[Cite as State v. Atkinson, 2020-Ohio-315.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                        C.A. No.      19CA011466

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
STEVEN ATKINSON                                      COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   16CR094593

                                  DECISION AND JOURNAL ENTRY

Dated: February 3, 2020



        CARR, Judge.

        {¶1}     Defendant-Appellant Steven Atkinson appeals from the judgment of the Lorain

County Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     In September 2016, a nine count indictment was filed charging Atkinson with

four counts of trafficking in drugs, one count of possession of drugs, one count of tampering with

evidence, one count of having weapons while under disability, one count of possessing criminal

tools, and one count of obstructing official business. A major drug offender specification

accompanied one of the counts of trafficking in drugs and the count of possession of drugs. A

forfeiture specification accompanied five of the charges.

        {¶3}     In May 2017, Atkinson’s counsel filed a motion requesting that the trial court

order the State to produce copies of “the seizure warrant, the search warrant, affidavit, and

returns which were not provided to Defendant in discovery.” The trial court granted the motion
                                                2


on October 17, 2017, and ordered the State to produce the materials on or before October 31,

2017. On March 16, 2018, the trial court entered an order indicating that the State was to

provide the search warrant by April 20, 2018. On March 21, 2018, the State filed a notice

indicating that it had provided Atkinson’s counsel with the search warrants and search warrant

affidavits.

        {¶4}   In June 2018, Atkinson’s counsel filed a motion to suppress all evidence obtained

via the search warrants. Atkinson’s counsel requested an evidentiary hearing. The trial court

denied the motion, concluding that it was untimely. The trial court noted that Atkinson provided

no reason for the late filing and did not seek leave to file the motion.         In August 2018,

Atkinson’s counsel filed a motion for reconsideration. The trial court granted the motion for

reconsideration and considered the merits of the motion to suppress but did not hold an

evidentiary hearing. The trial court then denied the motion to suppress. Atkinson retained new

counsel in September 2018.

        {¶5}   The record reflects that Atkinson entered a no-contest plea to the indictment in

November 2018. Included in the record is a copy of the written plea agreement. However, the

January 7, 2019 judgment entry of conviction reflects that Atkinson pleaded guilty. Atkinson

was sentenced to an aggregate term of 11 years in prison.

        {¶6}   Atkinson appealed, raising two assignments of error. In light of the inconsistency

concerning whether Atkinson entered a no contest or a guilty plea to the charges, this Court

remanded the matter to the trial court to clarify the record. Thereafter, the trial court issued an

entry reflecting that Atkinson entered a no contest plea to the charges. The record on appeal was

subsequently supplemented.
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                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT
       A HEARING ON THE MOTION TO SUPPRESS[.]

       {¶7}    Atkinson argues in his first assignment of error that the trial court erred in failing

to hold a hearing on the motion to suppress.

       {¶8}    It is undisputed that Atkinson’s motion to suppress, captioned:          “Motion to

Suppress all Evidence Obtain[ed] by Search Warrants with Evidentiary Hearing Requested[,]”

was untimely filed. See Crim.R. 12(D). The trial court initially denied Atkinson’s motion to

suppress on that basis. In so doing, it pointed out that Atkinson “posited no reason for his late

filing nor [did] he [seek] leave to file out of rule.” (Emphasis omitted.)

       {¶9}    Thereafter, Atkinson filed a motion captioned: “Motion for Reconsideration of

Defendant’s Motion to Suppress all Evidence Obtained by Search Warrants with Evidentiary

Hearing Requested[.]” In that motion, in a conclusory fashion, Atkinson asked the trial court to

reconsider its entry denying the motion as untimely and “rule on the merits” of the motion.

Atkinson did not provide a reason for his untimely filing. Thus, the trial court should have

denied Atkinson’s motion for reconsideration. See State v. Pelsozy, 9th Dist. Summit No. 23297,

2007-Ohio-148, ¶ 4-8; State v. Hamilton, 9th Dist. Lorain No. 17CA011238, 2019-Ohio-1829, ¶

29-33; see also Crim.R. 12(D) (“The court in the interest of justice may extend the time for

making pretrial motions.”); Crim.R. 12(H) (“Failure by the defendant to raise defenses or

objections or to make requests that must be made prior to trial, at the time set by the court

pursuant to division (D) of this rule, or prior to any extension of time made by the court, shall

constitute waiver of the defenses or objections, but the court for good cause shown may grant

relief from the waiver.”). And while Atkinson did request an evidentiary hearing in his original
                                                4


motion, in the motion for reconsideration, Atkinson did not do so and instead specifically

“request[ed] that [the trial court] reconsider [its] Journal Entry [denying the motion to suppress]

and rule on the merits of Defendant’s Motion to Suppress.” (Emphasis omitted.) Thus, Atkinson

received exactly what he requested in his motion for reconsideration, a ruling on the merits of his

motion to suppress. Given the contents of Atkinson’s motion to reconsider, we cannot say that

Atkinson has demonstrated that the trial court erred in denying him a hearing on the motion to

suppress. See App.R. 16(A)(7).

       {¶10} Further, even if we were to ignore the foregoing, to the extent that Atkinson

asserted in his motion to suppress that the probable cause for the search warrant was based upon

an illegally deficient affidavit and therefore violated Franks v. Delaware, 438 U.S. 154 (1978),

Atkinson did not demonstrate he was entitled to a hearing.

       {¶11} “There is * * * a presumption of validity with respect to the affidavit supporting

[a] search warrant.” Franks at 171. “In Franks * * *, the United States Supreme Court squarely

addressed the issue of when a defendant, under the Fourth Amendment, is entitled to a hearing to

challenge the veracity of the facts set forth in the warrant affidavit after the warrant has been

issued and executed.” State v. Roberts, 62 Ohio St.2d 170, 177 (1980).

       To mandate an evidentiary hearing, the challenger’s attack must be more than
       conclusory and must be supported by more than a mere desire to cross-examine.
       There must be allegations of deliberate falsehood or of reckless disregard for the
       truth, and those allegations must be accompanied by an offer of proof. They
       should point out specifically the portion of the warrant affidavit that is claimed to
       be false; and they should be accompanied by a statement of supporting reasons.
       Affidavits or sworn or otherwise reliable statements of witnesses should be
       furnished, or their absence satisfactorily explained. Allegations of negligence or
       innocent mistake are insufficient. * * * [I]f these requirements are met, and if,
       when material that is the subject of the alleged falsity or reckless disregard is set
       to one side, there remains sufficient content in the warrant affidavit to support a
       finding of probable cause, no hearing is required. On the other hand, if the
       remaining content is insufficient, the defendant is entitled, under the Fourth and
       Fourteenth Amendments, to his hearing.
                                                 5


Franks at 171-172; see also Roberts at 177-178; State v. Jackson, 9th Dist. Lorain No.

14CA010593, 2015-Ohio-3520, ¶ 10.

       {¶12} Here, in his motion, Atkinson did not point to the specific portions of the search

warrant affidavit which contained the allegedly false statements. See Franks at 171. Moreover,

the search warrant and accompanying affidavit are not in this Court’s record. Additionally,

Atkinson failed to support his allegations with an offer of proof. See Roberts at 178. Atkinson

submitted no “affidavits or otherwise reliable statements” and also did not explain their absence.

Id. at 178. Accordingly, Atkinson failed to make the showing necessary to overcome the

affidavit’s presumption of validity. State v. Cubic, 9th Dist. Medina No. 09CA0005-M, 2009-

Ohio-5051, ¶ 12. Given his arguments, and the record before this Court, Atkinson has not

demonstrated that the trial court erred in failing to hold a hearing on his motion.

       {¶13} Atkinson’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       DEFENDANT ATKINSON WAS DENIED THE EFFECTIVE ASSISTANCE
       OF TRIAL COUNSEL.

       {¶14} In his second assignment of error, Atkinson maintains that his original trial

counsel was ineffective in failing to file a timely motion to suppress, failing to file a motion for

leave to file a motion to suppress, failing to file a motion to compel discovery, and by failing to

question the “‘trash pulls’ and the location of the residence of [Atkinson]” in the motion to

suppress that was filed.

       {¶15} In order to prevail on a claim of ineffective assistance of counsel, Atkinson must

show that trial “counsel’s performance fell below an objective standard of reasonableness and

that prejudice arose from counsel’s performance.” State v. Reynolds, 80 Ohio St.3d 670, 674

(1998), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). First, Atkinson must show
                                                 6


that counsel’s performance was objectively deficient by producing evidence that counsel acted

unreasonably. State v. Keith, 79 Ohio St.3d 514, 534 (1997), citing Strickland at 687. Second,

Atkinson must demonstrate that but for counsel’s errors, there is a reasonable probability that the

results of the trial would have been different. Keith at 534.

       {¶16} While Atkinson’s first trial counsel did not file a timely motion to suppress, a

motion for leave to file a motion to suppress, or a motion to compel, trial counsel did file a

motion to reconsider the denial of the motion to suppress, which the trial court granted. Even

though we concluded above that the trial court should not have granted the motion for

reconsideration based upon the record before it, Atkinson has not adequately demonstrated that,

if he had filed a timely motion to suppress, it would have been granted. In cases where counsel

completely failed to file a motion to suppress, this Court has held that, in order to prove

ineffective assistance of counsel, “a defendant must prove that there was a basis to suppress the

evidence in question. [And, i]n order to show prejudice, a defendant must demonstrate that there

was a reasonable probability that the motion to suppress would have been granted.” (Internal

quotations and citations omitted.) State v. Payne, 9th Dist. Lorain No. 18CA011383, 2019-Ohio-

4218, ¶ 25. As the search warrants and affidavits are not in this Court’s record, this Court cannot

consider them in determining whether a timely filed motion to suppress would have been

successful. See State v. Anderson, 9th Dist. Summit No. 26600, 2013-Ohio-2786, ¶ 11. Thus,

Atkinson’s assertion that a timely filed suppression motion would have been granted is pure

speculation. This is particularly so in light of the fact that, as discussed above, the untimely

motion to suppress that was filed did not include an offer of proof sufficient to warrant a hearing

under Franks.
                                                 7


       {¶17} Atkinson also asserts that trial counsel failed to “question the ‘trash pulls’ and the

location of the residence of [] Atkinson in the Motion to Suppress.” However, Atkinson fails to

explain how trial counsel’s actions fell below an objective standard of reasonableness or

prejudiced him. See Reynolds, 80 Ohio St.3d at 674; see App.R. 16(A)(7). Atkinson failed to

demonstrate that his trial counsel was ineffective.

       {¶18} Atkinson’s second assignment of error is overruled.

                                                III.

       {¶19} Atkinson’s assignments of error are overruled.         The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                             DONNA J. CARR
                                             FOR THE COURT



TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

JACK W. BRADLEY, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting
Attorney, for Appellee.
