[Cite as State v. Smith , 2020-Ohio-760.]

Atty. Dan Fry , Belmont County Prosecutor, 147-A West Main Street, St. Clairs ville, Ohio 43950, for Plaintiff-Appellee, No Brief Filed, and
Atty. Neal Schuett , Rittgers & Rittgers, 121 West High Street, Oxford, Ohio 45056 , for Defendant-Appellant. 

## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT BELMONT COUNTY

STATE OF OHIO,
Plaintiff-Appellee,

v. CORY JULIUS SMITH,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 19 BE 0013

Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 17 CR 209

BEFORE: David A. D’Apolito, Cher y l L. Waite, Carol Ann Robb, Jud g es.

JUDGMENT: Affirmed.– 2 –

Case No. 19 BE 0013 Dated: Februar y

26, 2020
D’Apolito, J.
{¶1} Appellant, Cory Julius Smith, appeals from the March 21, 2019 j udgment of the Belmont County Court of Common Pleas convicting him for pos session of drugs and assault upon a peace officer following a jury trial and sentenc ing him to 11 years in prison. On appeal, Appellant argues (1) his sentence is contrary to law , (2) Appellee, the State of Ohio, presented insufficient evidence, (3) his convictions w ere against the manifest weight of the evidence, and (4) he received ineffective assista nce of counsel. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

{¶2} On August 3, 2017, Appellant was indicted by the Belmont County Grand Jury on four counts: count one, possession of drugs, a felony o f the second degree, in violation of R.C. 2925.11(A) and (C)(4)(d); count two, possessi on of drugs, a felony of the second degree, in violation of R.C. 2925.11(A) and (C)(6)(d); a nd counts three and four, assault upon a peace officer, felonies of the fourth degree, in violation of R.C. 2903.13(A) and (C)(5). 1 Appellant was appointed counsel and pleaded not guilty at his arraignment. {¶3} A jury trial commenced on February 21, 2019. {¶4} The State presented three witnesses: Deputies Jason Schwarck an d Brian Carpenter, with the Belmont County Sheriff’s Department; and Pa trolman Henry Sam Martin, with the Bellaire Police Department. {¶5} At around 11:00 p.m. on June 14, 2017, Deputy Schwarck stopped Tabitha Burch’s car due to a vehicle defect and a traffic violation, i. e., no license plate light and failure to use a turn signal. (2/21/19 Jury Trial T.p. 190). Burch was the driver, Shermika Griffin was the front seat passenger, and Appellant was the bac kseat, driver’s side passenger. It “caught [Deputy Schwarck’s] attention” when he f irst observed Appellant with “his arm laying over his leg in between his two legs in th e backseat, which was an uncommon place for his arm to be laying straight down in betwee n his legs[.]” (T.p. 191).

1 Count two was dismissed prior to trial.– 3 –

Case No. 19 BE 0013 Appellant’s positioning drew Deputy Schwarck’s attention down t o the area of Appellant’s crotch, where he saw a “bulge.” (T.p. 200). {¶6} Deputy Carpenter and Patrolman Martin arrived at the scene for back-up assistance. Deputy Carpenter testified that Appellant’s body l anguage was “dramatically different” than the two front passengers, who appeared “normal” and not “too nervous.” (T.p. 268-269). Appellant exhibited “very - - suspicious-looki ng behavior.” (T.p. 269). Deputy Carpenter explained “[n]ot Appellant’s physical appearan ce, but the way he presented himself, the rigidness, his arm between his legs.” ( T.p. 270). “[Appellant] was soft spoken, didn’t really want to have a conversation, and the fact that it looked like he was trying to conceal something.” ( Id. ). Deputy Carpenter also “saw a bulge * * * kind of his lower waistband.” ( Id. ). {¶7} At that point, Deputy Schwarck deployed his K-9 and the occupan ts were asked to step out of the vehicle. Deputies Schwarck and Carpen ter believed Appellant needed to be patted down for a weapons check. Appellant refuse d. Deputy Carpenter told Appellant to put his hands on the back of the car and the officers patted him down. Deputies Schwarck and Carpenter felt something in Appellant’s c rotch/waistband area. Deputy Carpenter described that it felt “firm,” about “the size of a baseball.” (T.p. 274). Deputy Carpenter could hear something “crinkling,” like “a plas tic baggy-type object.” ( Id. ). Based on his training and experience, Deputy Carpenter “fel t overly confident that
it was narcotics” and he k new “it was a lot of it.” ( Id. ). {¶8} The officers advised Appellant that he was being detained. Dep uty Carpenter put Appellant’s right hand in a handcuff and then App ellant “began to pull away, tense up, and eventually tried to run.” (T.p. 202). Patrolman Martin described Appellant as “feisty” and “started to resist.” (T.p. 247-248). A strugg le ensued and the officers and Appellant ended up on the ground slightly underneath the car. While trying to control Appellant’s legs, Patrolman Martin was struck several times. {¶9} Deputy Carpenter further testified that Appellant’s right arm w as under the vehicle. Deputy Schwarck indicated that Appellant tossed somet hing underneath, toward the front of the car, which turned out to be one large bag with multiple bags of cocaine inside. The total amount was 24.6 grams of cocaine. (T.p. 356 -357). Appellant bit Deputy– 4 –

Case No. 19 BE 0013 Schwarck’s hand before the officer was able to get the handcuff on Appellant’s other
hand. {¶10} At the close of the State’s case, defense counsel moved for an acquittal pursuant to Crim.R. 29, which was overruled by the trial court. {¶11} Appellant presented one witness: Griffin, a good friend of Appe llant’s and the front seat passenger. Griffin has struggled with drug addi ction over the years. On the night at issue, she and Burch were on their way to purchase drugs and later ended up smoking crack cocaine in the car. While driving, they saw A ppellant walking down the street and picked him up. After Burch’s vehicle was stopped by police, Griffin and Burch were told to exit and stand in front of the car, while Appellan t exited and stood in the back. Griffin claimed that officers were “attacking” Appellant. (T.p . 401). On cross-examination, Griffin testified she did not throw anything under the vehicle and did not see Burch throw anything under the vehicle. {¶12} The jury found Appellant guilty of counts one (possession of dr ugs, cocaine, in excess of 20 grams but less than 27 grams), three (assault u pon a peace officer, Deputy Schwarck), and four (assault upon a peace officer, Patro lman Martin). {¶13} On March 21, 2019, the trial court sentenced Appellant to eight years on count one and 18 months each on counts three and four. The cou rt ordered the sentences be served consecutively for a total of 11 years, with 111 days credit for time served. The court further advised Appellant that post-release control is mandatory up to a maximum of three years. Appellant filed a timely appeal and raises four assignments
of error.

ASSIGNMENT OF ERROR NO. 1

THE DEFENDANT’S SENTENCE WAS CONTRARY TO LAW.

{¶14} This court utilizes R.C. 2953.08(G) as the standard of review i n all felony sentencing appeals. State v. Michaels , 7th Dist. Mahoning No. 17 MA 0122, 2019-Ohio497, ¶ 2, citing State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. {¶15} R.C. 2953.08(G) states in pertinent part:– 5 –

Case No. 19 BE 0013 (2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appel late court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the fol lowing:

(a) That the record does not support the sentencing court’s fin dings under division (B) or (D) of section 2929.13, division (B)(2)(e) or ( C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code , whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶16} Although trial courts have full discretion to impose any term o f imprisonment within the statutory range, they must consider the sentencing p urposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. {¶17} R.C. 2929.11(A) provides that the overriding purposes of felony sentencing are (1) “to protect the public from future crime by the offende r and others”; and (2) “to punish the offender * * * using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burde n on state or local government resources.” Further, the sentence imposed shall be “commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes commit ted by similar offenders.” R.C. 2929.11(B). {¶18} R.C. 2929.12 provides a nonexhaustive list of sentencing factor s the trial court must consider when determining the seriousness of the off ense and the likelihood that the offender will commit future offenses. The court that imposes a felony sentence “has discretion to determine the most effective way to comply w ith the purposes and– 6 –

Case No. 19 BE 0013 principles of sentencing.” R.C. 2929.12(A). The factors a tri al court may consider include the “more serious” factors, such as “[t]he physical or mental i njury suffered by the victim
of the offense due to the conduct of the offender was exacerbat ed because of the physical or mental condition or age of the victim” and “[t]he victim of the offense suffered serious physical, psychological, or economic harm as a result of the of fense.” R.C. 2929.12(B)(1) and (2). The court may also consider the “less serious” factor s, any recidivism factors, and any mitigating factors lis ted in R.C. 2929.12(C)-(F).

R.C. 2929.11 does not require the trial court to make any speci fic findings as to the purposes and principles of sentencing. State v. Wilson , 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. Similarly, R. C. 2929.12 does not require the trial court to “use specific language or m ake specific findings on the record in order to evince the requisite conside ration of the applicable seriousness and recidivism factors.” State v. Arnett , 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).

State v. Shaw , 7th Dist. Belmont No. 15 BE 0065, 2017-Ohio-1259, ¶ 36. {¶19} Appellant specifically contends the trial court erred in consid ering a dismissed charge before imposing the maximum sentence. {¶20} “Although the trial court’s belief that a defendant committed d ismissed charges cannot be the sole reason for imposition of a maximum s entence, the trial court can consider dismissed charges when determining an offender’s l ikelihood to recidivate.” State v. Osting , 3d Dist. Defiance No. 4-18-09, 2019-Ohio-1278, ¶ 24. {¶21} Here, the record is clear that the trial court did not base its maximum sentence solely on the belief that Appellant committed the dism issed charge. Rather, the court also considered the circumstances surrounding the inciden t, the injury to the peace officers, and Appellant’s criminal record. {¶22} At the sentencing hearing, the trial court heard from the attor neys and from Appellant and indicated that it reviewed the presentence invest igation report. 2 The trial judge proceeded by stating the following:

2 The PSI lists Appellant’s criminal background which is two page s long.– 7 –

Case No. 19 BE 0013 THE COURT: All right. Again, the Court has already considered all of the various requirements under the law. The factors that indicate more serious conduct, more likelihood of recidivism include the following, s ome of which the State has referred to already: As an adult, Mr. Smith has f elony convictions for having weapons under disability; sent to the pe nitentiary. Escape; sent to the penitentiary. Trafficking in drugs as a se cond-degree felony; sent to the penitentiary. Trafficking in drugs as fift h-degree felonies; there’s two of those, sent to the penitentiary for both. Sale of counterfeit drugs; again, a prison sentence. Improper handling of firearms in a motor vehicle resulted also in a prison sentence.

As an adult, he has misdemeanor convictions for endangering chi ldren; falsification; resisting arrest and drug abuse, there’s two of those. Of the seven felony convictions, with those seven prison sentences, an d I understand [defense counsel’s] point that some of those were ma ybe concurrent. And this is something I have to say, I see this qu ite often from the judges in the larger counties. I think if the penalties we re a little more harsh, maybe recidivism would be less likely. * * * So, again, seven prison sentences, but the aggregate total is nowhere near what this Co urt believes they should have been for the seriousness of the conduct. * * *

The Court is also going to find that there was another charge a gainst him that was dismissed. In other words, he was not prosecuted. Th ere was, as a result of that matter, found to be – he was found to be in po ssession of Carfentanil, as the drug that he possessed at that time. But a gain, he was not prosecuted for that. The Court is aware of that; I’m not g oing to put that out of my mind, as far as sentencing is concerned.

His refusal to provide information deprives me of any chance fo r mitigating findings, such as counseling efforts. I understand his comment s today. His record appears to be worsening. He’s not responded favorably t o prior sanctions, as I’ve already explained. * * * The Court does fin d, based on– 8 –

Case No. 19 BE 0013 the testimony, that there was evidence of * * * physical harm a nd emotional distress to the two peace officers who were involved, and the C ourt is going to find that there’s been no showing of genuine remorse.

On the other hand, the factors that indicate less serious condu ct, less
likelihood of recidivism are absent in this matter.

Again, I’ve considered the purposes and principles of sentencin g. I’ve also considered the need for consecutive prison terms. And I’m goin g to find that those are necessary in this action, so as to protect the p ublic from future crime and to punish this defendant. Consecutive terms are not disproportionate with his conduct, as cited above. The danger he poses to the public is certainly something that must be considered, base d on his record. These offenses were committed as part of a course of c riminal conduct. The potential harm was so great and unusual that no s ingle prison term adequately reflects the seriousness of his * * * conduct. Finally, his history of criminal behavior shows that consecutive terms are n eeded to protect the public from him. Therefore, more than minimum sent ence is necessary and is otherwise appropriate and reasonable, as are c onsecutive sentences. A short sentence or a non-consecutive sentence and/ or any type of a community control sentence with any combination of sa nctions would not adequately punish him and protect the public from fut ure crimes,
and would demean the seriousness of his conduct. The factors d ecreasing seriousness are greatly outweighed by those increasing seriousn ess. There’s more likelihood of recidivism if he is given a short ornonconsecutive sentence. All of my findings, I believe, are in ac cordance with the statutory and case law in effect now in the State of Ohio.

Therefore, Mr. Smith, on Count I, you’ll be sentenced to serve eight years in the penitentiary. On Count III, you’ll be sentenced to serv e 18 months in the penitentiary. And on Count IV, you’ll be sentenced to serv e 18 months– 9 –

Case No. 19 BE 0013 in the penitentiary. Those sentences will all be served consec utive to each other, for a total of 11 years in the penitentiary. * * *

(3/18/19 Sentencing Hearing T.p. 7-12). {¶23} Also, in its March 21, 2019 judgment entry, the trial court sta ted:

The Court has considered the record, oral statements, the Prese ntence Investigation Report with attached Risk Assessment Summary of Undetermined due to Defendant’s choice to not respond, and the report from the Eastern Ohio Correction Center (EOCC) finding Defendan t inappropriate for placement, as well as the principles and purp oses of sentencing in Revised Code 2929.11 and has balanced the serious ness and recidivism factors under Revised Code 2929.12.

(3/21/19 Judgment Entry p. 2). {¶24} Accordingly, the record reflects the trial court gave due delib eration to the relevant statutory considerations. The court considered the pu rposes and principles of felony sentencing under R.C. 2929.11 and balanced the seriousne ss and recidivism factors under R.C. 2929.12, as evidenced from the record. {¶25} As stated, Appellant was sentenced to a total of 11 years in pr ison following a jury trial. Specifically, the trial court consecutively sent enced Appellant to eight years in prison on count one, possession of drugs, a felony of the se cond degree, in violation of R.C. 2925.11(A) and (C)(4)(d); and 18 months each on counts three and four, assault upon a peace officer, felonies of the fourth degree, in violati on of R.C. 2903.13(A) and (C)(5). Thus, the court sentenced Appellant within the statuto ry ranges under R.C. 2929.14(A)(2)(b) (“For a felony of the second degree committed prior to the effective date of this amendment, the prison term shall be a definite term of two, three, four, five, six, seven, or eight years”); 3 and R.C. 2929.14(A)(4) (“For a felony of the fourth degree, th e prison term shall be a definite term of six, seven, eight, nine , ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months”).

3 The effective date of the amendment is March 22, 2019.– 10 –

Case No. 19 BE 0013 {¶26} Further, the record reveals the trial court properly advised Ap pellant regarding post-release control. Therefore, the court complied with all applicable rules and statutes. As a result, we do not find by clear and convinc ing evidence that the record does not support Appellant’s sentence or that the sentence is c ontrary to law. {¶27} Appellant’s first assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT
APPELLANT OF POSSESSION OF DRUGS AND ASSAULT ON A
POLICE OFFICER.

ASSIGNMENT OF ERROR NO. 3

DEFENDANT-APPELLANT’S CONVICTIONS WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.

{¶28} Because Appellant’s second and third assignments of error call into question the sufficiency and weight of the evidence adduced at trial, we will address them together to avoid repetition.

“When a court reviews a record for sufficiency, ‘(t)he relevant inquiry is whether, after viewing the evidence in a light most favorable t o the prosecution, any rational trier of fact could have found the es sential elements of the crime proven beyond a reasonable doubt.’ State v.
Maxwell , 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoti ng State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In determining whether a criminal conviction is against the man ifest weight of the evidence, an Appellate court must review the entire reco rd, weigh the evidence and all reasonable infe rences, consider the credibilit y of witnesses, and determine whether, in resolving conflicts in the evidence,– 11 –

Case No. 19 BE 0013 the trier of fact clearly lost its way and created such a manif est miscarriage of justice that the conviction must be reversed. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.* * *

The weight to be given to the evidence and the credibility of t he witnesses are nonetheless issues for the trier of fact. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact “has the best op portunity to view the demeanor, attitude, and credibility of each witness, s omething that does not translate well on the written page.” Davis v. Flickinger , 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

State v. T.D.J. , 7th Dist. Mahoning No. 16 MA 0104, 2018-Ohio-2766, ¶ 46-48. {¶29} “‘(C)ircumstantial evidence and direct evidence inherently pos sess the same probative value.’” State v. Biros , 78 Ohio St.3d 426, 447, 678 N.E.2d 891 (1997), quoting Jenks, supra , paragraph one of the syllabus. {¶30} For the reasons addressed below, we determine the judgment is n ot against the manifest weight of the evidence and further conclude it is supported by sufficient
evidence. {¶31} Appellant takes issue with the guilty finding for possession of drugs, a felony of the second degree, in violation of R.C. 2925.11(A) and (C)(4 )(d), which states:

(A) No person shall knowingly obtain, possess, or use a control led substance or a controlled substance analog.

* * *

(C) Whoever violates division (A) of this section is guilty of one of the following:

* * *

(4) If the drug involved in the violation is cocaine or a compo und, mixture, preparation, or substance containing cocaine, whoever violates division (A)– 12 –

Case No. 19 BE 0013 of this section is guilty of possession of cocaine. The penalty for the offense
shall be determined as follows:

* * *

(d) If the amount of the drug involved equals or exceeds twenty grams but is less than twenty-seven grams of cocaine, possession of cocai ne is a felony of the second degree, and the court shall impose as a ma ndatory prison term a second degree felony mandatory prison term.

R.C. 2925.11(A) and (C)(4)(d). {¶32} Appellant also takes issue with the guilty findings for assault upon a peace officer, felonies of the fourth degree, in violation of R.C. 29 03.13(A) and (C)(5), which
states:

(A) No person shall knowingly cause or attempt to cause physica l harm to another * * *.

* * *

[(C)](5) If the victim of the offense is a peace officer * * * while in the performance of their official duties, assault is a felony of th e fourth degree.

R.C. 2903.13(A) and (C)(5). {¶33} “A person acts knowingly, regardless of purpose, when the pers on is aware that the person’s conduct will pr obably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when t he person is aware that such circumstances probably exist.” R.C. 2901.22(B). {¶34} This court’s review of the record establishes that there was am ple proof that Appellant knowingly possessed cocaine weighing between 20 and 2 7 grams and that he knowingly caused or attempted to cause physical harm to two pea ce officers while in performance of their official duties pursuant to R.C. 2925.11(A ) and (C)(4)(d) and R.C. 2903.13(A) and (C)(5).– 13 –

Case No. 19 BE 0013 {¶35} As stated, Deputy Schwarck stopped Burch’s car due to a vehicle defect and a traffic violation. Burch was the driver, Griffin was the front seat passenger, and Appellant was the backseat passenger. It “caught [Deputy Schwa rck’s] attention” when he first observed Appellant with “his arm laying over his leg i n between his two legs in the backseat, which was an uncommon place for his arm to be laying straight down in between his legs[.]” (2/21/19 Jury Trial T.p. 191). Deputy Sc hwarck saw a “bulge” near the area of Appellant’s crotch. (T.p. 200). {¶36} Back-up officers, Deputy Carpenter and Patrolman Martin, arrive d at the

scene. Deputy Carpenter testified that Appellant’s body language was “ dramatically different” than the two front passengers; Appellant exhibited “ very - - suspicious-looking behavior;” i.e., “[n]ot Appellant’s physical appearance, but th e way he presented himself, the rigidness, his arm between his legs.” (T.p. 268-270). Dep uty Carpenter further indicated that Appellant “didn’t really want to have a conversa tion;” it appeared Appellant “was trying to conceal something;” and Deputy Carpenter also “saw a bulge” near Appellant’s lower waistband. (T.p. 270). {¶37} The occupants were asked to step out of the vehicle. Deputies Schwarck and Carpenter believed Appellant needed to be patted down for a weapons check. Appellant refused. Deputy Carpenter told Appellant to put his hands on the back of the car and the officers patted him down. Deputies Schwarck and Ca rpenter felt something in Appellant’s crotch/waistband area. Deputy Carpenter describ ed that it felt “firm,” about “the size of a baseball.” (T.p. 274). Deputy Carpenter could hear something “crinkling,” like “a plastic baggy-type object.” ( Id. ). Based on his training and experience, Deputy Carpenter “felt overly confident that it was narcotics” and he knew “it was a lot of it.” ( Id. ). {¶38} Deputy Carpenter put Appellant’s right hand in a handcuff and t hen Appellant “began to pull away, tense up, and eventually tried t o run.” (T.p. 202). Patrolman Martin described Appellant as “feisty” and “started t o resist.” (T.p. 247-248). A struggle ensued and the officers and Appellant ended up on th e ground slightly underneath the car. While trying to control Appellant’s legs, Patrolman Martin was struck
several times. {¶39} Deputy Carpenter further testified that Appellant’s right arm w as under the vehicle. Deputy Schwarck indicated that Appellant tossed somet hing underneath, toward– 14 –

Case No. 19 BE 0013 the front of the car, i.e., one large bag with multiple bags of cocaine inside. The total amount was 24.6 grams of cocaine. (T.p. 356-357). Appellant b it Deputy Schwarck’s hand before the officer was able to get the handcuff on Appella nt’s other hand. {¶40} Pursuant to Jenks, supra , there is sufficient evidence upon which the jury could reasonably conclude beyond a reasonable doubt that the el ements of possession of drugs and assault upon a peace officer were proven. Thus, t he trial court did not err in overruling Appellant’s Crim.R. 29 motion. {¶41} Also, the jury chose to believe the State’s witnesses. DeHass, supra , at paragraph one of the syllabus. Based on the evidence presented , as previously stated, the jury did not clearly lose its way in finding Appellant guil ty of possession of drugs and assault upon a peace officer. Thompkins, supra , at 387. {¶42} Appellant’s sufficiency and manifest weight arguments contained in his second and third assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 4

DEFENDANT-APPELLANT’S CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND A FAIR TRIAL WERE VIOLATED WHEN HE RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL.

In order to demonstrate ineffective assistance of counsel, Appe llant must show that trial counsel’s performance fell below an objective s tandard of reasonable representation, and prejudice arose from the deficie nt performance. State v. Bradley , 42 Ohio St.3d 136, 141-143, 538 N.E.2d 373 (1989), citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both prongs must be established: If counsel ’s performance was not deficient, then there is no need to review for prejudice. Likewise, without prejudice, counsel’s performance need not be
considered. State v. Madrigal , 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).

In Ohio, a licensed attorney is presumed to be competent. State v. Calhoun
, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In evaluating tr ial counsel’s– 15 –

Case No. 19 BE 0013 performance, appellate review is highly deferential as there is a strong presumption that counsel’s conduct fell within the wide range o f reasonable professional assistance. Bradley at 142-143, citing Strickland at 689. Appellate courts are not permitted to second-guess the strategi c decisions
of trial counsel. State v. Carter , 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995).

Even instances of debatable strategy very rarely
constitute ineffective assistance of counsel. See State v. Thompson , 33 Ohio St.3d 1, 10, 514 N.E.2d 407 (1987). The United States Supr eme Court has recognized that there are “countless ways to provide effect ive assistance in any given case.” Bradley at 142, citing Strickland at 689.

To show prejudice, a defendant must prove his lawyer’s deficien t performance was so serious that there is a reasonable probabili ty the result of the proceeding would have been different. Carter at 558. “It is not enough
for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Bradley , 42 Ohio St.3d 136 at fn. 1, 538 N.E.2d 373, quoting Strickland at 693. Prejudice from defective representation justifies reversal only where the results were u nreliable or the proceeding was fundamentally unfair as a result of the perf ormance of
trial counsel. Carter , 72 Ohio St.3d at 558, 651 N.E.2d 965, citing Lockhart
v. Fretwell , 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

* * *

[A]n ineffective assistance of counsel claim cannot be predicat ed upon supposition. State v. Watkins , 7th Dist. Jefferson No. 07 JE 54, 2008-Ohio6634, ¶ 15. Likewise, proof of ineffective assistance of counse l requires more than vague speculations of prejudice. Id. ¶ 55, citing State v. Otte , 74 Ohio St.3d 555, 565, 1996-Ohio-108, 660 N.E.2d 711.

State v. Rivers , 7th Dist. Mahoning No. 17 MA 0078, 2019-Ohio-2375, ¶ 20-23, 2 7.– 16 –

Case No. 19 BE 0013 {¶43} Appellant specifically contends that trial counsel’s failure to file a motion to suppress constitutes ineffective assistance of counsel.

Counsel’s failure to file a motion to suppress does not constit ute ineffective assistance of counsel per se. State v. Brown, 115 Ohio St.3d 55, 2007- Ohio-4837, 873 N.E.2d 858, ¶ 65, citing State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000). A defendant must prove there w as a basis to suppress the evidence in question. Brown, 115 Ohio St.3d 55 at ¶ 65.

State v. Albright , 7th Dist. Mahoning No. 14 MA 0165, 2016-Ohio-7037, ¶ 58. {¶44} Generally, the decision not to file a motion to suppress does n ot constitute ineffective assistance of counsel “when doing so was a tactical decision, there was no reasonable probability of success, or there was no prejudice to the defendant.” State v.
Nields , 93 Ohio St.3d 6, 34, 752 N.E.2d 859 (2001). {¶45} Appellant insists that his trial attorney should have filed a m otion to suppress because the stop was not valid. However, Deputy Schwa rck testified at the jury trial that he stopped Burch’s car, in which Appellant was a pas senger, due to a vehicle defect and a traffic violation, i.e., no license plate light an d failure to use a turn signal. (2/21/19 Jury Trial T.p. 190). Thus, the stop was valid. See State v. McMillon , 7th Dist. Columbiana No. 18 CO 0016, 2019-Ohio-2716, ¶ 11, citing State v. Ward , 7th Dist. Columbiana No. 10 CO 28, 2011-Ohio-3183, ¶ 35, citing Dayton v. Erickson , 76 Ohio St.3d 3, 11, 665 N.E.2d 1091 (1996); Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (“There are two types of valid traffic stops: (1) wh ere police have probable cause that a traffic violation has occurred or was occurring an d (2) where police have reasonable articulable suspicion that criminal activity has occ urred.) {¶46} In addition, Appellant insists that his trial attorney should h ave filed a motion to suppress because the search and seizure were not valid. How ever, as stated, Deputies Schwarck and Carpenter testified that Appellant acted different ly than his front seat counterparts. Appellant sat in a suspicious manner with his ar m between his legs as if trying to conceal something. The officers saw a “bulge” near A ppellant’s crotch/lower
waistband area.– 17 –

Case No. 19 BE 0013 {¶47} Deputies Schwarck and Carpenter believed Appellant needed to be patted down for a weapons check. Appellant refused. Deputy Carpenter told Appellant to put his hands on the back of the car and the officers patted him do wn. The officers felt something in Appellant’s crotch/waistband area. Deputy Carpent er believed it was narcotics. He put Appellant’s right hand in a handcuff and the n Appellant “began to pull away, tense up, and eventually tried to run.” (T.p. 202). {¶48} A struggle ensued and the officers and Appellant ended up on th e ground partially underneath the car. While trying to control Appellan t’s legs, Patrolman Martin was struck several times. Deputy Schwarck indicated that Appel lant tossed something underneath, toward the front of the car, which turned out to be one large bag with multiple bags of cocaine inside. Appellant bit Deputy Schwarck’s hand b efore the officer was able to get the handcuff on Appellant’s other hand. {¶49} Based on the facts presented, the search and seizure were valid

. See State v. Hughley , 7th Dist. Mahoning No. 09 MA 200, 2010-Ohio-6010, ¶ 10, citin g Terry v. Ohio , 392 U.S. 1, 24, 88 S.Ct. 1868 (1968) (“[A]n officer is author ized to perform a limited pat-down search for weapons as a safety precaution if there is a reasonable suspicion that the person stopped may be armed and dangerous”); State v. McCoy , 6th Dist. Lucas No. L-97-1393, 1998 WL 526734, *2 (Aug. 21, 1998), citing U.S. v. Craft (C.A.8 1994), 30 F.3d 1044, 1045 (drug seizure valid during pat down search when incriminating character immediately apparent by touch); U.S. v. Ashley (D.C.Cir.1994), 37 F.3d 678, 680-682 (drugs felt during pat down search valid because immediately ap parent to experienced officer). {¶50} Accordingly, a motion to suppress would not have been successfu l and Appellant can show no prejudice in trial counsel’s tactical dec ision not to file one.
Pursuant to Strickland, supra, Appellant fails to show that his counsel’s performance was deficient and that the deficient performance prejudiced the def ense. {¶51} Appellant’s fourth assignment of error is without merit.

CONCLUSION

{¶52} For the foregoing reasons, Appellant’s assignments of error are not welltaken. The judgment of the Belmont County Court of Common Plea s convicting Appellant– 18 –

Case No. 19 BE 0013 for possession of drugs and assault upon a peace officer follow ing a jury trial and sentencing him to an 11-year sentence is affirmed.

Waite, P.J., concurs.
Robb, J., concurs.[Cite as State v. Smith , 2020-Ohio-760.]

For the reasons stated in the Opinion rendered herein, the assi gnments of error are overruled and it is the final judgment and order of this Co urt that the judgment of the Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be waived. A certified copy of this opinion and judgment entry shall const itute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Proc edure. It is ordered that a certified copy be sent by the clerk to the trial court to car ry this judgment into
execution.

NOTICE TO COUNSEL
This document constitutes a final judgment entry.