[Cite as State v. Brooks, 2013-Ohio-58.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO


STATE OF OHIO,                                      :     OPINION

                 Plaintiff-Appellee,                :
                                                          CASE NO. 2011-L-049
        - vs -                                      :

FELIX P. BROOKS,                                    :

                 Defendant-Appellant.               :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 10 CR
000304.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-
Appellee).

R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant
Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     Appellant, Felix P. Brooks, appeals from a judgment of the Lake County

Court of Common Pleas, sentencing him for trafficking in marijuana and operating a

vehicle under the influence of alcohol (“OVI”).

        {¶2}     Appellant was indicted on five counts: trafficking in marijuana, a felony of

the fifth degree, in violation of R.C. 2925.03(A)(2), with forfeiture specifications; OVI, a
misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1)(a); illegal use or

possession of drug paraphernalia, a misdemeanor of the fourth degree, in violation of

R.C. 2925.14(C)(1); possession of marijuana, a minor misdemeanor, in violation of R.C.

2925.11; and marked lanes, a minor misdemeanor, in violation of R.C. 4511.33.

Appellant filed a waiver of his right to be present at the arraignment and the trial court

entered a not guilty plea on his behalf.

       {¶3}   Thereafter, appellant filed a motion to suppress evidence.        Appellant

claimed the officer lacked probable cause to execute a traffic stop; failed to properly

perform standardized field sobriety tests, including the horizontal gaze nystagmus

(“HGN”), the one-leg stand, and the walk-and-turn; and lacked probable cause to arrest

him. The state filed a response and the court later held a suppression hearing.

       {¶4}   The only witness to testify was James Coolick, a six-year patrolman with

the Wickliffe Police Department. Patrolman Coolick obtained his certification for alcohol

detection and prosecution training from the Highway Patrol Academy and has been

involved in approximately 60 OVI arrests. He was taught to perform and is certified in

performing the three main National Highway Traffic Safety Administration (“NHTSA”)

standardized field sobriety tests, including the HGN, one-leg stand, and walk-and-turn.

The NHTSA manual was admitted into evidence during the suppression hearing without

objection.

       {¶5}   Patrolman Coolick’s testimony reveals the following sequence of events.

Around 2:00 a.m. on May 5, 2010, he observed appellant driving with a female

passenger on Euclid Avenue, a four-lane road. He initially observed appellant’s vehicle

weaving within its lane. Appellant’s car was “straddling” and came close to striking the




                                            2
curb, then weaved back and crossed over the dotted white line. The incident was

recorded via dashboard video, admitted into evidence without objection as “Exhibit 2,”

and played in open court.

       {¶6}   Appellant made a right turn into the parking lot of the Plaza Motel, where

he had rented a room. Based on his observation of appellant’s vehicle weaving within

its lane, a violation of Wickliffe Ordinance 331.08, Patrolman Coolick activated his

cruiser’s overhead lights and followed appellant into the motel parking lot.    Patrolman

Coolick approached the vehicle and advised appellant of the marked lanes violation.

Appellant is a Jamaican native and speaks with an accent.                He provided an

identification card but was unable to provide his driver’s license or proof of insurance.

Appellant claimed that the Euclid police did not return his proof of insurance when he

was stopped on a prior occasion.

       {¶7}   Patrolman Coolick testified that appellant’s eyes were very bloodshot and

watery, and that he noticed a distinct odor of an alcoholic beverage on appellant’s

person. Appellant stated he had been drinking at a club and had consumed two beers,

specifically Guinness Stouts.      Patrolman Coolick felt that appellant was a little

incoherent because he had to repeat questions to appellant several times, and

appellant answered many questions with unrelated responses. For example, appellant

told Patrolman Coolick that he was a student at Tri-C and grabbed a folder full of school

papers to show him. Patrolman Coolick requested that appellant exit his car in order to

perform field sobriety tests. Appellant complied with the request. The tests were done

on a reasonably dry, hard, level, nonslippery surface with sufficient light and room.




                                            3
        {¶8}    The first test was the HGN.        The NHTSA manual provides that the officer

should instruct the suspect that he is going to check the suspect’s eyes, that the

suspect should keep his head still and follow the stimulus with his eyes, and that the

suspect should do so until told to stop. After these initial instructions are provided, the

officer is instructed to position the stimulus approximately 12 to 15 inches from the

suspect’s nose and slightly above eye level.                The officer should then check the

suspect’s pupils to determine if they are of equal size, the suspect’s ability to track the

stimulus, and whether the suspect’s tracking is smooth. The officer should then check

the suspect for nystagmus1 at maximum deviation and for onset of nystagmus prior to

45 degrees. The manual instructs the officer to repeat each portion of the HGN test,

and further sets forth guidelines for the amount of time each portion of the test should

take.

        {¶9}   Appellant had difficulty keeping his eyes open and began laughing.

Patrolman Coolick noted a lack of smooth pursuit in both eyes, a distinct nystagmus at

maximum deviation in both eyes, and an onset of nystagmus at 45 degrees. Appellant

moved his head and failed to follow the stimulus. However, Patrolman Coolick admitted

that he did not repeat the procedures when checking for smooth pursuit, nystagmus at

maximum deviation, and onset of nystagmus prior to 45 degrees in accordance with the

NHTSA manual.

        {¶10} The second test was the one-leg stand. According to the NHTSA manual,

the suspect is to listen to instructions while keeping his feet together and arms at his

side. The suspect should be instructed to raise either leg with the foot approximately six


1. “Nystagmus” is “[a] rapid involuntary jerking or twitching of the eyes, sometimes caused by ingesting
drugs or alcohol.” Black’s Law Dictionary, 9th Ed.


                                                   4
inches off of and parallel to the ground, keeping his legs straight and arms at his side.

The suspect should then be instructed to count one thousand and one, one thousand

and two, etc. until he reaches 30. The officer is instructed to time the test and to

terminate it after 30 seconds. The manual lists four clues, including a suspect swaying

while balancing, using arms for balance, hopping, or putting his foot down.             The

observation of two of four clues suggests impairment. The test is considered a failure if

the subject puts his foot down three or more times.

       {¶11} The video shows that before beginning this test, appellant, with both feet

on the ground, bent over to tie his shoe. He did not exhibit any problems with balance

at that time.   The video shows appellant starting the instruction phase of the test

standing with his feet together, arms at his side, and listening to the officer. Patrolman

Coolick did not explicitly tell appellant not to perform the test until he was told but he

prefaced his instructions with, “when I tell you to start.” Patrolman Coolick did not

explicitly ask appellant if he understood the instructions thus far, but did ask appellant

after each instruction, “ok?”

       {¶12} When appellant was instructed to begin, he did so correctly indicating he

understood the proper procedure. Patrolman Coolick did not tell appellant to keep his

foot parallel to the ground or keep both legs straight, but he demonstrated this

procedure to appellant and appellant attempted to do so during the test. Patrolman

Coolick specifically told appellant the remaining instructions, including to look at his foot

and that while keeping his foot raised, to count out loud in the following manner, “one

thousand and one, one thousand and two * * *.” At the end of the instructions phase,




                                             5
Patrolman Coolick did not specifically ask appellant if he understood, but asked him,

“think you can do that?”

       {¶13} Appellant stated that he was nervous and later staggered several times.

Patrolman Coolick allowed appellant to perform the test numerous times and repeatedly

told him not to be nervous. Appellant said that he had a medical condition affecting his

elbow and foot as a result of an old injury. Patrolman Coolick gave him a choice of

which leg he wanted to use for the test. Despite ten attempts, appellant could not keep

one foot off the ground for 30 seconds in accordance with the test, showing balance

problems. Appellant’s attempts from keeping one foot off the ground ranged from a

mere one second up to 16 seconds.

       {¶14} The third and final test was the walk-and-turn.          The NHTSA manual

requires an officer to direct a suspect to stand heel-to-toe, keep his or her hands at their

side, and listen to instructions for the test. Once the instruction phase is complete, the

suspect then takes nine heel-to-toe steps in one direction, and nine back to the starting

point. The NHTSA manual lists eight clues an officer should look for as the suspect

completes the test, including: unable to keep balance while listening to the instructions;

starting before the instructions are finished; stopping while walking; failing to touch heel-

to-toe; stepping off the line; using arms to balance; improperly turning; and taking an

incorrect number of steps.     The NHTSA manual states that two clues out of eight

indicate impairment.

       {¶15} The video shows that Patrolman Coolick correctly instructed appellant to

stand with his feet in a heel-to-toe position, place his arms at his side, and listen to the

officer’s instructions. The NHTSA manual required the officer to instruct appellant to




                                             6
place his right foot on the line ahead of his left foot. However, Patrolman Coolick

instructed appellant to place his feet in the reverse order.

       {¶16} Appellant was required to maintain his balance in a heel to toe position

while listening to and remembering the instructions but he failed to do so twice.

Patrolman Coolick correctly told appellant to place his hands down at his sides and not

to begin the test until told to do so. Appellant attempted to prematurely start the test

twice and Patrolman Coolick told him to “hang on.”             Patrolman Coolick did not

specifically ask appellant if he understood the instructions thus far, but rather ended

each instruction with the question, “ok?”

       {¶17} Patrolman Coolick correctly told appellant that when he is told to start, he

is to take nine heel to toe steps, turn, and take nine heel to toe steps back. Appellant

was instructed that while walking, he was to keep his front foot on the line, keep his

arms at his side, and count the steps out loud. He was not instructed to watch his feet

at all times. However, Patrolman Coolick showed appellant how to walk the nine steps,

while looking at his feet, make the turn, and then return using nine steps. Patrolman

Coolick did not instruct appellant that once he started walking, he was not to stop until

he had completed the test. Patrolman Coolick also did not tell appellant to count his

first step as “one.” However, appellant began counting from “one” when he was told to

start the test.   Patrolman Coolick correctly asked appellant the second time if he

understood the instructions. While walking to the turn point, appellant appeared to have

balance problems and paused for a second or two at step five.




                                             7
      {¶18} Patrolman Coolick concluded that appellant failed all three field sobriety

tests and arrested him for OVI. Prior to towing appellant’s vehicle, an inventory search

revealed marijuana in the trunk, leading to the drug charges.

      {¶19} The trial court granted appellant’s motion to suppress the results of the

HGN test because Patrolman Coolick failed to administer the test in substantial

compliance with the NHTSA manual. Specifically, Officer Coolick did not perform the

first and second phases of the test twice as required by the NHTSA manual. However,

the court denied appellant’s motion to suppress the results of the one-leg stand and

walk-and-turn tests.   The trial court also denied appellant’s motion to suppress all

evidence obtained from his arrest.

      {¶20} Appellant subsequently withdrew his not guilty plea and entered an oral

and written plea of no contest to trafficking in marijuana and OVI as charged in the

indictment. Following a hearing, the court accepted appellant’s no contest plea, found

him guilty, and dismissed the remaining counts in the indictment.

      {¶21} Appellant was sentenced to two years of community control. The court

imposed conditions which included, inter alia: serving 60 days in jail, three days of

which are mandatory, with one day of credit for time served; completing a jail treatment

program; attending two AA meetings per week; and submitting to random drug and

alcohol screenings.    The court also suspended appellant’s driver’s license for six

months. His sentence was stayed pending appeal. Appellant filed a timely appeal and

asserts the following assignments of error:

      {¶22} “[1.] The trial court erred when it denied the defendant-appellant’s motion

to dismiss and/or suppress where the police had no probable cause to arrest the




                                              8
defendant-appellant for operating a vehicle under the influence, in violation of the

defendant-appellant’s right to be free from unreasonable search and seizure as

guaranteed by the Fourth, Fifth, and Fourteenth Amendments of the United States

Constitution and Article I, Sections 10 and 14 of the Ohio Constitution.

        {¶23} “[2.] The defendant-appellant’s constitutional rights to due process and fair

trial under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution

and Article I, Sections 10 and 16 of the Ohio Constitution were prejudiced by the

ineffective assistance of trial counsel.”

        {¶24} In his first assignment of error, appellant argues the trial court erred in

partially denying his motion to suppress because his constitutional rights against

unreasonable search and seizure were violated. Appellant does not challenge the basis

for his stop. Rather, he challenges the probable cause finding for his arrest.

        {¶25} Appellant asserts Patrolman Coolick did not conduct the field sobriety

tests in substantial compliance with NHTSA standards and, thus, did not have probable

cause to arrest him for OVI. He agrees the court properly suppressed the HGN test

after finding it was not administered in substantial compliance with the NHTSA manual.

However, appellant contends the court erred in concluding that Patrolman Coolick

properly administered the one-leg stand and walk-and-turn tests, and that he failed

both.

        {¶26} In addition, appellant alleges the court erred in finding that other factors

also supported a finding of probable cause, including: bloodshot, watery eyes; an odor

of alcohol; a slight incoherence; appellant’s admission to consuming two beers; and that




                                             9
he “repeatedly raised tangential subjects unrelated to his traffic stop of the officer’s

questions.”

      {¶27} The Fourth, Fifth, and Fourteenth Amendments to the United States

Constitution as well as Article I, Sections 10 and 14 of the Ohio Constitution, prohibit

unreasonable search and seizure of any person without probable cause. See Beck v.

Ohio, 379 U.S. 89, 91 (1964). In determining whether the police had probable cause to

arrest an individual for OVI, appellate courts consider whether the police, at the moment

of arrest, had sufficient information derived from a reasonably trustworthy source of

facts and circumstances to cause a prudent person to believe that the suspect was

driving under the influence. State v. Wojewodka, 11th Dist. No. 2009-P-0029, 2010-

Ohio-973, ¶18, citing Beck at 91.

      {¶28} “‘[P]robable cause to arrest does not necessarily have to be based, in

whole or in part, upon a suspect’s * * * performance on one or more of these tests. The

totality of the facts and circumstances can support a finding of probable cause to arrest

even where no field sobriety tests were administered or where * * * the test results must

be excluded.’” Wojewodka, supra, at ¶19, quoting State v. McNulty, 11th Dist. No.

2008-L-097, 2009-Ohio-1830, ¶20. (Emphasis added).

      {¶29} “Appellate review of a motion to suppress presents a mixed question of

law and fact.”   State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8.           The

appellate court must accept the trial court’s factual findings, provided they are supported

by competent, credible evidence. Id., citing State v. Fanning, 1 Ohio St.3d 19 (1982).

Thereafter, the appellate court must independently determine whether those factual




                                            10
findings meet the requisite legal standard. Id., citing State v. McNamara, 124 Ohio

App.3d 706 (4th Dist.1997).

      {¶30} In order for field sobriety testing evidence to be admissible, the state is not

required to show strict compliance with testing standards, but must instead demonstrate

that the officer substantially complied with NHTSA standards. R.C. 4511.19; State v.

Brown, 166 Ohio App.3d 638, 2006-Ohio-1172, ¶25 (11th Dist.); State v. Djisheff, 11th

Dist. No. 2005-T-0001, 2006-Ohio-6201, ¶20.         Part of the state’s burden includes

demonstrating the NHTSA requirements through competent testimony and/or

introducing the applicable portions of the NHTSA manual. Brown at ¶19-25.

      {¶31} On that point, this court has held that “a law enforcement officer is not

required to provide the accused with the NHTSA instructions verbatim. * * * ‘Instead,

the instructions provided may deviate from the quoted language found in the NHTSA

manual so long as they are sufficient to apprise the accused of the manner in which [he]

is to perform the test.’ * * * To demand more ‘amounts to strict compliance with the

NHTSA standards, which is not necessary; rather, clear and convincing evidence of

substantial compliance with the NHTSA standards is sufficient.’” State v. King, 11th

Dist. No. 2009-P-0040, 2010-Ohio-3254, ¶26.          (Citations omitted.)    Furthermore,

“substantial compliance,” synonymous with the term “substantial performance,” is

defined as, “[t]he rule that if a good-faith attempt to perform does not precisely meet the

terms of an agreement or statutory requirements, the performance will still be

considered complete if the essential purpose is accomplished.” Black’s Law Dictionary,

9th Ed.




                                            11
       {¶32} With respect to the one-leg stand test, appellant specifically contends

Patrolman Coolick failed to do the following in accordance with the NHTSA manual: tell

him not to perform the test until told to do so; ask him if he understood the instructions;

tell him to keep his toe pointed when he raised his foot; instruct him to keep both legs

straight; tell him to count until told to stop; and let him know that if he put his foot down

one time during an attempt, he was allowed to pick his foot up and begin counting

where he left off.

       {¶33} As stated, Patrolman Coolick did not explicitly tell appellant not to perform

the test until he was told but he prefaced his instructions with, “when I tell you to start.”

Patrolman Coolick did not explicitly ask appellant initially if he understood the

instructions but did ask him after each instruction, “ok?” When appellant was instructed

to begin, he did so correctly indicating he understood the proper procedure. Patrolman

Coolick did not tell appellant to keep his toe pointed or keep both legs straight, but he

demonstrated this procedure to appellant. Patrolman Coolick did not specifically tell

appellant to count until told to stop, but he told him to count out loud in the following

manner, “one thousand and one, one thousand and two * * *.” Also, Patrolman Coolick

did not tell appellant that if he put his foot down during an attempt, he was allowed to

pick up his foot and begin counting where he left off. However, the majority of the time,

appellant put his foot down within a few seconds and on two attempts, after only one

second. At the end of the instructions phase, Patrolman Coolick did not specifically ask

appellant if he understood, but asked him, “think you can do that?”

       {¶34} Although some of the instructions Patrolman Coolick gave appellant were

not verbatim from the NHTSA manual and deviated slightly from the quoted language




                                             12
found in the NHTSA, they were sufficiently comprehensive to apprise appellant of the

manner in which he was to perform the test. King, supra, at ¶26. Furthermore, nothing

in the record indicates appellant failed to understand the administration procedure.

       {¶35} Appellant said that he had a medical condition affecting his elbow and foot

as a result of an old injury. Patrolman Coolick gave him a choice of which leg he

wanted to use for the test. Appellant also stated that he was nervous. Patrolman

Coolick allowed appellant to perform the test numerous times and repeatedly told him

not to be nervous. The NHTSA manual specifies that the test is considered a failure if

the subject puts his foot down three or more times. Despite ten attempts, appellant

could not keep one foot off the ground for 30 seconds in accordance with the test,

showing balance problems.

       {¶36} Accordingly, Patrolman Coolick administered the one-leg stand test in

substantial compliance with NHTSA standards and appellant failed the test.

       {¶37} With regard to the walk-and-turn test, appellant specifically contends

Patrolman Coolick failed to do the following in accordance with the NHTSA manual:

initially instruct him not to begin the test until told to do so; ask him if he understood the

instructions; tell him to watch his feet at all times; tell him to keep his hands at his side

as he was walking; tell him to start counting at “one;” tell him that once the test began,

he should not stop walking until the test was completed; and incorrectly tell him to start

by placing his left foot in front of his right, rather than behind.

       {¶38} As stated, appellant attempted to prematurely start the test twice and

Patrolman Coolick told him to “hang on.” Patrolman Coolick did not specifically ask

appellant initially if he understood the instructions but he ended each instruction with the




                                               13
question, “ok?” Appellant was not instructed to watch his feet at all times. However,

Patrolman Coolick showed appellant how to walk the nine steps, while looking at his

feet, make the turn, and then return using nine steps. Patrolman Coolick correctly told

appellant that when he was told to start, he was to take nine heel to toe steps, turn, and

take nine heel to toe steps back. Appellant was instructed that while walking, he was to

keep his front foot on the line, keep his arms at his side, and count the steps out loud.

Patrolman Coolick did not tell appellant to count his first step as “one.”       However,

appellant began counting from “one” when he was told to start the test. Patrolman

Coolick did not instruct appellant that once he started walking, he was not to stop until

he had completed the test. Also, Patrolman Coolick instructed appellant to place his

feet in the reverse order.

       {¶39} Again, although some of the instructions Patrolman Coolick gave appellant

deviated from the NHTSA manual and did not include the verbatim language, they were

sufficiently comprehensive to apprise appellant of the manner in which he was to

perform the test. King, supra, at ¶26. Furthermore, nothing in the record indicates

appellant failed to understand the administration procedure.

       {¶40} Patrolman Coolick correctly instructed appellant to stand with his feet in a

heel to toe position, place his arms at his side, and listen to the officer’s instructions.

Appellant was required to maintain his balance in a heel to toe position while listening to

and remembering the instructions but he failed to do so twice. While walking to the turn

point, appellant appeared to have balance problems and paused for a second or two at

step five.




                                            14
       {¶41} Accordingly, we determine there is clear and convincing evidence that

Patrolman Coolick administered the walk-and-turn test in substantial compliance with

NHTSA standards and that appellant failed the test.

       {¶42} Thus, based on the foregoing, we conclude the court did not err in denying

appellant’s motion to suppress the one-leg stand and walk-and-turn tests.

       {¶43} We turn now to appellant’s second argument regarding the other factors

supporting the trial court’s finding of probable cause. As stated, “‘the totality of the facts

and circumstances can support a finding of probable cause to arrest even where no

field sobriety tests were administered or where * * * the test results must be excluded.’”

Wojewodka, supra, at ¶19, quoting McNulty, supra, at ¶20. Thus, even if the one-leg

stand and walk-and-turn tests had not been administered according to NHTSA

guidelines, for the reasons that follow, we conclude that probable cause to conduct an

arrest still existed.

       {¶44} As previously noted, in addition to the court’s findings that the one-leg

stand and walk-and-turn tests were administered in substantial compliance with NHTSA

standards and that appellant failed both tests, the court also found that other factors

supported probable cause for the OVI arrest.         Specifically, the court’s other factors

included: appellant’s bloodshot, watery eyes; an odor of an alcoholic beverage; a slight

incoherence; appellant’s admission to consuming two beers; and that he “repeatedly

raised tangential subjects unrelated to his traffic stop of the officer’s questions.”

       {¶45} Appellant stresses that the odor of alcohol was neither strong nor

pervasive and that Patrolman Coolick did not inquire about the time frame regarding

when he consumed the two beers. He also stresses that he has a Jamaican accent and




                                              15
was cooperative in answering questions. As stated, Patrolman Coolick testified that he

observed appellant’s vehicle around 2:00 a.m. weaving within its lane, “straddling” and

coming close to striking the curb, then weaving back and crossing over the dotted white

line, a marked lanes violation. Again, the incident was recorded via dashboard video,

admitted into evidence without objection, played at the suppression hearing, and viewed

by this court.

       {¶46} Patrolman Coolick further testified that after stopping appellant’s car for

the marked lanes violation, he noticed appellant’s eyes were very bloodshot and watery,

and also noticed a distinct odor of an alcoholic beverage on appellant’s person. “An

officer’s detection of an odor of an alcoholic beverage is a relevant factor to determine if

the officer has probable cause to arrest a suspect for [OVI].” Djisheff, supra, at ¶37.

Appellant stated that he was at a club and admitted consuming two beers.                “An

admission by a driver that he has consumed alcoholic beverages is a factor to be

considered in a probable cause determination for a [OVI] arrest.” Id. at ¶36.

       {¶47} Patrolman Coolick felt that appellant was a little incoherent because he

had to repeat questions to him several times and appellant answered many questions

with inappropriate responses. Patrolman Coolick’s testimony and the dashboard video

reveal that appellant was inappropriately laughing during the officer’s attempts to

instruct him. Appellant also had difficulty maintaining his balance at times.

       {¶48} Accordingly, based on Patrolman Coolick’s testimony and the dashboard

video, we find that the totality of the circumstances, with respect to the “other factors,”

enumerated above, also supported a finding of probable cause to arrest appellant for

OVI.




                                            16
       {¶49} Appellant’s first assignment of error is without merit.

       {¶50} In his second assignment of error, appellant contends his right to due

process was violated due to the ineffective assistance of his counsel. Appellant asserts

his trial counsel was ineffective because he failed to challenge the impoundment and

search of his vehicle following his arrest for OVI. Appellant alleges there was no need

to tow his car since it was legally parked in the parking lot of the motel where he had

rented a room. Appellant maintains the impoundment and subsequent inventory of his

car, pursuant to “police policy,” would have been suppressed by the court had his

counsel pursued such issues in the motion to suppress.

       {¶51} In evaluating ineffective assistance of counsel claims, we apply the

following two-part test enunciated by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668, 687 (1984):

       {¶52} “A convicted defendant’s claim that counsel’s assistance was so defective

as to require reversal of a conviction * * * has two components. First, the defendant

must show that counsel’s performance was deficient.           This requires showing that

counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment. Second, the defendant must show

that the deficient performance prejudiced the defense.        This requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable. Unless a defendant makes both showings, it cannot be said that the

conviction * * * resulted from a breakdown in the adversary process that renders the

result unreliable.”




                                            17
      {¶53} “* * * When a convicted defendant complains of the ineffectiveness of

counsel’s assistance, the defendant must show that counsel’s representation fell below

an objective standard of reasonableness.” Id. at 687-688. “To warrant reversal, ‘(t)he

defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.        A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.’” State v. Bradley, 42 Ohio St.3d 136, 142 (1989), quoting Strickland, supra,

at 694.

      {¶54} It is well-settled under both federal and state law that administrative

inventory searches of lawfully impounded vehicles, if performed according to

established procedures, are not unreasonable under the Fourth Amendment unless the

search is a pretext concealing an investigatory police motive. State v. Walker, 11th

Dist. No. 2009-L-155, 2010-Ohio-4695, ¶19, citing South Dakota v. Opperman, 428 U.S.

364, 372 (1976), and State v. Robinson, 58 Ohio St.2d 478, 480 (1979). “The United

States Supreme Court ‘has consistently sustained police intrusions into automobiles

impounded or otherwise in lawful police custody where the process is aimed at securing

or protecting the car and its contents.’” Walker at ¶20. In sum, a routine search of a

lawfully impounded vehicle is not unreasonable within the meaning of the Fourth

Amendment of the United States Constitution when performed in accordance with

standard procedures in the local police department, and in good faith. State v. Wotring,

11th Dist. 2010-L-009, 2010-Ohio-5797, ¶12.

      {¶55} “The authority of police to seize and remove from the streets vehicles

impeding traffic or threatening public safety and convenience is beyond challenge.




                                          18
When vehicles are impounded, local police departments generally follow a routine

practice of securing and inventorying the automobiles’ contents. These procedures

developed in response to three distinct needs: the protection of the owner’s property

while it remains in police custody; the protection of the police against claims or disputes

over lost or stolen property; and the protection of the police from potential danger.” Id. at

¶17-18. See also State v. Suttles, 9th Dist. No. 16333, 1994 Ohio App. LEXIS 418, *6

(Feb. 2, 1994)(court determined that the automobile was lawfully impounded after the

police officer made a good faith effort in finding a third party to drive the appellant’s

vehicle where appellant’s driving privileges were suspended.); and State v. Clay, 8th

Dist. No. 91942, 2009-Ohio-2725, ¶26, quoting State v. Ross, 8th Dist. No. 62215, 1993

Ohio App. LEXIS 2622 (May 20, 1993)(police may not seize a defendant’s car and

conduct an inventory search following a defendant’s arrest where it was legally parked

and no public concern existed which required the removal of the car from its legally

parked place).

       {¶56} Appellant contends that if a motion challenging the inventory search had

been filed in his case, the controlling case law indicates that such a motion would have

been granted by the trial court, and thus, his trial counsel was ineffective for failing to

challenge the inventory search.

       {¶57} “‘When claiming ineffective assistance due to failure to file or pursue a

motion to suppress, an appellant must point to evidence in the record showing there

was a reasonable probability the result of trial would have differed if the motion had

been filed or pursued.’ State v. Gaines, 11th Dist. Nos. 2006-L-059 and 2006-L-060,

2007-Ohio-1375, ¶17, citing State v. Clark, 11th Dist. No. 2002-A-0056, 2003-Ohio-




                                             19
6689, ¶28. ‘If case law indicates the motion would not have been granted, then counsel

cannot be considered ineffective for failing to prosecute it.’ Gaines, supra, at ¶17, citing

State v. Edwards (Sept. 5, 2000), 10th Dist. No. 99AP-958, 2000 Ohio App. LEXIS

3971, at *8.”    State v. Kitcey, 11th Dist. No. 2007-A-0014, 2007-Ohio-7124, ¶56.

(Emphasis added).

       {¶58} We note that at the beginning of the suppression hearing, appellant’s

counsel specifically stated the issues he intended to raise, and that he was not going to

pursue a challenge based on the inventory search:

       {¶59} “What we’re challenging is the stop, the arrest. And in part of the arrest

I’m going to submit that based on the evidence that I have from the State of Ohio is that

the arrest was based on Mr. Brooks’ performance on the various field sobriety

exercises.

       {¶60} “ * * *

       {¶61} “So it’s really just the stop and the arrest, Your Honor. And I think once, if

the court finds the arrest, it’s not really the search of the vehicle, I think the search was

incident to an arrest or certainly an inventory search.” (Emphasis added.)

       {¶62} Accordingly, since appellant’s counsel decided not to raise the propriety of

the inventory search during the suppression hearing, the record contains no evidence

regarding the standard procedures in the local police department on tows or inventory

searches, or whether there were any other bases to challenge the impoundment of

appellant’s vehicle, which ultimately led to the discovery of the marijuana. See Wotring,

supra, at ¶17-18. The record is simply silent on those issues.




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       {¶63} As this court has recently stated, “we cannot infer ineffective assistance

from a silent record; rather, appellant bears the burden of proving ineffective assistance.

State v. Murphy (2001), 91 Ohio St.3d 516, 542, 2001-Ohio-112 * * *.”              State v.

Galloway, 11th Dist. No. 2000-L-079, 2002-Ohio-4358, ¶49. We concluded in Galloway

that “[w]hen an appellant makes allegations of the ineffectiveness of his trial counsel

based upon facts that do not appear in the record, these allegations should be reviewed

through postconviction relief, not on direct appeal. State v. Cooperrider (1983), 4 Ohio

St.3d 226, 228 * * *.” Id. at ¶56.

       {¶64} In another recent case, State v. Tucholski, 11th Dist. No. 2011-A-0069,

2012-Ohio-5591, this court was faced with similar facts. Appellant in that case initially

pled “not guilty” to the charges, then moved the trial court to suppress certain oral

statements he had made to the police at the time of his arrest. Id. at ¶4. Although an

evidentiary hearing was scheduled on appellant’s suppression motion, he agreed to

enter a plea of guilty immediately prior to the hearing in exchange for the state’s

agreement to dismiss the remaining counts of the indictment. Id. at ¶5. On appeal,

appellant asserted that he had ineffective assistance of counsel when his counsel had

him enter a plea of guilty, thereby waiving any suppression issue on appeal. Id. at ¶9.

       {¶65} In concluding that appellant did not assert a viable basis for reversing his

conviction, this court stated as follows:

       {¶66} “In considering similar situations in which an ‘ineffective assistance of trial

counsel’ argument has been predicated upon alleged evidence not set forth in the trial

record, this court has concluded that the substance of the argument cannot be properly

reviewed because it is impossible to determine whether the outcome of the case would




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have been different. See State v. Kovacic, 11th Dist. No. 2010-L-065, 2012-Ohio-219,

¶51. The same analysis is applicable in this case: i.e. in the absence of any indication

of what evidence would have been presented at the suppression hearing, this court is

unable to determine if the motion to suppress had any merit. Consequently, appellant

cannot show whether the performance of his trial counsel was deficient, or whether the

outcome of the proceeding was adversely affected. Accordingly, * * * the ‘ineffective

assistance’ argument cannot be adequately addressed in the context of a direct appeal

* * *.” Id. at ¶14.

       {¶67} Based on foregoing authorities and the absence of a record to support

appellant’s ineffective assistance claim, pursuant to Strickland, appellant has failed to

demonstrate that his counsel was deficient, or that such deficiency resulted in prejudice

to him. In sum, the record in this case is unclear and insufficiently developed regarding

the subject suppression issue such that this court cannot discern whether the

suppression motion would have had a reasonable probability of success but for

counsel’s failure to file a motion to suppress the evidence adduced as a result of the

inventory search.

       {¶68} Appellant’s second assignment of error is without merit.

       {¶69} For the foregoing reasons, appellant’s assignments of error are not well-

taken. The judgment of the Lake County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, P.J.,

DIANE V. GRENDELL, J.,

concur.




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