State v. Wheeler , 2020 Ohio 6720 ( 2020 )

[Cite as State v. Wheeler, 2020-Ohio-6720.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
SOLOMON WHEELER : Case No. 2019 CA 124
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 19 CR 184
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 15, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PAULA M. SAWYERS JAMES A. ANZELMO
20 South Second Street 446 Howland Drive
Fourth Floor Gahanna, OH 43230
Newark, OH 43055
Licking County, Case No. 2019 CA 124 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Solomon Wheeler, appeals the September 18, 2019
judgment entry of the Court of Common Pleas of Licking County, Ohio, denying his
motion to suppress. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On April 18, 2019, the Licking County Grand Jury indicted appellant on
one count of possession of drugs (methamphetamine) in violation of R.C. 2925.11 and
one count of trafficking (methamphetamine) in violation of R.C. 2925.03. Said charges
arose from a motor vehicle stop for running a stop sign.
{¶ 3} On May 15, 2019, appellant filed a motion to suppress, claiming an illegal
search and seizure of the vehicle and his person. A hearing was held on September 9,
2019. By judgment entry filed September 18, 2019, the trial court denied the motion.
{¶ 4} On November 20, 2019, appellant pled no contest to the charges. By
judgment entry filed same date, the trial court found appellant guilty, and sentenced him
to an aggregate term of two years in prison.
{¶ 5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 6} "THE TRIAL COURT ERRED BY DENYING WHEELER'S MOTION TO
SUPPRESS EVIDENCE THAT POLICE OBTAINED IN VIOLATION OF HIS STATE
AND FEDERAL CONSTITUTIONAL RIGHTS."
Licking County, Case No. 2019 CA 124 3
II
{¶ 7} "WHEELER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN
VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND SECTION 10 ARTICLE I OF THE OHIO CONSTITUTION."
I
{¶ 8} In his first assignment of error, appellant claims the trial court erred in
denying his motion to suppress. We disagree.
{¶ 9} 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 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.Licking County, Case No. 2019 CA 124 4
{¶ 10} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S.
690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 94 (1996), "…as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal."
{¶ 11} The Fourth Amendment to the United States Constitution protects
individuals against unreasonable governmental searches and seizures. A traffic stop by
law enforcement implicates the Fourth Amendment. Whren v. United States, 517 U.S.
806, 809-810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). As our colleagues from the
Fourth District stated in State v. Aguirre, 4th Dist. Galia No. 03CA5, 2003-Ohio-4909, ¶
35-36:
The scope and duration of a routine traffic stop "must be carefully
tailored to its underlying justification * * * and last no longer than is
necessary to effectuate the purpose of the stop." Florida v. Royer (1983),
460 U.S. 491, 500, 103 S.Ct. 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d
229. * * *
When a law enforcement officer stops a vehicle for a traffic
violation, the officer may detain the motorist for a period of time sufficient
to issue the motorist a citation and to perform routine procedures such as
a computer check on the motorist's driver's license, registration and
vehicle plates. See State v. Carlson (1995), 102 Ohio App.3d 585, 598,
657 N.E.2d 591. "In determining if an officer completed these tasks within
a reasonable length of time, the court must evaluate the duration of the
stop in light of the totality of the circumstances and consider whether the
Licking County, Case No. 2019 CA 124 5
officer diligently conducted the investigation." Id. (citing State v. Cook
(1992), 65 Ohio St.3d 516, 521-522, 605 N.E.2d 70 (fifteen-minute
detention reasonable); United States v. Sharpe (1985), 470 U.S. 675, 105
S.Ct. 1568, 84 L.Ed.2d 605 (twenty-minute detention reasonable).
{¶ 12} The two officers involved in the stop, Newark Police Detective Amanda
Angles and Newark Police Officer Benjamin Sholl, testified during the suppression
hearing. They were conducting traffic enforcement in an area where numerous people
were running stop signs. September 9, 2019 T. at 8, 25. Detective Angles, then a
police officer, observed a vehicle run a stop sign. The vehicle was being operated by
appellant. Id. at 9. After calling in appellant's information for verification, dispatch
advised he had a suspended license. Id. at 10. The passenger in the vehicle also had
a suspended license. Id. at 11. At this point, standard operating procedure is to
remove the individuals from the vehicle because they could not drive away after
receiving the citation. Id. at 11, 13.
{¶ 13} Officer Sholl arrived to assist. As Detective Angles was writing up the
citation, Officer Sholl received permission from the vehicle's owner, who had arrived on
the scene, to search the vehicle. Id. at 11-12, 26. Officer Sholl removed appellant from
the vehicle and observed a "large fixed blade knife on his belt loop." Id. at 27. When
asked if he had any other weapons, appellant responded in the negative. Id. Officer
Sholl then conducted a pat down for officer safety and discovered a second knife in
appellant's left front pocket. Id. at 27-28. Officer Sholl worked his way to the right side
of appellant's body and observed a black pouch on appellant's belt loop. Id. at 29.
Concerned it could hold weapons such as razor blades, Officer Sholl asked appellant
Licking County, Case No. 2019 CA 124 6
about the pouch. Id. at 12, 29. Appellant stated it was a cell phone pouch and when
asked what was in it, appellant replied "Meth" as in methamphetamine. Id. at 13, 29. At
that time, Officer Sholl placed appellant in handcuffs. Id. at 29. When asked if he had
anything else on him, appellant advised he had a small baggy in his pants pocket which
appeared to contain methamphetamine. Id. at 14, 29-30.
{¶ 14} Appellant received citations for running a stop sign and driving under
suspension. Id. at 15. On cross-examination, Detective Angles agreed a record of
appellant's license for that day shows it was not under suspension. Id. at 15-16;
Defendant's Exhibit B. Her investigation notes indicate appellant "did not have a valid
license" as it was expired. Id. at 17; Defendant's Exhibit A. Whether his license was
suspended or expired, he would not have been able to drive away and would have been
removed from the vehicle and patted down per standard procedure. Id. at 22-23.
{¶ 15} In his appellate brief at 6-7, appellant argues he was " 'in custody for
practical purposes' during the traffic stop" and therefore he should have been read his
Miranda rights before being questioned about the contents of the black pouch and any
other contraband on his person.
{¶ 16} In its September 18, 2019 judgment entry denying the motion to suppress,
the trial court determined the officers could order appellant out of the vehicle which was
properly stopped for a traffic violation, even without suspicion of criminal activity.
Pennsylvania v. Minns, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). However,
the officers did not automatically have the authority to conduct a pat down search for
weapons. The question that needed to be answered was whether the officers had a
reasonable, objective basis for conducting the pat down based on the totality of the
circumstances. The trial court concluded, "[u]pon seeing a large knife as the defendant
Licking County, Case No. 2019 CA 124 7
exited the vehicle, the officers then possessed sufficient reasonable objective basis
under the totality of the circumstances to frisk for further weapons." The trial court then
stated:
Further, the Court finds the defendant's statements as to what the
contents of the black bag were were not statements made in response to
custodial interrogation as the defendant had not been placed under arrest,
nor was he subject to being interrogated at the time of the frisk.
Furthermore, though not questioned, the defendant offered he had
methamphetamine in his pocket.
{¶ 17} We note after methamphetamine was retrieved from the black pouch,
Officer Sholl did question appellant as to whether he had anything else on him. That is
when appellant volunteered he had a baggy in his pants pocket.
{¶ 18} We concur with the trial court that Officer Sholl had a sufficient reasonable
objective basis under the totality of the circumstances to frisk appellant for weapons.
Appellant had a large fixed blade knife on his belt loop. A pat down for additional
weapons was warranted. When asked if he had any additional weapons on his person,
appellant was untruthful. It was reasonable for Officer Sholl to ask appellant what was
inside the black pouch as it could have contained razor blades or a folded knife.
Appellant volunteered that the pouch contained methamphetamine.
{¶ 19} The more troublesome issue is Officer Sholl's question to appellant as to
whether he had anything else on him which led to the discovery of additional
methamphetamine in appellant's pants pocket. Officer Sholl stated he had placed
Licking County, Case No. 2019 CA 124 8
appellant in handcuffs prior to asking him the question, but there was no testimony that
appellant was under arrest at that time. Detective Angles's report states Officer Sholl
asked appellant the question, found the additional methamphetamine, and then placed
him in handcuffs "to detain him while we continued the search of the vehicle."
Defendant's Exhibit A.
{¶ 20} It is unclear whether the question was asked under a non-custodial
situation or after appellant was under arrest. Under a non-custodial situation, appellant
volunteered the information. If under arrest, we find the inevitable discovery rule to
apply. Under the inevitable discovery rule, "illegally obtained evidence is properly
admitted in a trial court proceeding once it is established that the evidence would have
been ultimately or inevitably discovered during the course of a lawful investigation. (Nix
v. Williams [1984], 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377, followed.)." State v.
Perkins, 18 Ohio St.3d 193, 480 N.E.2d 763 (1985), syllabus.
{¶ 21} The discovery of methamphetamine in the black pouch during the lawful
pat down would justify placing appellant under arrest. He would have been searched
incident to a lawful arrest, and the additional methamphetamine in his pants pocket
would have been discovered.
{¶ 22} Upon review, we find the trial court did not err in denying appellant's
motion to suppress.
{¶ 23} Assignment of Error I is denied.
II
{¶ 24} In his second assignment of error, appellant claims his trial counsel was
ineffective for failing to move for a waiver of court costs. We disagree.
Licking County, Case No. 2019 CA 124 9
{¶ 25} In State v. Davis, 159 Ohio St.3d 31, 146 N.E.3d 560, 2020-Ohio-309, ¶ 1,
the Supreme Court of Ohio reviewed the following certified question: "whether trial
counsel's failure to file a motion to waive court costs at a defendant's sentencing
hearing constitutes ineffective assistance of counsel when the defendant has previously
been found indigent." The Supreme Court of Ohio declined to answer the question "in
either the affirmative or the negative," explaining the following (Id.):
Rather, a court's finding of ineffective assistance of counsel
depends on the facts and circumstances in each case. See Strickland v.
Washington, 466 U.S. 668, 688-689, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). We hold that when an indigent defendant makes an ineffective-
assistance-of-counsel claim based upon counsel's failure to request a
waiver of court costs, a reviewing court must apply the test in State v.
Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989), which
adopted the standard that had been announced in Strickland, for
determining whether a defendant received ineffective assistance of
counsel. If a court analyzes the prejudice prong, then it must consider the
facts and circumstances of the case objectively to determine whether the
defendant established the necessary prejudice sufficient to support that
claim—i.e., but for counsel's deficient performance, there exists a
reasonable probability that the result of the proceeding would have been
different.
Licking County, Case No. 2019 CA 124 10
{¶ 26} The Supreme Court of Ohio in Davis at ¶ 15 specifically stated, "a
determination of indigency alone does not rise to the level of creating a reasonable
probability that the trial court would have waived costs had defense counsel moved the
court to do so."
{¶ 27} The standard this issue must be measured against is set out in Bradley,
supra, paragraphs two and three of the syllabus. Appellant must establish the following:
2. Counsel's performance will not be deemed ineffective unless and
until counsel's performance is proved to have fallen below an objective
standard of reasonable representation and, in addition, prejudice arises
from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2
O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's
deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the result of
the trial would have been different.
{¶ 28} "A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Strickland, supra, at 694.
{¶ 29} As quoted by the Bradley court at 143, the Strickland court at 697 stated
the following:
Licking County, Case No. 2019 CA 124 11
"Although we have discussed the performance component of an
ineffectiveness claim prior to the prejudice component, there is no reason
for a court deciding an ineffective assistance claim to approach the inquiry
in the same order or even to address both components of the inquiry if the
defendant makes an insufficient showing on one. In particular, a court
need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the
alleged deficiencies. The object of an ineffectiveness claim is not to grade
counsel's performance. If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed. Courts should strive to
ensure that ineffectiveness claims not become so burdensome to defense
counsel that the entire criminal justice system suffers as a result."
{¶ 30} R.C. 2947.23 governs judgment for costs. Subsection (A)(1)(a) states: "In
all criminal cases, including violations of ordinances, the judge or magistrate shall
include in the sentence the costs of prosecution * * * and render a judgment against the
defendant for such costs." However, subsection (C) permits the trial court to retain
jurisdiction "to waive, suspend, or modify the payment of the costs of prosecution * * * at
the time of sentencing or at any time thereafter." Therefore, a trial court has discretion
to waive the payment of court costs whether a defendant is indigent or not.
{¶ 31} During the sentencing hearing, defense counsel did not request a waiver
of court costs; however, defense counsel did request a waiver of the mandatory fine as
appellant has "been incarcerated now for almost seven months and, frankly, has no
Licking County, Case No. 2019 CA 124 12
ability to pay a fine or to privately obtain an attorney for purposes of the appeal."
November 20, 2019 T. at 19. The trial court stated, "I'll not impose any fines. I will
impose court costs and costs of prosecution." Id. at 24. After sentencing, the trial court
appointed appellant an attorney for his appeal and ordered the transcripts at state
expense. Judgment Entries filed November 25, and December 23, 2019.
{¶ 32} At the time of sentencing, the trial court was cognizant of appellant's
indigency status and specifically decided not to impose a fine, but did impose the court
costs. Appellant relies on the trial court's decision to not impose a fine to support his
argument that there was a reasonable probability that the trial court would have waived
costs if a motion had been made. Appellant has not presented any further facts or
circumstances to support a finding that there was a reasonable probability that the trial
court would have granted a motion to waive costs had one been made.
{¶ 33} The trial court had the benefit of appellant's presentence investigation
report and his April 24, 2019 affidavit of indigency. We have objectively reviewed the
record and find appellant has not established prejudice to support his claim that but for
his counsel's failure to make a motion to waive costs, there exists a reasonable
probability that the motion would have been granted.
{¶ 34} As this court did in State v. Eblin, 5th Dist. Muskingum No. CT2019-0036,
2020-Ohio-1216, ¶ 21, "[w]e considered, as part of this analysis, whether the trial court's
denial of such a motion would have been an abuse of discretion and find nothing within
the facts and circumstances of this case that would lead us to find that a failure to grant
the motion would constitute an abuse." Accord State v. Stevens, 5th Dist. Muskingum
Nos. CT2019-0059 & CT2019-0060.
Licking County, Case No. 2019 CA 124 13
{¶ 35} Upon review, we do not find anything that would support the conclusion
that there was a reasonable probability that the outcome would have been different had
a motion been filed and therefore, we do not find any prejudice to appellant. We do not
find any ineffective assistance of counsel on the issue of court costs.
{¶ 36} Assignment of Error II is denied.
{¶ 37} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Delaney, P.J. and
Baldwin, J. concur.
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