[Cite as State v. Speelman, 2016-Ohio-3409.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :    JUDGES:
                                               :    Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                     :    Hon. William B. Hoffman, J.
                                               :    Hon. John W. Wise, J.
-vs-                                           :
                                               :
NATHANIEL A. SPEELMAN                          :    Case No. 15-COA-045
                                               :
        Defendant-Appellant                    :    OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 15-CRI-014




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   June 9, 2016




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

CHRISTOPHER E. BALLARD                              RUTH R. FISCHBEIN-COHEN
110 College Street                                  3552 SEVERN ROAD
3rd Street                                          Cleveland, OH 44118
Ashland, OH 44805
Ashland County, Case No. 15-COA-045                                                         2

Farmer, P.J.

      {¶1}     On May 14, 2015, the Ashland County Grand Jury indicted appellant,

Nathaniel Speelman, on one count of pandering sexually oriented material involving a

minor in violation of R.C. 2907.322, one count of gross sexual imposition in violation of

R.C. 2907.05, and one count of endangering children in violation of R.C. 2919.22. Said

charges arose from a video sent from appellant to the cell phone of Kim Crigger.

      {¶2}     A jury trial commenced on October 27, 2015. The jury found appellant guilty

of the pandering count and not guilty of the gross sexual imposition count.              The

endangering count had been dismissed. By judgment entry filed December 2, 2015, the

trial court sentenced appellant to two years in prison, imposed a $500 fine, and ordered

him to pay court costs.

      {¶3}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                               I

      {¶4}     "COUNSEL WAS INEFFECTIVE BY FAILING TO MOVE THE COURT TO

WAIVE COSTS AND IN FAILING TO FILE AN AFFIDAVIT OF INDIGENCY."

                                              II

      {¶5}     "COUNSEL WAS INEFFECTIVE BY FAILING TO MOVE THE COURT TO

SUPPRESS THE EVIDENCE."

                                             I, II

      {¶6}     Appellant claims his trial counsel was ineffective for failing to file a motion

for the waiver of costs, an affidavit of indigency, and a motion to suppress. We disagree.
Ashland County, Case No. 15-COA-045                                                        3

       {¶7}   The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:



              2. Counsel's performance will not be deemed ineffective unless and

       until counsel's performance is proved to have fallen below an objective

       standard of reasonable representation and, in addition, prejudice arises

       from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

       O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

       668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

              3. To show that a defendant has been prejudiced by counsel's

       deficient performance, the defendant must prove that there exists a

       reasonable probability that, were it not for counsel's errors, the result of the

       trial would have been different.



       {¶8}   This court must accord deference to defense counsel's strategic choices

made during trial and "requires us to eliminate the distorting effect of hindsight." State v.

Post, 32 Ohio St.3d 380, 388 (1987).

FAILURE TO REQUEST A WAIVER OF COSTS/FILE AN AFFIDAVIT OF INDEGENCY

       {¶9}   Pursuant to R.C. 2947.23(A)(1)(a): "In all criminal cases, including

violations of ordinances, the judge or magistrate shall include in the sentence the costs

of prosecution, including any costs under section 2947.231 of the Revised Code, and

render a judgment against the defendant for such costs." Subsection (C) states: "The
Ashland County, Case No. 15-COA-045                                                         4


court retains jurisdiction to waive, suspend, or modify the payment of the costs of

prosecution, including any costs under section 2947.231 of the Revised Code, at the time

of sentencing or at any time thereafter."

       {¶10} Even though a person is indigent, a trial court may still assess costs. State

v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905.

       {¶11} During the sentencing hearing held on November 30, 2015, defense

counsel, in an effort to place appellant in the best light for sentencing and argue for

community control, argued appellant was "working full time during the entire pendency of

the matter." November 30, 2015 T. at 4. Defense counsel stated appellant worked as a

"mechanic for the last couple of years, making $14 an hour, and when you gave him the

opportunity to be out following the trial, he picked that employment back up immediately,

and it's my understanding that if he were given an opportunity on Community Control, that

job would continue to remain available to him." Id. at 4-5. Defense counsel requested

the suspension of a fine, arguing "despite the fact that he has been working because he

has been in and out of jail, his finances are such that he would qualify as indigent." Id. at

10.

       {¶12} With these assertions and the presentence investigation report, the trial

court made a specific finding that appellant had "the future ability to be employed and pay

financial sanctions" and imposed a fine of $500 and court costs. Id. at 17-18. We note

appellant did not have court appointed trial counsel.

       {¶13} Although defense counsel did not file an affidavit of indigency in the trial

court case, given the facts of appellant's employment history as argued by defense

counsel, the private retention of counsel, and the trial court's reliance on "future ability,"
Ashland County, Case No. 15-COA-045                                                       5


we find appellant has not shown that the results would have been different had a formal

motion for waiver and an affidavit of indigency been filed.

       {¶14} Upon review, we do not find any evidence of deficiency of defense counsel

on this issue.

                       FAILURE TO FILE A MOTION TO SUPPRESS

       {¶15} Appellant challenges the seizure of his cell phone. He argues the seizure

and viewing of a video on his cell phone without a warrant was unlawful, citing State v.

Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, syllabus, in support ("[t]he warrantless

search of data within a cell phone seized incident to a lawful arrest is prohibited by the

Fourth Amendment when the search is unnecessary for the safety of law-enforcement

officers and there are no exigent circumstances").

       {¶16} As stated by this court in State v. Lavelle, 5th Dist. Stark No. 07 CA 130,

2008-Ohio-3119, ¶ 47:



                 Trial counsel's failure to file a suppression motion does not per se

       constitute ineffective assistance of counsel. State v. Madrigal, 87 Ohio

       St.3d 378, 389, 2000-Ohio-0448. Counsel can only be found ineffective for

       failing to file a motion to suppress if, based on the record, the motion would

       have been granted. State v. Cheatam, 5th Dist. No. 06-CA-88, 2007-Ohio-

       3009, at ¶ 86.



       {¶17} In order to review this issue, we must turn to the trial testimony. Kim Crigger

went to the Ashland Police Department to report the receipt from appellant of a strange
Ashland County, Case No. 15-COA-045                                                       6


video of appellant and a child via her cell phone. T. at 8, 219-220. She showed the video

sent to her cell phone to the police. T. at 8-9. The police accompanied Ms. Crigger to

appellant's apartment. T. at 10. The police confronted appellant about the video and

advised him of his rights. T. at 12. Appellant admitted to recording the video on his

iPhone and at that time, the police seized his cell phone. Id. Appellant "was okay with

that" and voluntarily relinquished his passcode. T. at 13.

       {¶18} Because the police had already viewed the video and had possession of it

via Ms. Crigger's cell phone, appellant was not prejudiced by the seizure of his cell phone.

       {¶19} In addition, the inevitable discovery rule as set forth in State v. Perkins, 18

Ohio St.3d 193 (1985), syllabus, also applies ("[t]he ultimate or inevitable discovery

exception to the Exclusionary Rule is hereby adopted so that illegally obtained evidence

is properly admitted in a trial court proceeding once it is established that the evidence

would have been ultimately or inevitably discovered during the course of a lawful

investigation"). Police had already viewed the video on Ms. Crigger's cell phone and

appellant had admitted to making the video, providing ample probable cause to obtain a

search warrant. Further, appellant's relinquishment of his passcode to unlock the cell

phone was at the least a tacit consent to its seizure.

       {¶20} Based upon the facts disclosed at trial, we fail to find that a motion to

suppress would have been successful.

       {¶21} Upon review, we do not find any evidence of deficiency of defense counsel

on this issue.

       {¶22} Assignments of Error I and II are denied.
Ashland County, Case No. 15-COA-045                                           7


      {¶23} The judgment of the Court of Common Pleas of Ashland County, Ohio is

hereby affirmed.

By Farmer, P.J.

Hoffman, J. and

Wise, J. concur.




SGF/sg 520
