[Cite as State v. Wheeler,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 24427 Plaintiff-Appellee : : Trial Court Case No. 2009-CR-1640 v. : : (Criminal Appeal from ERIC D. WHEELER : (Common Pleas Court) : Defendant-Appellant : : ...........

OPINION

Rendered on the 28th day of October, 2011.

...........

MATHIAS H. HECK, JR., by TIMOTHY J. COLE, Atty. Reg. #0084117, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

ERIC D. WHEELER, #619-706, London Correctional Institution, Post Office Box 69, London, Ohio 43140 Defendant-Appellant, pro se

.............

FAIN, J.

{¶ 1} Defendant-appellant Eric D. Wheeler appeals from an order denying his

petition for post-conviction relief, without a hearing. In his petition, Wheeler claimed that his

trial counsel was ineffective in preparing for, and prosecuting, his motion to suppress 2

evidence, as a result of which his motion to suppress was overruled. Wheeler claims that in

consequence of the overruling of his motion to suppress, he was forced to plead guilty to

Possession of Controlled Substances, in violation of R.C. 2925.11(A), because the drugs he

was attempting to suppress were found on his person.

{¶ 2} We conclude that even if everything set forth in Wheeler’s affidavit in support

of his petition for post-conviction relief is taken as true, it falls short of establishing

ineffective assistance of trial counsel. If we accept as true Wheeler’s claim that his counsel

told him he could not testify at his suppression hearing, he has not pointed to anything to

which he would have testified that would have changed the outcome. If we accept as true

Wheeler’s claim that his counsel failed to review the police report before the suppression

hearing, nothing in that report, which Wheeler attached to his affidavit, leads to a conclusion

that the police officer who patted him down and found the drugs lacked authority to do so.

Accordingly, the order from which this appeal is taken is Affirmed.

I

{¶ 3} Early one evening in May 2009, Officers Michael Fuller and Halbert of the

Dayton Police Department were patrolling the area of North Main Street near Main Mart, a

convenience store. Both officers had received numerous complaints of drug activity and

open-air drug sales taking place in the convenience store parking lot along with other illegal

activity. Noticing a Jeep Cherokee from which no one was exiting and to which no one was

approaching, the officers decided to engage the occupants in conversation.

{¶ 4} After parking their police cruiser behind the vehicle Wheeler occupied, but not

in such close proximity as to block that vehicle, the officers approached. As Officer Fuller 3

approached the vehicle, he noticed Wheeler’s window was down and, at that time, smelled a

strong odor of marijuana emanating from the vehicle. Officer Fuller also noticed that

Wheeler’s hands were shaking badly. Officer Fuller requested Wheeler to exit the vehicle so

he could search for narcotics based on that smell. Upon exiting, Wheeler reached under his

sweatshirt and into the waistband of his pants. Officer Fuller testified that Wheeler consented

to a pat-down search of his person for weapons; in his affidavit, Wheeler denies having

consented to the pat-down. Wheeler again reached inside his sweatshirt and into his pants.

Officer Fuller was concerned that Wheeler could be in possession of a weapon and asked

Officer Halbert to handcuff Wheeler in order to continue the pat-down.

{¶ 5} Continuing with the search, Officer Fuller felt what he recognized to be crack

cocaine near the area of Wheeler’s thighs. Officer Halbert retrieved the suspected crack

cocaine, and subjected it to a cobalt reagent test. The test was positive. Officer Fuller also

found two sums of money on Wheeler’s person, in the total amount of $1,542. Wheeler was

placed in custody and advised of his rights under Miranda v. Arizona (1966),

,

,

. During booking procedures, a small bag of marijuana was found

in Wheeler’s left pants pocket, for which Wheeler was issued a minor misdemeanor citation.

{¶ 6} Wheeler was charged with Possession of Controlled Substances, in violation of

R.C. 2925.11(A), a felony of the third degree. Wheeler moved to suppress the evidence,

contending that it was obtained as the result of an unlawful search and seizure. The trial

court overruled his motion to suppress. Thereafter, Wheeler pled guilty to the charge, and

was sentenced accordingly.

{¶ 7} Wheeler appealed from his conviction and sentence. In July, 2011, we 4

affirmed. State v. Wheeler, Montgomery App. No. 24112,

.

{¶ 8} Before we decided Wheeler’s direct appeal, he filed the petition for

post-conviction relief with which this appeal is concerned. The State moved for summary

judgment, and the trial court, in an entry filed December 17, 2010, sustained the State’s

motion for summary judgment and overruled Wheeler’s petition for post-conviction relief,

without a hearing.

{¶ 9} From the order overruling his petition for post-conviction relief, Wheeler

appeals.

II

{¶ 10} Wheelers sole assignment of error is as follows:

{¶ 11} “THE TRIAL COURT ABUSED IT’S [sic] DISCRETION WHEN IT DID

NOT GRANT THE DEFENDANT’S POST-CONVICTION PETITION WHEN EVIDENCE

FAVORABLE TO THE DEFENDANT WAS PRESENTED TO THE TRIAL COURT IN

SHOWING THAT THE DEFENDANT SUFFRED [sic] PREJUDICE DUE [TO]

INEFFECTIVE ASSISTANCE OF COUNSEL.”

{¶ 12} There is no constitutional right to post-conviction relief; it is a narrow remedy

that provides a petitioner no rights beyond those granted by the statute. State v. Calhoun

(1992),

, 281,

. “The petitioner may file a supporting

affidavit and other documentary evidence in support of the claim for relief.” R.C.

2953.21(A)(1)(a).

{¶ 13} To demonstrate ineffective assistance of counsel, a petitioner must show first

that counsel’s representation fell below an objective standard of reasonableness. State v. 5

Bradley (1989),

; Strickland v. Washington (1984),

,

,

.

{¶ 14} “Judicial scrutiny of counsel's performance is to be highly deferential, and

reviewing courts must refrain from second-guessing the strategic decisions of trial counsel. To

justify a finding of ineffective assistance of counsel, the appellant must overcome a strong

presumption that, under the circumstances, the challenged action might be considered sound

trial strategy.” State v. Carter (1995),

.

{¶ 15} “As a result, trial counsel is entitled to a strong presumption that all decisions

fall within the wide range of reasonable professional assistance.” State v. Sallie (1998),

.

{¶ 16} Errors complained of must amount to a substantial violation of counsel’s

essential duties to the client. State v. Bradley (1989),

. Even if a

petitioner demonstrates that his counsel took an action lying outside the wide range of

reasonable professional assistance, the petitioner must then show that there is a reasonable

probability that “but for counsel’s unprofessional errors, the result of the proceeding would

have been different.”

.

{¶ 17} Wheeler claims that his appointed counsel was ineffective when she did not

investigate his case fully. Wheeler argues that by only speaking with Officer Fuller once

before the suppression hearing, and not having “all of the discovery” from the State, counsel

was unprepared to prosecute his motion to suppress at the hearing. Furthermore, Wheeler

also contends that his counsel should have let him testify at the hearing, and should have

asked questions he proposed for witnesses at the hearing. 6

{¶ 18} The decisions trial counsel made at the suppression hearing were well within

the range of reasonable professional assistance. The Supreme Court of Ohio has stated that

decisions made by a trial attorney on what witnesses to call and what evidence to present fall

within the realm of trial tactics and an appellate court will not ordinarily second-guess the

attorney’s decision in that instance unless it is clearly unreasonable. State v. Williams (2003),

,

, ¶ 125. While the outcome of counsel’s decisions

might not be to the client’s ultimate advantage, this does not establish deficient performance

by counsel. See State v. Frazier (1991),

.

{¶ 19} Wheeler attached to his affidavit in support of his petition the police report of

his encounter with the police and subsequent arrest. He seems to believe that if his trial

counsel had studied this report, and had used it to cross-examine Officer Fuller, the result of

his suppression hearing would have been different. We have read the police report, and we

agree with the trial court that it supports, rather than undermines, the lawfulness of the

pat-down search of which Wheeler complains. During the encounter, which did not initially

involve a stop, the officers “could smell a strong odor of marijuana coming from the vehicle.”

This entitled the officers to conduct a brief investigative stop, which they did. The officers

asked the passengers to get out of the Jeep Cherokee, which was permissible. When Wheeler

tried to place his right hand inside his clothing, Officer Fuller asked him to keep his hands

where they could be seen, which was a reasonable request for the safety of the officers.

{¶ 20} The police report then chronicles that Officer Fuller asked Wheeler if he

minded being patted down for weapons, and Wheeler said he did not mind. In his affidavit,

Wheeler contends that he did not agree to the pat-down. Assuming that Wheeler is correct – 7

that he did not agree to the pat-down, we conclude that the pat-down was proper under the

circumstances. These circumstances included multiple drug arrests in the area, several

complaints of drug activity in the parking lot where Wheeler and the other occupants of the

Jeep Cherokee were, the strong odor of marijuana, Wheeler’s hands shaking, Wheeler

appearing “very nervous,” and Wheeler’s attempt to put his right hand inside his clothing at

6:40 p.m. on a mid-May evening.

{¶ 21} When the pat-down began, Wheeler again tried to reach under his clothing with

his right hand. This justified the officers’ hand-cuffing Wheeler for their safety before

continuing the pat-down, which resulted in the discovery of a “large chunk” of crack cocaine

“between Wheeler’s underwear and the middle of his butt cheeks.”

{¶ 22} The police report, which Wheeler faults his trial attorney for not having used

during the suppression hearing, contains nothing that could have been used to obtain a

favorable outcome. Even if we assume that Wheeler’s trial counsel did not review the police

report before, or during, the hearing, as Wheeler alleges, that omission did not prejudice

Wheeler.

{¶ 23} Wheeler also avers that his trial counsel told him he could not testify at his

suppression hearing. But the only thing Wheeler avers that he would have testified to that

contradicted the police report is that he would have denied that he consented to a pat-down

search for weapons. This would not have changed the result, because, as noted above, the

police had the right under the circumstances to pat him down for weapons with or without his

consent.

{¶ 24} Wheeler’s sole assignment of error is overruled. 8

III

{¶ 25} The State argues, and the trial court found, in the alternative, that Wheeler’s

ineffective assistance of counsel claim is barred by res judicata, since he could have raised the

issue of ineffective assistance of counsel in his direct appeal. In view of our conclusion that

Wheeler’s claim is without merit, we need not decide whether it is barred by res judicata. We

do note that Wheeler claims that the ineffectiveness of his trial counsel is demonstrated by

matters that were outside the record of his direct appeal, so that he could not have raised this

issue on direct appeal. Ordinarily, a claim of ineffectiveness of counsel is the proper subject

of a petition for post-conviction relief, not a direct appeal. State v. Cooperrider (1983),

.

{¶ 26} At trial, the record is made up on the issue of the defendant’s guilt or

innocence, not on the issue of whether his trial counsel was ineffective. Consequently, a

performance by defense counsel that appears bizarre on the record of a criminal trial may have

been entirely reasonable, based upon circumstances that are not reflected in the record. For

example, defense counsel may not have called a family member of the defendant whose

eyewitness testimony, based upon other evidence in the case, appears likely to have been

exculpatory. But the record on a direct appeal would not show either of at least two possible

explanations for counsel’s failure to call the witness: (1) the family member’s testimony

would actually inculpate the defendant; or (2) despite counsel’s pleas, the defendant refused to

put a loved one through the ordeal of testifying at a public trial.

IV

{¶ 27} Wheeler’s sole assignment of error having been overruled, the order of the trial 9

court overruling his petition for post-conviction relief is Affirmed.

.............

DONOVAN and FROELICH, JJ., concur.

Copies mailed to:

Timothy J. Cole Eric D. Wheeler Hon. Steven K. Dankof