State v. Marcum

• Decision Date: 07 June 2019
• Docket Number: Case No. 18-CAC- 11 0083
• Citation: 2019 Ohio 2293
• Parties: STATE OF OHIO Plaintiff-Appellee v. JOHN F. MARCUM Defendant-Appellant
• Court: Ohio Court of Appeals

2019 Ohio 2293

STATE OF OHIO Plaintiff-Appellee v. JOHN F. MARCUM Defendant-Appellant

Case No. 18-CAC- 11 0083

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

June 7, 2019

JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Delaware Municipal Court, Case No. 18TRC08128

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee

MELISSA SCHIFFEL

Delaware City Prosecutor

70 Union Street

Delaware, OH 43015

For Defendant-Appellant

WILLIAM CRAMER

470 Olde Worthington Road, Suite 200

Westerville, OH 43082

Gwin, P.J.

{¶1} Appellant John F. Marcum ("Marcum") appeals the July 10, 2018 Judgment of the Delaware Municipal Court overruling his motion to suppress evidence. Plaintiff-appellee is the State of Ohio.

Facts and Procedural History

{¶2} Trooper Ryan May has been a trooper with the Ohio State Highway patrol for approximately 6 years. He was first trained in the apprehension and detection of impaired drivers at the patrol's academy. Specifically, while at the academy in 2012 he learned how to conduct field-sobriety tests in accordance with the standards promulgated by the National Highway Traffic Safety Administration (NHTSA) in NHTSA's DWI Detection and Standardized Field Sobriety Testing manual. Trooper May has updated his training to include training in the apprehension and detection of drivers impaired by drugs of abuse alone and in combination with alcohol—the training is known as ARIDE. Trooper May currently is certified to administer standardized filed sobriety tests.

{¶3} On February 13, 2018, at approximately 9:03 p.m. Trooper May was on routine patrol on Interstate 71. While on I-71 Trooper May noticed a pick-up truck travel over the lane markings on the highway several times. Marcum was driving the truck.

{¶4} Based on these observations, Trooper May activated the overhead flashing light on his cruiser to stop the pick-up. Trooper May noted that the pick-up took longer than usual to come to a complete stop on State Route 36/37.

{¶5} Upon initial approach, Trooper May observed Marcum's eyes to be very glassy and blood shot. Marcum also had slow speech and could not easily locate his vehicle information. Trooper May observed Marcum took a long time in locating his information and fumbled with paperwork on the passenger seat. Trooper May also had to instruct Marcum several times to keep his hands on the steering wheel. Trooper May did not notice any alcohol or drug odors in his encounter with Marcum.

{¶6} Trooper May asked Marcum to step out of his truck and asked Marcum if he would be willing to participate in some field-sobriety tests.

{¶7} Trooper May administered the horizontal gaze nystagmus (HGN) test to Marcum. When checking Marcum's eyes, Trooper May notice a lack of smooth pursuit in both eyes. Also, Trooper May noted nystagmus in both of Marcum's eyes at maximum deviation. When the trooper looked for onset of nystagmus prior to 45 degrees, however, he did not observe any clues. Trooper May observed four of six possible clues. In addition, Trooper May had to re-instruct Marcum to follow his stimulus during this test.

{¶8} Trooper May then administered the vertical gaze nystagmus test (VGN). He observed no clues during this test.

{¶9} Trooper May next explained and demonstrated the walk-and-turn test (WAT) to Marcum. Trooper May noted the following clues: defendant moved his feet for balance during the instruction phase; did not touch heel-to-toe; stopped while walking; stepped off the line; took an incorrect number of steps, and improperly turned. Trooper May observed a total of seven clues during the WAT test.

{¶10} Trooper May then administered the one-leg stand test (OLS). Marcum told Trooper May that his legs were shaking. He further told the officer that he had a bad knee. During the test Trooper May noted three clues: Marcum swayed; raised his arms for balance; and, put his foot down during the test.

{¶11} Trooper May asked Marcum to recite the alphabet form the letter "D" to the letter "O." Marcum recited the alphabet as instructed.

{¶12} After Marcum had completed all of the tests, Trooper May placed Marcum under arrest for committing an OVI offense. Specifically, Trooper May believed Marcum to be operating a vehicle while impaired by drugs.

{¶13} Marcum's urine sample was sent to the state crime lab and tested positive for Carboxy-THC, a marijuana metabolite, at a rate of 131.46 nomograms per milliliter. As a result, Marcum was separately charged with a per se OVI offense. [Case No. 18TRC08128].

{¶14} Marcum filed a motion to suppress, challenging the traffic stop, reasonable suspicion of OVI to support the field sobriety tests, probable cause to arrest for OVI, and the urine collection and testing procedures. At the suppression hearing, Marcum withdrew the challenge to the traffic stop. After the suppression hearing, the trial court issued a written entry denying the motion.

{¶15} The state dismissed the impaired OVI [Case No. 18TRCO2023] and Marcum pled no contest to the per se Offense [Case No. 18TRC081281. Marcum was sentenced to twenty days in jail, two years of community control, a fine of $600 plus costs, a three-year driver's license suspension, and alcohol/drug assessment and treatment.

Assignments of Error

{¶16} Marcum raises two Assignments of Errors,

{¶17} "I. APPELLANT'S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STATE AND FEDERAL CONSTITUTIONS WAS VIOLATED WHEN COUNSEL WITHDREW THE CHALLENGE TO THE TRAFFIC STOP.

{¶18} "II. APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO BE FREE OF UNREASONABLE SEARCHES AND SEIZURES WERE VIOLATED WHEN APPELLANT WAS SUBJECTED TO FIELD SOBRIETY TESTS WITHOUT A REASONABLE SUSPICION THAT HE WAS UNDER THE INFLUENCE."

I.

{¶19} In his First Assignment of Error, Marcum argues that his trial attorney was ineffective because he withdrew Marcum's challenge to the traffic stop. [Appellant's Brief at 4].

STANDARD OF APPELLATE REVIEW.

{¶20} To obtain a reversal of a conviction based on ineffective assistance of counsel, the defendant must prove (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693(1984). A defendant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699; State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000).

{¶21} In light of "the variety of circumstances faced by defense counsel [and] the range of legitimate decisions regarding how best to represent a criminal defendant," the performance inquiry necessarily turns on "whether counsel's assistance was reasonable considering all the circumstances." Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at 2064. At all points, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at 2064.

{¶22} The United States Supreme Court discussed the prejudice prong of the Strickland test,

With respect to prejudice, a challenger must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 694, 104 S.Ct. 2052. It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Id., at 693, 104 S.Ct. 2052. Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., at 687, 104 S.Ct. 2052.

"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. —, —, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest "intrusive post-trial inquiry" threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at 689-690, 104 S.Ct. 2052. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is "all too tempting" to "second-guess counsel's assistance after conviction or adverse sentence." Id., at 689, 104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney's representation amounted to incompetence under "prevailing professional norms," not whether it deviated from best practices or most common custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.

Harrington v. Richter, 562 U.S. 86, 104-105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

Failure to File a Motion to Suppress.

{¶23} We find that Marcum's argument that his counsel withdrew the challenge to the traffic stop is analogous to a situation where counsel fails to file a motion to suppress.

{¶24} Trial counsel's failure to file a suppression motion does not per se constitute ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-0448; Accord, State v. Ortiz, 5th Dist. Stark No. 2015CA00098, 2016-Ohio-354, ¶56. Counsel can only be found ineffective for failing to file a motion to suppress if, based on the record, the motion would have been granted. State v. Lavelle, 5th Dist. No. 07 CA 130, 2008-Ohio-3119, at ¶ 47; State v. C...