[Cite as State v. Akhtar, 2016-Ohio-988.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY




STATE OF OHIO,
                                                          CASE NO. 2-15-16
   PLAINTIFF-APPELLEE,

  v.

MUHAMMAD AKHTAR,                                          OPINION

   DEFENDANT-APPELLANT.



                 Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2014-CR-134

                                      Judgment Affirmed

                             Date of Decision: March 14, 2016



APPEARANCES:

        Todd W. Barstow for Appellant

        R. Andrew Augsburger for Appellee
Case No. 2-15-16


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Muhammad Akhtar (“Akhtar”) brings this appeal

from the judgment of the Court of Common Pleas of Auglaize County finding him

guilty of OVI and sentencing him to community control. Akhtar claims that his

conviction was not supported by sufficient evidence and was against the manifest

weight of the evidence. Akhtar also claims that he was denied the effective

assistance of counsel. For the reasons set forth below, the judgment is affirmed.

       {¶2} On August 7, 2014, the Grand Jury for Auglaize County indicted

Akhtar on one count of OVI in violation of R.C. 4511.19(A)(1)(a)(G)(1)(d), a

felony of the fourth degree. Doc. 1. The indictment indicated that within the prior

six years of the current offense, Akhtar had been convicted or pled guilty to three

or more OVI offenses. Id. Akhtar then hired private counsel to represent him.

Doc. 10, 20. However, on October 16, 2014, Akhtar replaced his attorney with a

new attorney. Doc. 33, 34. Both attorneys engaged in discovery. See Doc. 21,

36. On January 27, 2015, Akhtar filed a motion through counsel to continue the

jury trial to investigate the constitutionality of his prior OVI convictions. Doc. 53.

The trial court granted the motion to continue. Doc. 55.

       {¶3} After waiving his request for a jury trial, a bench trial was held on

August 24, 2015. Doc. 121. The State presented the testimony of one witness.

Patrolman Brian Christopher (“Christopher”) of the St. Marys Police Department

testified that on July 25, 2014, he was patrolling the area across from a Sunoco gas

                                         -2-
Case No. 2-15-16


station in St. Marys. Tr. 15-16. Christopher stated that he went to that area after

dispatch received two different calls claiming that an employee at the station was

“acting odd.” Tr. 17. Christopher then saw a car with Michigan plates leave the

station and chose to follow it. Tr. 18. The driver was subsequently identified as

Akhtar.   Tr. 32.    While following the vehicle, Christopher observed several

different marked lane violations and that the driver was driving very slow for the

area. Tr. 18. Christopher then stopped the vehicle due to the traffic violations.

Tr. 19. When Christopher arrived at the driver’s side door, he noted “a strong

odor of an alcoholic beverage” coming from the vehicle. Tr. 19. Christopher also

noted that Akhtar’s movements were very slow and uncoordinated. Tr. 20. The

speech of Akhtar was slow and slurred. Tr. 20. Christopher then asked Akhtar to

exit the vehicle and observed a bottle of alcohol sitting by the seat. Tr. 20.

       {¶4} Once Akhtar exited the vehicle, he was unstable and had a difficult

time maintaining his balance. Tr. 21. Christopher then asked Akhtar to perform

the field sobriety tests. Tr. 21. While attempted to complete the horizontal gaze

nystagmus test, Akhtar was “swaying back and forth, having a hard time standing

in upright, - the upright position.” Tr. 21. Christopher could not complete the test

because Akhtar was too unstable and fell forward causing Christopher to have to

catch him. Tr. 22. Christopher did not even have Akhtar attempt the walking test

because Akhtar “bent down and almost fell onto his face.” Tr. 22-23. Christopher



                                         -3-
Case No. 2-15-16


testified that in his opinion, based upon his experience as a police officer, Akhtar

was severely under the influence of alcohol. Doc. 23.

       {¶5} Christopher then played a video of the stop taken from the dashcam of

the patrol car.    The video shows the car in front of the officer crossing the

centerline of the road multiple times. Ex. 1. When asked his address, Akhtar

appeared to have difficulty providing that information to Christopher. Id. Upon

exiting the vehicle, Akhtar stated that he had drunk one beer. Id. While preparing

to take the sobriety tests, Akhtar was stumbling around and appeared to be unable

to stand stationary. Id. The video shows that while performing the test, Akhtar

was swaying and eventually started to fall. Id. Akhtar then admitted that he had

drunk two 24 oz. beers recently. Id. After the video, Christopher testified that

Akhtar should not have been operating a vehicle in the condition he was in and

that Akhtar was under the influence of alcohol at the time he was driving the

vehicle. Tr. 33.

       {¶6} After Christopher testified, the video was admitted without objection.

Tr. 37. The State then moved to have Exhibits two, three, four, and five, which

were certified copies of government records, admitted. Tr. 37. Akhtar objected

on the grounds that “there was no way to identify whether constitutional rights

have been violated” in the cases from which the convictions stemmed. Tr. 38.

State’s Exhibit 2 was a certified copy of an OVI conviction on December 7, 2009,

in Zanesville Municipal Court after Akhtar entered a guilty plea. Ex. 2. State’s

                                        -4-
Case No. 2-15-16


Exhibit 3 was a certified copy of an OVI conviction on April 22, 2011, in the

Muskingum County Court after Akhtar entered a plea of no contest. Ex. 3. State’s

Exhibit 4 was a certified copy of an OVI conviction on April 24, 2013, in the

Zanesville Municipal Court after Akhtar entered a no-contest plea. Ex. 4. State’s

Exhibit 5 was a record request certification provided by the Ohio Bureau of Motor

Vehicles.   Ex. 5.    The trial court overruled the objections and admitted the

exhibits. Tr. 42. The State then rested its case. Tr. 42.

       {¶7} Akhtar then testified on his own behalf. Akhtar testified that for his

first offense, he was taken to the court and told he would serve six days in jail and

pay the fine without any discussion about the charges, penalties, or representation.

Tr. 45-46. Akhtar also indicated that at the time of the hearing, he was still under

the influence of alcohol. Tr. 46. According to Akhtar, he did not recall everything

that happened because he was still intoxicated. Tr. 48.

       {¶8} As to the second offense, Akhtar testified that he was not sure if he

had counsel representing him on the OVI charge. Tr. 50. The second charge

occurred after he was injured in an accident and he was taken to the hospital where

a blood test was done while he was unconscious. Tr. 51. When he changed his

plea to one of no contest, he did sign a waiver of his constitutional rights. Tr. 53.

       {¶9} For the third offense, Akhtar claimed that he was walking out of his

store in Zanesville when someone yelled at him that he had struck their car in the

parking lot. Tr. 56. Akhtar testified that he had not been in the car at all, but that

                                         -5-
Case No. 2-15-16


he was arrested because the car was half way out of the parking spot. Tr. 56-57.

Akhtar testified that his ex-wife had a key to the car and must have moved it. Tr.

58-59. Akhtar admitted that he had been drinking when he was arrested, but

denied being in the vehicle. Tr. 60. Counsel was provided for Akhtar for this

offense. Tr. 61-62. Akhtar claimed that he only saw counsel three times and that

counsel advised him to enter a plea of no contest even though he knew that the

witnesses for the State were not going to be present to testify. 67. Akhtar denied

that anyone told him what the consequences of the conviction would be, instead

just telling him he would serve 20 days in jail and that would be it. Tr. 67.

Following cross-examination, Akhtar rested his case. Tr. 86.

       {¶10} The trial court determined that since Akhtar was challenging the

constitutionality of his prior convictions, they could be raised collaterally in this

case. Tr. 103. The trial court then reached the following conclusions regarding

the prior convictions.

       [B]ased on the record and based upon the testimony, [Akhtar]
       either waived his right to counsel or he had counsel in each of
       the three (3) underlying convictions. No question that it was
       him, no question that he, in fact, was found guilty, no question to
       the fact he was sentenced, and no question, in fact, that he either
       waived right to counsel or was represented by counsel.

Tr. 103. The trial court then found Akhtar guilty as charged in the indictment. On

October 16, 2015, a sentencing hearing was held. Doc. 97. The trial court ordered

that Akhtar be sentenced to five years of community control sanctions, which


                                         -6-
Case No. 2-15-16


included 180 days in the Auglaize County Correctional Center. Id. Akhtar filed a

notice of appeal from the trial court’s judgment. Doc. 110. On appeal, Akhtar

raises the following assignments of error.

                            First Assignment of Error

       [Akhtar’s] trial counsel was ineffective, thereby denying him his
       right to effective assistance of counsel as guaranteed by the
       United States and Ohio Constitutions.

                           Second Assignment of Error

       The trial court erred and deprived [Akhtar] of due process of
       law as guaranteed by the Fourteenth Amendment to the United
       States Constitution and Article One Section Ten of the Ohio
       Constitution by finding him guilty of OVI as a felony of the
       fourth degree as that verdict was not supported by sufficient
       evidence and was also against the manifest weight of the
       evidence.

                         Ineffective Assistance of Counsel

       {¶11} Akhtar claims in the first assignment of error that he was denied the

effective assistance of counsel.

       In evaluating whether a petitioner has been denied effective
       assistance of counsel, this court has held that the test is “whether
       the accused, under all the circumstances, * * * had a fair trial
       and substantial justice was done.” State v. Hester (1976), 45 Ohio
       St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the
       syllabus. When making that determination, a two-step process is
       usually employed. “First, there must be a determination as to
       whether there has been a substantial violation of any of defense
       counsel's essential duties to his client. Next, and analytically
       separate from the question of whether the defendant's Sixth
       Amendment rights were violated, there must be a determination
       as to whether the defense was prejudiced by counsel's
       ineffectiveness.” State v. Lytle (1976), 48 Ohio St.2d 391, 396–397,

                                        -7-
Case No. 2-15-16


       2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated on other
       grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.

       On the issue of counsel's ineffectiveness, the petitioner has the
       burden of proof, since in Ohio a properly licensed attorney is
       presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
       St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64
       Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.

State v. Calhoun, 86 Ohio St.3d 279, 289, 1999–Ohio–102, 714 N .E.2d 905.

       {¶12} Here, Akhtar claims that counsel was ineffective for 1) failing to file

motions to suppress or motions in limine regarding the prior convictions and 2) for

having a poor trial strategy regarding the prior convictions. A review of the record

indicates that trial counsel for Akhtar did not act deficiently as claimed on appeal.

Although counsel did not file a motion to suppress the prior convictions, counsel

objected to their admission at trial. Tr. 38. The very reasons that Akhtar claims

may have led to the suppression of the convictions were argued in front of the trial

court and overruled.      Additionally, trial counsel requested and obtained a

continuance to investigate the circumstances of the prior convictions, and steps

were taken, though unsuccessfully, to have those convictions vacated. At trial the

convictions were challenged not only on their facts, but on potential constitutional

issues. The trial court in this case addressed these very issues. Contrary to the

position taken by Akhtar in his appellate brief, evidence was presented that Akhtar

had been offered counsel and had either accepted counsel or waived it prior to

each of the convictions in question. The trial court determined that the pleas and


                                         -8-
Case No. 2-15-16


the subsequent convictions were properly taken. Although Akhtar claims that trial

counsel erred by not submitting transcripts of the plea hearings, this was not an

error of counsel. Counsel addressed this issue to the trial court at the trial and

indicated that no transcripts were available from the prior hearings. Tr. 105-106.

Thus, no trial counsel would have been capable of providing the transcripts of the

prior hearings. Finally, Akhtar has presented no argument that any of the alleged

errors would have affected the outcome of the trial.1 The first assignment of error

is overruled.

                                      Sufficiency of the Evidence


         {¶13} One of the allegations raised in the second assignment of error is that

the conviction was not supported by sufficient evidence.                              When reviewing a

question of sufficiency of the evidence, an appellate court determines whether,

after viewing the evidence in a light most favorable to the prosecution, a rational

trier of fact could find the essential elements of the crime charged proven beyond a

reasonable doubt. State v. Blanton, 3d Dist. Marion No. 9-15-07, 2015-Ohio-

4620.        In this case, Akhtar was charged with a violation of R.C.

4511.19(A)(1)(a)(G)(1)(d). The State was required to prove that Akhtar operated

a vehicle in Ohio while under the influence of alcohol. R.C. 4511.19(A)(1)(a).


1
  Although Akhtar also claims that trial counsel was ineffective for filing a motion to have Akhtar screened
for intervention in lieu of conviction after the trial, this motion had no effect on the trial or the conviction.
The motion was based upon a desire to withdraw a guilty plea, which did not occur in this case as Akhtar
pled not guilty and was found guilty after a trial. The motion was denied. Akhtar points to nothing in the
record that would show that the filing of this motion affected the case in any manner.

                                                      -9-
Case No. 2-15-16


Additionally, the State had to prove that within the six years prior to the offense,

Akhtar had been convicted of or pled guilty to three or four OVIs or equivalent

offenses. R.C. 4511.19(G)(1)(d).

      {¶14} A review of the record shows that Christopher testified that he

observed Akhtar driving his vehicle on a road in Ohio, that Akhtar was weaving

within his own lane and had crossed the centerline multiple times.           When

Christopher stopped Akhtar, he smelled a strong odor of an alcoholic beverage

emanating from the car. Akhtar had slow responses, was slurring his words, and

was barely able to remain standing. According to Christopher, Akhtar appeared to

be so intoxicated that it was not possible for him to complete the field sobriety

tests. The video of the vehicle moving and the subsequent stop confirms the

testimony of Christopher. Additionally, Akhtar admits on the video that he had

recently consumed 48 oz. of beer prior to driving. At no point does Akhtar deny

that he was driving the vehicle while under the influence of alcohol. Evidence

was presented through State’s Exhibits two, three, and four that indicate that

within the six years prior to the instant offense, Akhtar was convicted of three

other OVI offenses. Akhtar did not deny that these convictions occurred, though

he challenged the constitutionality of the convictions. Viewing the evidence in a

light most favorable to the State, the evidence is sufficient to support the

conviction.



                                       -10-
Case No. 2-15-16


                                   Manifest Weight of the Evidence

        {¶15} The second claim made in the second assignment of error is that the

conviction was against the manifest weight of the evidence.2 Unlike sufficiency of

the evidence, the question of manifest weight of the evidence does not view the

evidence in a light most favorable to the prosecution.

        Weight of the evidence concerns “the inclination of the greater
        amount of credible evidence, offered in a trial to support one
        side of the issue rather than the other. It indicates clearly to the
        jury that the party having the burden of proof will be entitled to
        their verdict, if, on weighing the evidence in their minds, they
        shall find the greater amount of credible evidence sustains the
        issue which is to be established before them. Weight is not a
        question of mathematics, but depends on its effect in inducing
        belief.”

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997) (citing Black's

Law Dictionary (6 Ed.1990) 1594). A new trial should be granted only in the

exceptional case in which the evidence weighs heavily against conviction. Id.

Although the appellate court acts as a thirteenth juror, it still must give due

deference to the findings made by the fact-finder.

        The fact-finder * * * occupies a superior position in determining
        credibility. The fact-finder can hear and see as well as observe
        the body language, evaluate voice inflections, observe hand
        gestures, perceive the interplay between the witness and the
        examiner, and watch the witness' reaction to exhibits and the
        like. Determining credibility from a sterile transcript is a
        Herculean endeavor. A reviewing court must, therefore, accord
        due deference to the credibility determinations made by the fact-
        finder.

2
 As these were two separate arguments, they should have been addressed in two separate assignments of
error.

                                                 -11-
Case No. 2-15-16


         State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456 (8th Dist.

1998).


         {¶16} In this case, the evidence clearly shows that Akhtar was under the

influence of alcohol while operating the vehicle. The evidence also shows that he

had been previously convicted of three prior OVIs within the six years before the

instant offense. The evidence presented to the court shows that at the time of the

prior convictions, Akhtar was either represented by counsel or had waived the

right to counsel. The evidence does not weigh heavily against conviction. Thus, a

new trial is not necessary. The second assignment of error is overruled.

         {¶17} Having found no error in the particulars assigned or argued, the

judgment of the Court of Common Pleas of Auglaize County is affirmed.


                                                               Judgment Affirmed

SHAW, P.J. Concur.

ROGERS, J., Concurs in Judgment Only.

/hls




                                       -12-
