[Cite as State v. Gardner, 2013-Ohio-2269.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 12CA88
MARSHENE GARDNER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Common
Pleas Court, Case No. 2012CR0189
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 29, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. RANDALL E. FRY
Prosecuting Attorney 10 West Newlon Place
Richland County, Ohio Mansfield, Ohio 44902
By: JOHN C. NIEFT
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 12CA88 2
Hoffman, P.J.
{¶1} Defendant-appellant Marshene Gardner appeals his conviction and
sentence entered by the Richland County Court of Common Pleas, on one count of
having weapons under disability, in violation of R.C. 2923.12(A)(2), a felony of the third
degree; and one count of receiving stolen property (firearm), in violation of R.C. 2923.11
and 2913.51(A), following a plea of guilty. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} The Richland County Grand Jury indicted Appellant on one count of
having weapons under disability, and one count of receiving stolen property (firearm).
The charges arose from an incident which occurred at the residence at 315 Second
Ave, Mansfield, Ohio, on March 24, 2012. At the time of the offense Appellant was on
post release control in connection with a 2008 conviction for domestic violence.
Appellant appeared before the trial court for arraignment on May 15, 2012, and entered
a plea of not guilty to the Indictment.
{¶3} Appellant filed a motion to suppress the evidence obtained during the
search of the Second Ave. residence as well as the evidence of his arrest. The State
filed a memorandum in response, arguing Appellant did not have standing to seek
suppression of the search of the Second Ave. residence as he was neither a resident of
the home nor an overnight guest. Alternatively, the State argued police entry into the
residence was made pursuant to exigent circumstances and the evidence discovered
was discovered during the execution of a search warrant.
1
A statement of the facts underlying Appellant’s conviction is not necessary for our
disposition of Appellant’s appeal.
Richland County, Case No. 12CA88 3
{¶4} The trial court conducted a hearing on the motion on July 3, 2012. At the
hearing, Appellant conceded he was neither the owner nor the occupier, but continued
to dispute his arrest. Upon conclusion of the hearing, the trial court orally pronounced
its rulings. The trial court found Appellant did not have standing to contest the search
warrant or the search of the Second Ave. residence. The trial court further found the
police had probable cause to arrest Appellant. The trial court also entertained
Appellant’s oral motion to exclude or limit other acts evidence. The trial court partially
granted the motion. The trial court issued its judgment entry outlining its rulings on July
10, 2012.
{¶5} On July 5, 2012, the day the matter was scheduled for trial, Appellant
appeared before the trial court, withdrew his former plea of not guilty, and pled guilty to
both counts of the Indictment. In exchange for his guilty plea, the State agreed not to
pursue burglary charges related to the March 24, 2012 incident as well as domestic
violence charges which arose prior to March 24, 2012. The trial court accepted
Appellant’s plea, found him guilty, and sentenced him to an aggregate term of
imprisonment of three years. The trial court memorialized the conviction and sentence
via Judgment Entry filed July 5, 2012.
{¶6} It is from this conviction and sentence Appellant appeals, raising as his
sole assignment of error:
{¶7} “I. THE DEFENDANT-APPELLANT WAS DEPRIVED OF HIS SIXTH
AMENDMENT RIGHT IN THE UNITED STATES CONSTITUTION TO EFFECTIVE
ASSISTANCE OF COUNSEL AS THE TRIAL COUNSEL PLED THE DEFENDANT-
APPELLANT GUILTY ON BOTH COUNTS, INSTEAD OF PLEADING THE
Richland County, Case No. 12CA88 4
DEFENDANT-APPELLANT NO CONTEST, THEREBY PRECLUDING THE
DEFENDANT-APPELLANT FROM APPEALING THE RULING OF THE TRIAL COURT
ON THE DEFENDANT-APPELLANT’S MOTION TO SUPPRESS.”
I
{¶8} In his sole assignment of error, Appellant raises an ineffective assistance
of counsel claim. Specifically, Appellant assets trial counsel was ineffective for failing to
advise him that a no-contest plea, as opposed to a guilty plea, would have preserved
his right to contest the denial of his motion to suppress.
{¶9} Our standard of review for ineffective assistance claims is set forth in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio
adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1989). These cases require a two-pronged analysis: First, we must determine
whether counsel's assistance was ineffective; whether counsel's performance fell below
an objective standard of reasonable representation and was violative of any of his
essential duties to the client. If we find ineffective assistance of counsel, we must then
determine whether or not the defense was actually prejudiced by counsel's
ineffectiveness such that the reliability of the outcome of the trial is suspect. This
requires a showing that there is a reasonable probability that but for counsel's
unprofessional error, the outcome of the trial would have been different. Id. Trial counsel
is entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675, 693 N.E.2d
267 (1998).
Richland County, Case No. 12CA88 5
{¶10} The United States Supreme Court and the Ohio Supreme Court have held
a reviewing court “need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697.
{¶11} Upon review of the record including the transcript of the hearing on the
motion to suppress, we find Appellant has not affirmatively demonstrated he would have
been successful in an appeal from the trial court’s denial of his motion to suppress.
Accordingly, we find Appellant was not prejudiced by the failure of trial counsel to advise
him to enter a no contest plea.
{¶12} Appellant’s sole assignment of error is overruled.
{¶13} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Baldwin, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Craig R. Baldwin ___________________
HON. CRAIG R. BALDWIN
Richland County, Case No. 12CA88 6
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MARSHENE GARDNER :
:
Defendant-Appellant : Case No. 12CA88
For the reason stated in our accompanying Opinion, the judgment of the
Richland County Court of Common Pleas is affirmed. Cost to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Craig R. Baldwin ___________________
HON. CRAIG R. BALDWIN