State v. Wilson, 17CA31

• Decision Date: 31 January 2018
• Docket Number: No. 17CA31,17CA31
• Citation: 2018 Ohio 396,106 N.E.3d 806
• Parties: STATE of Ohio, Plaintiff–Appellee v. Jessie WILSON, Defendant–Appellant
• Court: Ohio Court of Appeals

106 N.E.3d 806

2018 Ohio 396

STATE of Ohio, Plaintiff–Appellee

v.Jessie WILSON, Defendant–Appellant

No. 17CA31

Court of Appeals of Ohio, Fifth District, Richland County.

DATE OF JUDGMENT ENTRY: January 31, 2018

JOSEPH SNYDER, Assistant Prosecutor, 38 South Park Street, Mansfield, OH 44902, For Plaintiff–Appellee

JOHN O'DONNELL III, 10 West Newlon Place, Mansfield, OH 44902, For Defendant–Appellant

JUDGES: Hon. John W. Wise, P.J., Hon. W. Scott Gwin, J., Hon. William B. Hoffman, J.

OPINION

Gwin, J.,

{¶ 1} Appellant Jessie Wilson ["Wilson"] appeals his convictions and sentences after a jury trial in the Richland County Court of Common Pleas.

Facts and Procedural History

{¶ 2} In the months prior to September 1, 2016, officers of the Mansfield Police Department METRICH Enforcement Unit conducted surveillance on 321 and 329 West Sixth Street. The surveillance was initiated because of anonymous tips about drug activity at both locations. Ultimately, METRICH conducted two controlled buys with a confidential informant. During the first buy, the seller, Terry Hardin, was dropped off at 321 West Sixth while the confidential informant waited in the parking lot at the rear of the apartment building. Hardin was observed by the officers to walk over to 329 West Sixth Street, obtain drugs and return to the parking lot. The drugs were then exchanged with the confidential informant. During the second buy on August 25, 2016, the informant purchased the drugs inside 321 West Sixth Street. Wilson's vehicle, a red Chrysler Crossfire, was seen at 329 West Sixth Street on multiple occasions.

{¶ 3} On August 31, 2016, law enforcement officers obtained a search warrant from a Mansfield Municipal Court judge to search 329 West Sixth Street, Mansfield, Ohio. Wilson's neighbor, Edward Johnson, who lived at 319 West Sixth Street, identified Wilson to the police as living at 329 West Sixth Street. The morning of the raid, Mr. Johnson heard a knock and went to his front door. He saw Wilson enter the 321 West Sixth Street address. He had also previously seen Wilson walking his dog outside.

{¶ 4} When police executed the search warrant at 329 West Sixth Street they found a powdery substance out in the open, which later tested positive as .03 grams of cocaine. A digital scale and plastic baggies were also found. A baggie of marijuana, weighing 28.16 grams, and a baggie of heroin weighing 10.13 grams were found in a utility closet. A pill bottle with 68 Buspirone

tablets, weighing 2.57 grams, was found on a mantle. Photographs, including Wilson's were seen on the mantel. When Wilson was arrested, he stated that he lived at 329 West Sixth Street. (1T. at 261).

{¶ 5} The jury found Wilson guilty of Possession of Heroin, over ten (10) grams and less than fifty (50) grams, a felony of the second degree; Possession of Cocaine, less than five (5) grams, a felony of the fifth degree; and Possession of Buspirone

, with a prior drug conviction, a felony of the fifth degree.

{¶ 6} The trial court sentenced Wilson to an 8–year mandatory prison sentence on the possession of heroin charge, and twelve months each for the possession of cocaine and possession of Buspirone

charges. All sentences were ordered to be served concurrently.

Assignments of Error

{¶ 7} Wilson raises three assignments of error,

{¶ 8} "I. DEFENDANT/APPELLANT [WAS] DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FILE A MOTION TO SUPPRESS EVIDENCE.

{¶ 9} "II. DEFENDANT/APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FILE A DEMAND UNDER ORC § 2925.51 FOR THE CHEMIST TO TESTIFY AND FOR THE HEROIN TO BE AVAILABLE FOR AN INDEPENDENT EXPERT TO WEIGH THE HEROIN.

{¶ 10} "III. THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM SENTENCE."

I.

{¶ 11} In his first assignment of error, Wilson contends that he was denied the effective assistance of trial counsel. Specifically, Wilson argues that his trial counsel should have filed a motion to suppress the search warrant issued in his case.

STANDARD OF APPELLATE REVIEW.

{¶ 12} To obtain a reversal of a conviction on the basis of 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, 721 N.E.2d 52 (2000).

{¶ 13} 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, 721 N.E.2d 52 (2000) ; Accord, State v. Ortiz, 5th Dist. Stark No. 2015CA00098, 2016-Ohio-354, 2016 WL 530659, ¶ 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, 2008 WL 2571700, at ¶ 47 ; State v. Cheatam , 5th Dist. No. 06-CA-88, 2007-Ohio-3009, 2007 WL 1731619, at ¶ 86. The defendant must further show that there is a reasonable probability that the outcome would have been different if the motion had been granted or the defense pursued. See Kimmelman v. Morrison , 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 (1986) ; see, also, State v. Santana , 90 Ohio St.3d 513, 739 N.E.2d 798 (2001), citing State v. Lott , 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).

ISSUES FOR APPEAL

A. Whether there is a reasonable probability a motion to suppress the search warrant would have been granted.

{¶ 14} Wilson contends that the search warrant "could not corroborate the information that Defendant/Appellant lived at 329 West Sixth Street..." [Appellant's Brief at 6].

1). Standing to object to the search of 329 West Sixth Street.

{¶ 15} Only those whose rights were violated by the search itself can urge suppression of evidence obtained in violation of the Fourth Amendment. Standing is not achieved solely by a person's status as a defendant or by introduction of damaging evidence. Alderman v. United States , 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Consequently, before a court may review the reasonableness of police behavior, the defendant must be able to demonstrate that his Fourth Amendment right to privacy was violated.

{¶ 16} In Jones v. United States , 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the United States Supreme Court held that automatic standing applied to any person charged with an offense in which possession is an essential element, and that any person legitimately on the premises where a search takes place could challenge the lawfulness of the search.

{¶ 17} Automatic standing was eliminated in Rakas v. Illinois , 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In Rakas , the defendants were passengers in an automobile that had been lawfully stopped on reasonable suspicion but unlawfully searched. The search uncovered a sawed-off rifle under the passenger seat and a box of shells in a locked glove box, which helped link the defendants to a robbery. The defendants never asserted a property interest in the evidence but claimed standing because of their lawful presence as passengers in the vehicle.

{¶ 18} The United States Supreme Court held that a court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant's own constitutional rights. Rakas, at 133–140, 99 S.Ct. 421, 58 L.Ed.2d 387. See, also , Brown v. United States , 411 U.S. 223, 229–230, 93 S.Ct. 1565, 1569–70, 36 L.Ed.2d 208 (1973) ; Alderman v. United States , 394 U.S. 165, 171–172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969) ; Simmons v. United States , 390 U.S. 377, 389, 88 S.Ct. 967, 973, 19 L.Ed.2d 1247 (1968). A defendant's Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party. Rakas v. Illinois , 439 U.S. at 143, 149–152, 99 S.Ct. 421, (Powell, J., concurring); Combs v. United States , 408 U.S. 224, 227, 92 S.Ct. 2284, 2286, 33 L.Ed.2d 308 (1972) ; Mancusi v. DeForte , 392 U.S. 364, 368, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968).

{¶ 19} To the extent that Wilson argues that no corroborating evidence established that he lived at 329 West Sixth Street, he would not have had standing to challenge the search warrant issued and executed at that address. Thus, not filing a motion to suppress may have been a tactical decision by Wilson.

{¶ 20} A defendant has no constitutional right to determine trial tactics and strategy of counsel. State v. Cowans , 87 Ohio St.3d 68, 72, 717 N.E.2d 298 (1999) ; State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 150 ; State v. Donkers, 170 Ohio App.3d 509, 867 N.E.2d 903, 2007-Ohio-1557, ¶ 183 (11th Dist.). Rather, decisions about viable defenses are the exclusive domain of defense counsel after consulting with the defendant. Id. When there is no demonstration that counsel failed to research the facts or the law or that counsel was ignorant of a crucial defense, a reviewing court defers to counsel's judgment in the matter. State v. Clayton , 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980), citing People v. Miller , 7 Cal.3d 562, 573–574, 102 Cal.Rptr. 841, 498 P.2d 1089 (1972) ; State v. Wiley , 10th Dist. No. 03AP-340, 2004-Ohio-1008, 2004 WL 396767 at ¶ 21.

{¶ 21} Debatable strategic and tactical decisions may not form the basis of a claim for ineffective assistance of counsel. State v. Phillips , 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995). Even if the wisdom of an approach is questionable, "debatable trial tactics" do not constitute ineffective assistance of counsel. Id."Poor tactics of experienced counsel,...