State v. Evans ( 2011 )

[Cite as State v. Evans, 2011-Ohio-3046.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94984
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
FRANK EVANS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-513553
BEFORE: Blackmon, P.J., S. Gallagher, J., and Rocco, J.
RELEASED AND JOURNALIZED: June 23, 2011
ATTORNEYS FOR APPELLANT
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Robert L. Tobik
Chief Public Defender
Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue, Suite 400
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Matthew Waters
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant Frank Evans appeals his convictions for possession and
trafficking of drugs and possession of criminal tools and assigns the following
errors for our review:
“I. The trial court erred in denying appellant’s motion to
suppress the evidence in this case because it was obtained
in violation of his state and federal constitutional right to
be free of unreasonable searches and seizures.”
3
“II. Appellant was denied the effective assistance of
counsel in violation of the Sixth Amendment to the United
States Constitution and Article I, Section 10 of the Ohio
Constitution when his attorney failed to file a motion to
suppress appellant’s incriminating statements.”
{¶ 2} Having reviewed the record and pertinent law, we affirm Evans’s
convictions. The apposite facts follow.
{¶ 3} The Cuyahoga County Grand Jury indicted Evans with one count
each of possession and trafficking in crack cocaine in an amount equal to or
exceeding one gram but less than five grams and one count of possession of
criminal tools.
{¶ 4} Evans filed a motion to suppress the drugs found in his car,
arguing the search was illegal because the officers did not have probable
cause to search the car.
{¶ 5} At the suppression hearing, Detective Thomas Azzano of the
Cuyahoga Metropolitan Housing Authority (“CMHA”) testified that on June
4, 2008 at around 1:00 p.m., he and his partner had set up surveillance of a
home based on a report that it was being robbed. A vehicle resembling the
one described in the complaint was parked in front of the house. The officers
followed the car as it drove away. They ran the plates and discovered the
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plates belonged to a different car; therefore, they stopped the vehicle to
investigate.
{¶ 6} Detective Azzano testified that as he approached the car he could
smell burnt marijuana emanating from the passenger side. He could also see
in plain view marijuana seeds and stems on the floor of the front area of the
car. The driver, later identified as Evans, and his passenger were asked to
exit the vehicle for further investigation. Detective Azzano’s partner opened
the compartment in the ceiling of the vehicle and individual baggies
containing rocks of cocaine fell out.
{¶ 7} The trial court denied the motion to suppress. Evans entered a
no contest plea to all three counts; after merging the possession and
trafficking charges, the trial court sentenced him to one year of community
control.
Denial of Motion to Suppress
{¶ 8} In his first assigned error, Evans argues the trial court erred by
denying his motion to suppress the drugs found in the car because the police
lacked probable cause to search the vehicle.
{¶ 9} At a hearing on a motion to suppress, the trial court functions as
the trier of fact. Accordingly, the trial court is in the best position to weigh
the evidence by resolving factual questions and evaluating the credibility of
witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972.
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On review, an appellate court must accept the trial court’s findings of fact if
those findings are supported by competent, credible evidence. State v.
Retherford (1994), 93 Ohio App.3d 586, 592, 639 N.E.2d 498. After accepting
such factual findings as true, the reviewing court must then independently
determine, as a matter of law, whether or not the applicable legal standard
has been met. Id.{¶ 10} In the instant case, in denying the motion to suppress, the trial
court stated, “I think based on the fictitious plates as well as the smell of
marijuana justified the officers in conducting and warranting the search.
I’m going to deny your motion to suppress.” Tr. 27. We conclude the trial
court did not err by denying the motion to suppress.
{¶ 11} It is well established that “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 be no other tangible evidence to justify a
warrantless search of a vehicle.” State v. Moore, 90 Ohio St.3d 47, 48,
2000-Ohio-10, 734 N.E.2d 804. See, also, State v. Williams, Cuyahoga
App. Nos. 92009 and 92010, 2009-Ohio-5553, ¶26 (“smell of marijuana
emanating from the vehicle justified a search of the vehicle without a warrant
based upon the ‘plain smell doctrine’”); State v. Byers, Cuyahoga App. No.
94922, 2011-Ohio-342 (the search was supported by probable cause when the
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police officers discovered that the occupants of the vehicle had been smoking
marijuana); State v. Jones, 187 Ohio App.3d 478, 2010-Ohio-1600, 932 N.E.2d
904 (probable cause supported the search because the officer smelled
marijuana when the occupant opened the car door); State v. Hopper,
Cuyahoga App. Nos. 91269 and 91327, 2009-Ohio-2711, (“the smell of
marijuana gives rise to a reasonable suspicion that the person stopped is
engaged in criminal activity.”)
{¶ 12} Evans does not dispute that Detective Azzano testified that he
could smell marijuana upon approaching the vehicle; however, he argues that
there was no basis on which to conclude that Detective Azzano was qualified
to recognize the odor of marijuana and that the smell only emanated from the
passenger side of the vehicle, therefore, an entire search of the car was
prohibited.
{¶ 13} We agree that Moore requires that the person who smells the
marijuana must be “qualified to recognize the odor.” Detective Azzano
testified that he recognized the smell was marijuana based on the hundreds
of times he smelt marijuana in other drug cases. This was sufficient
evidence that the detective was qualified to recognize the odor of marijuana.
{¶ 14} Evans also argues that there was no evidence the odor was strong
or that it was coming from the driver’s side of the vehicle. We have found
no support for Evans’s argument that the odor must be strong and emanating
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from the entire car for a warrantless search to be justified. To create such a
narrow rule would require the police to ignore the obvious. Nonetheless, the
evidence in this case indicates the odor was strong enough for the officers to
smell it as they approached the car. Moreover, the detective testified that
“As we approached, we could smell marijuana coming out of the vehicle as if
somebody had been smoking it.” Thus, both of the officers could smell the
odor. Because Azzano approached the passenger’s side, it makes sense that
he detected the smell from that side of the car. See State v. Gonzales, 6th
Dist. No. WD-07-060, 2009-Ohio-168 (smell of marijuana in the passenger
compartment constituted adequate probable cause to search the duffel bags
located in an SUV cargo area for potentially concealed marijuana.)
Additionally, the detective testified that he saw in plain view marijuana seeds
and stems strewn throughout the car. At oral argument, counsel argued we
could not consider this evidence because the court only relied upon the smell
to justify the search. However, the trial court did not state that it did not
find the officer’s testimony that seeds and stems were visible on the floor of
the car to be not credible. Thus, we cannot ignore the fact that the record
clearly reveals the officer saw these items throughout the car.
{¶ 15} Once the officers discovered that the occupants of the vehicle had
been smoking marijuana, the automobile exception to the Fourth Amendment
warrant requirement applied and allowed a search of the vehicle for drugs.
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Id. at syllabus. Having probable cause to conduct a search of the car, the
officers were justified in searching “every part of the vehicle and its contents
that may conceal the object of the search.” United States v. Ross (1982), 456
U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572. Thus the search that
uncovered drugs hidden in the ceiling compartment did not violate Evans’s
Fourth Amendment rights. Accordingly, Evans’s first assigned error is
overruled.
Ineffective Assistance of Counsel
{¶ 16} In his second assigned error, Evans argues his counsel was
ineffective for failing to seek the suppression of his confession to the police
that the drugs were his. The statement occurred while Evans was detained
in the back seat of the zone car and prior to him being Mirandized.
{¶ 17} We review a claim of ineffective assistance of counsel under the
two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674. Under Strickland, a reviewing court will not
deem counsel’s performance ineffective unless a defendant can show his
lawyer’s performance fell below an objective standard of reasonable
representation and that prejudice arose from the lawyer’s deficient
performance. Id. at paragraph two of the syllabus. To show prejudice, a
defendant must prove that, but for his lawyer’s errors, a reasonable
probability exists that the result of the proceedings would have been
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different. Id. Judicial scrutiny of a lawyer’s performance must be highly
deferential. State v. Sallie, 81 Ohio St.3d 673, 1998-Ohio-343, 693 N.E.2d
267.
{¶ 18} Evans’s no-contest plea renders counsel’s failure to file a motion
to suppress his confession irrelevant. By pleading no contest, Evans
admitted to the truth of the facts alleged in the indictment. Crim.R.11(B)(2).
As the Ohio Supreme Court explained in State v. Bird, 81 Ohio St.3d 582,
1998-Ohio-606, 692 N.E.2d 1013:
“According to Crim.R. 11(B)(2), a no contest plea is ‘not an
admission of defendant’s guilt, but is an admission of the
truth of the facts alleged in the indictment * * *.’
Therefore, we have held that where the indictment,
information, or complaint contains sufficient allegations
to state a felony offense and the defendant pleads no
contest, the court must find the defendant guilty of the
charged offense. State ex rel. Stern v. Mascio (1996), 75
Ohio St.3d 422, 425, 662 N.E.2d 370.”
{¶ 19} Consequently, “by pleading no contest to the indictment, [an]
appellant is foreclosed from challenging the factual merits of the underlying
charge.” Id. at 584.
{¶ 20} Evans asserts that if counsel had sought to suppress his
admission to police, the element of possession of the drugs would not be able
to be proven. However, because Evans admitted to the facts in the
indictment by entering the no-contest plea, including the fact he possessed
the drugs, he cannot argue now that there was insufficient evidence that he
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possessed the drugs. As the court in State v. Fitzgerald, 2d Dist. No.
2001-CA-124, 2002-Ohio-3914, held:
“The State did not need any evidence to obtain
[defendant’s] conviction once he pled no contest, since his
no-contest plea constituted an admission of the truth of
the facts alleged in the complaint. Accordingly, even if
his trial counsel’s failure to have timely filed a motion to
suppress cost him the opportunity to suppress the
evidence, this did not prejudice the outcome of the plea
proceeding. In general, only ineffective assistance of
counsel relating to the plea proceeding, itself, will survive
a plea of guilty or no contest.”
{¶ 21} Thus, even if the failure of Evans’s attorney to file the motion fell
below an objective standard of reasonable representation, Evans must still
prove he was prejudiced by the ineffectiveness.
“Obviously, the failure to suppress evidence may have a
prejudicial impact on a jury verdict based on the jury’s
consideration of the unsuppressed evidence. It will not
have a prejudicial impact on a conviction based upon a
no-contest plea, however, because the conviction does not
result from the unsuppressed evidence, but from the
defendant’s admission, by his plea, of the facts alleged in
the complaint. Thus, a failure to suppress evidence
resulting from a deficiency in trial counsel’s legal
representation will not satisfy the prejudice prong of State
11
v. Bradley, supra and Strickland v. Washington, supra.”Fitzgerald at ¶44.
{¶ 22} Thus, by entering a no-contest plea, counsel’s failure to file a
motion to suppress did not prejudice Evans. See, also, State v. Scruggs, 12th
Dist. No. CA2006-11-042, 2007-Ohio-6416 (by pleading no contest, defendant
admitted as true the facts in the indictment that she sold the crack cocaine,
so whether she possessed the drugs was irrelevant); State v. Hall, 5th Dist.
No. 03CA00011, 2003-Ohio-5828 (failure to file a motion to suppress did not
render defendant’s plea involuntary or unknowing because defendant
admitted the facts in the indictment were true); State v. Rothonbuhler, 3d
Dist. No. 4-03-05, 2004-Ohio-2059 (failure to file a motion to suppress
contents found on computer did not constitute ineffective assistance of
counsel when defendant pled no contest to illegal use of a minor in nudity
oriented material or performance). We are also mindful that counsel may
have been aware of additional facts not presented at the suppression hearing
that would support the fact the drugs were Evans’s. This could have weighed
into counsel’s decision not to pursue a suppression motion on this issue and
instead recommend that Evans enter a no-contest plea. Accordingly, Evans’s
second assigned error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
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The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR