[Cite as State v. West, 2014-Ohio-198.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 97398 and 97899




                                          STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.


                                           TODD WEST
                                                       DEFENDANT-APPELLANT




                                JUDGMENT:
                         APPLICATION FOR REOPENING
                       GRANTED IN PART; DENIED IN PART


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-548609
                                   Application for Reopening
                                      Motion No. 463529

        BEFORE:           Jones, J., Boyle, A.J., and Keough, J.

        RELEASED AND JOURNALIZED: January 22, 2014
FOR APPELLANT

Todd West
Inmate No. 604-897
Richland Correctional Institution
1001 Olivesburg Road
P.O. Box 8107
Mansfield, Ohio 44901-8107

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Daniel Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES SR., J.:

       {¶1} Todd West has filed a timely application for reopening pursuant to App.R.

26(B). West is attempting to reopen the appeal, rendered in State v. West, 8th Dist.

Cuyahoga Nos. 97398 and 97899, 2012-Ohio-6138, that affirmed his conviction for the

offense of trafficking in drugs, but reversed and remanded with regard to the sentences

imposed for the offenses of trafficking and illegal manufacture or cultivation of marijuana

based upon merger as allied offenses of similar import. For the following reasons, we

deny the application for reopening in part and grant the application for reopening in part.

       {¶2} In order to establish a claim of ineffective assistance of appellate counsel,

West must demonstrate that appellate counsel’s performance was deficient and that, but

for the deficient performance, the result of his appeal would have been different. State v.

Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456. Specifically, West must

establish that “there is a genuine issue as to whether he was deprived of the effective

assistance of counsel on appeal.” App.R. 26(B)(5).

       {¶3} In State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588, the

Supreme Court of Ohio held that:

       Moreover, to justify reopening his appeal, [applicant] “bears the burden of
       establishing that there was a ‘genuine issue’ as to whether he has a
       ‘colorable claim’ of ineffective assistance of counsel on appeal.” State v.
       Spivey, 84 Ohio St.3d 25, 1998-Ohio-704,701 N.E.2d 696.

       Strickland charges us to “appl[y] a heavy measure of deference to counsel’s
       judgments,” 466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674, and to
       “indulge a strong presumption that counsel’s conduct falls within the wide
      range of reasonable professional assistance,” Id. at 689, 104 S.Ct. 2052, 80
      L.Ed. 674. Moreover, we must bear in mind that appellate counsel need
      not raise every possible issue in order to render constitutionally effective
      assistance. See Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d
      987 (1983); State v. Sander, 94 Ohio St.3d 150, 761 N.E.2d 18 (2002).

State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588.

      {¶4} In addition, the Supreme Court of Ohio, in State v. Spivey, 84 Ohio St.3d

24, 1998-Ohio-704, 701 N.E.2d 696, held that:

      In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we
      held that the two-prong analysis found in Strickland v. Washington (1984),
      466 U.S. 668, 104 S.Ct 2052, 80 L.Ed 674, is the appropriate standard to
      assess a defense request for reopening under App.R. 26(B)(5). [Applicant]
      must prove that his counsel were deficient for failing to raise the issues he
      now presents, as well as showing that had he presented those claims on
      appeal, there was a “reasonable probability” that he would have been
      successful. Thus [applicant] bears the burden of establishing that there was
      a “genuine issue” as to whether he has a “colorable claim” of ineffective
      assistance of counsel on appeal.

Id.

      {¶5} It is also well settled that appellate counsel is not required to raise and argue

assignments of error that are meritless. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308,

77 L.Ed.2d 987 (1983).    Appellate counsel cannot be considered ineffective for failing

to raise every conceivable assignment of error on appeal. Jones v. Barnes, supra; State

v. Grimm, 73 Ohio St.3d 413, 1995-Ohio-24, 653 N.E.2d 253; State v. Campbell, 69 Ohio

St.3d 38, 1994-Ohio-492, 630 N.E.2d 339.

      {¶6} In Strickland, the United States Supreme Court also stated that a court’s

scrutiny of an attorney’s work must be deferential.   The court further stated that it is too

tempting for a defendant to second-guess his attorney after conviction and appeal and that
it would be all to easy for a court to conclude that a specific act or omission was deficient,

especially when examining the matter in hindsight.        Accordingly, “a court must indulge

a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under

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

at 689.

       {¶7} Finally, the United States Supreme Court has upheld the appellate attorney’s
discretion to decide which issues he or she believes are the most fruitful arguments and
the importance of winnowing out weaker arguments on appeal and focusing on one
central issue or at most a few key issues. Jones v. Barnes, supra.

          {¶8} West, in support of his claim of ineffective assistance of appellate counsel,

raises seven proposed assignments of error. The first and second proposed assignments

of error are:

          The trial court erred when it held the forfeiture hearing without jurisdiction
          since an appeal was pending when the hearing was held to dispose [of] the
          property on Scranton Avenue.

          The trial court erred when it forfeited property owned by the appellant that
          is not listed in the bill of particulars and indictment.

          {¶9} West, through his first proposed assignment of error, argues that the trial

court was without jurisdiction to conduct a forfeiture hearing, as to property located on

Scranton Road in the city of Cleveland, Ohio, based upon the transfer of jurisdiction

principle. Through the second proposed assignment of error, West argues that the trial

court was not permitted to forfeit the Scranton Road property because it was not properly

identified in either the indictment or the bill of particulars. The issues of transfer of
jurisdiction and improper identification of the Scranton Road property in the indictment

and/or bill of particulars was previously raised and addressed through a writ of

prohibition filed by West and the prior appeal.

       * * * Todd West asserts that the trial court must have lost all jurisdiction
       after he appealed his convictions in October 2011. As a second argument,
       he asserts that the trial judge did not have the jurisdiction to order the
       forfeiture of Permanent Parcel No. 004-10-006, because it was not
       explicitly stated in the indictment. * * *

       He implicitly argues that the failure to include all of the permanent parcel
       numbers in the specification creates a jurisdictional defect in the indictment.

       However, these arguments are not well taken. R.C. 2981.04 provided the
       respondent judge with statutory jurisdiction to proceed. * * *

       In his appeals, Todd West argued that the trial court erred in ordering the
       forfeiture of both parcels of land because the indictment only identified one
       parcel. This court rejected that argument by noting that the two parcels
       were merged for tax purposes and that the 2341 Scranton Road address
       described both parcels. This court concluded that [the] trial court properly
       forfeited the entire property. State v. Todd West, 8th Dist. Nos. 97398 and
       97899, 2012-Ohio-6138. Todd West filed a motion for reconsideration in
       his appeal on January 4, 2013, (motion no. 461387), which raised the same
       transfer of jurisdiction argument as in his writ. In fact, Todd West relied
       upon the same authority and at times used identical language in his
       argument as in his writ action. On January 18, 2013, this denied the
       motion for reconsideration. Thus, the principles of issue preclusion also
       bar these arguments.

State ex rel. West v. McDonnell, 8th Dist. Cuyahoga No. 99086, 2013-Ohio-1044, ¶ 8.

       {¶10} The doctrine of res judicata bars the additional review of the issues of the

trial court’s lack of jurisdiction to conduct a forfeiture hearing and the incomplete

description of the Scranton Road property in the indictment. State v. Murnahan, 63 Ohio

St.3d 60, 584 N.E.2d 1204 (1992); State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104
(1967). See also Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81

Ohio St.3d 392, 1998-Ohio-435, 692 N.E.2d 140; Grava v. Parkman Twp., 73 Ohio St.3d

379, 1995-Ohio-331, 653 N.E.2d 226. West’s first and second proposed assignments of

error are not well taken and fail to establish ineffective assistance of appellate counsel.

       {¶11} West’s third proposed assignment of error is that:

       The appellant was denied his due process right to a fair trial when the
       prosecution failed to disclose evidence favorable to an accused upon
       request.

       {¶12} Through his third proposed assignment of error, West argues that the

prosecutor violated his duty to disclose exculpatory material, as mandated by Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to provide the

affidavit for the fly-over search of the Scranton Road property.          Specifically, West

argues that because the fly-over affidavit was improper and employed to obtain the

Scranton Road building search warrant, the building search warrant must be improper,

and all subsequent searches must be suppressed.

       {¶13} Initially, there exists a lack of record support. The affidavits and search

warrants were not part of the appellate record. Because they are outside the record, we

could not consider the affidavits and search warrants on direct appeal even if they did

contain exculpatory evidence. State v. Martin, 151 Ohio App.3d 605, 2003-Ohio-735,

784 N.E.2d 1237 (3d Dist.); State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978).

In addition, any Brady violation must be initially addressed by the trial court. State v.

Wood, 2d Dist. Greene No. 2006 CA 1, 2007-Ohio-1027.                 West’s third proposed
assignment of error is without merit and fails to establish ineffective assistance of

appellate counsel.

       {¶14} West’s fourth proposed assignment of error is that:

       Trial counsel was ineffective for waiving the evidentiary hearing and failing
       to assure the record contains the evidence reviewed by the trial court after
       challenging the fly-over thermal imaging, the unlawful search and seizure
       of property.

       {¶15} West, through his fourth proposed assignment of error argues that trial

counsel erred by failing to request an evidentiary hearing with regard to a motion to

suppress vis-a-vis the affidavits and search warrants for the fly-over and subsequent

search of the Scranton Road property.

       {¶16} The decision to waive an evidentiary hearing, with regard to a motion to

suppress, falls squarely within the realm of sound trial strategy and will not be second

guessed absent demonstration that the strategy was unreasonable. Strikland, supra. In

addition, with regard to a direct appeal and a claim of ineffective assistance of trial

counsel, the record must demonstrate not only that trial counsel’s performance fell below

an objective standard of reasonableness, but also that the failure prejudiced the defendant.

 State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

       {¶17} Herein, West has failed to demonstrate how he was prejudiced by the waiver

of an evidentiary hearing with regard to a motion to suppress. Moreover, the testimony

adduced at trial clearly demonstrated that the results of the fly-over search were merely

inconclusive and that West’s surreptitious movements and the extremely strong smell of

marijuana, detected outside of the Scranton Road, property provided sufficient probable
cause for the physical search. (Tr. 188.) West’s fourth proposed assignment of error is

not well taken and fails to establish ineffective assistance of appellate counsel.

       {¶18} West’s fifth proposed assignment of error is that:

       The trial court erred when it did not suppress the appellant’s incriminating
       statements after conducting a hearing.

       {¶19} West, through his fifth proposed assignment of error, argues that he did not

waive his right against self-incrimination during the search of the Scranton Road

property.

       {¶20} The record clearly demonstrates that West was advised of his Miranda

rights, specifically the right to remain silent:

       Q.      By the way detective, do you see Todd West in the court here today?

       A.      I do.

       Q.      Point to him and describe what he’s wearing?

       A.      Long blue — long sleeve, light blue dress shirt on glasses.

               MR. LAVELLE: Glasses. Okay. May the record reflect that the
               witness identified the defendant?

               THE COURT: It may so reflect.

       Q.      After identifying yourself as a police officer what did you do or say
               to the defendant?

       A.      I told him we have a search warrant for the building and I advised
               him of his rights.

       Q.      When you say you advised him of his rights, could you please tell the
               Court exactly what it was, these rights that you advised him?

       A.      The right to remain silent; anything he said can and would be used
     against them in court; right to an attorney, and if you cannot afford
     one, one would be provided for him.

Q.   Now detective, what did the defendant say after you advised him of
     these rights?

A.   I asked if he understood, and he said, yes.

Q.   Were you the first person to have contact with Todd West?

A.   I was.

     ***

Q.   And were you present when Detective Klamert Mirandized Todd
     West?

A.   I was.

Q.   And did you inquirey [sic] after being — well, did you hear Todd
     West’s response to the — after he was advised of his Miranda
     rights?

A.   Yes.

Q.   What was that?

A.   I believe he just said, yes.

Q.   Being that he understood?

A.   Correct.

     ***

Q.   Who specifically, among the officers, advised him of his
     constitutional rights?

A.   That was Detective Klamert.

     ***
       Q.      Anybody threaten Mr. West?

       A.      No.

       Q.      Any officer threaten Mr. West?

       A.      No.

       Q.      And, again, he acknowledged understanding the Miranda rights
               which Detective Klamert had read to him in your presence?

       A.      Yes, he did.

(Tr. 164.)

       {¶21} West was advised of his Miranda rights during the search of the Scranton

Road property. Thus, West’s fifth proposed assignment is without merit and fails to

establish ineffective assistance of appellate counsel.

       {¶22} West’s sixth proposed assignment of error is that:

       Trial court erred when it forfeited $2,700 of cash from appellant’s residence
       without sufficient evidence the cash was obtained from illegal drug activity.

       {¶23} West, through his sixth proposed assignment of error, challenges the

forfeiture of $2,700 that was seized from his residence during the execution of a search

warrant. We find the sixth proposed assignment of error well taken.1

       {¶24} Generally, forfeiture is not favored in Ohio. State v. Clark, 173 Ohio


       1
         App.R. 26(B)(1) provides in pertinent part as follows: “A defendant in a criminal case may
apply for reopening of the appeal from the judgment of conviction and sentence * * *.” It would be
a principled interpretation of the rule that the prepositional phrases “from the judgment of conviction
and sentence” limits the scope of the application to reopen only to arguments that could affect the
conviction or sentence. The state, however, has not raised this argument and we are unwilling, at
this time, to limit the application of App.R. 26(B).
App.3d 719, 2007-Ohio-6235, 880 N.E.2d 150 (3d Dist.). The state must prove, by a

preponderance of the evidence, that the seized property is subject to forfeiture. R.C.

2981.04(B) and 2981.02. An appellate court may not reverse the order of forfeiture

where there exists in the record “some competent, credible evidence going to all the

essential elements of the case.”

       {¶25} Herein, $2,700 was seized from a locked safe that was discovered in the

basement of West’s residence upon execution of a search warrant. The state’s argument,

in support of the seizure of the $2,700, is that “is it more likely that the money recovered

was likely proceeds involved in a criminal offense.”

       {¶26} Ohio courts have long recognized that there exists no presumption that the

possession of money is inherently illegal. State v. Golston, 66 Ohio App.3d 423, 584

N.E.2d 1336 (8th Dist.1990), citing Chagrin Falls v. Loveman, 34 Ohio App.3d 212, 517

N.E.2d 1005 (8th Dist.1986). In order to prove that money is subject to forfeiture, the

state must demonstrate that it is more probable than not, from all of the circumstances,

that West used the money in the commission of a criminal offense. Id. In the case sub

judice, the testimony adduced at trial simply disclosed that, following a search of West’s

residence, money was discovered in a locked safe in the basement.           The testimony

adduced at trial also demonstrated that no drugs, drug paraphernalia, criminal tools,

firearms, or other contraband were discovered within West’s residence. In addition,

during the separate forfeiture hearing, no evidence or testimony was adduced to

demonstrate that the money seized from West’s residence was even remotely related to
any type of drug activity.

       {¶27} “General testimony that [money] was found in the home of one convicted of

a drug offense without evidence of the presence of drugs or drug paraphernalia, is

insufficient to prove any or all of the seized items were used in drug trafficking.”

Golston at 434. Thus, we find that West’s sixth proposed assignment of error is well

taken and that West was prejudiced by the failure of his appellate counsel to argue that

the $2,700 was improperly forfeited to the state. The trial court erred by ordering the

forfeiture of the $2,700 to the state.

       {¶28} West’s seventh proposed assignment of error is that:

       Trial counsel was ineffective when he failed to present an affidavit of
       indigence prior to sentencing to waive the fine, or, in the alternative, impose
       a $15,000 fine when both counts are allied offenses and $7,500 is the
       maximum amount allowed.

       {¶29} West, through his seventh assignment of error, argues that appellate counsel

was ineffective by failing to present an affidavit of indigency, prior to sentencing, in order

to waive the mandatory fines that totaled $15,000 entered with regard to the offenses of

trafficking and manufacture or cultivation. However, West was not prejudiced by the

failure of trial counsel to present an affidavit of indigency based upon our prior judgment,

rendered in the direct appeal, that the offenses of trafficking and manufacture or

cultivation were allied offenses of similar import and subject to merger.

       {¶30} In West’s original appeal, we ordered that

       [t]he trial court’s judgment is reversed as to its sentence on both the
       trafficking in drugs and [manufacture or cultivation] convictions, and the
       case is remanded for merger of the counts and the state’s election of which
       count to proceed on.

       {¶31} Upon remand for correction of an allied offenses sentencing error, the trial

court is required to conduct a new sentencing hearing for the offense or offenses that

remain after the state elects which allied offense or offenses to pursue. State v. Wilson,

129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381. West may pursue the issue of an

affidavit of indigency, in order to waive any possible fine, upon resentencing. Thus, the

seventh proposed assignment of error is not well taken and fails to establish ineffective

assistance of appellate counsel.

       {¶32} Accordingly, we deny the application for reopening based upon proposed

assignments of error one, two, three, four, five, and seven. We grant the application for

reopening based upon proposed assignment of error six, reinstate the appeal to the docket

of this court, vacate the order of forfeiture with regard to the $2,700 seized from West’s

residence, and order that the $2,700 be immediately returned to West.

       {¶33} It is, therefore, ordered that West recover of the state his costs herein taxed.

       {¶34} It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

       {¶35} A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

MARY J. BOYLE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
