that
material statements within the affidavit [for the search warrant] are false thus
rendering the warrant invalid.” (Id. at 1). A motion to vacate the defendant’s plea was
3
filed at the same time based on the same arguments. (Doc. #92). The memorandum
in support of that motion specifically refers to information in the search-warrant
affidavit attributed to one Reginald “Tuffy” Brooks. On October 28, 2009, a
supplement to the October 2, 2009 motions was filed. (Doc. #95). Attached to that
filing is a copy of an ACE (Greene County Agencies for Combined Enforcement) task
force report of the investigation, which is the same report Smith attached to his
petition for post-conviction relief. In response to those October 2, 2009 motions, the
court conducted a hearing and spent considerable time with counsel, and in camera,
to review audio recordings of conversations involving Brooks. The trial court
determined that “affiant’s statements in the search warrant are an accurate
recitation of the conversations recorded.” (Doc. #100 at 2). The request to reopen the
motion to suppress, based on allegations of false information submitted by the
detective as supplied by Reginald Brooks, was denied. (Id.).
The matter was set for disposition on October 30, 2009. The trial court
imposed an aggregate sentence of twenty years in prison. On direct appeal, this
court affirmed. See State v. Smith, Greene App. No. 2009-CA-81, 2010-Ohio-6229.
Smith filed the present post-conviction relief action on July 7, 2010, raising
1
several arguments. (Doc. #124). The petition alleged that it “centers around an
Ineffective Assistance of Counsel Claims, of events that happen (sic) outside of Trial
Court Records.” The petition stated three claims: (1) that trial counsel did not bring
to the court’s attention the investigative report indicating that the ACE task force
1
In addition to Smith’s pro-se filing, the record contains a petition for post-conviction relief filed by
counsel on Smith’s behalf. (Doc. #125). Counsel’s petition later was withdrawn, leaving only Smith’s pro
se filing. (Doc. #142).
4
would not work with Tuffy Brooks because of Brooks’ criminal history, (2) that trial
counsel failed to advise the defendant of his right to have a jury trial on a forfeiture
issue, and (3) that there were several other issues but because of time Smith would
file an amendment. Although the second page of the defendant’s filing is notarized, it
is effectively a notarized legal argument and does not specify if it is based on
personal knowledge. Nor does it set forth that the facts would be admissible in
evidence or demonstrate that the defendant is competent to testify to the facts, all of
which are required for the filing to be considered as evidence in response to a motion
for summary judgment.
On July 20, 2010, Smith filed a motion to amend, seeking to add additional
arguments. In that filing, the defendant renewed his argument that there was
evidence that “Tuffy” Brooks was not a credible source for the search-warrant
affidavit. The defendant also raised a new argument that the search-warrant affidavit
was based on false information because the facts attributed to CS # 3, admitted by
the State to be Carlos Anderson, are denied by an affidavit of Carlos Anderson
attached to the motion to amend. (Doc. #130).
The State opposed post-conviction relief, as well as the motion to amend, and
moved for summary judgment. Following briefing, the trial court sustained the State’s
motion for summary judgment and denied Smith post-conviction relief. Although the
trial court did not explicitly rule on Smith’s motion to amend his post-conviction relief
filing, it implicitly granted the motion by addressing his additional arguments in its
November 23, 2010 judgment entry. Therein, the trial court stated, in relevant part:
“In the instant case, the Defendant is seeking post-conviction relief on the
5
following grounds:
“(1). Trial Counsel failed to bring to the court’s attention by way of a police
report that Reginald ‘Tuffy’ Brooks had made contact with Det. Fred Meadows in an
effort to secure a favor for Tony Thomas. Also, trial counsel failed to bring to the
court’s attention that Dir. Bruce May refused to work with Tuffy Brooks due to Tuffy’s
criminal history and the fact that Tuffy was being investigated for murder and other
crimes.
“(2). Trial Counsel failed to advise Defendant about his rights in the forfeiture
phase of sentencing.
“(3). Trial Counsel never filed any petition with the Trial Court in regards to the
forfeiture of his property.
“(4). Police Misconduct in the use of confidential sources in obtainment of
search warrant; and
“(5). Trial Counsel failed to call any of the 4 men to testify during Defendant’s
suppression hearing.
“Defendant’s petition raises no substantive ground for relief because the
claims he advances are barred by res judicata. The alleged claims raised by
Defendant were or could have been addressed at trial and therefore could have
been raised on direct appeal. Also, the facts alleged and presented by Defendant, if
proved, do not entitle him to relief sought.” (Doc.#143 at 4).
On appeal, Smith contends the trial court erred in denying his motion for
post-conviction relief on the basis of res judicata and without an evidentiary hearing.
Although Smith’s pro-se brief touches on a range of issues, his appellate argument
6
focuses on the fourth ground for relief cited by the trial court: police misconduct in
2
the use of confidential sources to obtain a search warrant. There are two parts to
his police-misconduct argument. First, the defendant reiterates that the information
from Reginald “Tuffy” Brooks is not credible because the task force previously had
been unwilling to work with Brooks. Second, Smith claims the affiant, detective Craig
Polston, lied in his search-warrant affidavit about having obtained key information
from a confidential source identified as “CS #3.”
We note that the defendant has not provided any new or different factual
information about Tuffy Brooks. His lawyers previously challenged both Brooks’
veracity and the accuracy of the detective’s inclusion of statements attributed to
Brooks in the search-warrant affidavit. Moreover, the trial court went to considerable
length to listen to the audio recordings of Brooks when Brooks did not know that he
was being recorded. There can be no doubt, from the search-warrant affidavit itself,
that Reginald Brooks is a burglar, thief, and robber. But these issues were fully
addressed to and by the trial court. Brooks’ lack of credibility was argued to this court
in the defendant’s direct appeal. We agree with the trial court that res judicata
prevents the appellant from re-litigating the issue.
The second part of appellant’s police-misconduct argument involves detective
2
Appellant does not renew his argument to the trial court that he had been denied a jury trial on
the forfeiture proceedings or that he was misinformed of his right to a jury trial on that issue. Nevertheless,
a jury waiver was filed that is signed by counsel and countersigned by the defendant. (Doc #53). A “Rule
11 notification and Waiver for No Contest Plea,” signed by the defendant, also states that he is waiving his
right to a jury trial. (Doc. #60). Finally, the indictment contained forty forfeiture specifications. On October
30, 2009, a forfeiture hearing began but after some twenty pages of transcript testimony a recess was
taken. Upon resuming, the state and the defense entered into an agreement. Some of the items were to
be forfeited and some were to be returned to the defendant’s mother. Thus, the defendant has waived any
right to have a jury determine the forfeiture. Likewise, he did not raise the issue on direct appeal.
7
Polston’s search-warrant affidavit, which states at paragraph seventeen:
“On May 23, 2008 an interview was conducted by Detectives Lon Etchison
and Josh Julian, ACE Task Force[,] with a confidential source, hereafter referred to
as CS #3. … CS #3 stated that [Donald] Harrington works at the L.A. Lounge for
Sheldon Smith and also sells quantities of cocaine for Sheldon Smith. CS #3
informed the detective that the cocaine found at 1152 Glover Drive was delivered to
Carlos Anderson at the L.A. Lounge parking lot by Donald Harrington. Harrington
took the quantity of cocaine from a vehicle owned by Sheldon Smith that was
described as an older green four door vehicle. CS #3 told the detectives that
Harrington was familiar with Smith’s drug trafficking business from working at L.A.
Lounge and Smith had been Harrington’s boss since the L.A. Lounge opened. CS #3
told the detectives that after receiving the money for the cocaine Harrington took the
money and placed it back in the green vehicle. CS #3 stated he/she purchased
cocaine from Harrington numerous times at the L.A. Lounge and Harrington would
always remove the cocaine from the vehicle and place the money back in the back
seat or trunk area of the green vehicle. Harrington has told CS #3 that he has seen
several hundred thousand dollars of U.S. currency and kilograms of cocaine at the
residence of Sheldon Smith in Xenia. Harrington bragged to CS #3 that Smith
obtains fifty to sixty kilograms of cocaine from his Mexican connection each month. *
….”
In the proceedings below, Smith moved to suppress evidence obtained as the
result of a warrant that was issued based on Polston’s affidavit. Arguing against
suppression, but after completion of the evidentiary hearing, the State suggested to
8
the trial court that CS #3 was “none other than Carlos Anderson.” (Doc. #32 at 10,
filed May 7, 2009). On direct appeal, this court upheld the trial court’s denial of
Smith’s motion to suppress. In so doing, this court relied, in part, on the information
police had obtained from CS #3, reasoning:
“With regard to CS 3, he admitted to police that he had purchased cocaine
from Donald Harrington numerous times, thereby making a statement against his
penal interests and adding to his reliability. CS 3 also told police that Harrington sold
drugs for Sheldon Smith out of the L.A. Lounge. His basis for knowing this
information presumably came from his prior purchases of cocaine from Harrington.
CS 3 additionally stated that Harrington always put the money in an older green
vehicle owned by Smith. Police independently confirmed that Smith owned a green
1992 Honda Accord, which helped to corroborate CS 3's claim. Police also
established that Smith’s mother was the president of the L.A. Lounge and owned its
liquor license. CS 3 further told police that Harrington had admitted seeing several
hundred thousand dollars in cash and kilograms of cocaine in Smith’s residence.
Harrington also told CS 3 that Smith obtains fifty to sixty kilograms of cocaine each
month. CS 3 knew this information because Harrington told him, and Harrington
presumably knew it because he sold drugs to CS 3 and others for Smith. Although
CS 3 did not indicate when Harrington had seen the money and kilograms of cocaine
in Smith’s residence, we find it noteworthy that Harrington bragged to CS 3 about
Smith receiving fifty to sixty kilograms of cocaine each month. The substantial size
and regularity of this delivery gave the magistrate a reasonable basis for concluding
that drugs remained present in Smith’s home at the time of the warrant request.”
9
To put the facts related in paragraph seventeen of the affidavit in perspective,
examination of other facts is necessary. A fair reading of the entire record reveals
that it is undisputed that Donald Harrington worked for Sheldon Smith at the L.A.
lounge. The defendant himself provided information that led to the issuance of a
search warrant for the 1549 East Main Street address in Xenia where an additional
forty-two kilograms of the defendant’s cocaine were located. The defendant’s
information was listed in the affidavit for the 1549 East Main Street warrant, at ¶ 22,
as being from confidential source #4. (State Exhibit 4, suppression hearing, April 23,
2009.) Thus, it was Sheldon Smith, himself, who admitted to detectives that for over
a year he was distributing between twenty-five and fifty kilograms of cocaine a month
that he obtained from several Hispanic males. (State’s Exhibit 4, at ¶22) Moreover,
Carlos Anderson was known to be a drug trafficker before detectives searched
Smith’s home. (Transcript of proceedings, September 16, 2009, at 41.) Three
hundred grams of cocaine were found in Anderson’s house. (Search warrant
affidavit, at ¶16). Donald Harrington admitted to being a significant drug trafficker.
(Transcript of Proceedings September 16, 2009, at 44.) In an interview with
authorities on July 1, 2008, Sheldon Smith identified a picture of Carlos Anderson.
(Id. 53). Anderson was convicted of drug dealing. (Id. at 53-54). Smith admitted that
Donald Harrington was involved with at least five kilograms of his cocaine. (Id. at 63).
The net result of this undisputed or admitted information is that Smith was a major
drug dealer, Harrington worked for Smith, Harrington was part of Smith’s drug
distribution network, and Carlos Anderson was an admitted drug trafficker.
In the January 13, 2010 affidavit accompanying Smith’s post-conviction relief
10
filings, Carlos Anderson averred:
“I Carlos Anderson, depose the following to be true under the penalty of
Perjury of the Laws of the State of Ohio;
“1) I have never been a Confidential Informant, or worked with The Xenia
Police Department, Task Force, or any other Law Police Department, Local, or
Federal.
“2) I have never given an interview to a Detective Lon Etchison or Josh Julian
of Ace Task Force, on 5/23/2008, giving them information on Sheldon Smith.
“3) I have no knowledge of any Sheldon Smith, business dealings, or personal
dealings.
“4) I have recently come into the knowledge that I was listed as CS #3
(CONFIDENTIAL SOURCE), [i]n a[n] Affidavit for Search Warrant, taken out by Det.
Craig Polston, to search a property listed as: 2396 Louisiana Drive Xenia (Greene
County), Ohio, which is not true. Said statements [were] used to secure a search
warrant of the above listed property.
“5) My name was revealed as CS #3, during a suppression hearing, when my
name was turned over by the State of Ohio, as a Confidential Source. (Which is
totally untrue).”
(Anderson affidavit, attached to Doc. #130).
Anderson’s affidavit does not deny the underlying factual information that the
detective included in the application for the search warrant. It just denies that he is
the source of that information. Nor does the defendant independently supply factual
information of his own denying that he was a major drug dealer with a Mexican
11
connection, or that Donald Harrington worked for him and was involved in Smith’s
drug-distribution network, or that Harrington had seen several hundred thousand
dollars of currency and kilograms of cocaine at Smith’s residence. There is a reason
he has not denied those facts. They are true. Almost $600,000 and thirteen
kilograms of cocaine were found in Smith’s residence. “Throughout the month of May
2008, Sheldon Smith conspired with Donald Harrington on at least two separate
occasions to arrange the sale of multiple kilograms of cocaine to Carlos Anderson.”
3
(Rendition of Facts, Transcript of No-Contest Plea, June 1, 2009, at 21). “Two
nearly (sic) years Sheldon Smith received hundreds of kilograms of cocaine from his
drug suppliers and he would use a network of people to distribute that cocaine.
Those people include, but not limited to, Donald Harrington and Carlos Anderson.”
(Id. at 23.) “Throughout the month of May 2008, Sheldon Smith conspired with
Donald Harrington on at least two separate occasions to arrange the sale of multiple
kilograms of cocaine to Carlos Anderson.… The proceeds of those cocaine sales
were returned to Shelton (sic) Smith.” (Id. at 22-23.) This leads to the inescapable
conclusion that either detective Craig Polston, the affiant, was informed of the facts
in paragraph seventeen of the search-warrant affidavit by CS#3 or he is clairvoyant
and able to predict specific, multiple facts that were later found to be accurate.
A singular question remains: was Carlos Anderson CS #3? Regardless of the
answer to this question, however, Anderson’s affidavit fails to provide Smith with
3
We realize that “a statement of facts by a prosecutor does not constitute evidence.” State v.
Green, 81 Ohio St.3d 100, 104,
1998-Ohio-454. However Green and its progeny deal with a situation
where evidence is required to have been introduced. We use the rendition of facts only to highlight that the
defendant has not provided evidence to contradict the drug dealing aspects of paragraph seventeen
because that information is accurate.
12
grounds for post-conviction relief. If Anderson provided the information attributable to
CS #3, but he now denies it, then his affidavit is false and unhelpful to Smith. On the
other hand, if Anderson was not CS #3, then his affidavit is true but still unhelpful. If
CS #3 was not Anderson, this does not undermine the factual information contained
in detective Polston’s affidavit or the reliability of that information, which was largely
corroborated and ultimately proved to be accurate. If Anderson was not CS #3, then
someone other than Anderson provided the information upon which Polston relied.
The only argument Smith can make that could lead to the conclusion that Polston
provided false information in the affidavit is if one were to speculate that Polston
made up the accurate information that he, Polston, attributed to Anderson, but that
the information was not provided by Anderson. The trial court was not required to
believe in mythology or clairvoyance. Because Anderson’s affidavit does not
controvert the underlying factual information in Polston’s search-warrant affidavit, the
trial court correctly held that “the facts alleged and presented by Defendant, if
proved, do not entitle him to [the] relief sought.”4 For this reason, and regardless of
the true identity of CS #3, we continue to believe that Polston’s affidavit was
sufficient to support the issuance of a search warrant and the trial court did not
abuse its discretion in overruling the motion for post conviction relief. Accordingly,
4
Parenthetically, we reject the notion that res judicata precludes Smith’s reliance on Anderson’s
affidavit. The affidavit is dated January 13, 2010, and was not part of the original record below. We see no
indication in the record that Smith could have raised the issues presented by Anderson’s affidavit without
it. Because Anderson’s affidavit is outside the record, the trial court erred in denying this aspect of Smith’s
motion for post-conviction relief on the basis of res judicata. See, e.g., State v. Harris, Champaign App.
No. 07-CA-32, 2008-Ohio-5165, ¶7 (recognizing that res judicata only bars post-conviction claims that
were or could have been raised at trial or on direct appeal). As set forth above, however, the trial court
properly denied Smith’s R.C. 2953.21 motion on the alternative basis that Anderson’s affidavit did not
provide substantive grounds for relief.
13
Smith’s assignment of error is overruled.
Judgment affirmed.
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FAIN, J., concurs.
GRADY, P.J. concurs in judgment only.
Copies mailed to:
Stephen K. Haller
Elizabeth A. Ellis
Sheldon Smith
Hon. Stephen Wolaver
