State v. Houston

[Cite as State v. Houston, 2013-Ohio-686.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 12CA3472
:
vs. :
: DECISION AND JUDGMENT
MARCO DWAYNE HOUSTON, : ENTRY
:
Defendant-Appellant. : Released: 02/07/13
_____________________________________________________________
APPEARANCES:
Elbert L. Hatchett, Pro Hac Vice Counsel, Pontiac, Michigan, and Vicki
Lynn Ward, Local Counsel, Cleveland, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Scioto
County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________
McFarland, P.J.
{¶1} Marco D. Houston appeals his conviction in the Scioto County
Court of Common Pleas after he was found guilty of trafficking in drugs
with a forfeiture specification, a violation of R.C. 2925.03(A)(2)(c)(1)(e),
possession of drugs, a violation of R.C. 2925.11(A)/(C)(1)(d), and tampering
with evidence, a violation of R.C. 2921.12(A)(1). On appeal, Houston
contends (1) the trial court erred by denying Appellant’s motion to suppress
when he was seized and detained beyond the time necessary to effectuate a
parking violation; (2) he was denied effective assistance of counsel when his
Scioto App. No. 12CA3472 2
attorney was inadequately prepared to argue the suppression motion and
advised Appellant to withdraw his “no contest” plea and enter a plea of
“guilty,” thereby waiving issues on appeal; and, (3) the trial court committed
plain error when it sentenced Appellant on three separate charges of similar
import, thereby, rendering the sentence null and void. For the reasons
which follow, we disagree with Appellant. Accordingly, we overrule all
assignments of error and affirm the judgment of the trial court.
FACTS
{¶2} Appellant was arrested for various drug- related offenses on
September 9, 2011. He was later indicted, arraigned, and scheduled for trial.
During the trial court proceedings, he and a co-defendant, Danny Horsley,
filed motions to suppress.1 Appellant’s motion requested an order
suppressing all evidence as it was obtained as the result of an
unconstitutional seizure of Appellant’s person and vehicle.
{¶3} At the suppression hearing, Officer Tiffany Hedrick (“Hedrick”)
of the Portsmouth Police Department testified on September 9, 2011, she
was on routine patrol in the “East End” of Portsmouth at 9:20 a.m. when she
observed a white Chevrolet Malibu parked at an angle, obstructing traffic.
The vehicle’s right front tire was over twelve inches from the curb and the
1
Co-defendant Horsley has several aliases and was also known under the name “Clyde Lark.”
Scioto App. No. 12CA3472 3
right rear tire approximately two to three feet from the curb. R.C. 4511.69
and Portsmouth City Ordinance 351.04 prohibit parking more than twelve
inches from the curb. The “East End” is known as a high crime area due to
the volume of crimes involving prostitution, drugs, thefts, and burglaries.
Hedrick initiated a traffic stop on her inboard computer, ran the license
plate, and discovered the vehicle was a rental car from Cleveland, Ohio. She
then contacted Patrolman Steve Timberlake (“Timberlake”) because he was
looking for a white vehicle earlier in the day.
{¶4} Patrolman Timberlake testified on the morning of September
9th, he received information that two black males in a white rental car were
selling drugs in the Farley Square area. Earlier, Timberlake could not find
them, but he notified other officers. When Hedrick contacted him,
Timberlake arrived at the scene in less than two minutes. Hedrick had begun
writing a parking ticket. Timberlake noted the white rental car was parked
near a residence surrounded by a chain link fence. He was familiar with the
residence due to his previous work assignment with the narcotics unit.
Timberlake had seized a large quantity of cocaine from the previous
residents, drug traffickers.
{¶5} At that point, Appellant came out of the residence. Appellant
asked if there was a problem with the vehicle. Hedrick informed him it was
Scioto App. No. 12CA3472 4
parked illegally, and Appellant immediately went back into the house.
Shortly thereafter, Appellant exited the house a second time and offered to
move the vehicle. The officers told him he needed identification because
they were going to issue a parking citation. Appellant then went back into
the house. Soon, Appellant exited the house a third time and evasively
continued around the fence and the back of the car. The officers thought he
was possibly trying to get in the car and drive away. Hedrick and
Timberlake again requested identification.
{¶6} Appellant then produced his ID. He acted nervous and kept
trying to walk away from the officers. Timberlake testified based on
Appellant’s erratic and evasive actions, along with the confidential
information he had heard in the morning, he did a pat-down search for
weapons. During this pat-down, Appellant backed away from Timberlake.
When Timberlake finished the pat-down, he told Appellant to sit on the curb
while he was being detained for the warrant check.
{¶7} Lee Bower (“Bower”), a narcotics detective and canine handler
testified he received a call from Timberlake on September 9th, advising him
that Hedrick was with a new white Chevy on 8th Street. When he arrived,
Appellant was lying down, but as he walked up to Appellant, Appellant
began walking away and looking around. Bower said “Hey, you’re making
Scioto App. No. 12CA3472 5
me nervous.” Appellant replied “Well you’re making me nervous.” Bower
asked: “Well would you feel better if you set in the back of the patrol car?”
Appellant answered “Yes.” He was placed in the back of Hedrick’s cruiser.
Appellant told Timberlake his cousin was inside the house, yet he was
unable to provide his cousin’s name.
{¶8} Timberlake briefed Bower on Appellant’s nervous, erratic and
evasive actions. Bower and Timberlake proceeded to the house’s front door.
Hedrick went to the rear door. Sherry Dixon opened the front door and let
the officers inside. Dixon advised Appellant was visiting her boyfriend, who
inexplicably had just run out the back door. Bower asked for permission to
search the house and Dixon gave consent. Dixon, another male, and a child
were inside the house. The officers separated. Bower saw another male in
the house, who ended up being co-defendant Horsley. Bower did a pat-
down and requested Horsley’s ID. The other officers told Hedrick to come
inside the house. Bower handed Hedrick Horsley’s ID, and Bower walked
outside.
{¶9} Bower decided to have his canine sniff the white Malibu.
Bower testified by now, he had been on the scene approximately ten
minutes. The dog alerted on the driver’s side door. Bower told Appellant the
dog alerted. Appellant advised he had been stopped by law enforcement in
Scioto App. No. 12CA3472 6
West Virginia the night before and there was nothing in the car. Bower
testified Appellant gave him consent to check the car. When Bower
searched the car, he discovered over $13,000.00 in cash, 1000 oxycodone
pills, and over 100 Opana pills. Appellant and co-defendant Horsley were
subsequently arrested at the scene. Timberlake testified the warrant check
was completed sometime after the officers cleared the house.
{¶10} The date of the parking ticket is listed at 9:32 a.m. by Officer
Hedrick. Appellant’s name does not appear on the ticket. Appellant was
arrested at 9:50 a.m. Appellant did not testify at the suppression hearing.
The trial court found that at the point Officer Bower asked Appellant if he
would like to sit in the cruiser, Timberlake had not yet received a response to
his inquiry about Houston’s ID. The court found based on the totality of the
circumstances, the officers conducted the issuance of the traffic ticket in a
diligent manner and detained Appellant for a reasonable and lawful time.
The court further found the exterior sniff of the vehicle by the canine was
conducted during the time period necessary to effectuate the original
purpose of the contact between the officers and the defendants.
{¶11} On November 4, 2011, Appellant entered pleas of no contest to
trafficking in drugs with a forfeiture specification, possession of drugs, and
tampering with evidence. On February 2, 2012, Appellant was sentenced to
Scioto App. No. 12CA3472 7
an agreed sentence of consecutive prison terms on the charges, for a total
stated prison term of ten years. This appeal followed.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT IMPROPERLY DENIED DEFENDANT’S
MOTION TO SUPPRESS WHEN THE SEIZURE OF DEFENDANT
EXTENDED BEYOND THE TIME NECESSARY TO
EFFECTUATE THE PARKING VIOLATION AT ISSUE
PURSUANT TO TOWNSEND, BONILLA AND PROGRENY AS
WELL AS OHIO LAW AND ANY EVIDENCE OBTAINED BY
THE RESULTANT SEARCHES WERE FRUIT OF THE
POISONOUS TREE.
II. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE FIFTH, SIXTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF
THE OHIO CONSTITUTION WHEN TRIAL COUNSEL
INADEQUATELY PREPARED AND INEFFECTUALLY
ARGUED THE SUPPRESSION MOTION, AND ALLOWED
AN/OR ADVISED DEFENDANT TO WITHDRAW HIS “NO
CONTEST PLEA” AND TO PLEAD GUILTY THEREBY
WAIVING THE ISSUE.
III. TRIAL COURT COMMITTED PLAIN ERROR IN
SENTENCING DEFENDANT ON THREE SEPARATE CHARGES
OF SIMILAR IMPORT THAT HE COULD ONLY BE FOUND
GUILTY OF ONLY ONE AND SENTENCED FOR ONLY ONE
RENDERING UNATHORIZED IMPOSED SENTENCE A NULITY
OR
VOID.
ASSIGNMENT OF ERROR ONE
{¶12} Under this assignment of error, Appellant contends he
voluntarily approached the officers, offered to move his car, and gave his
identification. A background check revealed no outstanding warrants. The
Scioto App. No. 12CA3472 8
parking citation lists “issue” at 9:32 a.m. and Appellant was arrested at 9:50
a.m. Appellant argues that placing him in the cruiser, questioning Dixon in
her house, and having the dog sniff of the vehicle all occurred after the ticket
was issued. Therefore, the seizure and investigation occurred beyond the
permissible time to detain him. Appellee argues under the totality of the
circumstances, the officers had reasonable articulable suspicion to detain
Appellant. We agree with Appellee.
A. STANDARD OF REVIEW
{¶13} Our review of a trial court’s decision on a motion to suppress
presents a mixed question of law and fact. State v. Roberts, 110 Ohio St. 3d
71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶ 100, citing State v. Burnside,
100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8. When
considering a motion to suppress, the trial court acts as the trier of fact and is
in the best position to resolve factual questions and evaluate witness
credibility. Id. Accordingly, we defer to the trial court’s findings of fact if
they are supported by competent, credible evidence. State v. Landrum, 137
Ohio App. 3d 718, 722, 739 N.E.2d 1159 (2000). Accepting those facts as
true, we must independently determine whether the trial court reached the
correct legal conclusion in analyzing the facts of the case. Roberts at ¶ 100,
citing Burnside at ¶ 8.
Scioto App. No. 12CA3472 9
B. LEGAL ANALYSIS
{¶14} In this matter, Appellant argues the officers who
detained him had no reasonable suspicion of criminal activity to detain him,
outside of his erratic behavior of quickly going in and out of the nearby
house three times and looking nervous. As a preliminary consideration,
Appellee State of Ohio urges that Appellant does not have standing to raise
this issue.
{¶15} “‘Standing is defined as a party’s right to make a legal claim or
seek a judicial enforcement of a duty or right.’” Coleman v. Davis, 4th Dist.
No. 10CA5, 2011-Ohio-506, 2011 WL 345772, ¶ 16, citing State ex rel.
Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs., 124 Ohio
St. 3d 390, 922 N.E.2d 945, 2010-Ohio-169, at ¶ 19, quoting Ohio Pyro, Inc.
v. Ohio Dept. of Commerce, 115 Ohio St. 3d 375, 875 N.E.2d 550, 2007-
Ohio-5024, at ¶ 27 (other internal quotation omitted). “‘Whether established
facts confer standing to assert a claim is a matter of law.’” Cuyahoga Cty.
Bd. of Commrs. v. State, 112 Ohio St. 3d 59, 858 N.E.2d 330, 2006-Ohio-
6499, at ¶ 23, quoting Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St. 3d
106, 846 N.E.2d 478, 2006-Ohio-954, at ¶ 90. “‘We review questions of
law de novo.’” State v. Elkins, 4th Dist. No. 07CA1, 2008-Ohio-674, at ¶
12, quoting Cuyahoga Cty. Bd. of Commrs. at ¶ 23; see, also, Bridge v.
Scioto App. No. 12CA3472 10
Midas Auto Experts # 322, 8th Dist. No. 94115, 2010-Ohio-4681, at ¶ 6
(“The question of standing is an issue of law, which we review de novo.”)
(citation omitted).
{¶16} Modern understandings of the Fourth Amendment recognize
that it serves to protect an individual’s subjective expectation of privacy if
that expectation is reasonable and justifiable. Rakas v. Illinois, 439 U.S.
128, 143, 99 S. Ct. 421 (1978); Katz v. United States, 389 U.S. 347, 381, 88
S. Ct. 507 (1967) (Harlan, J., concurring); State v. Buzzard, 112 Ohio St. 3d
451, 860 N.E.2d 1006 (2007).
{¶17} Moreover, an individual must have standing to challenge the
legality of a search or seizure. Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421
(1978); State v. Coleman, 45 Ohio St. 3d 298, 544 N.E.2d 622 (1989). The
person challenging the search bears the burden of proving standing. State v.
Williams, 73 Ohio St. 3d 153, 652 N.E.2d 721 (1995). That burden is met
by establishing that the person has an expectation of privacy in the place
searched that society is prepared to recognize as reasonable. Id; Rakas v.
Illinois, supra.
{¶18} The Supreme Court of Ohio has held that an individual who is
in lawful possession of a vehicle, although not the titled owner, does possess
a legitimate expectation of privacy in the vehicle searched, if he or she can
Scioto App. No. 12CA3472 11
demonstrate that the owner gave them permission to use the vehicle. State v.
Carter, 69 Ohio St. 3d 57, 63, 630 N.E.2d 355 (1994). See also, State v.
Hines, 92 Ohio App. 3d 163, 166, 634 N.E.2d 654 (10th Dist. 1993); State v.
Middleton, 8th Dist. No. 88327, 2007 Ohio 2227, 2007 WL 1366430, ¶ 25.
{¶19} In this matter, the issue of standing was discussed prior to the
parties putting on evidence at the suppression hearing. Both defense
counsels argued the State was claiming their clients had possessory interest
in the white Chevrolet. Counsel for Appellant argued his client had standing
as the individual who rented the vehicle. The trial court found that both
defendants admitted to standing.
{¶20} In State v. Hale, 5th Dist. No. 02CA00024, 2002-Ohio-4537,
2002 WL 2016411, at ¶ 12, the appellate court held because appellant was
never legally in possession of a rental vehicle and vehicle had been missing
from Alamo Rent-a-Car for three months, appellant lacked standing to
challenge the search of stolen vehicle. In State v. Kitcey, 11th Dist. No.
2007-A-0014, 2007-Ohio-7124, 2007 WL 4564405, at ¶ 57, the appellate
court noted without a possessory interest in the car [or property subject of
the search and seizure] Kitcey lacked standing to challenge the search.
{¶21} However, in State v. Henderson, 5th Dist. No. 07COA031,
2008-Ohio-5007, 2008 WL 4408594, ¶ 29, the court of appeals held a
Scioto App. No. 12CA3472 12
defendant had standing to challenge the search of a rental vehicle even
though he was not an authorized driver of the vehicle. The Court noted
although appellant’s possession might be challengeable as a civil wrong, it
did not render his expectation of privacy null and void. Henderson, at ¶ 30.
{¶22} Here, we agree with the trial court’s ruling as to Appellant’s
standing to challenge the search. Appellant was the person who rented the
white Malibu and asserted a privacy interest via his counsel. We turn next to
Appellant’s argument that the search and seizure here constituted a violation
of his Fourth Amendment rights.
{¶23} The Fourth Amendment to the United States Constitution and
Article I, Section 14 of the Ohio Constitution provide for “[t]he right of the
people to be secure * * * against unreasonable searches and seizures * * *.”
Searches and seizures conducted without a prior finding of probable cause
by a judge or magistrate “are per se unreasonable under the Fourth
Amendment, subject to only a few specifically established and well-
delineated exceptions.” California v. Acevedo, 500 U.S. 565, 111 S. Ct.,
1982 (1991); State v. Tincher, 47 Ohio App. 3d 188, 548 N.E.2d 251 (1988).
If the government obtains evidence through actions that violate an accused’s
Fourth Amendment rights, that evidence must be excluded at trial. State v.
LeMaster, 4th Dist. No. 11 CA3236, 2012-Ohio-971, 2012 WL 762542, ¶ 8.
Scioto App. No. 12CA3472 13
{¶24} 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, 460
U.S. 491, 500, 103 S. Ct. 1319 (1983); see, also, State v. Gonyou, 108 Ohio
App.3d 369, 372, 670 N.E.2d 1040 (6th Dist. 1995) and State v. Hughes,
4th Dist. No. 97CA2309, 1998 WL 363850, (June 25, 1998), at *3. The rule
set forth in Royer is designed to prevent law enforcement officers from
conducting “fishing expeditions” for evidence of a crime. See generally,
Gonyou; Sagamore Hills v. Eller, 9th Dist. No. 18495, 1997 WL 760693
(Nov. 5, 1997); see, also, Fairborn v. Orrick, 49 Ohio App. 3d 94, 95, 550
N.E.2d 488, 490 (2nd Dist. 1988), (stating that “the mere fact that a police
officer has an articulable and reasonable suspicion sufficient to stop a motor
vehicle does not give that police officer ‘open season’ to investigate matters
not reasonably within the scope of his suspicion”).
{¶25} “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.” State v. Aguirre, 4th Dist. No. 03CA5, 2003-Ohio-4909, 2003 WL
22136234, at ¶ 36, citing State v. Carlson, 102 Ohio App. 3d 585, 598, 647
Scioto App. No. 12CA3472 14
N.E.2d 591 (9th Dist.1995). “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 officer diligently conducted the investigation.” Id., citing State v. Cook,
65 Ohio St. 3d 516, 521-522, 605 N.E.2d 70 (1992), (fifteen minute detention
was reasonable); United States v. Sharp, 470 U.S. 675, 105 S. Ct. 1568
(1985), (twenty minute detention was reasonable).
{¶26} We agree with the trial court’s finding that based on the totality
of the circumstances, the officers conducted issuance of the traffic ticket in a
diligent manner and detained Appellant for a reasonable and lawful length of
time. The facts at the suppression hearing demonstrated that Officer
Hedrick discovered the white rental vehicle illegally parked, contacted
Timberlake, and started writing the ticket. While writing the ticket,
Appellant made consensual contact with the officers, and they noticed
nervous, erratic, and evasive behavior. The officers requested ID twice and,
based on the information known to Timberlake, performed a pat-down
search for weapons. Appellant was detained on the curb for a warrants
check and soon after, consented to sitting in a cruiser. The trial court noted
that at the time Appellant chose to sit in the cruiser, the warrants check had
not been completed.
Scioto App. No. 12CA3472 15
{¶27} In addition to Appellant’s nervous, erratic, and evasive
actions, there were other factors giving rise to reasonable suspicion of
criminal activity which were in the evidence before the trial court. Of chief
importance is the factor conspicuously missing from Appellant’s brief, that
Officer Timberlake testified to having confidential information that two
black males driving a white rental vehicle were selling drugs in the area.
This information was known before the white rental vehicle was discovered
illegally parked in a high crime area.
{¶28} An officer may derive his knowledge from an informant’s tip.
State v. Kelley, 4th Dist. No. 10CA3182, 2011-Ohio-3545, 2011 WL
2792338, at ¶ 25. In State v. Walker, 10th Dist. No. 97APA09-1219, 1998
WL 429121 (July 28, 1998), the court held:
“‘* * *[P]olice have probable cause to conduct a search for
contraband when detailed information provided to them by a
confidential but reliable in formant is subsequently corroborated in
some significant combination, with respect to the name or physical
description of a suspect, the location of the illegal sale, the time of the
sale, the description of the automobile drive by the suspect, or the
car’s license plate numbers.’”
{¶29} Additionally, an officer may rely upon information collectively
known to the law enforcement officers involved in the search or
investigations. Kelley, at ¶ 26. See State v. Cook, 65 Ohio St. 3d 516, 521,
605 N.E.2d 70 (1992). “An officer need not have knowledge of all the facts
Scioto App. No. 12CA3472 16
necessary to justify [a search], as long as the law enforcement body as a
whole possesses such facts and the detaining officer reasonably relies upon
those who possess the facts.” Id. Thus, for example, “[a] radio broadcast
may provide the impetus for an investigatory stop, even when the officer
making the stop lacks all of the information justifying the stop.” Id. The
Ohio Supreme Court has therefore described the relevant Fourth
Amendment inquiry as “whether the law enforcement community as a whole
complied with the Fourth Amendment; the entire system is required to
possess facts justifying the stop or arrest, even though the arresting officer
does not have those facts.” Id. (citations omitted). As the court explained in
State v. Royster, 5th Dist. No. 1997CA00372, 1998 WL 351413, (June 1,
1998) at *3:
{¶30} “In the case of a common investigation, the knowledge of one
officer is the knowledge of all, and the collection knowledge of all the
investigating officers and the available objective facts are the criteria to be
used in assessing probable cause.” United States v. Stratton (C.A. 1972),
453 Fed.2d 36, 37 cert. denied, 405 U.S. 1069, 92 S. Ct. 1515. See also,
State v. Gough, 35 Ohio App. 3d 81, 82, 519 N.E.2d 842 (5th Dist.1986)
(police may rely on collective knowledge in making arrest); State v. Roach,
8 Ohio App. 3d 42, 455 N.E.2d 1328 (12th Dist. 1982) (officer intruding in
Scioto App. No. 12CA3472 17
restroom stall did not have knowledge of defendant’s conduct, but police
department as a whole had probable cause.)”
{¶31} In this case, Timberlake testified Appellant, while in the
cruiser, indicated his cousin was inside the house, yet did not know his
cousin’s name. Timberlake was also familiar with the house as one where
drug traffickers had previously resided. The out-of-county rental vehicle was
discovered in a high-crime area. The tip Timberlake had received contained
detailed information. The above factors were combined with Appellant’s
nervous, erratic, and evasive behavior. We agree with the trial court’s
finding that under the totality of the circumstances, there was reasonable
suspicion of criminal activity to detain Appellant.
{¶32} Appellant emphasizes the parking ticket was “issued” at 9:32
and argues the purpose of the traffic stop was effectuated at that point. On
the subject of the ticket’s “issue,” Hedrick testified “he exited the house and
we were going to put his name on the ticket is what I planned on doing, and
I never ended up doing that.” She finished “Because he started acting
nervous, and Timberlake had him sit on the curb.” Bower testified he did
not know when the parking ticket was issued. Timberlake first testified
ticket was issued at 9:32, yet when asked about when the parking ticket was
Scioto App. No. 12CA3472 18
placed on the Malibu, testified, “I don’t know. I didn’t do this parking
violation.”
{¶33} We would note the ticket lists “issue” as 9:32 a.m. Appellant
did not testify so as to clarify his understanding of when the ticket was
“issued.” Based on Officer Hedrick’s testimony, the inference can be made
that she began writing the ticket at 9:32 and never fully completed it, due to
Appellant’s actions which caused him to be detained for the warrants check
and the unfolding events at the scene.
{¶34} In this matter, even if Appellant’s constitutional rights had
somehow been infringed, which we find has not been the case, the
independent source doctrine would apply. Evidence discovered in a
warrantless search is not derived from a constitutional violation if the
evidence would inevitably have been discovered during the course of a
lawful investigation. See State v. Perkins, 18 Ohio St. 3d 193, 480 N.E. 2d
763(1985), syllabus, citing Nix v. Williams, 467 U.S. 431, 104 S. Ct.
2501(1984); State v. Clary, 4th Dist. No. 96CA7, 1996 WL 560522 (Sept.
30, 1996), at *3.
{¶35} A lawfully detained vehicle may be subjected to a canine check
of the vehicle’s exterior even without the presence of a reasonable suspicion
of drug-related activity. State v. Rusnak, 120 Ohio App. 3d 24, 28, 696
Scioto App. No. 12CA3472 19
N.E.2d 633 (6th Dist.1997). Both Ohio courts and the United States
Supreme Court have determined that “the exterior sniff by a trained
narcotics dog to detect the odor of drugs is not a search within the meaning
of the Fourth Amendment to the Constitution.” State v. Jones, 4th Dist. No.
03CA61, 2004-Ohio-7280, 2004 WL 3090198, ¶ 24; United States v. Place,
462 U.S. 696, 103 S. Ct. 2367 (1983). Thus, a canine check of a vehicle
may be conducted during the time period necessary to effectuate the original
purpose of the stop. Jones, at ¶ 24. But if the individual does not act to
preserve that privacy, such as by leaving an object in the plain view of the
public, then the state has not “searched” within the meaning of the
constitution, because the individual has exposed those objects to others,
rather than keeping them to himself. Katz, 389 U.S. 361, 88 S. Ct. 507
(Harland, J., concurring); 1 LaFave, Search & Seizure: A Treatise on the
Fourth Amendment (4th Ed.2004) 445-446, Section 2.2; see, also, Texas v.
Brown, 460 U.S. 730,740, 103 S. Ct. 1535 (1983) (plurality opinion noting
that a police officer without a warrant is not precluded from viewing what a
private citizen would be able to view); Buzzard, supra at ¶ 15. “Although
society generally respects a person’s expectations of privacy in a dwelling,
what a person chooses voluntarily to expose to public view thereby loses its
Fourth Amendment protection. See California v. Ciraolo, 476 U.S. 207,
Scioto App. No. 12CA3472 20
213, 106 S. Ct. 1809, 1812-13 (1986); Buzzard, 15. Generally, the police
are free to observe whatever may be seen from a place where they are
entitled to be. Florida v. Riley, 488 U.S. 445, 449, 109 S. Ct. 693, 696
(1989).” Buzzard, 15.
{¶36} In this matter, had Appellant never exited the residence,
Officer Hedrick would have still come up on the illegally parked vehicle and
reasonably would have contacted the other officers. Officer Bower would
have arrived on the scene to conduct a lawful canine sniff of the vehicle
without permission of Appellant. In fact, Appellant gave permission for the
officer to conduct the dog sniff of the vehicle, just as the record
demonstrates he consented to sit in the cruiser and Sherry Dixon consented
to the search of her residence. Appellant provided no evidence to contradict
this testimony at the suppression hearing. The trial court found the officers’
testimony to be credible.
{¶37} We agree with the trial court’s finding Appellant’s detention
and search was lawful under the totality of the circumstances. As such, we
overrule Appellant’s first assignment of error.
ASSIGNMENT OF ERROR TWO
{¶38} Appellant’s argument that his counsel was ineffective is
Scioto App. No. 12CA3472 21
two-fold. First, Appellant argues his counsel allowed or advised him to
withdraw a previously entered “no contest” plea and enter a guilty plea,
thereby waiving his right to appeal the suppression issue. Second, Appellant
argues his counsel failed to brief and properly argue the suppression motion.
For the reasons which follow, we disagree with Appellant.
A. STANDARD OF REVIEW
{¶39} Criminal defendants have a right to counsel, including a right to
the effective assistance from counsel. McMann v. Richardson, 397 U.S.
759, 770, 90 S. Ct. 1441 (1970); State v. Stout, 4th Dist. No. 07CA5, 2008-
Ohio-1366, 2008 WL 757521, ¶ 21. To establish constitutionally ineffective
assistance of counsel, a defendant must show (1) that his counsel’s
performance was deficient and (2) that the deficient performance prejudiced
the defense and deprived him of a fair trial. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052 (1984); State v. Issa, 93 Ohio St. 3d 49, 67,
752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St. 3d 123, 139, 694 N.E.2d
916 (1998). “In order to show deficient performance, the defendant must
prove that counsel’s performance fell below an objective level of reasonable
representation. To show prejudice, the defendant must show a reasonable
probability that, but for counsel’s error, the result of the proceeding would
have been different.” State v. Conway, 109 Ohio St. 3d 412, 2006 Ohio-
Scioto App. No. 12CA3472 22
2815, 848 N.E.2d 810, ¶ 95 (citations omitted). “Failure to establish either
element is fatal to the claim.” State v. Jones, 4th Dist. No. 06CA3116,
2008-Ohio-968, 2008 WL 613116, ¶ 14. Therefore, if one element is
dispositive, a court need not analyze both. State v. Madrigal, 87 Ohio St. 3d
378, 389, 721 N.E.2d 52 (2000) (stating that a defendant’s failure to satisfy
one of the elements “negates a court’s need to consider the other”).
{¶40} When considering whether trial counsel’s representation
amounts to deficient performance, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. Thus, “the defendant
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. To
establish prejudice, a defendant must demonstrate that a reasonable
probability exists that but for counsel’s errors, the result of the trial would
have been different. State v. White, 82 Ohio St. 3d 15, 23, 693 N.E.2d 772
(1998); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989), at
paragraph three of the syllabus. Furthermore, courts may not simply assume
the existence of prejudice, but must require that prejudice be affirmatively
demonstrated. See State v. Clark, 4th Dist. No. 02CA684, 2003-Ohio-1707,
2003 WL 1756101, ¶ 22; State v. Tucker, 4th Dist. No. 01CA2592, 2002-
Scioto App. No. 12CA3472 23
Ohio-1597, 2002 WL 507529, (Apr. 2, 2002); State v. Kuntz, 4th Dist. No.
1691, 1992 WL 42774, (Feb. 26, 1992).
B. LEGAL ANALYSIS
{¶41} Appellant entered pleas to a charge of trafficking in drugs,
possession of drugs, and tampering with evidence. At the sentencing
hearing, the court began by reciting the terms of the agreed sentence: (1) on
trafficking, Appellant would be sentenced to a five-year mandatory prison
term; (2) on possession, he would be given a three-year non-mandatory
prison term; and, (3) on tampering Appellant would receive a two-year
prison term. The court summarized the terms as running consecutively for a
ten-year prison term. At this point, the transcript reflects the sentencing was
interrupted by Appellant’s balking at entering a plea to the agreed sentence.
{¶42} As to Appellant’s first contention that his counsel urged him
to plead guilty, the sentencing hearing transcript demonstrates Appellant’s
hesitation at entering a plea occurred after the court described the sentence
and when it added “And there is no agreement at this point in time about a
judicial release.” Appellant claimed he did not agree to the sentence the
court described. Although the transcript does not contain Appellant’s request
to terminate his counsel and hire new counsel, the record reflects a
discussion in which the State proposed to proceed with the sentencing or
Scioto App. No. 12CA3472 24
revoke Appellant’s bond. The State submitted “He can file a motion to
withdraw.” Shortly thereafter, the court held a bench conference with
counsel, then recessed. When court resumed, the trial court addressed
defense counsel and Appellant, stating, “Now, I’ve already stated on the
record what the –what the agreement is…is that the agreement?” to which
both Appellant and his counsel responded affirmatively. The court went on
to note Houston would be filing an appeal.
{¶43} We also take note of the judgment entry of sentence dated
February 8, 2012 states as follows in the first paragraph:
“This cause came on to be heard on the 4th day of November , 2011,
upon the request of the Defendant by and through the Defendant’s
counsel to withdraw a former plea of no contest guilty and enter a plea
of guilty.”
However, the fifth paragraph of the judgment entry of sentence reads:
“Upon Defendant’s plea of no contest, the Court makes a finding of
guilty to Count 1 Trafficking in Drugs with a Forfeiture Specification,
in violation of Ohio Revised Code Section 2925.03(A)(2)/(C), being a
felony of the first degree, Count 4 Possession of Drugs, in violation of
Ohio Revised Code Section 2925.11(A), being a felony of the third
degree, and County 7 Tampering with Evidence, in violation of Ohio
Revised Code Section 2921.12(A)(1), being a felony of the third
degree.”
In its brief, Appellee State of Ohio sets forth the following on
page 24:
Scioto App. No. 12CA3472 25
“The State does not contend that the Appellant entered a guilty plea.
Rather, the agreement was a no contest plea and the record reflects a no-
contest plea.
Therefore, there is no issue on the point of a guilty plea.”
{¶44} We agree that there is no issue as to counsel’s alleged
ineffectiveness with regard to Appellant’s plea. Although the first paragraph
of the judgment entry of sentence indicates Appellant was entering a guilty
plea, the fifth paragraph indicates a no contest plea. The record reflects there
was an understanding that Appellant would be filing an appeal. Appellee
State of Ohio has not countered in its argument in the first assignment of
error that Appellant waived his rights of appeal on the suppression issue by
his plea. In fact, Appellee recalls the agreement as on a no contest plea. For
the above reasons, we agree with Appellee there is no issue as to Appellant’s
plea. As such, Appellant’s argument that his counsel was ineffective as to
the plea entered must fail.
{¶45} Furthermore, we do not agree with Appellant’s claim his
counsel was ineffective as relates to the briefing of the suppression motion
and supplemental filing. Appellant argues the brief was vague and not
specific as to the actual issue of inordinate detention. Yet, we note State v.
Chatton, 11 Ohio St. 3d 59, 463 N.E.2d 1237 (1984) was cited in counsel’s
motion to suppress, along with the language regarding unlawful detentions.
Scioto App. No. 12CA3472 26
{¶46} At the conclusion of the suppression hearing, Appellant’s
counsel requested additional time to brief the issues before the trial court
rendered its decision. Appellant also argues his counsel’s supplemental
filing was deficient as counsel “could only muster five paragraphs- one a
single sentence long.” The supplemental memorandum was filed one day
after the suppression hearing was concluded. The memorandum contains the
succinct facts favorable to Appellant and testified to at the hearing, along
with application of the Chatton case to the facts. We are aware of no
mandate that memoranda of this nature conform to a certain length in order
to be effective and moreover, the concise nature of the supplemental filing
was more likely to be looked upon favorably by any court, given the
evidence had already been heard. We also note that in co-counsel’s closing
argument, three times he agreed with arguments and fact pointed out by
Appellant’s counsel.
{¶47} “A properly licensed attorney is presumed to execute his duties
in an ethical and competent manner.” State v. Taylor, 4th Dist. No. 07CA1,
2008-Ohio-482, 2008 WL 343328, ¶ 10, citing State v. Smith, 17 Ohio St. 3d
98, 100, 477 N.E.2d 1128 (1985). Therefore, a defendant bears the burden
to show ineffectiveness by demonstrating that counsel’s errors were so
serious that he or she failed to function as the counsel guaranteed by the
Scioto App. No. 12CA3472 27
Sixth Amendment. State v. Gondor, 112 Ohio St. 3d 377, 2006 Ohio-6679,
860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St. 3d 153, 524 N.E.2d 476
(1988).
{¶48} In this matter, the trial court made its decision based on all the
evidence before it. Appellant has not shown that his counsel’s brief,
supplemental filing, or conduct was deficient, nor has he overcome the
presumption that his counsel’s trial strategy was sound. Based on review of
the record, we find Appellant was not rendered ineffective assistance. As
such, we overrule the second assignment of error.
ASSIGNMENT OF ERROR THREE
{¶49} Appellant contends the trial court committed plain error
in sentencing him on three separate charges of similar import, trafficking,
R.C. 2925.03(A)(2)/(C), possession, R.C. 2925.11(A)/(C), and tampering
with evidence, R.C. 2921.12(A)(1), when he could be found guilty of only
one offense and sentenced on only one offense. Appellant argues his
convictions arose from one transaction on one date and time under one case
number. He requests this Court to order resentencing in this matter.
A. STANDARD OF REVIEW
{¶50} For a reviewing court to find plain error: 1.) there must
Scioto App. No. 12CA3472 28
be an error, i.e., “a deviation from a legal rule”, 2.) the error must be plain,
i.e. “an ‘obvious’ defect in the trial court proceedings”; and 3.) the error
must have affected “substantial rights,” i.e., it must have affected the
outcome of the proceedings. State v. Barnes, 94 Ohio St. 3d 21, 27, 759
N.E.2d 1240 (2002); State v. Williams, 4th Dist. No. 11CA3408, 2012-Ohio-
4693, 2012 WL 4789848, ¶ 19. Furthermore, the Supreme Court of Ohio
has admonished courts that notice of plain error under Crim.R. 52(B) is to be
taken “’with the utmost caution, under exceptional circumstances and only
to prevent a manifest miscarriage of justice.’” Id., quoting State v. Long, 53
Ohio St. 2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus;
Williams, ¶ 19.
{¶51} When determining whether multiple offenses should have
merged under R.C. 2941.25, “[o]ur standard of review is de novo.” (Internal
citations omitted). Williams, supra at ¶ 82.
B. LEGAL ANALYSIS
{¶52} R.C. 2941.25, the multi-count statute provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more
offenses of the same or similar kind committed separately or with a
Scioto App. No. 12CA3472 29
separate animus as to each, the indictment or information may contain
counts for all such offenses, and the defendant may be convicted of all
of them.
As the Supreme Court explained in State v. Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, under R.C. 2941.25, “the
court must determine prior to sentencing whether the offenses were
committed by the same conduct.” Johnson at ¶ 47. Williams, ¶ 83. The
initial question is whether it is possible to commit the two offenses with the
same conduct. Johnson at ¶ 48; Williams at ¶ 83. If so, we must then look
to the facts of the case and determine whether the two offenses actually were
committed by the same conduct, “i.e., ‘a single act, committed with a single
state of mind.’” Johnson at ¶ 49, quoting State v. Brown, 119 Ohio St. 3d
447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50; Williams, at¶ 83. “If the
answer to both questions is yes, then the offenses are allied offenses of
similar import and will be merged.” Johnson at ¶ 50; Williams, at ¶ 83.
{¶53} “Conversely, if the court determines that the commission of
one offense will never result in the commission of the other, or if the
offenses are committed separately, or if the defendant has separate animus
for each offense, then, according to R.C. 2941.25(B), the offenses will not
merge.” Johnson at ¶51; Williams at ¶ 84.
Scioto App. No. 12CA3472 30
{¶54} The Supreme Court of Ohio has held that the simultaneous
possession of different types of controlled substances can constitute multiple
offenses under R.C.2925.11. State v. Delfino, 22 Ohio St. 3d 270, 490
N.E.2d 884 (1986), at syllabus; State v. Westbrook, 4th Dist. No. 09CA3277,
2010-Ohio-2692, 2010 WL 2354018, at ¶ 42. R.C. 2925.11(A) states: “No
person shall knowingly obtain, possess, or use a controlled substance.” A
controlled substance is defined as any substance listed in Schedules I
through V under R.C. 3719.41 and as amended by R.C.3719.43 and .C.
3719.44. See R.C. 2925.01(A) and R.C. 3719.01(C); Westbrook at ¶ 42.
Depending on the type of controlled substance involved, R.C. 2925.11(C)
provides the title of and penalty for the offense. The legislature clearly
intended that possession of different drug groups constitutes different
offenses. Delfino at 274, 490 N.E.2d 884; Westbrook at ¶ 43.
{¶55} In this case, Appellant was sentenced on count one, trafficking
in drugs, Oxycodone, a violation of R.C. 2925.03(A)(2)(C)(1)(e) and count
four, possession of drugs, Oxymorphone, a violation of R.C.
2925.11(A)(1)(C)(1). 2 Oxycodone is listed under R.C. 3719.41(A)(1)(n),
and is a Schedule II drug. Oxymorphone is also a Schedule II drug, listed
under R.C. 3719.41(A)(1)(o). Under R.C. 2925.03(A)(2) (C)(1)(e), person
2
We note the complete Revised Code sections are contained in the indictment, not in the judgment entry of
sentence. The entry also lists Count 4, Possession of Drugs, as a felony of the third degree. Appellee’s
brief appropriately references the conviction as a felony of the second degree.
Scioto App. No. 12CA3472 31
who trafficks a controlled substance if the amount of the drug involved
equals or exceeds fifth times the bulk amount but is less than one hundred
times the bulk amount is guilty of “aggravated trafficking in drugs.”
Oxycodone is a Schedule II controlled substance. R.C. 3719.41 Schedule
II(A)(1)(n). Appellant committed a first degree felony under R.C.
2925.03(A)(2)(C)(1)(e) because the amount of Oxycodone confiscated was
equal or exceeded fifty times the bulk amount but was less than one hundred
times the bulk amount. There are cases in which merging allied offenses for
sentencing may be appropriate, where a person convicted of trafficking in a
controlled substances also effectively possesses, and is convicted, of that
same controlled substance. State v. Lewis, 4th Dist. No. 08CA3226, 2008-
Ohio- 6691, 2008 WL 5266102(case remanded for consideration of whether
possession and trafficking in crack cocaine were committed separately or
with a separate animus); State v. Westbrook, 4th Dist. No. 09CA3277, 2010
Ohio – 2692, 2010 WL 2354018 (sentences for possessing and trafficking
oxycodone vacated and remanded for new sentencing under either R.C.
2925.03(A)(2) or R.C. 2925.11(A).).
{¶56} Under R.C. 2925.11(A)(C)(1)(c), a person who possesses a
controlled substance if the amount of the drug involved equals or exceeds
five times the bulk amount but is less than fifty times the bulk amount is
Scioto App. No. 12CA3472 32
guilty of “aggravated possession of drugs.” Oxymorphone is also a Schedule
II controlled substance. R.C. 3719.41, Schedule II, (A)(1)(o). Appellant
committed a felony of the second degree under R.C. 2925.11(A)(C)(1)(c)
because the amount of Oxymorphone he possessed equaled or exceeded five
times the bulk amount but less than fifty times the bulk amount. R.C.
2925.03(A)(2)(C)(1)(e) and R.C. 2925.11(A)(C)(1)(c) each required proof of
different facts, i.e., here, the different drugs and different amounts, to
establish violations of the Revised Code. Therefore, they are not allied
offenses of similar import. The legislature clearly intended that possession
of different drug groups constitutes different offenses. Delfino at 274, 490
N.E.2d 884; Westbrook, at ¶ 43. Here, the facts show that not only are there
different drugs involved, but also different bulk amounts. Merger as allied
offenses is simply not correct in this matter.
{¶57} Finally, tampering with evidence, R.C. 2921.12, provides as
follows:
(A) No person, knowing that an official proceeding or investigation is
in progress, or is about to be or likely to be instituted, shall do any of
the following:
(1) Alter, destroy, conceal, or remove any record, document, or thing,
with purpose to impair its value or availability as evidence in such
proceeding or investigation;
(2) Make, present, or use any record, document, or thing, knowing it
to be false and with purpose to mislead a public official who is or may
Scioto App. No. 12CA3472 33
be engaged in such proceeding or investigation, or with purpose to
corrupt the outcome of any such proceeding or investigation.
(B) Whoever violates this section is guilty of tampering with
evidence, a felony of the third degree.
The offense of tampering with evidence is not allied to either of the
above-discussed offenses.
{¶58} Appellee has pointed out in its brief, the sentence was an
agreed sentence, pursuant to R.C. 2953.08(D)(1). R.C. 2953.08(D)(1)
provides:
“A sentence imposed upon a defendant is not subject to review under
this section if the sentence is authorized by law, has been
recommended jointly by the defendant and the prosecution in the case,
and is imposed by a sentencing judge.”
{¶59} Inasmuch as we have determined Appellant’s sentence was
authorized by law, we also note it was an agreed sentence. The transcript and
the judgment entry of sentence reflect this. We find no error, let alone plain
error, in the trial court’s sentencing of Appellant.
CONCLUSION
{¶60} Based on the record of the trial court proceedings, we find no
merit to Appellant’s three assignments of error. We therefore affirm the
judgment of the trial court.
JUDGMENT AFFIRMED.
Scioto App. No. 12CA3472 34
Kline, J., dissenting.
{¶61} I respectfully dissent because I find that the record is
ambiguous, confusing, and not certain in itself regarding whether the
defendant pled guilty or no contest. As a result, I would remand for
clarification of the record under App.R. 9(E).
Scioto App. No. 12CA3472 35
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Abele, J.: Concurs in Judgment and Opinion.
Kline, J.: Dissents with Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.