         [Cite as State v. Hackney, 2016-Ohio-4609.]
                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO




STATE OF OHIO,                                    :    APPEAL NO. C-150375
                                                       TRIAL NO. B-1407260
        Plaintiff-Appellee,                       :
                                                          O P I N I O N.
  vs.                                             :

MICHAEL HACKNEY,                                  :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                            Remanded

Date of Judgment Entry on Appeal: June 29, 2016




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




F ISCHER , Presiding Judge.

       {¶1}    Defendant-appellant Michael Hackney appeals his convictions for two

counts of trafficking in cocaine under R.C. 2925.03(A)(1) and one count of having

weapons while under a disability under R.C. 2923.13(A)(3).          He asserts four

assignments of error for review.      We find some merit in his arguments.       We,

therefore, reverse one of his trafficking convictions, but affirm his other two

convictions.


                                 I. Factual Background

       {¶2}    The record shows that in December 2014, Cincinnati Police officers

Mark Bode and Thomas Weigand met with a confidential informant, whom other

officers had found to be reliable. The informant agreed to assist them with a drug

deal, and he identified his supplier as “Hack.”      The police officers had been

unfamiliar with that name until the informant had provided it. From that nickname

and “from other information provided,” the police developed Hackney as a suspect.

At some point in the investigation, the officers showed the informant a photograph of

Hackney, and the informant confirmed that Hackney was the seller.         They also

identified a residence at 1054 Loiska Lane, #3, in College Hill as a location for a

controlled buy by the informant.

       {¶3}    On the day of the buy, Bode and other officers kept watch on the

Loiska Lane residence. They saw a van registered in Hackney’s name and that

Hackney was known to drive parked outside.        The police had the informant call

“Hack” to arrange a purchase. They monitored the informant as he made the call,

but the call was not recorded.




                                          2
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}     Before the buy, Bode searched the informant and gave him $600 to

purchase the drugs. The police officers photocopied the bills to make sure that they

had the serial numbers of the bills so that they could be identified later. Bode

testified that the bills were then considered “marked.”

       {¶5}     1054 Loiska Lane was a multi-unit apartment building with a common

exterior door. The informant tried the door, but it was locked. Bode saw him “get on

his cell phone,” but could not hear what was said in that phone call. When an

unrelated woman came out of the door, the informant used that opportunity to enter

the building.

       {¶6}     Bode and the other officers were in radio contact with each other, but

they could not hear or contact the informant. He advised the other officers when the

informant had entered the building. They could not see the informant once he went

in the building. Bode observed the informant leave the building and get into his car.

       {¶7}     The police followed the informant to a prearranged location, and he

turned over a baggie of crack cocaine. Police officers then searched the informant

and his car, but did not find any additional drugs or money.

       {¶8}     On December 24, 2014, Bode obtained a search warrant for 1054

Loiska Lane, #3.     The police executed the warrant on December 26, 2014. Before

the search, they placed the building and Hackney’s van, which was parked outside,

under surveillance. They saw a person matching Hackney’s description leave the

building, get into the van, and drive away. Bode radioed a uniformed officer, who

stopped the van a “safe distance” away.

       {¶9}     Hackney identified himself, but denied living at 1054 Loiska Lane. At

first, he was agitated and combative with the police. Bode told Hackney that he was

under arrest for drug trafficking and that the police had bought drugs from him at



                                           3
                     OHIO FIRST DISTRICT COURT OF APPEALS



that address.    Hackney then admitted that he stayed there with his girlfriend,

Antoinette Hamm, whose son had shot at police officers the summer before. He

claimed that he was being targeted because he was living with Hamm.

       {¶10} Bode told Hackney that the police had a search warrant and asked him

if any of his keys would unlock doors at the Loiska Lane apartment. Hackney said

that they would not. The police then seized the keys. A teenage girl let the officers

into the apartment. They found that one of Hackney’s keys opened the front door of

the apartment.

       {¶11} After entering the apartment, the police officers saw a door at the end

of a hallway secured with a deadbolt. They used one of Hackney’s keys to open the

locked door. Inside they found marijuana, an ounce of crack cocaine prepared for

sale, plastic baggies, a Pyrex jar, approximately $400 in cash, an operable semi-

automatic pistol, a magazine and bullets. The police also found a prescription bottle

bearing Hackney’s name, as well as mail addressed to him.

       {¶12} In the living room of the apartment, the police recovered photographs

of Hackney. In the kitchen, they found another digital scale. They also found a scale

at the bottom of a laundry basket. Though they looked for the marked bills used in

the buy, those bills were never recovered.

       {¶13} Bode and Weigand interviewed Hackney after his arrest. At that time,

he was more cooperative. He told the officers that he had found the gun recovered in

the search on the street and that he had fired it only once, to test it. He was willing to

provide information on his supplier in exchange for case consideration. He said that

he had obtained drugs from someone he knew as “Hen” and that he regularly went to

a house in Bond Hill to purchase ounces of cocaine, which he then sold in very small




                                             4
                       OHIO FIRST DISTRICT COURT OF APPEALS



quantities. Despite several attempts to figure out where the house was, the police

were never able to identify or locate “Hen.”

       {¶14} While he was in jail, Hackney called a girl, whom police believed to be

his daughter. He asked the girl to tell police that the drugs were hers. He told her

that because she was a juvenile, she would receive a lesser sentence than he would

receive as an adult.

       {¶15} Hackney was indicted for four offenses. Count 1 was trafficking in

cocaine as a third-degree felony related to the sale of the drugs to the informant.

Count 2 was trafficking in cocaine as a second-degree felony related to the drugs

found in the apartment during the execution of the search warrant. Count 3 was

possession of cocaine related to the drugs found in the apartment. Count 4 was

having weapons while under a disability related to the gun found in the apartment.

       {¶16} Following a jury trial, Hackney was found guilty of all four counts. The

trial court merged the possession count with the trafficking charge in Count 2, and

sentenced Hackney to serve a total of 14 years in prison. This appeal followed.


                                  II. Confrontation

       {¶17} Hackney presents four assignments of error for review, which we will

consider out of order. In his second assignment of error, he contends that he was

denied the right to confront the witnesses against him. He argues that the trial court

erred when it allowed testimonial hearsay into evidence. This assignment of error is

well taken in part.

       {¶18} The Sixth Amendment to the United States Constitution states, “In all

criminal prosecutions, the accused shall enjoy the right * * * to be confronted by the

witnesses against him[.]” In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354,



                                           5
                     OHIO FIRST DISTRICT COURT OF APPEALS



158 L.Ed.2d 177 (2004), the United States Supreme Court held that the

Confrontation Clause bars “testimonial statements of a witness who did not appear

at trial unless he was unavailable to testify, and the defendant had a prior

opportunity for cross-examination.” Id. at 53-54.

       {¶19}    Only testimonial statements implicate the Confrontation Clause. Id.

at 50-51; State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 15-

16; State v. Robinson, 1st Dist. Hamilton No. C-060434, 2007-Ohio-2388, ¶ 13.

Testimonial statements occur where there is no ongoing emergency and the

statements resulted from a police interrogation of which the “primary purpose [was]

to establish or prove past events potentially relevant to later criminal prosecution.”

State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 17, quoting

Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006); In

re B.T.B., 12th Dist. Butler No. CA2014-10-199, 2015-Ohio-2729, ¶ 28.

       {¶20} The Confrontation Clause does not bar the use of testimonial

statements for purposes other than establishing the truth of the matter asserted.

Ricks at ¶ 18; State v. Matthews, 1st Dist. Hamilton Nos. C-060669 and C-060692,

2007-Ohio-4881, ¶ 10. Generally, statements offered to explain an officer’s conduct

during an investigation of a crime are not hearsay because they are not offered for

their truth.   In re B.T.B. at ¶ 30.    Courts have permitted the introduction of

testimonial statements where the testimony provided background information or

context for the investigation, or explained a detective’s conduct while investigating a

crime. Matthews at ¶ 10.

       {¶21} But there are limits to this general rule because of the great potential

for abuse and confusion of the trier of fact. Ricks at ¶ 24. “[T]he well-worn phrase

‘not offered for the truth of the matter asserted’ is not a talismanic incantation that



                                          6
                       OHIO FIRST DISTRICT COURT OF APPEALS



opens the door to everything said outside the courtroom.” Id. at ¶ 25, quoting State

v. Richcreek, 196 Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d 442, ¶ 26 (6th

Dist.).    Testimony offered to explain police officers’ conduct is only admissible if

three conditions are met: (1) the conduct to be explained should be “relevant,

equivocal, and contemporaneous with the statements;” (2) the probative value of the

statements must not be substantially outweighed by the danger of unfair prejudice;

and (3) the statements cannot connect the accused with the crime charged. Ricks at

¶ 27; State v. Jones, 1st Dist. Hamilton No. C-130359, 2014-Ohio-3110, ¶ 20.

          {¶22} In this case, the informant did not testify at trial and Hackney had no

opportunity to cross-examine him. At first, Officer Bode testified that the informant

identified his supplier as “Hack.” Hackney objected to that testimony on the grounds

that it constituted hearsay, and the trial court sustained the objection. Nevertheless,

the court allowed Bode to repeatedly refer to the name, “Hack.” He testified that the

police officers identified Hackney as a suspect from that nickname and “from other

information provided.” But Bode’s testimony made clear that the name came from

the informant and nowhere else.          He testified that prior to talking with the

informant, he had never heard the name. Both Bode and Weigand made numerous

references to Hackney, including indicating that the informant had identified a

picture of Hackney, and their testimony showed that information had come solely

and directly from the informant.

          {¶23} All of this testimony went beyond describing the steps in the

investigation. Instead, it involved hearsay that connected Hackney to the sale of

cocaine to the informant that was the subject of the trafficking charge in Count 1 of

the indictment by relating historical facts of the investigation. See Ricks, 136 Ohio

St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, at ¶ 51 (French, J., concurring); Jones



                                            7
                      OHIO FIRST DISTRICT COURT OF APPEALS



at ¶ 21. In fact, that testimony was the only evidence connecting him to the sale.

Therefore, the admission of that hearsay evidence violated Hackney’s right to

confront the witnesses against him. See Jones at ¶ 21.

       {¶24} After the first objection, counsel did not object to some of the

improper testimony, so we must review the testimony for plain error. Under a plain-

error analysis, this court must affirm a conviction unless, but for the allegedly

inadmissible evidence, the outcome of the trial would have been different. State v.

Underwood, 3 Ohio St.3d 12, 13, 444 N.E.2d 1332 (1983); Jones, 1st Dist. Hamilton

No. C-130359, 2014-Ohio-3110, at ¶ 22. Because the hearsay was the only evidence

linking Hackney to the drug sale to the informant as charged in Count 1 of the

indictment, its admission affected the outcome of the trial. Therefore, the error rises

to the level of plain error.

       {¶25} Hackney contends that the error also affected his other convictions.

We disagree.      Those convictions were based on evidence stemming from the

execution of a valid search warrant. See Matthews, 1st Dist. Hamilton Nos. C-

060669 and C-060692, 2007-Ohio-4881, at ¶ 12.               While the hearsay was

inadmissible at trial, hearsay statements adequately supported the application for

the search warrant, because there was a factual basis for the information the

informant had relayed, and there was a sufficient basis to determine the informant’s

reliability. See State v. Karr, 44 Ohio St.2d 163, 165, 339 N.E.2d 641 (1975); State v.

Urdiales, 3d Dist. Henry No. 7-15-03, 2015-Ohio-3632, ¶ 18-19; State v. Greene, 1st

Dist. Hamilton No. C-790524, 1980 Ohio App. LEXIS 10685, *3-4 (July 30, 1980).

       {¶26} Further, the police had probable cause to believe that drugs would be

found at the Loiska Lane address and to arrest Hackney after the alleged sale to the

informant. Probable cause is a lesser standard of proof than that required for a



                                          8
                     OHIO FIRST DISTRICT COURT OF APPEALS



conviction, which is proof beyond a reasonable doubt. Probable cause only requires

the existence of circumstances that warrant suspicion. State v. George, 45 Ohio

St.3d 325, 329, 544 N.E.2d 640 (1989); State v. Bremenkamp, 1st Dist. Hamilton

Nos. C-130819 and C-130820, 2014-Ohio-5097, ¶ 11; State v. Smith, 4th Dist.

Highland No. 09CA29, 2010-Ohio-4507, ¶ 84.

       {¶27} Nevertheless, we hold that the trial court erred in admitting hearsay

into evidence and that the error affected the result of the charge in Count 1 of the

indictment. Consequently, we sustain Hackney’s second assignment of error as to

that count and overrule it as to the other counts.


                                    III. Sufficiency

       {¶28} In his third assignment of error, Hackney contends that the evidence

was insufficient to support his conviction for trafficking in cocaine in Count 1, which

related to the sale of cocaine to the informant. This assignment of error is well taken.

       {¶29} The relevant inquiry, when reviewing the sufficiency of the evidence is

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

rational trier of fact could have found the essential elements of the offenses proved

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus; State v. Ojile, 1st Dist. Hamilton Nos. C-110677

and C-110678, 2012-Ohio-6015, ¶ 48.

       {¶30} In Count 1, Hackney was convicted of violating R.C. 2925.03(A)(1). It

provides that “[n]o person shall knowingly * * * [s]ell or offer to sell a controlled

substance * * * .” Besides proof of each element of the offense, the state must also

demonstrate the identity of the defendant as the perpetrator beyond a reasonable




                                           9
                    OHIO FIRST DISTRICT COURT OF APPEALS



doubt. State v. Cook, 65 Ohio St.3d 516, 526, 605 N.E.2d 70 (1992); State v. Brown,

12th Dist. Warren No. CA2006-10-120, 2007-Ohio-5787, ¶ 29.

       {¶31} In this case, there is no evidence that Hackney sold drugs to the

informant. The informant did not testify. The residence where the controlled buy

occurred was a multi-unit building that the informant was only able to enter because

another person had left. The police officers could not see or hear what occurred

while the informant was inside. There was no testimony about who he spoke to, if

anyone, or what he did once inside. While the informant was searched before and

after he went into the building, and he returned with a baggie of crack cocaine, the

marked money supposed to be used in the sale was never recovered.

       {¶32} Considering the evidence in a light most favorable to the prosecution,

we hold that the state failed to prove beyond a reasonable doubt that Hackney was

the person who had sold crack cocaine to the informant. Consequently, we sustain

Hackney’s third assignment of error, and we reverse the conviction for trafficking in

cocaine as charged in Count 1 of the indictment.


                                IV. Manifest Weight

       {¶33} In his fourth assignment of error, Hackney contends that all of his

convictions were against the manifest weight of the evidence. Since we have already

reversed his conviction on Count 1 of the indictment, we need not address whether it

was against the manifest weight of the evidence. See State v. Cedeno, 192 Ohio

App.3d 738, 2011-Ohio-674, 950 N.E.2d 582, ¶ 25 (1st Dist.).

       {¶34} As to his other two convictions, after reviewing the record in this case,

we cannot hold that the jury clearly lost its way and created such a manifest

miscarriage of justice that we must reverse the convictions and order a new trial.



                                         10
                     OHIO FIRST DISTRICT COURT OF APPEALS



Consequently, we cannot hold that they are against the manifest weight of the

evidence. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997);

Cedeno at ¶ 25. We overrule Hackney’s fourth assignment of error.


                        V. Ineffective Assistance of Counsel

       {¶35} Finally, in his first assignment of error, Hackney contends that he was

denied the effective assistance of counsel. He argues that his counsel was ineffective

for failing to object to hearsay evidence and evidence of plea negotiations, stipulating

to laboratory reports regarding cocaine weight, consenting to unrecorded sidebar

conferences, failing to file a motion to suppress on appropriate grounds, and

providing erroneous legal advice concerning a plea bargain. This assignment of error

is not well taken.

       {¶36} A court will presume that a properly licensed attorney is competent,

and the defendant bears the burden to show ineffective assistance of counsel. State

v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988); State v. Bell, 2015-

Ohio-1711, 34 N.E.3d 405 ¶ 53 (1st Dist.).        To sustain a claim for ineffective

assistance of counsel, the defendant must demonstrate that counsel’s performance

was deficient, and that the deficient performance prejudiced the defense. Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bell at ¶

25.

       {¶37} To establish that counsel’s performance was deficient, the defendant

must show that counsel’s representation fell below an objective standard of

reasonableness. Strickland at 687-688; State v. Thomas, 1st Dist. Hamilton No. C-

120561, 2013-Ohio-5386, ¶ 51. Judicial scrutiny of counsel’s performance must be

highly deferential. The defendant must overcome the presumption that, under the



                                           11
                     OHIO FIRST DISTRICT COURT OF APPEALS



circumstances, the challenged action might be considered sound trial strategy.

Strickland at 689; Thomas at ¶ 51. A defendant is not deprived of the effective

assistance of counsel when counsel chooses, for strategic reasons, not to pursue every

possible trial tactic. State v. Brown, 38 Ohio St.3d 305, 319, 528 N.E.2d 523 (1988);

Thomas at ¶ 51.

       {¶38} To establish prejudice, a 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. Strickland at 694; Thomas at ¶ 52. Prejudice

from defective representation sufficient to justify reversal of a conviction exists only

where the result of the proceeding was unreliable or fundamentally unfair because of

counsel’s performance. Lockhart v. Fretwell, 506 U.S. 364, 369-370, 113 S.Ct. 838,

122 L.Ed.2d 180 (1993); State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965

(1995); Thomas at ¶ 52.


                           A. Failure to Object to Hearsay

       {¶39} First, Hackney contends that his counsel was ineffective for failing to

object to hearsay. Counsel’s failure to make objections is not, by itself, enough to

sustain a claim for ineffective assistance of counsel. State v. Conway, 108 Ohio St.

3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 168; Thomas at ¶ 53. First, counsel did

object to some of the police officer’s testimony on the basis of hearsay, and the trial

court sustained those objections. Second, most of this argument is moot because

that testimony pertained primarily to the conviction in Count 1, which we have

reversed.




                                          12
                     OHIO FIRST DISTRICT COURT OF APPEALS



               B. Failure to Object to Evidence of Plea Negotiations

       {¶40} Hackney also contends that his counsel was ineffective for failing to

object to evidence of plea negotiations admitted in violation of Evid.R. 410.

Specifically, he argues that counsel should have objected to the police officers’

testimony that Hackney agreed to cooperate and act as a confidential informant.

Under the circumstances, Hackney had no reasonable expectation that a plea was

being negotiated because his statements were made to the police officers at an early

investigatory stage. Therefore, they were not plea negotiations within the meaning of

Evid.R. 410. See State v. Jeffries, 119 Ohio St.3d 265, 2008-Ohio-3865, 893 N.E.2d

487, ¶ 9-11; State v. Kidder, 32 Ohio St.3d 279, 285, 513 N.E.2d 311 (1987); State v.

Poulton, 5th Dist. Muskingum No. CT2013-0030, 2014-Ohio-1198, ¶ 22-29.

Consequently, counsel was not ineffective for failing to object on that basis.


                        C. Stipulation to Laboratory Reports

       {¶41} Hackney next argues that his counsel was ineffective for stipulating to

the laboratory reports regarding the weight of the cocaine. He relies on State v.

Gonzales, 6th Dist. Wood No. WD-13-086, 2015-Ohio-461. In that case, the Sixth

Appellate District held that in prosecuting cocaine offenses under R.C.

2925.11(C)(4)(a) through (f), the state must prove that the weight of the actual

cocaine possessed by the defendant met the statutory threshold. Because the state

failed to present evidence of the cocaine’s purity, the court reversed the penalty

enhancement. Id. at ¶ 47.

       {¶42} But that case is not binding authority in this district. See State v.

Dovangpraseuth, 10th Dist. Franklin No. 05AP-88, 2006-Ohio-1533, ¶ 36; Stapleton

v. Holstein, 131 Ohio App.3d 596, 598, 723 N.E.2d 164 (4th Dist.1998). In State v.



                                           13
                     OHIO FIRST DISTRICT COURT OF APPEALS



Fuller, 1st Dist. Hamilton No. C-960753, 1997 Ohio App. LEXIS 4398 (Sept. 26,

1997), this court held that “[t]he quantity of the entire mixture, rather than the

quantity of pure cocaine within the mixture, is used to determine the bulk amount.”

Id. at *6. While the Ohio Supreme Court did agree to decide the issue, see State v.

Gonzales, 143 Ohio St.3d 1403, 2015-Ohio-2747, 34 N.E.3d 132, and State v.

Gonzales, 143 Ohio St.3d 1402, 2015-Ohio-2747, 34 N.E.3d 131, it has not yet ruled,

and Fuller remains the law of this district.

       {¶43} Thus, it would have been futile for counsel to object to the report.

Further, defense counsel’s decision to stipulate to evidence is generally considered a

tactical decision.   Even debatable trial tactics and strategies do not constitute

ineffective assistance of counsel. State v. Chatman, 10th Dist. Franklin No. 08AP-

803, 2009-Ohio-2504, ¶ 16.


               D. Failure to Object to Unreported Sidebar Conferences

       {¶44} Hackney argues that his counsel was ineffective for consenting to

unreported sidebar conferences at trial. This court has held that Crim.R. 22 requires

the recording of sidebar conferences in serious-offense cases, and that a trial court’s

summary of the sidebar conferences in lieu of recording is error. State v. Simmons,

2014-Ohio-3695, 19 N.E.3d 517 ¶ 80 (1st Dist.); State v. Davis, 1st Dist. Hamilton

No. C-130198, 2014-Ohio-794, ¶ 13. But we have also held that the defendant must

show prejudice from the failure to record, especially where the defendant does not

object to the procedure employed by the court. Simmons at ¶ 81.

       {¶45}    In this case, the trial court summarized in detail what had occurred at

the sidebar conferences.     Each time, the court asked both counsel if they had

anything to add, and both replied that they did not. Hackney also did not attempt to



                                           14
                      OHIO FIRST DISTRICT COURT OF APPEALS



reconstruct the conferences under App.R. 9(C). Consequently, Hackney has not

demonstrated any prejudice from the unrecorded sidebar conferences, and,

therefore, he cannot show ineffective assistance of counsel. See State v. Hendrix, 1st

Dist. Hamilton Nos. C-150194 and C-150200, 2016-Ohio-2697, ¶ 34-35.


          E. Failure to File a Motion to Suppress on Appropriate Grounds

       {¶46} Next, Hackney argues that trial counsel filed a motion to suppress

based on the wrong ground. Counsel filed the motion on the basis that the affidavit

contained a false statement under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674,

57 L.Ed.2d 667 (1978). But at the hearing on the motion to suppress, he could not

point to any statement that was false. Instead, he argued that the affidavit was

insufficient to show that Hackney was the individual who had sold drugs to the

confidential informant. The trial court overruled the motion.

       {¶47} Hackney now argues that counsel should have filed a motion to

suppress based on the illegal stop of his vehicle. He relies on Bailey v. United States,

___ U.S. ___, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013). In that case, the United States

Supreme Court held that Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69

L.Ed.2d 340 (1981), which allows for a detention incident to the execution of a search

warrant, “is limited to the immediate vicinity of the premises to be searched” and

does not allow for a defendant to be detained at a point beyond any reasonable

understanding of the immediate vicinity of the premises in question. Bailey at 1042.

“Once an individual has left the immediate vicinity of the premises to be searched, * *

* detentions must be justified by some other rationale.” Id. at 1042-1043.

       {¶48}    The police offered two rationales for their stop of Hackney’s car. The

first justification falls squarely within the rule set forth in Bailey. The officers stated



                                            15
                     OHIO FIRST DISTRICT COURT OF APPEALS



that they had watched Hackney leave the premises to be searched and get into his

car. They followed his car and stopped him some distance away from the premises

for purposes of officer and bystander safety.

       {¶49} Nevertheless, the police officers also stated that they had stopped

Hackney’s vehicle to arrest him for drug trafficking based on the sale to the

informant. An arrest without a warrant in a public place is valid if the arresting

officer had probable cause to make it. State v. Timson, 38 Ohio St.2d 122, 126-127,

311 N.E.2d 16 (1974); Cincinnati v. Bryant, 1st Dist. Hamilton No. C-090546, 2010-

Ohio-4474, ¶ 14. As we have previously stated, probable cause is a lesser standard

than proof beyond a reasonable doubt. George, 45 Ohio St.3d at 329, 544 N.E.2d

640; Bremenkamp, 1st Dist. Hamilton Nos. C-130819 and C-130820, 2014-Ohio-

5097, at ¶ 11; Smith, 4th Dist. Highland No. 09CA29, 2010-Ohio-4507, at ¶ 84.

       {¶50}    At the time of Hackney’s arrest, Bode and the other officers had facts

and circumstances within their knowledge sufficient to warrant a prudent individual

to believe that Hackney had committed or was committing an offense. Therefore,

they had probable cause to make the arrest, and it did not violate Hackney’s Fourth

Amendment rights. See State v. Heston, 29 Ohio St.2d 152, 155-156, 280 N.E.2d 376

(1972); State v. Deters, 128 Ohio App.3d 329, 333, 714 N.E.2d 972 (1st Dist.1998).

       {¶51} Because the police had an alternate reason to stop Hackney, a motion

to suppress based on Bailey would ultimately not have been successful. Therefore,

the failure to file the motion was not prejudicial. See State v. Brown, 115 Ohio St.3d

55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65; Thomas, 1st Dist. Hamilton No. C-

120561, 2013-Ohio-5386, at ¶ 53.




                                          16
                     OHIO FIRST DISTRICT COURT OF APPEALS



                          F. Erroneous Plea-Bargain Advice

       {¶52} Finally, Hackney argues that trial counsel provided erroneous advice

concerning a plea bargain. He relies on Lafler v. Cooper, ___ U.S. ___, 132 S.Ct.

1376, 182 L.Ed.2d 398 (2012), in which the United States Supreme Court held that

the Sixth Amendment right to counsel applies to the plea-bargaining process. Id. at

1384. But in that case, the record showed that the defendant had refused to accept

the plea bargain based on the advice of counsel. He went to trial, was found guilty,

and received a much more severe sentence than he would have received under the

plea bargain. Id. at 1386. Therefore, the United States Supreme Court reversed the

conviction and remanded the matter to the trial court with instructions for it to order

the state to reoffer the plea agreement. Id. at 1391.

       {¶53} In this case, the record shows that the prosecutor put the plea offer on

the record. The trial court advised Hackney to discuss the matter with his counsel,

and, after doing so, Hackney rejected the plea offer. The record does not show what

counsel’s advice to Hackney was. Counsel very well could have told him to take it,

and Hackney rejected that advice. Nothing in the record shows that but for counsel’s

advice, Hackney would have accepted the plea deal. Consequently, he cannot show

ineffective assistance of counsel on that basis.

       {¶54} The record shows that generally, Hackney’s counsel provided him with

a diligent defense. Hackney has not demonstrated that counsel’s performance was

deficient or that but for counsel’s deficient performance, the result of the proceeding

relating to Counts 2 and 4 would have been different or that the result of the

proceeding was unreliable or fundamentally unfair. Therefore, he has failed to meet

his burden to show ineffective assistance of counsel. See Strickland, 466 U.S. at 687-




                                           17
                     OHIO FIRST DISTRICT COURT OF APPEALS



689, 104 S.Ct. 2052, 80 L.Ed.2d 674; Bell, 2014-Ohio-1711, 34 N.E.3d 405, at ¶ 53-

55. We, therefore, overrule his first assignment of error.


                                     VI. Summary

       {¶55} In sum, we sustain Hackney’s second and third assignments of error as

to Count 1. We vacate the conviction in Count 1 for trafficking in cocaine as a third-

degree felony, and Hackney is discharged as to that count.          We overrule his

remaining assignments of error, and affirm the trial court’s judgment in all other

respects. We note that this holding reduces Hackney’s total sentence of 14 years’

incarceration to 11 years. We remand the matter to the trial court to enter judgment

in accordance with this opinion.

                   Judgment affirmed in part, reversed in part, and cause remanded.



C UNNINGHAM and S TAUTBERG , JJ., concur.


Please note:
       The court has recorded its own entry this date.




                                           18
