State v. Gibson

• Decision Date: 03 July 1980
• Citation: 430 N.E.2d 954,69 Ohio App.2d 91,23 O.O.3d 130
• Parties: , 23 O.O.3d 130 The STATE of Ohio, Appellee, v. GIBSON, Appellant.
• Court: Ohio Court of Appeals

Page 91

69 Ohio App.2d 91

430 N.E.2d 954, 23 O.O.3d 130

The STATE of Ohio, Appellee, v. GIBSON, Appellant.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

July 3, 1980.

Syllabus by the Court

1. On direct appeal from a conviction, a criminal defendant has the burden of proving to the appellate court that he was denied the effective assistance of counsel.

2. A criminal conviction will not be reversed on the ground of ineffective assistance of counsel solely because defense counsel failed to file a timely motion to suppress evidence, where the record does not demonstrate that the evidence was illegally obtained.

3. Where the allegation of ineffective assistance of counsel is based on facts dehors the record, the appropriate remedy is a proceeding for postconviction relief.

John T. Corrigan, Pros. Atty., for appellee.

Terrance P. Gravens, Fairview Park, for appellant.

JACKSON, Judge.

The defendant-appellant, Ernest Gibson, was convicted of two counts of drug abuse, for possession of cocaine and possession of heroin. He has taken this appeal from his convictions, citing three assignments of error.

In the first assigned error the appellant contends that prejudicial error was committed by the trial court "in admitting evidence of other crimes for which the Defendant-Appellant was not on trial."

The record discloses that the appellant was arrested at his home on June 20, 1978. Pursuant to a search warrant, the police searched his person and his house. They seized a container of heroin, a container of cocaine, prescription bottles, bottles marked "Demerol", plastic bags, a mirror, containers of different drugs including "suspected marijuana", tinfoil wrappers, measuring spoons, a straw cut for use as a "snorting straw", containers of lactose and dextrose, and a box of disposable syringes.

The appellant testified that he had not seen the cocaine and heroin before and that he did not own the items found in his house. He named four other persons who had access to the house.

It is a general rule that the prosecution may not impugn the character of an accused until the accused has put his character in issue by presenting evidence of his good character. Whiteman v. State (1928), 119 Ohio St. 285, 164 N.E. 51; R.C. 2945.56. Moreover, the Ohio Supreme Court has held:

"As a general rule, the introduction of evidence tending to show that a defendant has committed other crimes wholly independent of the offense for which he is on trial is prohibited. * * * " State v. Adams (1978), 53 Ohio St.2d 223, 374 N.E.2d 137, paragraph three of syllabus, vacated on other grounds (1978), 439 U.S. 811, 99 S.Ct. 69, 58 L.Ed.2d 103.

The appellant claims that the items seized by the police were introduced in evidence merely to show the bad character of the accused, i.e., the propensity of the accused to commit crimes. The appellant asserts that the exhibits tend to prove the appellant guilty of trafficking in drugs and possession of criminal tools, crimes for which the appellant was not indicted, and, consequently, that it is impermissible to permit the introduction of this evidence to prove possession of drugs.

We are persuaded that the existence of drug paraphernalia in the home of appellant tended to prove that the appellant knowingly possessed heroin and cocaine and that under the facts of this case, the possession of these items is not "wholly independent" of the crime of possession of drugs. R.C. 2945.59 specifically permits the introduction of evidence tending to prove intent, even if the evidence shows that the defendant committed another crime:

"In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant."

This assignment of error is overruled.

It is argued by appellant in his second assignment of error that his conviction "should be reversed on the ground that he was denied effective assistance of counsel because of the fact that his counsel failed to file a timely motion to suppress evidence."

Immediately before trial defense counsel made an oral motion to suppress the evidence seized by the police at the appellant's home. The court refused to consider counsel's motion on the ground that it was not timely filed under Crim.R. 12, which provides in part as follows:

"(B) Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised before trial:

" * * *

"(3) Motions to suppress evidence, including but not limited to statements and identification testimony, on the ground that it was illegally obtained;

" * * *

"(C) All pretrial motions except as provided in Rule 7(E) and Rule 16(F) shall be made within thirty-five days after arraignment or seven days before trial, whichever is earlier. The court in the interest of justice may extend the time for making pretrial motions.

" * * *

"(G) Failure by the defendant to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (C), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for good cause shown may grant relief from the waiver."

The defense motion was apparently based upon the theory that the search warrant was issued upon less than probable cause. We find no evidence in the record to support that theory.

The Ohio Supreme Court has issued two opinions defining the term "effective assistance of counsel." In State v. Hester (1976), 45 Ohio St.2d 71, 79, 341 N.E.2d 304, the court stated:

" * * * (W)e hold the test to be whether the accused, under all the circumstances, including the fact that he had retained counsel, had a fair trial and substantial justice was done."

In State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 358 N.E.2d 623, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154, the court enunciated a two-step test:

"When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness."

Furthermore, in Lytle the Supreme Court held that the appellant has the burden of proving his counsel's ineffectiveness. Id., 48 Ohio St.2d at 397, 358 N.E.2d 623.

In one reported decision decided prior to Lytle, the Court of Appeals for Hamilton County held that where an attorney fails to file a motion to suppress evidence which could arguably dispose of the criminal charge against his client, the client is denied the effective assistance of counsel. State v. Woolum (1976), 47 Ohio App.2d 313, 316, 354 N.E.2d 712. The facts of that case are nearly identical to the facts in the case at bar. The defendant was charged with possession of a hallucinogen; the crucial evidence against him was the marijuana found on his person by the police; and his attorney failed to file a motion to suppress the marijuana. The Court of Appeals did not inquire as to whether there was any reason to file the motion, i.e., whether the record disclosed arguable grounds for suppression of the evidence. Instead, the Court of Appeals in effect announced a per se rule that if defense counsel fails to file a motion to suppress evidence in a proceeding for possession of drugs, the defendant is entitled to a new trial.

It is our considered opinion that this decision emasculates the time provisions of Crim.R. 12(B)(3), (C), and (G). A defense attorney could create reversible error simply by failing to file a motion to suppress; if his client is convicted in the first trial, he is guaranteed another trial because the conviction would be reversed on the ground of ineffective assistance of counsel. To avoid this, the trial courts could conceivably be inclined to grant hearings on motions to suppress even if the motions are not timely made; some courts might even order suppression hearings sua sponte where attorneys fail to request them.

We do not choose to follow State v. Woolum, supra; we believe that that decision was overruled by the subsequent decision of State v. Lytle, supra, wherein the Ohio Supreme Court placed the burden of proving the ineffectiveness of counsel on the defendant.

We are further persuaded that where there exists no grounds for the suppression of evidence, a defense attorney has no duty to file a motion to suppress evidence. Where the record contains no evidence which would justify the filing of a motion to suppress, the appellant has not met his burden of proving that his attorney violated an essential duty by failing to file the motion.

It is impossible for this court to determine on a direct appeal from a conviction whether an attorney was ineffective in his representation of a criminal defendant, where the allegation of ineffectiveness is based on facts dehors the record. There is no procedure whereby this court can obtain evidence showing whether there was any factual basis for the issuance of the search warrant in the case at bar.

However, the General Assembly has provided a procedure whereby a convicted defendant can present evidence outside the original trial record of his counsel's...