State v. Mohler

[Cite as State v. Mohler, 2011-Ohio-6121.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
THE STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
v. :
: Case No. 2011-CA-0048
ERIC MOHLER :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Court of Common Pleas, Case No.
09CR550

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 28, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BRIAN WALTZ J. MATTHEW DAWSON
20 South Second Street 35 S. Park Pl., Ste. 10
Newark, OH 43055 Newark, OH 43055
[Cite as State v. Mohler, 2011-Ohio-6121.]

Gwin, P.J.

{¶ 1} Defendant-appellant Eric S. Mohler appeals the February 10, 2010

Judgment Entry of the Licking County Court of Common Pleas Court overruling his

motion to suppress evidence. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶ 2} Appellee did not file a brief in this matter. Pursuant to App.R. 18(C) in

determining the appeal we may accept appellant’s statement of the facts and issues as

correct, and reverse the judgment if appellant’s brief reasonably appears to sustain

such action. See State v. Rohrig (Apr. 2, 2001), Fairfield App. No. 00 CA 39, and

Chowdhury v. Fitzgerald (Mar. 27, 1997), Guernsey App. No. 96 CA 43. Therefore, we

presume the validity of appellant’s statement of facts and issues.

{¶ 3} At the evidentiary hearing on appellant’s motion to suppress held February

8, 2010, the following facts were established as noted by the trial court’s February 10,

2010 Judgment Entry.

{¶ 4} On October 20, 2009, Detective Alan Thomas responded to the Budget

Inn. A traffic stop was being conducted on a white Cavalier driven by Erica Smith. As

Detective Thomas arrived, a canine sweep of the car was being conducted. Detective

Thomas testified he saw appellant emerge from room 127 at the Budget Inn. Appellant

was coming outside to see what was going on with Ms. Smith, his fiancée. Detective

Thomas testified that he spoke briefly with the appellant. Detective Thomas then

proceeded to the manager's office of the hotel to find out who had rented the room.

Detective Thomas further contacted the Sheriff’s office and the probation department

because he knew that appellant was out on bond and on probation for failure to register
 3

as a sex offender. Appellant was under Indictment for felony trafficking in heroin and for

failing to register as a sex offender in an unrelated case. Appellant had been released

on bond thirteen days earlier.

{¶ 5} Detective Thomas testified that when he came back to the scene after having

talked to the manager, he advised appellant of his Miranda rights. The detective testified that

Officer Barnes of Adult Court Services (probation department) came to the scene together

with Detective Collins, the officer in charge of sexual registration for the Licking County

Sherriff’s Office. Detective Thomas further testified that appellant was not arrested when

given the Miranda warnings, however he was aware of the issues concerning his

registration requirements and bond terms. Detective Thomas testified he did not ask the

appellant for permission to search the hotel room. Appellant was subsequently arrested

for violating the terms of his bond.

{¶ 6} Detective Doug Bline testified that on October 20, 2009 he, Detective

Thomas, Detective Cortwright of the Newark Police Department and Sergeant Romano

from the Newark Police Department were all members of the Central Ohio Drug

Enforcement taskforce. Detective Bline testified he had dealt with Erica Smith before on

possession and trafficking of heroin charges. Detective Bline said he saw the white

Cavalier at the Circle K and knew there was a female inside of it. A patrol officer

observed a traffic violation and made a traffic stop on the vehicle. Ms. Smith was

identified as the driver. Detective Bline requested consent to search her car, which Ms.

Smith denied. Because of that denial, a canine was brought to the scene to conduct a

drug sweep around the outside of the vehicle. The canine produced a positive hit on the

vehicle. The vehicle was then searched revealing drug paraphernalia and both used
 4

and unused balloons inside the car. Detective Bline testified the balloons were used to

package heroin.

{¶ 7} Detective Bline testified that he Mirandized Ms. Smith before speaking

with her and she agreed to speak with him. Ms. Smith confirmed that she was staying at

the hotel in room 127 with appellant. Detective Bline told Ms. Smith they had found

paraphernalia in the car and asked her if there was anything going on in the room. Ms.

Smith initially denied there was anything going on in the room. He asked her consent to

search the room, which she denied. Detective Bline testified that the drug canine had an

abnormal reaction at the closed door to the room although not what he would

characterize as a positive response. Detective Bline told Ms. Smith that he would

attempt to get a search warrant for the room and that she could not return there

although she was free to go. Ms. Smith became upset, was annoyed and wanted to go

into the room. Detective Bline reiterated she could not. Subsequently, Ms. Smith was

arrested on a possession of heroin charge. That offense had occurred in August;

however, the detectives had only recently obtained the lab reports from BCI. Those

results had been forwarded to the prosecutor for indictment but had not yet been

presented to the grand jury.

{¶ 8} After Ms. Smith was arrested, she asked to speak to Detective Bline. Ms.

Smith indicated to him that there were things in the room but they were not hers. She

further indicated that there might be a little dope in the room but that it did not belong to

her. She told Detective Bline that the drugs belonged to a Robert Berger whose truck

had been repossessed and that she and appellant were holding the drugs for him. He

asked for consent to search the room. Ms. Smith indicated she needed to speak to
 5

appellant before agreeing to allow the officers to search the hotel room. Detective Bline

testified that he accompanied Ms. Smith to where appellant was being detained and that

he stood approximately three feet away from them while they spoke. Detective Bline

testified appellant told Ms. Smith that he was being arrested anyway, so in essence,

whatever. Ms. Smith signed the consent to search form.

{¶ 9} However, Detective Bline also asked for appellant’s consent because

appellant stayed in the room. Detective Bline testified appellant said several times it was

not his room and therefore the police did not need his consent to search the room.

Detective Bline, however, asked appellant to consent and said he would not search the

room without appellant’s consent. Detective Bline told appellant he would attempt to

obtain a search warrant in the event appellant decline to give his written consent.

Detective Bline testified appellant had the opportunity to read the consent form but

chose not to read the form.

{¶ 10} Appellant testified that he told Ms. Smith to allow the police to search the

room. However, he further testified that he changed his mind after Ms. Smith told him

there was something inside the room. He then testified that he told Ms. Smith to tell the

police whatever they found inside the room belonged to him because he was going to

jail in any event. Appellant testified that he told Detective Bline that the room was in Ms.

Smith’s name so appellant’s consent was not needed in order to search the room.

Appellant stated that Detective Bline asked for his consent because appellant also

stayed in the room. Appellant testified he refused to sign the consent form until the

officer told him they would arrest Ms. Smith and obtain a warrant unless he signed the

consent form.
 6

{¶ 11} The trial Court found that appellant and Ms. Smith were properly

Mirandized and further that the consent of both appellant and Ms. Smith “was freely and

voluntarily made as demonstrated by the fact that both occupants had denied requests

to consent to the search, but after reflection or discussion with each other, changed

their mind and consented in writing.”

{¶ 12} On February 25, 2010 appellant entered Alford pleas of no contest to

Trafficking in Heroin, in violation of R.C. 2925.03(A)(1)(C)(6)(a), a felony of the fifth

degree; Trafficking in Heroin(Vicinity of a Juvenile), in violation of R.C.

2925.03(A)(1)(6)(c), a felony of the third degree, with a forfeiture specification;

Possession of Heroin, in violation of R.C. 2925.11 (A)(C)(6)(c), a felony of the third

degree; and Possession of Drug Paraphernalia, in violation of R.C. 2925.14(C)(1), a

misdemeanor of the fourth degree. A Pre-Sentence Investigation Report was prepared

and the Court sentenced appellant to nine months on Count 1; three years on Count 2;

and four years on Count 3. Further, appellant was sentenced to 30-days in jail on Count

4. The trial court ordered the sentences to be served consecutively for an aggregate

prison sentence of seven years, nine months and a 30-day jail sentence.

{¶ 13} Appellant filed a Notice of Appeal pro se on April 25, 2011. On July 26,

2010, this Court dismissed that appeal because appellant had failed to file a brief in

accordance with App. R. 18(C). On June 7, 2011, this court granted appellant’s motion

to file a delayed appeal.

{¶ 14} Appellant raises the following as his sole assignment of error for our

consideration:
 7

{¶ 15} “I. COUNSEL WAS INEFFECTIVE BY FAILING TO REQUEST THAT

THE DEFENDANT'S MOTION TO SUPPRESS BE GRANTED AND FAILURE TO

SUBPOENA WITNESSES.”

I.

{¶ 16} In his sole assignment of error, appellant argues that he was denied

effective assistance of trial counsel. We disagree.

{¶ 17} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838;

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052; State v. Bradley (1989),

42 Ohio St.3d 136, 538 N.E.2d 373.

{¶ 18} In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both the deficient performance and prejudice prongs of Strickland and

Bradley. Knowles v. Mirzayance (2009), --- U.S. ----, 129 S.Ct. 1411, 1419, 173 L.Ed.2d

251.

{¶ 19} To show deficient performance, appellant must establish that “counsel’s

representation fell below an objective standard of reasonableness.” Strickland v.

Washington, 466 U.S. at 688, 104 S.Ct. at 2064. This requires showing that counsel

made errors so serious that counsel was not functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment. Strickland v. Washington 466 U.S. at 687, 104

S.Ct. at 2064. Counsel also has a duty to bring to bear such skill and knowledge as will
 8

render the trial a reliable adversarial testing process. Strickland v. Washington 466 U.S.

at 688, 104 S.Ct. 2052 at 2065.

{¶ 20} “Thus, a court deciding an actual ineffectiveness claim must judge the

reasonableness of counsel's challenged conduct on the facts of the particular case,

viewed as of the time of counsel's conduct. A convicted defendant making a claim of

ineffective assistance must identify the acts or omissions of counsel that are alleged not

to have been the result of reasonable professional judgment. The court must then

determine whether, in light of all the circumstances, the identified acts or omissions

were outside the wide range of professionally competent assistance. In making that

determination, the court should keep in mind that counsel's function, as elaborated in

prevailing professional norms, is to make the adversarial testing process work in the

particular case. At the same time, the court should recognize that counsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment.” Strickland v. Washington, 466 U.S.

668 at 689,104 S.Ct. at 2064.

{¶ 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} Appellant must further demonstrate that he suffered prejudice from his

counsel’s performance. See Strickland, 466 U. S. at 691 (“An error by counsel, even if
 9

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he

defendant must show that there is 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. To prevail on his ineffective-assistance claim, appellant must

show, therefore, that there is a “reasonable probability” that the trier of fact would not

have found him guilty.

{¶ 23} Appellant first contends that his trial counsel was ineffective because he

did not include a request that the trial court grant his motion to suppress upon the

ground that the prosecutor did not file a written response. Appellant claims that the trial

judge would have granted the motion on that ground if defense counsel had requested it

by proper motion. [Appellant’s Brief at 7].

{¶ 24} Appellant points to the following exchange between the trial judge and the

prosecuting attorney prior to the commencement of the hearing on appellant’s Motion to

Suppress:

{¶ 25} “MR. WALTZ: Yes, Your Honor.

{¶ 26} “THE COURT: Am I correct you have not filed a response to the motion?

{¶ 27} “MR. WALTZ: That's correct, Your Honor.

{¶ 28} “THE COURT: How come?

{¶ 29} “MR. WALTZ: How come?

{¶ 30} “THE COURT: Yeah.
 10

{¶ 31} “MR. WALTZ: I did not think it was necessary. If the Court would like, I can

-- I can file something.

{¶ 32} “THE COURT: I think the pretrial statement indicates it's to be filed on or

before the date of the hearing. This is the second hearing date, so doesn't it --

{¶ 33} “MR. WALTZ: That's correct. Like I said, it was not my intention to file it.

{¶ 34} “THE COURT: I’ll make sure I mandate it every time from now on.

Otherwise, I assume you don’t oppose it and I can just grant it, right, since there has

been no opposition filed?

{¶ 35} “MR. WALTZ: I do not think that’s a reasonable assumption to make.

{¶ 36} “THE COURT: Why not? Why Not?

{¶ 37} “MR. WALTZ: Because I didn’t file a response just means I think the law -

- I’m ready to present evidence contrary.

{¶ 38} “THE COURT: How do we know that? That could have been your written

response, I suppose.

{¶ 39} “Anything else you can think of before you call your first witness, Mr.

Waltz?

{¶ 40} “MR. WALTZ: No, Your Honor.” (T. Motion to Suppress, February 8, 2010

at 5-6).

{¶ 41} We do not find the statements of the trial judge to indicate that he would

have granted the motion if appellant’s trial counsel had made a motion based upon the

prosecutor’s failure to file a written response. Criminal Rule 12(C)(3) provides for

motions to suppress evidence including any testimony because it was illegally obtained.

Criminal Rule 12(F) Ruling on Motion provides:
 11

{¶ 42} “The court may adjudicate a motion based upon briefs, affidavits, the

proffer of testimony and exhibits, a hearing, or other appropriate means.

{¶ 43} “A motion made pursuant to divisions (C)(1) to (C)(5) of this rule shall be

determined before trial. Any other motion made pursuant to division (C) of this rule shall

be determined before trial whenever possible. Where the court defers ruling on any

motion made by the prosecuting attorney before trial and makes a ruling adverse to the

prosecuting attorney after the commencement of trial, and the ruling is appealed

pursuant to law with the certification required by division (K) of this rule, the court shall

stay the proceedings without discharging the jury or dismissing the charges.

{¶ 44} “Where factual issues are involved in determining a motion, the court shall

state its essential findings on the record.”

{¶ 45} The Rule does not explicitly mandate the prosecutor file a response. In

contrast, App. R. 18 provides:

{¶ 46} “(C) Consequence of failure to file briefs

{¶ 47} “If an appellant fails to file the appellant's brief within the time provided by

this rule, or within the time as extended, the court may dismiss the appeal. If an

appellee fails to file the appellee's brief within the time provided by this rule, or within the

time as extended, the appellee will not be heard at oral argument except by permission

of the court upon a showing of good cause submitted in writing prior to argument; and in

determining the appeal, the court may accept the appellant's statement of the facts and

issues as correct and reverse the judgment if appellant's brief reasonably appears to

sustain such action.”
 12

{¶ 48} Thus, even this court has not been empowered to forgo a decision on the

merits of a controversy simply because the opposing party has not filed a written

response. Appellant’s contention otherwise is without merit.

{¶ 49} Appellant next contends that his trial counsel was ineffective because he

failed to subpoena appellant’s co-defendant Ms. Smith to testify at his motion to

suppress hearing. Appellant contends that the trial court indicated that appellant did not

call her as a witness and did not have standing to challenge her search. [Appellant’s

Brief at 7-8].

{¶ 50} Counsel's decision regarding the calling of witnesses is within the purview

of trial strategy, and the failure to subpoena witnesses for trial does not violate counsel's

duty to defendant absent a showing of prejudice. State v. Coulter (1992), 75 Ohio

App.3d 219, 230, 598 N.E.2d 1324; State v. Hunt (1984), 20 Ohio App.3d 310, 312, 486

N.E.2d 108. Accordingly, courts have traditionally been reluctant to find ineffective

assistance of counsel in those cases where an attorney fails to call a particular witness.

See State v. Otte (1996), 74 Ohio St.3d 555, 565-66, 660 N.E.2d 711; State v. Williams

(1996), 74 Ohio St.3d 456, 659 N.E.2d 1254

{¶ 51} Appellant has not demonstrated that his counsel's failure to subpoena Ms.

Smith would have changed the result of the proceedings. Indeed, the testimony of the

co-defendant clearly had the potential to be adverse to appellant's interests. See, e.g.

State v. Hunt (1984), 20 Ohio App.3d 310, 312, 486 N.E.2d 108; Goldsby v. United

States (6th Cir 2005), 152 Fed Appx. 431, 436.

{¶ 52} In any event the trial court found both appellant and Ms. Smith’s consent

was “freely and voluntarily made as demonstrated by the fact that both had denied
 13

requests to consent to the search, but after reflection or discussion with each other,

changed their mind and consented in writing.”

{¶ 53} Accordingly, appellant has failed to establish that he has been prejudice

by counsel’s performance.

{¶ 54} For all the forgoing reasons, appellant’s sole assignment of error is

overruled.

{¶ 55} The judgment of the Licking County Court of Common Pleas is affirmed.

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. JOHN W. WISE

_________________________________
HON. PATRICIA A. DELANEY

Wise and Delaney, JJ., concur.
[Cite as State v. Mohler, 2011-Ohio-6121.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

THE STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
v. : JUDGMENT ENTRY
:
ERIC MOHLER :
:
:
Defendant-Appellant : CASE NO. 2011-CA-0048

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Licking County Court of Common Pleas is affirmed. Costs to appellant.

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. JOHN W. WISE

_________________________________
HON. PATRICIA A. DELANEY