State v. Ronald Stringer

• Decision Date: 24 February 1999
• Docket Number: 97 CA 2506,99-LW-0935
• Parties: STATE OF OHIO, Plaintiff-Appellee v. RONALD STRINGER, Defendant-Appellant Case
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. RONALD STRINGER, Defendant-Appellant

No. 97 CA 2506.

99-LW-0935 (4th)

Court of Appeals of Ohio, Fourth District Scioto

February 24, 1999

COUNSEL FOR APPELLANT:^[1] David H. Bodiker and Jill Eileen Stone, office of the Public Defender, 8 East Long Street 11th Floor, Columbus, Ohio 43215.

COUNSEL FOR APPELLEE: Lynn Alan Grimshaw and R. Randolph Rumble, 310 Scioto County Court House, 602 Seventh Street, Portsmouth Ohio

45662.

DECISION

ABELE J.

This appeal is pending before this court pursuant to our July 23 1998 decision granting appellant's application to reopen his appeal pursuant to App.R. 26(B) and State v. Murnahan (1991), 63 Ohio St.3d 60, 584 N.E.2d 1204. See State v. Stringer (July 23, 1998), Scioto App. No. 2506, unreported. Following the trial court's judgment of conviction and sentence, appellant, with new appellate counsel, appealed the trial court's judgment. We affirmed the trial court's judgment. State v. Stringer (Sept. 29, 1997), Scioto App. No. 2506, unreported. Pursuant to App.R. 26(B), we now consider the merits of appellant's reopened appeal as though it were appellant's initial appeal.^[2]

Appellant, Ronald Stringer, raises the following assignments of error:^[3]

FIRST ASSIGNMENT OF ERROR:

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ASSERT THAT [THE] SEARCH OF MR. STRINGER EXCEEDED THE PERMISSIBLE SCOPE OF A TERRY V. OHIO (1968), 392 U.S. 1, 88 S.CT. 1868, 20 L.ED.2D 889[,) PAT-DOWN SEARCH FOR WEAPONS.

SECOND ASSIGNMENT OF ERROR:

"TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO INFORM THE TRIAL COURT THAT FOURTH AMENDMENT JURISPRUDENCE PROHIBITS A WARRANTLESS ARREST MADE WITHOUT PROBABLE CAUSE."

THIRD ASSIGNMENT OF ERROR:

"TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ARGUE THAT MR. STRINGER IS ENTITLED TO BE SENTENCED IN ACCORDANCE WITH THE MORE LENIENT SENTENCING PROVISIONS OF SENATE BILL 2."

I STANDARD OF REVIEW

Because the same standard of review governs our analysis of each of appellant's assignments of error, we will begin by setting forth the standard of review applicable to appellant's assignments of error.

The Sixth Amendment right to counsel protects "the fundamental right to a fair trial." Strickland v. Washington (1984), 466 U.S. 668, 684, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674. "A fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding." Id., 466 U.S. at 685, 104 S.Ct. at 2063, 80 L.Ed.2d 674. Thus, effective counsel is one who "plays the role necessary to ensure that the trial is fair," id., 466 U.S. at 685, 104 S.Ct. at 2063, 80 L.Ed.2d 674, and "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id., 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d 674.

To establish that defense counsel's conduct so undermined the functioning of the adversarial process, a defendant must establish: (1) that "counsel's performance was deficient"; and (2) that the "deficient performance prejudiced the defense." Id., 466 U.S. at 687, 104 S.Ct. at 2063, 80 L.Ed.2d 674. Counsel's performance is deficient if he "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id., 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d 674; see, also, State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373 (stating that counsel's performance is deficient if counsel substantially violated one of his essential duties to his client); State v. Peeples (1994), 94 Ohio App.3d 34, 44, 640 N.E.2d 208, 215 (stating that counsel's performance is deficient if it "raise[s] compelling questions concerning the integrity of the adversarial process").

Furthermore, when addressing an ineffective assistance of counsel claim, the reviewing court should not consider what, in hindsight, may have been a more appropriate course of action.

See State v. Phillips (1995), 74 Ohio St.3d 72, 85, 656 N.E.2d

643, 658 (stating that a reviewing court must assess the

reasonableness of the defense counsel's decisions at the time

they are made). Rather, the reviewing court "must be highly deferential." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80

L.Ed.2d 674. As the Strickland Court stated, a reviewing court:

"must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'"

Id., 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d 674; see, also, State v. Sallie (1998), 81 Ohio St.3d 673, 674, 693 N.E.2d 267, 269; State v. Carter (1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965, 977.

If a criminal defendant overcomes the heavy burden of demonstrating that trial counsel performed deficiently, the defendant then must establish that counsel's deficient performance prejudiced his appeal. To establish that trial counsel's deficient performance prejudiced the defendant's defense, a defendant must establish "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d 674; see, also, Bradley, supra; Peeples, supra (stating that prejudice exists if counsel's deficient performance "raises substantial questions about the reliability of the outcome of the trial").

In the case sub judice, we do not believe that appellant

received ineffective assistance of trial counsel.

II MOTION TO SUPPRESS

In his first assignment of error, appellant asserts that trial counsel was ineffective for failing to argue in the motion to suppress evidence that Sergeant Horner's search of appellant exceeded the scope of a Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, pat-down search for weapons. Appellant claims that if trial counsel had called Sergeant Horner, the law enforcement officer who discovered the razor blade in appellant's coat pocket, to testify at the motion to suppress evidence hearing, Sergeant Horner's testimony would have demonstrated that the officer violated the principles set forth in Terry. Appellant asserts that if trial counsel had introduced Sergeant Horner's testimony at the motion to suppress hearing, the trial court would have suppressed the razor blade and all evidence derived from the discovery of the razor blade. Appellant contends that suppression of the razor blade and the evidence flowing therefrom would have resulted in the trial court's dismissal of the charges against appellant.

The state asserts that Sergeant Horner's search did not violate appellant's Fourth Amendment protection against unreasonable searches. The state contends that Sergeant Horner's

search was not, as appellant asserts, a Terry pat-down search for

weapons. Rather, the state maintains that Sergeant Horner's

search constituted a search incident to arrest. The state notes

that the law enforcement officers initially possessed reasonable

suspicion to stop appellant. The state argues that after appellant fled from the officers and discarded certain items that he was carrying, the officers' reasonable suspicion ripened into probable cause to arrest. Thus, the state asserts, when Sergeant Horner discovered the razor blade in appellant's pocket, Sergeant Horner was not conducting a Terry pat-down search for weapons; rather, Sergeant Horner was conducting a full custodial search incident to a valid arrest. Thus, the state asserts that even if trial counsel's failure to call Sergeant Horner as a witness constituted deficient performance, trial counsel's failure did not prejudice the defense.

Initially, we note that the Sixth Amendment's guarantee of assistance of counsel does not require trial counsel to file a motion to suppress in every case. State v. Flora (1987), 38 Ohio App.3d 133, 139, 528 N.E.2d 950, 956 (citing Kimmelman v. Morrison (1986), 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305). Trial counsel's failure to file a motion to suppress may, however, violate the Sixth Amendment's guarantee of assistance of counsel when a solid possibility exists that the trial court would have suppressed the evidence. State v. Dotson (Mar. 27, 1998), Pickaway App. No. 97 CA 9, unreported; State v. Garrett (1991), 76 Ohio App.3d 57, 600 N.E.2d 1130. The defendant bears the burden of directing the reviewing court to evidence in the record that demonstrates a solid possibility that the evidence would have been suppressed. Dotson, supra; see, also, State v. Gibson (1980), 69 Ohio App.2d 91, 95, 430 N.E.2d 954, 957 (stating that when 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 [to suppress]"). Even when the record contains some evidence supporting a motion to suppress, a reviewing court should presume that counsel was effective if "counsel could reasonably have decided that the filing of a motion to suppress would have been a futile act." State v. Edwards (July 11, 1996), Cuyahoga App. No. 69077, unreported (citing State v. Martin (1983), 20 Ohio App.3d 172, 485 N.E.2d 717).

Thus from the foregoing principles one may reasonably conclude that trial counsel is not ineffective for failing to include every possible ground for suppressing evidence in a motion to suppress. Rather, to demonstrate that trial counsel's decision to omit a possible ground for suppression constituted...