State v. Jozwiak , 2020 Ohio 3694 ( 2020 )

[Cite as State v. Jozwiak, 2020-Ohio-3694.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2019-09-091
: OPINION
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:
MATTHEW D. JOZWIAK, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 17CR33400
David P. Fornshell, Warren County Prosecuting Attorney, Kathryn M. Horvath, 520 Justice
Drive, Lebanon, Ohio 45036, for appellee
Thomas G. Eagle Co., L.P.A., Thomas G. Eagle, 3400 N. State Route 741, Lebanon, Ohio
45036, for appellant
RINGLAND, J.
{¶1} Appellant, Matthew D. Jozwiak, appeals from his conviction and sentence in
the Warren County Court of Common Pleas for operating a vehicle while under the influence
of alcohol or drug of abuse ("OVI"). For the reasons discussed below, we affirm his
conviction and sentence.
Warren CA2019-09-091
{¶2} On August 25, 2017, at around one o'clock in the morning, a police officer with
the Springboro Police Department observed a vehicle make a right turn at an intersection
without giving a turn signal. The officer followed the vehicle and observed it slowly weaving
within the lane of travel, although the vehicle did not cross the pavement lines marked on
the roadway. The officer activated his police vehicle's emergency lights to initiate a traffic
stop. The vehicle slowed its speed but did not immediately pull over. Eventually the vehicle
turned into the parking lot of a Taco Bell restaurant. Instead of pulling forward into one of
the unoccupied parking spaces, the vehicle came to a stop within the lane of travel.
{¶3} At that point, the officer approached the vehicle on foot. The officer identified
appellant to be the operator and sole occupant of the vehicle. The officer requested
appellant's driver's license and proof of insurance and engaged in a series of questions with
appellant. Appellant produced the insurance documents and answered the questions but
did not provide his driver's license until the officer again requested that document. During
this encounter, the officer noticed a slight odor of an alcoholic beverage emanating from the
vehicle. The officer took the documents and returned to his vehicle to process the
information. After verifying appellant's identification, the officer learned that appellant's
driving privileges in Ohio had been suspended and that he had prior OVI convictions. The
officer returned and told appellant to step out of his vehicle and walk back to the police
cruiser.
{¶4} The officer asked appellant another series of questions, inquiring whether
appellant had any prior OVIs or if he had consumed alcohol recently. Appellant denied
having any prior OVI convictions or drinking alcohol. While speaking with appellant, the
officer detected a strong odor of an alcoholic beverage coming from appellant's person, and
noticed that appellant exhibited glassy eyes, slurred speech, and had difficulty responding
to the questions indicating divided attention issues. The officer then requested appellant
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take a preliminary breath test ("PBT") from a portable device. Appellant agreed to take the
test but was ultimately unable or unwilling to successfully perform the PBT despite multiple
attempts.
{¶5} At this point, other law enforcement personnel arrived to aid the officer. The
officer asked appellant to complete three field sobriety tests ("FSTs"): the horizontal gaze
nystagmus ("HGN"), the walk-and-turn, and the one-leg stand tests. After administering
these tests, the officer determined that appellant was appreciably impaired and placed
appellant under arrest. At the police station, the officer requested that appellant submit to
a chemical breath test and notified appellant about the consequences of refusal. Appellant
refused to take the test.
{¶6} Based on the foregoing events, the Warren County Grand Jury indicted
appellant on two counts of OVI, the first count in violation of R.C. 4511.19(A)(1)(a) for
operating the vehicle while impaired and the second count in violation of R.C. 4511.19(A)(2)
for his refusal to submit to the chemical test. Both counts were charged as third-degree
felonies because appellant had previously been convicted of a felony OVI. Each count of
the indictment also included a specification that appellant had been convicted of five or
more OVIs within 20 years.
{¶7} The matter proceeded to a jury trial in July 2019.1 At trial, the state called one
witness, the arresting officer, to testify. In addition, the state admitted into evidence, inter
alia, the video recording taken from the officer's patrol vehicle, the BMV form 2255 read to
appellant before he refused the chemical test, and five judgment of conviction entries for
the prior OVI convictions. The jury found appellant guilty of both counts and both of the
specifications.
1. After his arrest, but prior to being served with the indictment, appellant violated the conditions of his bail
and fled. Appellant was later apprehended in May 2019.
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{¶8} At the sentencing hearing in August 2019, the trial court merged count one
into count two. The trial court sentenced appellant to 24 months in prison on count two and
an additional three years for the specification. The terms of imprisonment were run
consecutively to each other, for a total sentence of five years imprisonment. The trial court
further ordered appellant to pay a mandatory fine of $1,350, pay a separate fine of $60,000
in lieu of a vehicle forfeiture, and imposed a class 2 license suspension. After his
sentencing hearing appellant moved for a new trial on the basis of ineffective assistance of
counsel. The trial court denied the motion.
{¶9} Appellant now appeals raising three assignments of error for review.
{¶10} Assignment of Error No. 1:
{¶11} THE TRIAL COURT ERRED IN CONVICTING APPELLANT.
{¶12} In his first assignment of error, appellant argues that his conviction should be
reversed because he received ineffective assistance of counsel. In support, appellant
presents several issues for review: trial counsel's failure to file a motion to suppress the
traffic stop and results of the field sobriety tests; counsel's failure to object to multiple
evidentiary matters; and, counsel's failure to object to the prosecutor's comments on
appellant's silence. Appellant further argues that if the alleged errors are not individually
reversible, this court should reverse his conviction based on cumulative error. Alternatively,
appellant argues that some of the alleged errors amounted to plain error pursuant to Crim.R.
52(B).
Standard of Review
{¶13} A defendant has the right to effective assistance of counsel in a criminal
proceeding pursuant to the Sixth Amendment to the United States Constitution and Article
I, Section 10 of the Ohio Constitution. Strickland v. Washington, 466 U.S. 668, 686, 104
S.Ct. 2052 (1984); State v. Hester, 45 Ohio St.2d 71, 79 (1976). The defendant bears the
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burden of proving that his trial counsel was constitutionally infirm. State v. Johnson, 112
Ohio St.3d 210, 2006-Ohio-6404, ¶ 142. To prevail on an ineffective assistance of counsel
claim, appellant must demonstrate that (1) his trial counsel's performance was deficient,
that is, it fell below an objective standard of reasonable representation, and (2) he suffered
prejudice, that is, there is a reasonable probability the outcome of the proceeding would
have been different but for trial counsel's errors. State v. Taylor, 12th Dist. Fayette No.
CA2018-11-021, 2019-Ohio-3437, ¶ 16, citing Strickland at 687-688, and State v. Mundt,
115 Ohio St.3d 22, 2007-Ohio-4836, ¶ 62. A failure to satisfy either prong of this test is
fatal to the ineffective assistance claim. State v. Manning, 12th Dist. Butler No. CA2017-
08-113, 2018-Ohio-3334, ¶ 20. "Counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment." State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, ¶ 7.
{¶14} As to appellant's alternative argument, to constitute plain error there must be
an obvious deviation from a legal rule that affected appellant's substantial rights, that is, the
error must have affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27
(2002). Notice of plain error must be taken with utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice. State v. Long, 53 Ohio
St.2d 91 (1978), paragraph three of the syllabus.
Motion to Suppress
{¶15} Appellant argues that he received ineffective assistance because his trial
counsel did not file a pretrial motion to suppress evidence from the traffic stop and the
results of the FSTs. He contends that the officer did not have a constitutionally valid basis
to initiate the traffic stop and the state failed to demonstrate that the police officer conducted
the FSTs in substantial compliance with acceptable testing standards as required by R.C.
4511.19(D)(4)(b).
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{¶16} The failure to file a motion to suppress does not constitute per se ineffective
assistance of counsel. State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, ¶ 65. To
amount to ineffective assistance, appellant must demonstrate that the motion would have
been successful if made. State v. Resendiz, 12th Dist. Preble No. CA2009-04-012, 2009-
Ohio-6177, ¶ 29. An appellate court will presume that trial counsel provided effective
assistance if counsel could have reasonably determined that a motion to suppress would
have been futile. State v. Dominguez, 12th Dist. Preble No. CA2011-09-010, 2012-Ohio-
4542, ¶ 20.
{¶17} Initially, appellant claims his motion to suppress would have succeeded
because the police officer lacked a sufficient basis to initiate the traffic stop. The Fourth
Amendment to the United States Constitution and Article I, Section 14 of the Ohio
Constitution prohibit unreasonable automobile stops. Bowling Green v. Godwin, 110 Ohio
St.3d 58, 2006-Ohio-3563, ¶ 11. However, "where an officer has an articulable reasonable
suspicion or probable cause to stop a motorist for any criminal violation, including a minor
traffic violation, the stop is constitutionally valid regardless of the officer's underlying
subjective intent or motivation for stopping the vehicle in question." Dayton v. Erickson, 76
Ohio St.3d 3, 11-12 (1996); accord State v. Egnor, 12th Dist. Warren No. CA2019-05-042,
2020-Ohio-327, ¶ 17.
{¶18} Here, the officer had probable cause to believe appellant committed a traffic
violation. The officer testified that when he first encountered appellant, appellant was
stopped at an intersection waiting for the traffic light to change. While appellant was
stopped, the officer observed that appellant did not have his turn signal illuminated or
otherwise provide a statutorily compliant signal indicating an intent to turn. When the traffic
control device permitted appellant to continue through the intersection, appellant instead
made a right turn onto the cross-street. Pursuant to R.C. 4511.39(A), "[n]o person shall
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turn a vehicle * * * right or left upon a highway unless and until such person has exercised
due care to ascertain that the movement can be made with reasonable safety nor without
giving an appropriate signal in the manner hereinafter provided." The officer's observation
that appellant failed to provide a turn signal gave the officer probable cause that appellant
violated R.C. 4511.39. Accordingly, the traffic stop was constitutionally valid because it was
based on probable cause that a violation of the traffic code had been committed. Given
that, it was reasonable for appellant's trial counsel to determine that a motion to suppress
on this particular basis would have been futile.
{¶19} Next, appellant contends that a motion to suppress would have been
successful because the state failed to demonstrate the FSTs were substantially compliant
with a testing standard in effect when the tests were conducted. R.C. 4511.19(D)(4)(b)
provides that a law enforcement officer may testify to the results of the FSTs if it is shown
by clear and convincing evidence the officer conducted the tests in substantial compliance
with a testing standard, such as the standard promulgated by the National Highway Traffic
Safety Administration ("NHTSA"). This court has held that the state's burden of proving
substantial compliance is contingent on the particularity of the defendant's claims regarding
the tests, that is, if the defendant only generally contests the officer's performance, there is
only a slight burden of proof on the state and it may demonstrate substantial compliance in
general terms. See e.g., State v. Way, 12th Dist. Butler No. CA2008-04-098, 2009-Ohio-
96, ¶ 8. The state may establish that a law enforcement officer performed in substantial
compliance with a testing standard through testimonial or documentary evidence about the
specific standard used and the officer's testimony that he acted in conformity with that
standard. See State v. Perkins, 10th Dist. Franklin No. 07AP-924, 2008-Ohio-5060, ¶ 16.
{¶20} This court has previously discussed in detail the process required to perform
the FSTs according to the NHTSA manual. For instance, we have explained that in order
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to correctly perform the HGN,
a police officer should instruct the suspect that [he is] going to
check the suspect's eyes, that the suspect should keep [his]
head still and follow the stimulus with [his] eyes, and that the
suspect should do so until told to stop. After these initial
instructions are provided, the officer is instructed to position the
stimulus approximately 12 to 15 inches from the suspect's nose
and slightly above eye level. The officer is then told to check
the suspect's pupils to determine if they are of equal size, the
suspect's ability to track the stimulus, and whether the suspect's
tracking is smooth. The officer is then to check the suspect for
nystagmus at maximum deviation and for onset of nystagmus
prior to 45 degrees. The manual instructs the officer to repeat
each of the three portions of the HGN test.
In addition, the NHTSA guidelines list certain approximate and
minimum time requirements for the various portions of the test.
For instance, when checking for smooth pursuit, the time to
complete the tracking of one eye should take approximately four
seconds. When checking for distinct nystagmus at maximum
deviation, the examiner must hold the stimulus at maximum
deviation for a minimum of four seconds. When checking for
the onset of nystagmus prior to 45 degrees, the officer should
move the stimulus from the suspect's eye to his shoulder at an
approximate speed of four seconds.
(Internal quotations and citations omitted.) State v. Clark, 12th Dist. Brown No. CA2009-
10-039, 2010-Ohio-4567, ¶ 22-23; accord State v. Bresson, 51 Ohio St.3d 123, 125 (1990),
fn. 4. This court has similarly detailed the NHTSA standards for the walk-and-turn and the
one-leg stand tests. State v. Deluca, 12th Dist. Butler No. CA2016-03-055, 2017-Ohio-
1235, ¶ 12-15. Moreover, the Ohio Supreme Court has explained, "the only requirement
prior to admission [of the HGN test] is the officer's knowledge of the test, his training, and
his ability to interpret his observations." Bresson at 129; accord State v. Boczar, 113 Ohio
St.3d 148, 2007-Ohio-1251, ¶ 27 (the foundation required for admitting the HGN test is the
administering officer's training, the ability to administer the test, and the actual technique
used).
{¶21} At trial, the officer testified that he received training on how to perform the
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FSTs initially at the police academy and through an additional course, Advanced Roadside
Impaired Driving Enforcement ("ARIDE"). The officer testified about how the FSTs are to
be conducted, the specific manner in which he performed the tests, and that he performed
the tests in conformity with his training. The officer further testified that he was NHTSA
trained and certified. Over the course of his testimony, the officer explained that the tests
and his training were based on a "study" from NHTSA.2 While appellant points to a
statement the officer made on cross-examination that he was not trained under the NHTSA
manual, we nevertheless find that there was sufficient evidence in the record to show the
officer utilized the NHTSA testing standard. Additionally, appellant has not shown how the
officer's performance of the FSTs failed to comply with the NHTSA testing standard.
Therefore, based on the officer's trial testimony we find that a motion to suppress the FSTs
results would have been futile. Even if the trial court had granted a motion to suppress the
results of the FSTs, there were other indicia of impairment such that the trial court could
have determined the officer had probable cause to arrest appellant for an OVI offense. As
such, a motion to suppress on this basis would have likewise been futile.
{¶22} Moreover, appellant's ineffective assistance claim fails because appellant
cannot demonstrate that the failure to file a motion to suppress prejudiced him. The officer
testified that prior to the administration of the FSTs, he observed several indicia of
impairment, such as appellant's difficulty maintaining a straight course while driving,
appellant's slurred and broken speech, a strong odor of an alcoholic beverage emanating
from appellant, and appellant's divided attention issues when responding to questions.
Again, even if the results of an FST have been excluded, "a law enforcement officer may
2. The state did not seek clarification on what the officer meant by the term "study," although the officer used
that term in describing how identifying a certain number of clues from the FSTs demonstrates a specific
statistical likelihood that the test subject is impaired.
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testify at trial regarding observations made during a defendant's performance of
nonscientific standardized field sobriety tests". State v. Schmitt, 101 Ohio St.3d 79, 2004-
Ohio-37, ¶ 15. Consequently, it was admissible for the officer to testify about his
observations of appellant during the FSTs, such as appellant's difficulty maintaining his
balance, appellant's difficulty understanding the testing instructions, and appellant's inability
to follow the instructions. In addition to the officer's testimony, there was a video recording
of the encounter which allowed the jury to observe appellant's actions and demeanor.
Therefore, appellant cannot demonstrate there is a reasonable probability the outcome of
the trial would have been different if the results of the FSTs had been suppressed. See
e.g., State v. Vales, 5th Dist. Stark No. 2019CA00061, 2020-Ohio-245, ¶ 38 (where defense
counsel did not move to suppress FSTs, the defendant failed to establish ineffective
assistance because he did not demonstrate the requisite prejudice). Accordingly,
appellant's argument that his trial counsel provided ineffective assistance by not filing a
motion to suppress lacks merit.
Evidentiary Issues
{¶23} Additionally, appellant argues that his trial counsel provided ineffective
assistance of counsel by failing to object to the admission of evidence that he contends was
inadmissible. Specifically, appellant argues that his trial counsel erred by not objecting to:
the officer's lay opinion on "studies," the officer's testimony regarding appellant's credibility
in answering questions, or the use of the PBT device. Appellant further argues that it was
plain error to allow evidence of the PBT.
{¶24} Contrary to his argument that counsel did not object to testimony of the
"studies," the record shows that appellant's trial counsel contemporaneously objected to
this testimony and the court ruled on the objections. Therefore, appellant cannot establish
that his trial counsel's performance was deficient on this issue.
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{¶25} Additionally, even if we were to determine that appellant's trial counsel was
deficient for not objecting to the officer's testimony regarding appellant's credibility or the
administration of the PBT, appellant has failed to show how this testimony prejudiced him.
The testimony on appellant's credibility and the administration of the PBT were essentially
redundant to other admissible evidence introduced at trial. As to the credibility, the officer
testified he believed that appellant was dishonest when answering his investigative
roadside questions about consuming alcohol and prior OVI convictions. Nonetheless, the
officer testified that he detected a strong odor of an alcoholic beverage emanating from
appellant and noticed several other indicia of alcohol impairment. Furthermore, appellant
stipulated to his prior convictions and the jury had certified judgment entries of those
convictions. Therefore, the jury had evidence from which it could determine appellant's
credibility without relying on the officer's opinion. Consequently, appellant cannot establish
that there is a reasonable probability the outcome of the trial would have been different but
for the failure to object to the officer's opinion on appellant's credibility.
{¶26} Likewise, the officer's testimony regarding the administration of the PBT was
not prejudicial. Ohio courts have held that both the results of a PBT and the refusal to take
the PBT are inadmissible at trial. In re A.M.I., 12th Dist. Warren No. CA2014-07-095, 2015-
Ohio-367, ¶ 16-17; State v. Janick, 11th Dist. Ashtabula No. 2007-A-0070, 2008-Ohio-2133,
¶ 28; and State v. Durnwald, 163 Ohio App.3d 361, 2005-Ohio-4867, ¶ 40 (6th Dist.).
However, evidence of a refusal to submit to chemical breath test that has been approved
by the Ohio Department of Health and listed in Ohio Adm.Code 3701-53-02 is admissible
evidence. See In re A.M.I. at ¶ 16-17. Furthermore, the jury may reasonably infer that a
defendant's refusal to take an approved chemical breath test, without offering an
explanation for the refusal, indicates the defendant's fear of the test result and a
consciousness of guilt. State v. Cunningham, 12th Dist. Butler No. CA2017-03-034, 2018-
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Ohio-912, ¶ 19, citing Westerville v. Cunningham, 15 Ohio St.2d 121, 122 (1968). At trial,
the officer testified that appellant refused to submit to an approved chemical breath test at
the police station and did not offer an explanation for the refusal. By appellant's refusal to
take the approved chemical test and the other admissible evidence, the jury had evidence
by which to infer appellant's guilt irrespective of the PBT.3 Appellant has failed to
demonstrate that there is a reasonable probability the outcome of his trial would have been
different but for trial counsel's failure to object to the evidence regarding the PBT. Finally,
the admission of testimony regarding the administration of the PBT was not plain error.
{¶27} Appellant's claims regarding ineffective assistance of counsel and plain error
for the forgoing evidentiary issues are not well taken.
Stipulated Evidence
{¶28} Appellant argues that his counsel provided ineffective assistance by referring
to the prior convictions in his closing argument, failing to object to the officer's testimony
about prior OVI convictions, and failing to object to the prosecutor's comments on those
convictions, all despite stipulating that his prior criminal record satisfied an essential
element of the OVI offenses. In support, appellant relies on Old Chief v. United States, 519
U.S. 172, 117 S. Ct. 644 (1997), and State v. Creech, 150 Ohio St.3d 540, 2016-Ohio-8440,
to argue that the state improperly exceeded the scope of appellant's stipulation to his prior
convictions. Appellant contends that the emphasis on these prior convictions created unfair
prejudice in violation of Evid.R. 403 and 404 because it demonstrated a propensity to
operate his vehicle while impaired.
{¶29} We find that Old Chief and Creech are distinguishable from the present case.
3. A further distinction is that appellant did not expressly refuse to take the PBT, instead he did not comply
with the instructions and the test was discontinued based on the non-compliance. As such, there were no
"results" generated by the PBT.
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While both of those cases involved an offense that required proof of a prior conviction as
an essential element to the underlying offense, in Old Chief and Creech, that essential
element could be established by a type of conviction instead of a specific conviction.4 The
United States Supreme Court determined that "[t]he most the jury needs to know is that the
conviction admitted by the defendant falls within the class of crimes" that would provide the
qualifying effect to satisfy the essential element. Old Chief at 190-191. Similarly, the Ohio
Supreme Court determined that under Ohio law a conviction for a broad category of crimes
would provide the qualifying effect. Creech at ¶ 34-35. In a prosecution for these offenses,
a defendant's stipulation or offer to stipulate to the prior conviction provides the same
evidentiary value to the government as if the government presents its own evidence. This
is because it is the legal status conferred by the prior conviction and not a specific conviction
that proves the necessary element in the underlying offense. As such, a stipulation
discounts the probative value of the government's evidence. Furthermore, a stipulation
lessens the danger of unfair prejudice by limiting the government's ability to reveal the name
and nature of the prior conviction. Id. at ¶ 38-40.
{¶30} Conversely, the relevant statutes for the cause sub judice—R.C.
4511.19(A)(2) and (G)(1)(e)—require proof of a specific offense, a prior OVI conviction, to
prove an essential element of the underlying offense. See State v. Hoover, 123 Ohio St.3d
418, 2009-Ohio-4993, ¶ 13. Unlike in Old Chief and Creech, a stipulation to prior
convictions in an OVI prosecution does not discount the probative value of the state's
evidence because either alternative includes the existence of the prior OVI conviction. As
the Eighth District Court of Appeals has explained, "[t]here was never a mystery to protect
4. In Creech the specific offense at issue was R.C. 2923.13, i.e. "having weapons while under disability." 150
Ohio St.3d 540, 2016-Ohio-8440 at ¶ 1. Old Chief similarly involved a violation of 18 U.S.C. 922(g)(1), that
is, the unlawful act of possessing a firearm while prohibited because of a prior felony conviction. 519 U.S. at
174, 117 S. Ct. 644.
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as to what [the defendant's] prior offense had been" when the state must prove a prior OVI
conviction as part of an OVI prosecution. Cleveland v. Giering, 8th Dist. Cuyahoga No.
105020, 2017-Ohio-8059, ¶ 24. Similarly, the Second District Court of Appeals has
explained that "there is little difference in terms of impact on the jury between the information
that might have been contained in a stipulation and the basic fact of [the defendant's] prior
convictions as set forth in [the officer's] testimony and [a documentary exhibit]" at trial for
an OVI offense. State v. Wood, 2d Dist. Clark No. 2016-CA-69, 2018-Ohio-875, ¶ 40.
Therefore, a defendant's stipulation to a prior conviction at an OVI trial does not provide the
same benefit as described in Old Chief and Creech.
{¶31} In the cause sub judice, the state had to prove that appellant had been
convicted of a prior felony OVI as an element of the underlying OVI offense and that he had
five prior OVI convictions to prove the specifications in the indictment. Besides testimony
of the prior convictions and admission of certified judgment entries, the state did not
otherwise discuss the context or facts of the prior convictions. Because there was no
explanation of the nature of the previous OVIs, the jury was unlikely to ascribe unfair
prejudice. Moreover, the trial court instructed the jury not to consider the prior convictions
as evidence of appellant's character or that he acted in conformity with that character. A
trial court limits potential prejudice by providing limiting instructions. State v. Sturgill, 12th
Dist. Clermont Nos. CA2013-01-002 and CA2013-01-003, 2013-Ohio-4648, ¶ 19, overruled
on other grounds, State v. Burkhead, 12th Dist. Butler No. CA2014-02-028, 2015-Ohio-
1085, ¶ 13. Therefore, there was no violation of Evid.R. 403 or 404 and appellant has failed
to demonstrate the requisite prejudice for his ineffective assistance claim. There is no
reasonable probability the outcome of the trial would have been different but for his
counsel's failure to object to the state's presentation of the prior convictions.
{¶32} Moreover, appellant's argument that it was deficient for his counsel to
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reference the prior convictions lacks merit. Appellant's counsel engaged in a trial strategy
to persuade the jury that the officer knew appellant's driving record and was therefore
biased in his roadside investigation. This court has held that trial strategy, even debatable
strategy, is not a basis for finding ineffective assistance. State v. Woody, 12th Dist. Clinton
No. CA2019-01-001, 2020-Ohio-621, ¶ 10.
The Right to Remain Silent
{¶33} Appellant further argues that he received ineffective assistance of counsel
and the trial court committed plain error by allowing the state to "elicit evidence and argue
and comment on the fact that Appellant did not answer questions, but remained silent, when
questioned by police about his drinking or defenses, and did not present a defense" which
violated his Fifth Amendment right against self-incrimination.
{¶34} The Fifth Amendment to the United States Constitution provides that no
person "shall be compelled in any criminal case to be a witness against himself." The Ohio
Supreme Court has held that the use of a defendant's prearrest silence as substantive
evidence of guilt violates the Fifth Amendment privilege against self-incrimination. State v.
Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, paragraph one of the syllabus.
{¶35} Contrary to appellant's argument, the record reveals that appellant did not
remain silent during the roadside investigation. Appellant answered the officer's questions
by denying that he had consumed alcohol or had any prior OVI convictions. While we note
that the officer testified appellant "said nothing" in response to his questions, this was not a
declaration by the officer that appellant remained silent in the face of questioning, but merely
a recitation of appellant's response to the questions. Appellant told the officer that he had
"nothing" to drink. This is supported by the video recording from the police vehicle of the
encounter. Therefore, appellant's argument that the state used prearrest silence lacks
merit.
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{¶36} Furthermore, the state did not comment on appellant's silence or decision not
to testify. As explained by the Ohio Supreme Court,
the prosecutor is not precluded from challenging the weight of
the evidence offered in support of an exculpatory theory
presented by the defense. Neither must the state, in order to
satisfy its own burden of proof, disprove every speculative set
of possibly exculpatory circumstances a defendant can suggest,
nor refrain from arguing the defendant's failure to provide
evidence to support proffered theories of excuse or innocence.
(Citations omitted.) State v. Collins, 89 Ohio St. 3d 524, 528 (2000). In his closing
argument, the prosecutor pointed out contradictions between appellant's answers and the
other evidence, such as appellant's denial that he consumed alcohol even though the officer
detected a strong odor of an alcoholic beverage about him. Then, in the rebuttal argument,
the prosecutor argued there was no evidence to support defense counsel's alternative
explanations for appellant's behavior that morning. Consequently, there was no error here,
much less plain error, and an objection would have been meritless. Counsel is not deficient
when it forgoes raising a meritless issue. State v. English, 12th Dist. Butler No. CA2013-
03-048, 2014-Ohio-441, ¶ 41.
Cumulative Error
{¶37} Finally, appellant argues that even if the individual errors did not merit a
reversal of his conviction, this court should consider whether the claimed errors
cumulatively deprived appellant of a fair trial. Having determined that there were no errors,
harmless or otherwise, we find that appellant received a fair trial. Therefore, the cumulative
error doctrine does not apply. State v. Barton, 12th Dist. Warren No. CA2005-03-036, 2007-
Ohio-1099, ¶ 185-186.
{¶38} Based on the foregoing, appellant's first assignment of error is overruled.
{¶39} Assignment of Error No. 2:
{¶40} THE TRIAL COURT ERRED IN SENTENCING APPELLANT.
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{¶41} In his second assignment of error, appellant argues the trial court erred when
it ordered appellant to pay a monetary fine in lieu of a vehicle forfeiture pursuant to R.C.
4511.19(G) and 4503.234(E), because appellant was not given adequate notice or an
opportunity to be heard on the matter. Appellant also argues that the fine was improper
because the trial court relied on improper evidence to determine the value of appellant's
vehicle and did not engage in a proportionality analysis.
{¶42} R.C. 4503.234(A) sets forth the requisite notice requirements for a forfeiture
from an OVI offense. The prosecutor "shall give the offender written notice of the possibility
of forfeiture by sending a copy of the relevant uniform traffic ticket or other written notice to
the offender not less than seven days prior to the date of issuance of the forfeiture order."
R.C. 4503.234(A). By the plain language of the statute, the receipt of a uniform traffic ticket
provides the requisite notice. State v. Orsik, 9th Dist. Lorain No. 11CA010097, 2012-Ohio-
4331, ¶ 14. Moreover, the receipt of a BMV form 2255 also provides adequate notice. State
v. Cremeans, 5th Dist. Perry No. 16-CA-00006, 2017-Ohio-4400, ¶ 12. Here, the record
demonstrates that, at the time of his arrest, appellant was issued a uniform traffic ticket and
provided a BMV form 2255. We note that the BMV form provided a specific advisement
that a plea of guilty or conviction for an OVI offense could result in a forfeiture of the vehicle.
Consequently, the state provided the proper notice within the timeframe required by the
statute.
{¶43} Furthermore, appellant was provided an opportunity to be heard regarding the
fine at the sentencing hearing. Appellant, through his counsel, admitted that he had sold
his vehicle some time prior to the sentencing hearing. Therefore, the trial court found that
R.C. 4503.234(E) applied and appellant was subject to a fine, in lieu of forfeiture, for the
value of the vehicle as determined by the publications of the national auto dealers
association. The prosecutor tendered that the value of the vehicle was $60,000. Appellant
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did not object or otherwise offer an argument as to why that value should not be accepted
by the court. Consequently, appellant was properly provided an opportunity to be heard
prior to the forfeiture order. Moreover, appellant's argument that the court relied on an
improper valuation of the vehicle lacks merit.
{¶44} Next appellant argues that the trial court erred because it did not engage in a
proportionality analysis. Appellant's reliance on any proportionality analysis pursuant to the
criminal forfeiture provisions in R.C. Chapter 2981 is misplaced. Those provisions are
inapplicable because R.C. 2981.02(C) provides that "[t]his chapter does not apply to or limit
forfeitures under Title XLV of the Revised Code."
{¶45} To the extent that appellant argues that the fine in lieu of the forfeiture was an
"excessive fine" in violation of his rights under the Eighth Amendment to the United States
Constitution and Article I, Section 9 of the Ohio Constitution, appellant did not raise the
constitutionality of his sentence at the trial level and has therefore forfeited the argument.
State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 21; State v. Cargile, 123 Ohio
St.3d 343, 2009-Ohio-4939, ¶ 15. Nevertheless, this court may review for plain error. In re
M.D., 38 Ohio St.3d 149, 151 (1988).
{¶46} The trial court did not commit plain error by imposing the fine in lieu of the
forfeiture. At the sentencing hearing, the trial court discussed the reasons for its sentence.
The court's rationale demonstrates the court engaged in a proportionality analysis. The
court found that appellant had operated his vehicle while under a license suspension, had
otherwise repeatedly driven while impaired in what the court described as a "pattern that is
going to get somebody killed," and appellant knowingly disposed of his vehicle to evade a
forfeiture. Appellant has not explained why the trial court's rationale was improper or how
the fine was constitutionally disproportionate to his offense. Consequently, the trial court
did not commit plain error when it sentenced appellant.
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{¶47} Accordingly, appellant's second assignment of error is overruled.
{¶48} Assignment of Error No. 3:
{¶49} THE TRIAL COURT ERRED IN DENYING WITHOUT A HEARING
APPELLANT'S MOTION FOR NEW TRIAL.
{¶50} In his third assignment of error, appellant argues that the trial court erred by
denying his motion for a new trial without holding a hearing on the matter or making findings
of facts and conclusions of law.
{¶51} "Crim.R. 33 motions for a new trial are not to be granted lightly." State v.
Thornton, 12th Dist. Clermont No. CA2012-09-063, 2013-Ohio-2394, ¶ 21. The decision to
grant or deny a motion for a new trial pursuant to Crim.R. 33 is within the sound discretion
of the trial court and will not be disturbed absent an abuse of discretion. State v. Hoop,
12th Dist. Brown No. CA2011-07-015, 2012-Ohio-992, ¶ 15. An abuse of discretion is more
than an error of law, it implies that the decision was unreasonable, arbitrary, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980). Likewise, the decision
on whether to hold a hearing is also within the discretion of the trial court. State v. Zielinski,
12th Dist. Warren No. CA2014-05-069, 2014-Ohio-5318, ¶ 16. In denying a Crim.R. 33
motion, a trial court has no duty to issue findings of fact and conclusions of law. State ex
rel. Collins v. Pokorny, 86 Ohio St.3d 70, 70 (1999).
{¶52} The trial court did not abuse its discretion by denying appellant's motion for a
new trial or deciding not to hold a hearing. Appellant did not assert that there was newly
discovered evidence, did not request a hearing, and did not attach an affidavit to the motion.
Instead, appellant argued that he should be granted a new trial because of ineffective
assistance of counsel.
{¶53} This court has previously held that an ineffective assistance of counsel claim
may be grounds for a new trial pursuant to Crim.R. 33(A)(1). State v. Young, 12th Dist.
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Butler No. CA2018-03-047, 2019-Ohio-912, ¶ 33.
{¶54} However, pursuant to Crim.R. 33(B), a defendant must file a motion for a new
trial within 14 days of the verdict if the motion for a new trial is not based on newly
discovered evidence. If the motion is not filed within that timeframe, a defendant must
establish by "clear and convincing proof" that he was unavoidably prevented from filing
within that timeframe. Here, the jury rendered its verdict on July 8, 2019.5 Appellant filed
his motion on August 8, 2019. Consequently, the trial court did not abuse its discretion
denying the Crim.R. 33 motion because the motion was not filed within the 14-day
timeframe required by Crim.R. 33(B) and appellant did not provide clear and convincing
proof that he was unavoidably prevented from timely filing the motion. See State v. Guy,
10th Dist. Franklin No. 17AP-322, 2018-Ohio-4836, ¶ 63-65 (finding no abuse of discretion
in denying motion for new trial because of untimeliness and the claims asserted in the
motion were similar to the errors assigned on appeal).
{¶55} Furthermore, the trial court did not err when it denied the Crim.R. 33(B) motion
without issuing any findings of fact and conclusions of law. Pokorny at 70. Accordingly,
appellant's third assignment of error is overruled.
{¶56} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.
5. The jury trial concluded on July 8, 2019 and the verdicts were journalized on July 9, 2019. Using either
day, appellant's Crim.R. 33 motion was untimely filed.
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