[Cite as State v. Burnette, 2010-Ohio-6581.]




                           STATE OF OHIO, COLUMBIANA COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO,                                 )
                                               )      CASE NO.     09 CO 44
        PLAINTIFF-APPELLEE,                    )
                                               )
        - VS -                                 )      PARTIAL OPINION
                                               )            AND
KELLY BURNETTE,                                )      JUDGMENT ENTRY
                                               )
        DEFENDANT-APPELLANT.                   )



CHARACTER OF PROCEEDINGS:                          Criminal Appeal from Common Pleas
                                                   Court, Case No. 08CR380.


JUDGMENT:                                          Affirmed in part; Appeal continues on
                                                   single issue identified by Court.


APPEARANCES:
For Plaintiff-Appellee:                            Attorney Robert Herron
                                                   Prosecuting Attorney
                                                   105 South Market Street
                                                   Lisbon, Ohio 44432


For Defendant-Appellant:                           Attorney Bryan Felmet
                                                   1100 Jackson Place
                                                   Steubenville, Ohio 43952


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

                                                   Dated: December 29, 2010
PER CURIAM:


       ¶{1}   Defendant-appellant Kelly Burnette appeals from his conviction of
possession of drugs entered in the Columbiana County Common Pleas Court.
Counsel has filed a no merit brief. There is a suggestion that the officer should not
have frisked appellant before transporting him in the police vehicle.          As counsel
concedes, an officer, who is transporting a passenger of a car being towed, can
properly conduct a pat-down before placing the passenger in the police cruiser.
       ¶{2}   The main issue is whether, during a weapons frisk of a passenger who is
being transported to the post in a police vehicle, an officer’s plain feel of a tin
commonly used to store narcotics justified removal of the tin from appellant’s pocket.
We conclude that this issue is not wholly frivolous. Present counsel is permitted to
withdraw, and we shall appoint new counsel to brief this issue on behalf of appellant.
                             STATEMENT OF THE CASE
       ¶{3}   On December 14, 2008 at approximately 2:45 a.m., a trooper with the
Ohio State Highway Patrol stopped a vehicle driven by Randy Wilhelm. (Tr. 8-9).
Appellant was seated in the front passenger seat of the vehicle. Upon approaching
the vehicle, the trooper detected a strong odor of alcohol and burnt marijuana. (Tr. 9).
The driver made furtive movements and was asked to perform field sobriety tests, on
which he performed poorly. Upon deciding to arrest the driver for operating a vehicle
under the influence, the officers ordered the vehicle to be towed. (Tr. 11).
       ¶{4}   Appellant also appeared to be inebriated. A bulge could be seen in his
jacket pocket where the top of a can was visible. (Tr. 13-14). Because of appellant’s
apparent intoxication, the trooper determined that he needed to be driven to the post
to arrange for transportation. (Tr. 23). Before placing him in the patrol car, the trooper
patted appellant down. As suspected, the can turned out to be a beer can. (Tr. 14). In
moving to appellant’s front pants pocket, the trooper felt an open tin box of the type
that mints come in.    He removed the tin, which contained a small red straw and
cocaine residue. Deeper in the same pocket, the trooper then found a folded piece of
paper containing .42 grams of cocaine. (Tr. 14-15).
       ¶{5}   Appellant was charged with possession of drugs in violation of R.C.
2925.11(A), a felony of the fifth degree. Appellant filed a motion to suppress evidence
and to dismiss the indictment. This motion was heard and overruled. On November
23, 2009, pursuant to a plea agreement, appellant entered a plea of no contest to the
charge. The Court accepted the plea and found appellant guilty. The court sentenced
appellant to eight months in prison and suspended his operator’s license for six
months.
       ¶{6}   Appellant filed a timely appeal from the sentencing entry. New counsel
was appointed. On April 15, 2010, counsel filed a motion to withdraw and a no merit
brief. Appellant did not file a pro se brief; however, his girlfriend wrote a letter to
counsel containing certain arguments. Because counsel then submitted the letter to
this court for our consideration of the issues raised therein, it will be considered as
presenting proposed assignments of error.
                                     GENERAL LAW
       ¶{7}   When appellate counsel seeks to withdraw and discloses that there are
no meritorious arguments for appeal, the filing is known as a no merit or an Anders
brief. See Anders v. California (1967), 386 U.S. 738. In this district, it has also been
called a Toney brief. See State v. Toney (1970), 23 Ohio App.2d 203. In Toney, this
Court established the following guidelines to be utilized when counsel determines that
an indigent's appeal is frivolous:
       ¶{8}   “An indigent defendant's constitutional right to counsel on his direct
appeal requires that court-appointed counsel make arguments in support of the appeal
to the best of his ability. If, after a conscientious examination of the case, counsel
concludes there are no good grounds for appeal, counsel should so advise the court
and request permission to withdraw, accompanying his request with a brief if counsel
finds anything in the record that might arguably support the appeal.         A copy of
counsel's request and brief is to be furnished to the defendant, who is given time to
raise any points that he chooses.
       ¶{9}   “The appellate court must then examine the record and any arguments
presented by counsel or the defendant. If the court agrees that there are no arguable
issues, it may grant counsel's request to withdraw and affirm the trial court's judgment.
If the court finds any legal points arguable on the merits, the court shall afford the
indigent defendant assistance of counsel to argue the appeal.” Id. at 206-207, citing
Anders, 386 U.S. at 774.
                              POTENTIAL WITNESSES
      ¶{10} Appellant suggests that trial counsel was ineffective because he did not
present certain witnesses to testify at trial. Counsel states that as he understands the
situation, these potential witnesses could testify that appellant was not knowingly in
possession of the cocaine but would not implicate themselves in criminal possession.
In addition, counsel states that there appears to have been difficulty in locating and
subpoenaing these potential witnesses.
      ¶{11} In determining whether counsel was ineffective, we use the two-prong
Strickland test. State v. Maguire, 7th Dist. No. 08MA188, 2009-Ohio-4393, ¶17-18.
Appellant must initially establish that counsel's performance fell below an objective
standard of reasonable representation. Strickland v. Washington (1984), 466 U.S.
668, 687; State v. Bradley (1989), 42 Ohio.St.3d 136, paragraph two of the syllabus.
Counsel is presumed competent. State v. Thompson (1987), 33 Ohio.St.3d 1, 10. We
do not use hindsight to second-guess trial tactics as there is a wide range of
professional competence and of acceptable trial strategy. State v. Carter (1995), 72
Ohio.St.3d 545, 558.
      ¶{12} Appellant must also show that he was prejudiced by counsel's deficient
performance.    Strickland, 466 U.S. at 687.      To then demonstrate that he was
prejudiced by the deficient performance, the defendant must prove that there exists a
reasonable probability that were it not for counsel's serious error, the outcome of the
proceedings would have been different. Keith, 79 Ohio.St.3d at 534. In evaluating
prejudice, we thus consider whether our confidence in the outcome is undermined.
Bradley, 42 Ohio.St.3d at 142.
      ¶{13} If this court finds that either prong fails, there is no need to analyze the
remaining prong because in order for ineffective assistance of counsel to be shown,
both prongs must be established by appellant. State v. Herring, 7th Dist. No. 06JE8,
2007-Ohio-3174, ¶43.
       ¶{14} If the witnesses were not willing to implicate themselves in owning the
cocaine found in appellant’s own pants pocket, then it is difficult to see how counsel
was ineffective in failing to present them at a trial that never even occurred because
appellant pled no contest. Appellant was fully informed during the plea hearing that by
entering a plea of no contest, he was waiving his right to bring witnesses to testify on
his behalf. (Plea Tr. 14-15).
       ¶{15} In any event, only issues occurring on the record can be evaluated in a
direct appeal.    State v. Hartman (2001), 93 Ohio.St.3d 274, 299 (if establishing
ineffective assistance of counsel requires proof outside the record, then such claim is
not appropriately considered on direct appeal); State v. Ishmail (1978), 54 Ohio St.2d
402, 406 (the appellate court is limited to what transpired as reflected by the record on
direct appeal and cannot rely upon evidence de hors the record).               Thus, any
allegations concerning the potential content of testimony are not the proper topics for
direct appeal, and counsel could properly refuse to raise the issue in a merit brief.
                                          VIDEOTAPE:
       ¶{16} Appellant also suggests that trial counsel was ineffective because he did
not present the videotape of the traffic stop. He believes the videotape of the arrest
would have revealed that appellant was handcuffed prior to the pat-down and that he
was never read his rights.1
       ¶{17} As counsel states, these issues were never raised before the trial court.
Once again, only issues occurring on the record can be evaluated in a direct appeal.
Hartman, 93 Ohio.St.3d at 299. Because the videotape was never introduced into
evidence by either the defense or the prosecution, it is not part of the record and
therefore cannot be reviewed by this court in the direct appeal. As such, counsel
properly filed a no merit brief regarding this argument.
                                        PLEA HEARING
       ¶{18} Crim.R. 11(C) provides that a trial court must make certain advisements
prior to accepting a defendant's guilty or no contest plea to ensure that the plea is
entered into knowingly, intelligently, and voluntarily. These advisements are typically


       1
       In any event, the videotape actually refutes these claims.
divided into constitutional rights and non-constitutional rights. The constitutional rights
are: (1) a jury trial; (2) confrontation of witnesses; (3) compulsory process for obtaining
witnesses; (4) that the state must prove guilt beyond a reasonable doubt at trial; and
(5) that the defendant cannot be compelled to testify against himself.             Crim.R.
11(C)(2)(c); State v. Veney, 120 Ohio.St.3d 176, 2008-Ohio-5200, ¶19-21. The trial
court must strictly comply with these requirements; if it fails to strictly comply, the
defendant's plea is invalid. Id. at ¶31; State v. Ballard (1981), 66 Ohio St.2d 473, 477.
See, also, State v. Singh (2000), 141 Ohio.App.3d 137.
       ¶{19} The trial court's advisement on the constitutional rights strictly complied
with Crim.R. 11(C)(2)(c). Appellant was informed that by pleading no contest he was
waiving his right to a jury trial, to confront witnesses against him, to subpoena
witnesses in his favor, and to have the state prove at trial each and every element of
the offense by proof beyond a reasonable doubt. (Plea Tr. 14-16). He was also
advised that if he went to trial he could not be compelled to testify against himself.
(Plea Tr. 14-15).    Appellant indicated after the explanation of every right that he
understood the right. (Plea Tr. 14-16).
       ¶{20} The non-constitutional rights are that:        (1) the defendant must be
informed of the nature of the charges; (2) the defendant must be informed of the
maximum penalty involved, which includes an advisement on post-release control, if it
is applicable; (3) the defendant must be informed, if applicable, that he is not eligible
for probation or the imposition of community control sanctions; and (4) the defendant
must be informed that after entering a guilty plea or a no contest plea, the court may
proceed to judgment and sentence. Crim.R. 11(C)(2)(a)(b); Veney, 120 Ohio.St.3d
176, at ¶10-13.
       ¶{21} In advising of the non-constitutional rights, the trial court must
substantially comply with Crim.R. 11's mandates. State v. Nero (1990), 56 Ohio.St.3d
106, 108. "Substantial compliance means that under the totality of the circumstances
the defendant subjectively understands the implications of his plea and the rights he is
waiving." Veney, 120 Ohio.St.3d 176 at ¶15 quoting Nero, 56 Ohio.St.3d at 108.
       ¶{22} As to the non-constitutional rights, appellant was advised of the charge in
the indictment, possession of drugs. (Plea Tr. 9, 12-13). The trial court correctly
advised him of the maximum penalty involved for the indicted offense, which was
twelve months in prison, a $2,500 fine, and a five-year suspension of his operator’s
license. (Plea Tr. 12-13). See, also, R.C. 2929.14(A)(5) (stating the maximum term
for a fifth degree felony is twelve months); R.C. 2929.18(A)(3)(e) (stating the maximum
fine for a fifth degree felony is $2,500).
       ¶{23} Appellant was also informed that upon release from prison, he could be
subject to a period of up to three years post-release control under certain terms and
conditions, the violation of which could result in a period of reincarceration of up to one
half of any prison term that had been previously given. (Plea Tr. 13). See, also, R.C.
2967.28(C) (indicating that a fifth degree felony is subject to a three-year term of post-
release control). In addition, the court informed appellant that if he violated post-
release control by commission of a felony, that he could be punished separately for
that felony. (Tr. 13). The judgment entry reiterated these notifications.
       ¶{24} Consequently, there is no indication that the plea was not entered into
knowingly, intelligently, and voluntarily. Counsel could properly refuse to file a merit
brief on these topics.
          PROPRIETY OF PAT-DOWN BEFORE PLACEMENT IN VEHICLE
       ¶{25} Since possession of a tin with cocaine residue and a straw is an
arrestable offense, seizure of the folded paper containing .42 grams of cocaine would
be proper as a search incident to a lawful arrest. The preliminary questions are thus
whether it was reasonable for the officer to place appellant in the police cruiser and to
first conduct a weapons pat-down before that placement and whether the removal of
the tin was justified during the weapons pat-down.
       ¶{26} "Although a police officer may reasonably pat-down a person before he
places him in the back of a police vehicle, the legitimacy of that procedure depends on
the legitimacy of placing him in the police car in the first place." State v. Lozada
(2001), 92 Ohio St.3d 74, 76, quoting People v. Kinsella (1988), 139 A.D.2d 909, 911,
527 N.Y.S.2d 899. The placement in a police car itself is permissible in order to
facilitate a traffic stop even it is for the mere convenience of an officer. Id. However,
this alone is not sufficient justification for a pat-down. Id.
       ¶{27} It is well-established that if the officer has a legitimate reason to detain a
person stopped in a traffic stop, such as failure to produce a driver’s license, then the
officer is placing that person in the police vehicle for more than mere convenience and
the officer can conduct a pat-down prior to placement in the police vehicle. Id. at 77-
78, citing State v. Evans (1993), 67 Ohio St.3d 405, 410. “Certainly, it is reasonable
that the officer, who has a legitimate reason to so detain that person, is interested in
guarding against an ambush from the rear.” Evans, 67 Ohio St.3d at 411.
       ¶{28} The Lozada Court expanded this premise and held that it is reasonable
to place the driver in a patrol car and subject him to a pat-down search for weapons
where placement is justified to protect the officer or the subject from a dangerous
condition. Id. at 79. By way of example, the Court stated that where a hostile crowd
threatens the officer or a driver during a traffic stop, the officer may be justified in
placing the driver in a patrol car for the duration of the traffic stop. Id. Thus, not only
people subject to detainment can be patted-down prior to placement in a police
vehicle. A determination as to the reasonableness of a particular police procedure
depends “on a balance between the public interest and the individual's right to
personal security free from arbitrary interference by law officers.” Id. at 78, quoting
United States v. Brignoni-Ponce (1975), 422 U.S. 873, 878.
       ¶{29} In the present case, the trooper testified that after the driver of the
vehicle had been arrested and placed in the cruiser, the decision had been made to
have the vehicle towed. (Tr. 11). Appellant, who was a passenger in the vehicle to be
towed, appeared to be impaired, had a can sticking out of his pocket, and had been
travelling in a car that smelled like burnt marijuana. The trooper testified that if a
passenger of a car to be towed appears to be impaired, that passenger cannot be left
at the scene. (Tr. 14). The trooper intended to put appellant in the cruiser in order to
transport him to the station where he could secure his own transportation and thus to
ensure appellant’s safety.     (Tr. 16).   This was not done for the officer’s mere
convenience.
       ¶{30} Consequently, it was reasonable for the officer to conduct a pat-down of
appellant in order to ensure the safety of both officers before placing appellant in the
back of the cruiser. (Tr. 14). We conclude that counsel was justified in refusing to file
a merit brief on this issue.
                         REMOVAL OF OBJECT FROM POCKET
       ¶{31} The police may search only for weapons when conducting a pat-down of
the suspect.    “A search for weapons in the absence of probable cause to arrest,
however, must, like any other search, be strictly circumscribed by the exigencies which
justify its initiation. * * * Thus it must be limited to that which is necessary for the
discovery of weapons which might be used to harm the officer or others nearby * * *.”
Terry v. State of Ohio (1968), 392 U.S. 1, 25-26. The protective pat-down under Terry
is limited in scope to this protective purpose and cannot be employed by the searching
officer to search for evidence of crime. See Adams v. Williams (1972), 407 U.S. 146.
       We begin by disposing of any notion that a possible open container violation
could justify a full search of appellant. Even if the beer can in appellant’s pocket was
open, which is not clear from the record, an open container violation is only a minor
misdemeanor. See R.C. 4301.62. Police officers may briefly detain, but may not
conduct a custodial arrest, or a search incident to that arrest, for a minor misdemeanor
offense when none of the R.C. 2935.26 exceptions apply. See State v. Brown, 99
Ohio St.3d 323, 2003-Ohio-3931, ¶25.
       ¶{32} While Trooper Wolfe was acting lawfully in performing the initial pat-
down of appellant for weapons, finding the can of beer provided no justification for a
more in depth search. Rather, in proceeding with the frisk, the trooper was acting
under the initial justification for the search - officer safety.
       ¶{33} When Trooper Wolfe continued with the pat-down search, he felt an
open metal tin in appellant’s left, front pants pocket. He admitted that he did not
believe the tin was a weapon. (Tr. 31-32). Thus, he went beyond the scope of a Terry
weapons frisk when he proceeded to reach into appellant’s pocket and remove the tin.
However, other permissible bases may exist for the search.
       ¶{34} The U.S. Supreme Court has addressed situations in which a police
officer, while conducting a lawful Terry frisk, feels an object “whose contour or mass
makes its identity immediately apparent.” Minnesota v. Dickerson (1993), 508 U.S.
366. In such situations, “there has been no invasion of the suspect's privacy beyond
that already authorized by the officer's search for weapons; if the object is contraband,
its warrantless seizure [is] justified by the same practical considerations that inhere in
the plain-view context.” Id. at 375-376. This exception to the warrant requirement
allows the state to use evidence seized during a Terry search if the police officer, due
to his experience in arresting drug offenders, feels contraband whose contour or mass
makes its “incriminating character” “immediately apparent” to him. Id.
       ¶{35} Here, the officer stated that it was immediately apparent to him that
appellant had an open mint tin in his pocket. This officer associates such tins as being
containers for carrying narcotics. As the officer admitted he did not believe the tin was
a weapon and a mint tin itself is not contraband, there may be a meritorious issue as
to the propriety of the officer’s removal of this tin from appellant’s pocket. Arguing that
the incriminating character of the tin was not immediately apparent would not have
been frivolous. As such, it was not proper to file a no merit brief on this issue. We
thus release present counsel, and we shall appoint new counsel to brief the issue of
whether an officer conducting a lawful pat-down may remove an open metal tin from a
person’s pants pocket under the circumstances existing in this case.




Vukovich, P.J., concurs.
Waite, J., concurs.
DeGenaro, J., concurs.
