[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 
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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