[Cite as State v. Hunt, 2021-Ohio-3400.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

FAYETTE COUNTY 

STATE OF OHIO, 

 

 Appellee, 

 - vs - 

CHRISTOPHER HUNT, 

 

 Appellant. 

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CASE NOS. CA2021-02-003 

 CA2021-02-004 

 CA2021-02-005 

 CA2021-02-006 

 CA2021-02-007 

O P I N I O N 

9/27/2021 

 

 

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS 

Case Nos. CRI20200136; CRI20200156; CRI20200159; CRI20200219; CRI20200256 

Jess C. Weade, Fayette County Prosecuting Attorney, and Sean Abbott, Assistant 

Prosecuting Attorney, for appellee. 

Steven H. Eckstein, Fayette County Public Defender, for appellant. 

 M. POWELL, P.J.

{¶ 1} Appellant, Christopher Hunt, appeals his convictions in the Fayette County 

Court of Common Pleas. For the reasons stated below, we affirm the decision of the trial 

court. 

{¶ 2} This appeal involves five separate indictments filed between June 2020 and 

October 2020, which resulted in convictions for tampering with evidence, possession of a 
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fentanyl related compound, illegal conveyance of drugs of abuse onto the grounds of a 

detention facility or institution, and two counts of aggravated possession of drugs. 

{¶ 3} Hunt was initially indicted in Case No. CRI20200136 for aggravated 

possession of drugs. The charge stemmed from an officer's search and subsequent arrest 

of Hunt on February 24, 2020. That day, officers were dispatched to a Boost Mobile store 

in response to a suspicious male inside the store. When the officers arrived, they 

discovered the male, Hunt, in the passenger seat of a parked vehicle. During this 

encounter, an active arrest warrant was discovered for the driver of the vehicle. While 

removing the driver from the vehicle, the officer advised Hunt to place his hands on the 

dashboard. Hunt failed to comply and began reaching toward his waistband. Due to Hunt's 

furtive movements and noncompliance, the officer ordered him out of the vehicle and 

conducted a pat-down search for weapons. During the pat-down, the officer discovered an 

object causing a "noticeable bulge" in Hunt's pocket. It was later determined that the object 

contained eight grams of methamphetamine. Hunt was then arrested and placed in the 

Fayette County Jail. 

{¶ 4} The indictment in Case No. CRI20200156 for the illegal conveyance of drugs 

of abuse onto the grounds of a detention facility or institution involved a February 26, 2020 

incident while Hunt remained incarcerated in the Fayette County Jail after his arrest in the 

incident described above. The charge arose after an inmate at the jail overdosed on a 

narcotic he discovered in Hunt's bunk. The investigation of this matter revealed jail security 

video depicting Hunt removing "something" from his anal cavity after sitting on the toilet for 

several minutes. A subsequent search yielded methamphetamine in Hunt's bunk. 

{¶ 5} Hunt was indicted in case CR120200159 for tampering with evidence in 

violation of R.C. 2921.12(A)(1). This case concerned an encounter between Hunt and a 

police officer on June 11, 2020, when the officer observed Hunt in a parking lot during 
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routine road patrol. Hunt fled from the officer and grabbed at his waistline as he fled. Hunt 

was subsequently apprehended and placed in the back of the officer's cruiser. While in the 

back seat of the cruiser, Hunt, who was handcuffed, pulled a "baggy of narcotics" from his 

waistline and began "chewing on the suspected baggy of narcotics." A ripped baggy with 

residue was recovered from the back of the cruiser. 

{¶ 6} In Case No. CRI20200219, Hunt was indicted for possession of a fentanylrelated compound and in Case No. CRI20200256 for aggravated possession of drugs and 

possession of a fentanyl-related compound. These indictments arose from searches 

conducted by officers at the Fayette County Jail on June 14 and 15, 2020. On June 14, 

2020, the officers responded to a report of narcotics inside the jail. A deputy discovered 

two baggies of narcotics in Hunt's court paperwork while Hunt was showering. Later testing 

determined the baggies contained methamphetamine. On June 15, 2020, officers 

responded to reports of potential narcotics inside the jail. Upon conducting a search of the 

area near Hunt's bunk, the officers discovered narcotics wrapped in pieces of court 

paperwork belonging to Hunt, which later tested positive for fentanyl and heroin. 

{¶ 7} On July 1, 2020, after his arraignment in Case Nos. CRI20200136 and 

CRI20200156, the trial court found Hunt to be indigent and appointed Kathryn Hapner as 

his counsel. Ultimately, Hapner was appointed to represent Hunt in each of his five cases, 

and the cases were joined for trial. 

{¶ 8} In November 2020, Hunt moved the trial court to sever the joined cases, or in 

the alternative, to separate the cases arising from events that occurred in June from the 

cases arising from events that occurred in February. After a hearing, the trial court granted 

Hunt's motion, and severed the June cases from the February cases. 

{¶ 9} On December 4, 2020, Hapner filed a motion to withdraw as Hunt's counsel. 

According to Hapner's motion, she had met with Hunt that day in preparation for his trial 
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and Hunt "expressed dissatisfaction with her representation and asked * * * her to withdraw 

as his counsel." On December 28, 2020, the trial court held a hearing on the matter, where 

Hunt discussed his dissatisfaction with Hapner's representation. Hunt's primary complaint 

was that he had requested Hapner to file a motion to suppress, but she had failed to do so. 

When questioned by the trial court, Hunt could not articulate what he sought to suppress 

and confirmed that he did not know how to file his own motion. Hunt then claimed Hapner 

had "never even handled [his] case" and that she was not sufficiently familiar with the case 

to represent him. The trial court rejected Hunt's claims and stated Hapner was familiar with 

his case and would be prepared for trial on January 28, 2021. Following this hearing, the 

trial court issued a decision denying Hapner's motion to withdraw. 

{¶ 10} On January 11, 2021, less than three weeks before trial, Hunt moved the trial 

court to suppress all evidence in Case Nos. CRI20200136 and CRI20200156 that resulted 

from his stop and detention on February 24, 2020 and February 26, 2020. 

{¶ 11} On January 25, 2021, the trial court held a hearing on Hunt's motion to 

suppress, and initially noted that, because the motion was untimely, the burden was on 

Hunt to demonstrate a reasonable probability that the suppression motion would be granted 

before the trial court would grant Hunt leave to file the motion. After considering counsel's 

arguments, the trial court denied Hunt's request for leave to file the untimely motion to 

suppress. 

{¶ 12} Thereafter, pursuant to plea negotiations, Hunt entered no contest pleas in 

Case Nos. CRI20200136, CRI20200156, CRI20200256, and CR120200159; and entered 

an Alford plea of guilty in Case No. CRI20200219. As a result of his pleas, Hunt was 

convicted of illegal conveyance of weapons or prohibited items onto the grounds of a 

detention facility, tampering with evidence, possession of a fentanyl related compound and 

two counts of aggravated possession of drugs. The remaining charges were dismissed. 
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After a hearing, the trial court sentenced Hunt to an aggregate prison term of 60 months. 

{¶ 13} Hunt now appeals, raising three assignments of error for our review. 

{¶ 14} Assignment of Error No. 1: 

{¶ 15} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S 

MOTION TO WITHDRAW AS COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT 

TO THE UNITED STATES CONSTITUTION'S AND OHIO CONSTITUTION'S, ARTICLE I, 

SECTION 10 GUARANTEE OF THE RIGHT TO ASSISTANCE OF COUNSEL. 

{¶ 16} In his first assignment of error, Hunt argues the trial court erred by denying 

Hapner's request to withdraw as counsel. Hunt's argument is without merit. 

{¶ 17} As noted above, Hunt was found indigent and Hapner was appointed as 

counsel in each of his five cases. "An indigent defendant has no right to have a particular 

attorney represent him and therefore must demonstrate 'good cause' to warrant substitution 

of counsel." State v. Liso, 12th Dist. Brown Nos. CA2013-11-013 and CA2013-11-016, 

2014-Ohio-3549, ¶ 7. The term "good cause" includes a conflict of interest, a complete 

breakdown in communication, or an irreconcilable conflict which leads to an apparently 

unjust result. State v. Bullock, 12th Dist. Clermont No. CA2005-04-031, 2006-Ohio-598, ¶ 

13. The decision whether to substitute an appointed attorney for an indigent defendant is 

within the trial court's sound discretion. State v. Bizzell, 12th Dist. Clinton No. CA2006-04-

015, 2007-Ohio-2160, ¶ 6. A trial court also has discretion to grant an attorney's motion to 

withdraw from representation. State v. Annor, 12th Dist. Butler No. CA2009-10-248, 2010-

Ohio-5423, ¶ 26. An abuse of discretion implies that the court's decision was unreasonable, 

arbitrary, or unconscionable, and not merely an error of law or judgment. State v. Tyree, 

12th Dist. Fayette No. CA2016-09-012, 2017-Ohio-4228, ¶ 9. 

{¶ 18} On appeal, Hunt claims the trial court abused its discretion in concluding he 

did not establish "good cause" for substitution of counsel. In support of his argument, Hunt 
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points to the "total lack of communication" between Hunt and Hapner related to the filing of 

a motion to suppress and Hunt's belief that Hapner was unprepared for trial. After a 

thorough review of the record, we reject Hunt's arguments and find no error in the trial 

court's decision denying Hapner's motion to withdraw as counsel. 

{¶ 19} Despite Hunt's claims otherwise, the record indicates he was adequately 

represented by Hapner at all times relevant and that Hapner was sufficiently prepared for 

trial. First, although Hapner did not timely file a motion to suppress, the record reflects she 

was otherwise active and competent in her representation of Hunt, including successfully 

severing the five joined cases into two separate trials and negotiating a plea agreement 

with the state that resulted in the dismissal of three felony charges. Hapner also participated 

in six hearings on the record prior to requesting to withdraw in December 2020, including a 

hearing in November 2020 where Hunt indicated he was "getting along okay" with his 

counsel. Such participation does not rise to a level of a "complete breakdown" in 

communication or an irreconcilable conflict that would warrant removal in a case. 

{¶ 20} Additionally, while Hunt believed Hapner should have filed a motion to 

suppress, he could not articulate to the trial court the basis for the suppression of any 

evidence, or what evidence he believed should have been suppressed. The record also 

reflects the trial court determined Hapner was adequately familiar with Hunt's cases and 

the court was generally not concerned with Hapner's participation in the case prior to the 

hearing on her motion to withdraw. When considering the trial court's ability to observe 

Hapner's performance during the proceedings, we conclude it was the trial court, not this 

court on appeal, that was in the best position to evaluate the quality of Hapner's 

representation of Hunt. See, e.g., State v. Morrow, 2d Dist. Montgomery Nos. CA 9420 and 

CA 9447, 1987 Ohio App. LEXIS 8195, * 40 (Aug. 5, 1987). 

{¶ 21} Thus, although the record reflects Hunt and Hapner may have had a strained 
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relationship, it did not amount to good cause to warrant substitution of counsel and Hapner's 

removal from the case. That is, nothing in the record indicates Hapner was in any way 

deficient in her representation of Hunt before the trial court and the trial court did not abuse 

its discretion in denying Hapner's motion to withdraw. Therefore, finding no merit to Hunt's 

arguments raised herein, Hunt's first assignment of error is overruled. 

{¶ 22} Assignment of Error No. 2: 

{¶ 23} THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE MOTION 

FOR LEAVE TO FILE A MOTION TO SUPPRESS. 

{¶ 24} In his second assignment of error, Hunt argues the trial court abused its 

discretion in denying his oral motion for leave to file a motion to suppress in Case Nos. 

CRI20200136 and CRI20200156. 

{¶ 25} A defendant must raise a motion to suppress evidence before trial. Crim.R. 

12(C). More specifically, a motion to suppress evidence must be raised "within thirty-five 

days after arraignment or seven days before trial, whichever is earlier[,]" but in the "interest 

of justice[,]" a court may extend the time limit. Crim.R.12(D). A defendant's failure to raise 

a pretrial motion constitutes a waiver. Crim.R. 12(H). However, for "good cause shown[,]" 

a court may grant relief from the waiver. Id. Accordingly, a defendant who needs additional 

time to file a motion to suppress evidence may obtain an extension prior to the expiration 

of time if the court finds that doing so is in the "interest of justice." Crim.R.12(D). But once 

the time for filing a pretrial motion has passed and waiver has occurred, a court may only 

grant relief from waiver for "good cause shown." Crim.R.12(H).

{¶ 26} "'The trial court's decision whether to permit leave to file an untimely motion 

to suppress is within its sound discretion.'" Cleveland v. Oko, 8th Dist. Cuyahoga No. 

103278, 2016-Ohio-7774, ¶ 12, quoting State v. Perry, 3d Dist. Marion No. 9-12-09, 2012-

Ohio-4656, ¶ 13. An abuse of discretion implies a decision that is unreasonable, arbitrary, 
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or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying 

the abuse of discretion standard, a reviewing court may not substitute its judgment for that 

of the trial court. Id. 

{¶ 27} In the instant matter, Hunt was arraigned in Case Nos. CRI20200136 and 

CRI20200156 on June 29, 2020. Hunt did not file his motion to suppress until January 11, 

2021, well outside the time requirements of Crim.R. 12 and without requesting leave to file 

the motion out of time. Thus, to file the motion out of time, Hunt was required to "offer a 

convincing reason to warrant relief" from waiver. State v. Davis, 12th Dist. Butler No. CA97-

12-240, 1998 Ohio App. LEXIS 4550, * 5 (Sept. 28, 1998). 

{¶ 28} After a review, we find Hunt failed to provide a convincing reason to warrant 

relief from waiver. Rather, the record reflects Hapner chose not to offer any explanation for 

the delay in filing the motion to suppress, despite being afforded an opportunity to do so. 

Specifically, the record indicates Hunt and his counsel had discussed the circumstances 

surrounding the alleged illegal search, including a discussion on the record with the trial 

court regarding the basis for a motion to suppress, prior to January 2021, but did not request 

leave to file a motion at that time. Additionally, although Hapner conceded at the hearing 

on the motion that the case had been pending for over 200 days at that time, she offered 

no explanation as to why she did not file the motion to suppress sooner, or request leave 

to do so, until shortly before trial.1 

{¶ 29} In light of the foregoing, we conclude Hunt failed to provide a convincing 

reason to warrant relief from his failure to file the motion to suppress within the time 

requirements set forth in Crim.R. 12. The trial court, therefore, did not abuse its discretion 

1. As the discussion of the third assignment of error indicates, it does not appear that there was a legitimate 

basis for a motion to suppress, which may explain why Hapner offered no explanation for why she had not 

filed a motion to suppress. Counsel could hardly have stated on the record that she did not file a motion to 

suppress because in her professional judgment she believed it to be meritless. 
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in declining to grant Hunt leave to file the untimely motion to suppress. 

{¶ 30} Hunt's second assignment of error is overruled. 

{¶ 31} Assignment of Error No. 3: 

{¶ 32} TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN VIOLATION 

OF DEFENDANT-APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND 

SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION & ARTICLE I, 

SECTION 14 OF THE OHIO CONSTITUTION. 

{¶ 33} In his remaining assignment of error, Hunt argues that he received ineffective 

assistance of counsel because his trial counsel did not file a timely motion to suppress in 

Case Nos. CRI20200136 and CRI20200156. 

{¶ 34} To prevail on an ineffective assistance of counsel claim, an appellant must 

establish that (1) trial counsel's performance was deficient, and (2) such deficiency 

prejudiced the defense to the point of depriving the appellant of a fair trial. Strickland v. 

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel's performance 

will not be deemed deficient unless it "fell below an objective standard of reasonableness." 

Id. at 688. To show prejudice, the appellant must prove there exists "a reasonable 

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

have been different." Id. at 694. An appellant's failure to satisfy one prong of the Strickland 

test negates a court's need to consider the other. State v. Madrigal, 87 Ohio St.3d 378, 389 

(2000). 

{¶ 35} The failure to file a motion to suppress does not constitute per se ineffective 

assistance of counsel. State v. DeHart, 12th Dist. Warren No. CA2018-06-060, 2019-Ohio1048, ¶ 10, citing State v. Smith, 12th Dist. Fayette No. CA2014-05-013, 2015-Ohio-1094, 

¶ 44. "Where the record contains no evidence which would justify the filing of a motion to 
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suppress, the appellant has not met his burden of proving that his attorney violated an 

essential duty by failing to file the motion." State v. Wells, 12th Dist. Warren No. CA2016-

02-009, 2017-Ohio-420, ¶ 48. Thus, the failure to file a motion to suppress "signifies 

ineffective assistance of counsel only when the record establishes that the motion would 

have been successful if made." State v. Kelly, 12th Dist. Butler No. CA2006-01-002, 2007-

Ohio-124, ¶ 25. 

{¶ 36} As noted above, Hunt's counsel filed an untimely motion to suppress shortly 

before trial. In his motion, Hunt claimed the officer lacked a reasonable articulable suspicion 

of criminal activity to justify a search of Hunt or his property. Hunt now argues on appeal 

that there is a reasonable probability that a full hearing would have shown a Fourth 

Amendment violation of Hunt's rights during the search of his person on February 24, 2020. 

After a review of the record, we disagree with Hunt's claims. 

{¶ 37} At the hearing related to Hunt's motion to suppress, counsel for the state and 

Hunt discussed the events giving rise to the search of Hunt and the subsequent discovery 

of the methamphetamine in Hunt's pocket. Through counsel, Hunt claimed the 

methamphetamine should be suppressed because the officers were alerted to the parking 

lot by an unknown person and "had no reason" to order Hunt out of the vehicle and to search 

him. However, as explained by the state at the hearing and conceded by Hunt's counsel, 

the record reflects Hunt failed to comply when asked to place his hands on the vehicle's 

dashboard, and that Hunt made furtive hand movements around his waistband and waist 

area. Hunt's movements put the officers "on alert," and Hunt was then placed into custody 

for officer safety purposes. At that time, the officers conducted a pat-down search for 

weapons, which yielded the discovery of a large "lump" of methamphetamine in Hunt's 

pocket. Hunt's counsel did not dispute the facts presented at the hearing and confirmed 

the encounter was captured on video. 
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{¶ 38} After considering the circumstances leading to the search of Hunt and the 

discovery of the methamphetamine, the record does not establish that Hunt's motion to 

suppress would have been successful if it had been timely filed. This is because the record 

does not indicate that the methamphetamine in Hunt's pocket was discovered and collected 

in violation of any of Hunt's constitutional rights. See, e.g., State v. Morris, 10th Dist. 

Franklin No. 09AP-751, 2010-Ohio-1383, ¶ 17 (affirming the denial of a motion to suppress 

drugs discovered after pat-down search for weapons where the defendant disobeyed an 

officer's commands and made furtive movements towards his pant pockets), citing State v. 

Grundy, 2d Dist. No. 2008 CA 62, 2009-Ohio-4950, ¶ 18 (pat-down search permitted where 

the defendant's act of reaching into his pocket led the officer to fear for his safety); State v. 

Elliott, 8th Dist. Cuyahoga No. 92324, 2010-Ohio-241, ¶ 19 (pat-down search permitted 

where the defendant made furtive gestures towards his waistband). Consequently, 

because the record fails to establish that the motion would have been anything but futile if 

timely made, we find Hunt did not receive ineffective assistance of counsel. 

{¶ 39} Hunt's third assignment of error is overruled. 

{¶ 40} Judgment affirmed. 

 S. POWELL and HENDRICKSON, JJ., concur.