State v. Evans

2011 Ohio 3046

Opinion

[Cite as State v. Evans, 2011-Ohio-3046.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 94984

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

FRANK EVANS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-513553

BEFORE: Blackmon, P.J., S. Gallagher, J., and Rocco, J.

RELEASED AND JOURNALIZED: June 23, 2011

ATTORNEYS FOR APPELLANT 2 Robert L. Tobik Chief Public Defender

Cullen Sweeney Assistant Public Defender 310 Lakeside Avenue, Suite 400 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

By: Matthew Waters Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

PATRICIA ANN BLACKMON, P.J.:

{¶ 1} Appellant Frank Evans appeals his convictions for possession and

trafficking of drugs and possession of criminal tools and assigns the following

errors for our review:

“I. The trial court erred in denying appellant’s motion to suppress the evidence in this case because it was obtained in violation of his state and federal constitutional right to be free of unreasonable searches and seizures.” 3 “II. Appellant was denied the effective assistance of

counsel in violation of the Sixth Amendment to the United

States Constitution and Article I, Section 10 of the Ohio

Constitution when his attorney failed to file a motion to

suppress appellant’s incriminating statements.”

{¶ 2} Having reviewed the record and pertinent law, we affirm Evans’s

convictions. The apposite facts follow.

{¶ 3} The Cuyahoga County Grand Jury indicted Evans with one count

each of possession and trafficking in crack cocaine in an amount equal to or

exceeding one gram but less than five grams and one count of possession of

criminal tools.

{¶ 4} Evans filed a motion to suppress the drugs found in his car,

arguing the search was illegal because the officers did not have probable

cause to search the car.

{¶ 5} At the suppression hearing, Detective Thomas Azzano of the

Cuyahoga Metropolitan Housing Authority (“CMHA”) testified that on June

4, 2008 at around 1:00 p.m., he and his partner had set up surveillance of a

home based on a report that it was being robbed. A vehicle resembling the

one described in the complaint was parked in front of the house. The officers

followed the car as it drove away. They ran the plates and discovered the 4 plates belonged to a different car; therefore, they stopped the vehicle to

investigate.

{¶ 6} Detective Azzano testified that as he approached the car he could

smell burnt marijuana emanating from the passenger side. He could also see

in plain view marijuana seeds and stems on the floor of the front area of the

car. The driver, later identified as Evans, and his passenger were asked to

exit the vehicle for further investigation. Detective Azzano’s partner opened

the compartment in the ceiling of the vehicle and individual baggies

containing rocks of cocaine fell out.

{¶ 7} The trial court denied the motion to suppress. Evans entered a

no contest plea to all three counts; after merging the possession and

trafficking charges, the trial court sentenced him to one year of community

control.

Denial of Motion to Suppress

{¶ 8} In his first assigned error, Evans argues the trial court erred by

denying his motion to suppress the drugs found in the car because the police

lacked probable cause to search the vehicle.

{¶ 9} At a hearing on a motion to suppress, the trial court functions as

the trier of fact. Accordingly, the trial court is in the best position to weigh

the evidence by resolving factual questions and evaluating the credibility of

witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. 5 On review, an appellate court must accept the trial court’s findings of fact if

those findings are supported by competent, credible evidence. State v.

Retherford (1994), 93 Ohio App.3d 586, 592, 639 N.E.2d 498. After accepting

such factual findings as true, the reviewing court must then independently

determine, as a matter of law, whether or not the applicable legal standard

has been met. Id.

{¶ 10} In the instant case, in denying the motion to suppress, the trial

court stated, “I think based on the fictitious plates as well as the smell of

marijuana justified the officers in conducting and warranting the search.

I’m going to deny your motion to suppress.” Tr. 27. We conclude the trial

court did not err by denying the motion to suppress.

{¶ 11} It is well established that “the smell of marijuana, alone, by a

person qualified to recognize the odor, is sufficient to establish probable cause

to search a motor vehicle, pursuant to the automobile exception to the

warrant requirement. There need be no other tangible evidence to justify a

warrantless search of a vehicle.” State v. Moore, 90 Ohio St.3d 47, 48,

2000-Ohio-10, 734 N.E.2d 804. See, also, State v. Williams, Cuyahoga

App. Nos. 92009 and 92010, 2009-Ohio-5553, ¶26 (“smell of marijuana

emanating from the vehicle justified a search of the vehicle without a warrant

based upon the ‘plain smell doctrine’”); State v. Byers, Cuyahoga App. No.

94922, 2011-Ohio-342 (the search was supported by probable cause when the 6 police officers discovered that the occupants of the vehicle had been smoking

marijuana); State v. Jones, 187 Ohio App.3d 478, 2010-Ohio-1600, 932 N.E.2d

904 (probable cause supported the search because the officer smelled

marijuana when the occupant opened the car door); State v. Hopper,

Cuyahoga App. Nos. 91269 and 91327, 2009-Ohio-2711, (“the smell of

marijuana gives rise to a reasonable suspicion that the person stopped is

engaged in criminal activity.”)

{¶ 12} Evans does not dispute that Detective Azzano testified that he

could smell marijuana upon approaching the vehicle; however, he argues that

there was no basis on which to conclude that Detective Azzano was qualified

to recognize the odor of marijuana and that the smell only emanated from the

passenger side of the vehicle, therefore, an entire search of the car was

prohibited.

{¶ 13} We agree that Moore requires that the person who smells the

marijuana must be “qualified to recognize the odor.” Detective Azzano

testified that he recognized the smell was marijuana based on the hundreds

of times he smelt marijuana in other drug cases. This was sufficient

evidence that the detective was qualified to recognize the odor of marijuana.

{¶ 14} Evans also argues that there was no evidence the odor was strong

or that it was coming from the driver’s side of the vehicle. We have found

no support for Evans’s argument that the odor must be strong and emanating 7 from the entire car for a warrantless search to be justified. To create such a

narrow rule would require the police to ignore the obvious. Nonetheless, the

evidence in this case indicates the odor was strong enough for the officers to

smell it as they approached the car. Moreover, the detective testified that

“As we approached, we could smell marijuana coming out of the vehicle as if

somebody had been smoking it.” Thus, both of the officers could smell the

odor. Because Azzano approached the passenger’s side, it makes sense that

he detected the smell from that side of the car. See State v. Gonzales, 6th

Dist. No. WD-07-060, 2009-Ohio-168 (smell of marijuana in the passenger

compartment constituted adequate probable cause to search the duffel bags

located in an SUV cargo area for potentially concealed marijuana.)

Additionally, the detective testified that he saw in plain view marijuana seeds

and stems strewn throughout the car. At oral argument, counsel argued we

could not consider this evidence because the court only relied upon the smell

to justify the search. However, the trial court did not state that it did not

find the officer’s testimony that seeds and stems were visible on the floor of

the car to be not credible. Thus, we cannot ignore the fact that the record

clearly reveals the officer saw these items throughout the car.

{¶ 15} Once the officers discovered that the occupants of the vehicle had

been smoking marijuana, the automobile exception to the Fourth Amendment

warrant requirement applied and allowed a search of the vehicle for drugs. 8 Id. at syllabus. Having probable cause to conduct a search of the car, the

officers were justified in searching “every part of the vehicle and its contents

that may conceal the object of the search.” United States v. Ross (1982), 456

U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572. Thus the search that

uncovered drugs hidden in the ceiling compartment did not violate Evans’s

Fourth Amendment rights. Accordingly, Evans’s first assigned error is

overruled.

Ineffective Assistance of Counsel

{¶ 16} In his second assigned error, Evans argues his counsel was

ineffective for failing to seek the suppression of his confession to the police

that the drugs were his. The statement occurred while Evans was detained

in the back seat of the zone car and prior to him being Mirandized.

{¶ 17} We review a claim of ineffective assistance of counsel under the

two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674. Under Strickland, a reviewing court will not

deem counsel’s performance ineffective unless a defendant can show his

lawyer’s performance fell below an objective standard of reasonable

representation and that prejudice arose from the lawyer’s deficient

performance. Id. at paragraph two of the syllabus. To show prejudice, a

defendant must prove that, but for his lawyer’s errors, a reasonable

probability exists that the result of the proceedings would have been 9 different. Id. Judicial scrutiny of a lawyer’s performance must be highly

deferential. State v. Sallie, 81 Ohio St.3d 673, 1998-Ohio-343, 693 N.E.2d

267.

{¶ 18} Evans’s no-contest plea renders counsel’s failure to file a motion

to suppress his confession irrelevant. By pleading no contest, Evans

admitted to the truth of the facts alleged in the indictment. Crim.R.11(B)(2).

As the Ohio Supreme Court explained in State v. Bird, 81 Ohio St.3d 582,

1998-Ohio-606, 692 N.E.2d 1013:

“According to Crim.R. 11(B)(2), a no contest plea is ‘not an admission of defendant’s guilt, but is an admission of the truth of the facts alleged in the indictment * * *.’ Therefore, we have held that where the indictment, information, or complaint contains sufficient allegations to state a felony offense and the defendant pleads no contest, the court must find the defendant guilty of the charged offense. State ex rel. Stern v. Mascio (1996), 75 Ohio St.3d 422, 425, 662 N.E.2d 370.”

{¶ 19} Consequently, “by pleading no contest to the indictment, [an] appellant is foreclosed from challenging the factual merits of the underlying charge.” Id. at 584.

{¶ 20} Evans asserts that if counsel had sought to suppress his

admission to police, the element of possession of the drugs would not be able

to be proven. However, because Evans admitted to the facts in the

indictment by entering the no-contest plea, including the fact he possessed

the drugs, he cannot argue now that there was insufficient evidence that he 10

possessed the drugs. As the court in State v. Fitzgerald, 2d Dist. No.

2001-CA-124, 2002-Ohio-3914, held:

“The State did not need any evidence to obtain [defendant’s] conviction once he pled no contest, since his no-contest plea constituted an admission of the truth of the facts alleged in the complaint. Accordingly, even if his trial counsel’s failure to have timely filed a motion to suppress cost him the opportunity to suppress the evidence, this did not prejudice the outcome of the plea proceeding. In general, only ineffective assistance of counsel relating to the plea proceeding, itself, will survive a plea of guilty or no contest.”

{¶ 21} Thus, even if the failure of Evans’s attorney to file the motion fell

below an objective standard of reasonable representation, Evans must still

prove he was prejudiced by the ineffectiveness.

“Obviously, the failure to suppress evidence may have a

prejudicial impact on a jury verdict based on the jury’s

consideration of the unsuppressed evidence. It will not

have a prejudicial impact on a conviction based upon a

no-contest plea, however, because the conviction does not

result from the unsuppressed evidence, but from the

defendant’s admission, by his plea, of the facts alleged in

the complaint. Thus, a failure to suppress evidence

resulting from a deficiency in trial counsel’s legal

representation will not satisfy the prejudice prong of State 11 v. Bradley, supra and Strickland v. Washington, supra.”

Fitzgerald at ¶44.

{¶ 22} Thus, by entering a no-contest plea, counsel’s failure to file a

motion to suppress did not prejudice Evans. See, also, State v. Scruggs, 12th

Dist. No. CA2006-11-042, 2007-Ohio-6416 (by pleading no contest, defendant

admitted as true the facts in the indictment that she sold the crack cocaine,

so whether she possessed the drugs was irrelevant); State v. Hall, 5th Dist.

No. 03CA00011, 2003-Ohio-5828 (failure to file a motion to suppress did not

render defendant’s plea involuntary or unknowing because defendant

admitted the facts in the indictment were true); State v. Rothonbuhler, 3d

Dist. No. 4-03-05, 2004-Ohio-2059 (failure to file a motion to suppress

contents found on computer did not constitute ineffective assistance of

counsel when defendant pled no contest to illegal use of a minor in nudity

oriented material or performance). We are also mindful that counsel may

have been aware of additional facts not presented at the suppression hearing

that would support the fact the drugs were Evans’s. This could have weighed

into counsel’s decision not to pursue a suppression motion on this issue and

instead recommend that Evans enter a no-contest plea. Accordingly, Evans’s

second assigned error is overruled.

Judgment affirmed.

It is ordered that appellee recover of appellant its costs herein taxed. 12 The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this

judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and KENNETH A. ROCCO, J., CONCUR