[Cite as State v. Whalen, 2013-Ohio-535.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


STATE OF OHIO                                )    CASE NO. 11 MA 126
                                             )
        PLAINTIFF-APPELLEE                   )
                                             )
VS.                                          )    OPINION
                                             )
DAVID M. WHALEN                              )
                                             )
        DEFENDANT-APPELLANT                  )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from the County Court
                                                  No. 4 of Mahoning County, Ohio
                                                  Case No. 11 TRC 2386

JUDGMENT:                                         Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                           Atty. Paul J. Gains
                                                  Mahoning County Prosecutor
                                                  Atty. Ralph M. Rivera
                                                  Assistant Prosecuting Attorney
                                                  21 West Boardman Street, 6th Floor
                                                  Youngstown, Ohio 44503

For Defendant-Appellant:                          Atty. Timothy E. Bellew
                                                  214 North State Street
                                                  Girard, Ohio 44420

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                  Dated: February 14, 2013
[Cite as State v. Whalen, 2013-Ohio-535.]
WAITE, J.


         {¶1}    Appellant, David W. Whalen, appeals his conviction in Mahoning

County Court No. 4 after refusing to take a breath test and for failure to stop at a stop

light.   Appellant argues on appeal that he received ineffective assistance of trial

counsel due to counsel’s failure to conduct discovery. Based on the record before

us, Appellant’s single assignment of error is without merit and the judgment of the

trial court is affirmed.

                                  Factual and Procedural History

         {¶2}    In the early morning hours on April 21, 2011, Appellant, David W.

Whalen, was travelling eastbound on Mahoning Avenue. He failed to stop at a stop

light and proceeded to turn right without engaging his turn signal. A State Highway

Patrolman, Charles Mendenhall, was driving in a marked patrol car behind Appellant

at the time and activated the lights on his patrol cruiser to effectuate a stop of

Appellant’s vehicle. The two cars pulled into a bank parking lot and the patrolman

approached Appellant’s car. When Appellant rolled down his window, the patrolman

noted that Appellant’s eyes were glassy, his speech was slurred, and that a strong

smell of alcohol was coming from Appellant’s direction. Appellant admitted that he

failed to stop at the red light and apologized to the patrolman; he was also able to

produce his license, registration, and proof of insurance without difficulty. (Tr., p. 11.)

When asked, Appellant told the patrolman that he was coming from Bill’s Place, a bar

on Mahoning Ave., about a mile from the traffic signal where Appellant failed to stop.

According to the patrolman’s testimony, this signal is the first Appellant would have

encountered when travelling eastbound from the bar. Appellant told the patrolman
                                                                                      -2-

that he had two beers and a shot while he was at Bill’s Place. The patrolman asked

him to exit the vehicle to perform field sobriety tests.      Although Appellant later

testified that he was wearing glasses that night and that he took them off and placed

them on the dashboard before taking the tests, the patrolman did not recall that

Appellant had eyeglasses at any point.

       {¶3}   The patrolman administered multiple field sobriety tests, including the

horizontal gaze nystagmus (which tests divided attention skills), a walk and turn test,

and a one-legged stand test.        During the initial test, the patrolman observed

Appellant’s ability to track his pen and how his eyes responded at the end of his field

of vision. The patrolman noted that Appellant was unable to smoothly track the pen,

and that his eyes made involuntary movements at the end of his field of vision. Both

are indications of intoxication. As a result, Appellant did not pass this test, which was

administered twice.

       {¶4}   The patrolman then walked with Appellant to a level surface for the walk

and turn test and demonstrated to Appellant that he was to walk nine steps, heel to

toe, then turn and repeat the steps, counting aloud. (Tr., p. 20.) Appellant confirmed

that he understood the instructions, and attempted to begin the test on his own prior

to the conclusion of instructions. Appellant was unable to stand with his right foot in

front of his left and had to stop during the test to catch his balance. He raised his

arms six inches or more in an attempt to balance himself. He also lost his balance

when he attempted to turn, and thus, did not pass the test.          (Tr., p. 22.)   The
                                                                                       -3-

patrolman testified that Appellant’s inability to maintain his balance, need to stop, use

of his arms, and inability to turn were all additional indications of intoxication.

       {¶5}   Finally, the patrolman testified as to Appellant’s performance on the

one-legged stand test while counting aloud. Appellant followed the instructions given

him and waited until the patrolman’s demonstration was complete, but when he

attempted to perform the test, he was swaying, hopped up and down to try and keep

from putting his foot down, and ultimately had to touch the ground with both feet

three times during the test. (Tr., p. 23.) Appellant failed all three field sobriety tests

generally performed to determine whether someone is under the influence of alcohol.

As a result of these failures, Appellant’s traffic violations and his observation of

Appellant’s demeanor, the patrolman arrested Appellant. He confiscated Appellant’s

license, impounded his car and transported him to the Canfield Post of the State

Highway Patrol. (Tr., p. 25.)

       {¶6}   Due to Appellant’s prior 2007 alcohol-related violations, the patrolman

had read Appellant the text of a Bureau of Motor Vehicles form at the scene, prior to

his removal to the highway patrol post. This form, Number 2255, explains the breath

test the patrolman sought to administer, the consequences of the test, and the

consequences of a refusal to submit to the test. Appellant initially consented to take

the test and knew he was to be transported to the post for this purpose.

       {¶7}   Prior to administering the test at the post, the patrolman explained how

to blow into the machine properly and that it was important to close one’s lips around

the mouthpiece and blow in a steady continuous breath until told to stop. According
                                                                                        -4-

to the patrolman, although Appellant was properly instructed, he did not comply and

instead gave an invalid sample. Appellant put saliva on the mouthpiece, blew and

stopped repeatedly, and did not blow hard enough for a valid sample to be taken.

According to the patrolman, he explained the problems to Appellant who responded

that he had some shrapnel from bullet wounds still in his chest from a military tour of

duty in Iraq. The patrolman cleared the machine, asked Appellant to try again with a

single continuous breath, and explained that a failure to perform the test correctly

would constitute a refusal and that Appellant would be charged with that refusal.

Appellant’s performance again fell short in the same way, with short breaths and

saliva on the mouthpiece, and the results were again invalid. The patrolman testified

that he believed Appellant’s failure was intentional and not the result of any physical

inability to perform the test. (Tr., p. 34.) Appellant was charged with refusal to take a

breath test, failure to obey a traffic control light, and a seatbelt violation.

       {¶8}    At trial, Appellant testified that he was on his way to the bank to transfer

money after his debit card was declined at Taco Bell and that he never told the

patrolman that he was coming from Bill’s Place or that he had imbibed two beers and

a shot. According to Appellant, whiskey “does not agree” with him. (Tr., p. 66.)

Appellant testified that he was coming from Wedgewood Lanes with a friend of his

who had called him for a ride because she was too drunk to drive. He said that he

found his friend in the bar at Wedgewood Lanes, stayed with her long enough to

have a single beer and possibly some sips of another. The two of them then left to

pick up food at Taco Bell before returning to his house.
                                                                                    -5-

       {¶9}    When Appellant’s card was declined at Taco Bell he decided to go to

the bank down the street to transfer funds. At that time he also had to go to the

restroom, and claims that he ran the stop light because he was in a hurry to find a

restroom.     He did not notice the patrol car behind him when he ran the light.

Appellant believes that any strong scent of alcohol that night was due to his friend’s

presence in the vehicle.

       {¶10} According to Appellant, he uses corrective lenses at night and has

astigmatism on both eyes. That night, when he pulled into the bank parking lot, he

unbuckled his seat belt to get to his wallet before the patrolman approached the car.

Appellant testified that his left knee was unsound due to an injury he sustained in the

military. Appellant also testified that he was suffering from “COPD” (never defined

during testimony or otherwise) and has scar tissue in his lungs due to additional

injuries suffered overseas. Appellant says he explained his lung problems to the

patrolman while he was waiting to take the breath test. He said that he never told

anyone he was shot in the chest, but instead, that he was shot from behind while

wearing a flack jacket.     (Tr. pp. 61-62.)   Appellant further explained that any

unsteadiness in his heel to toe walk was attributable to his weak left knee; that his

eyes are always bloodshot and glassy; and that failure of the various eye tests was

caused by his astigmatism. Appellant maintains that the single beer he drank that

night, given his height and weight, would not have impaired his ability to drive or,

absent his injuries, pass the various tests.
                                                                                         -6-

       {¶11} Appellant testified that he did not intentionally fail to comply with the

patrolman’s instructions for the breath test. He claimed that he performed to the best

of his ability and that he saw only condensation, not saliva, in the mouthpiece.

Appellant did not produce any verification of his alleged eye problem and did not

present any evidence suggesting that astigmatism would cause him to fail his field

sobriety test. Interestingly, Appellant was not wearing glasses at trial. When asked

about his glasses at trial, he said his daughter had broken them. Appellant also did

not produce any medical records or other evidence of any knee or torso injuries

despite the fact that he testified these injuries caused him to fail the other sobriety

tests that he was administered. Appellant does not contest the fact that he failed to

stop for a red light.

       {¶12} Appellant’s trial was conducted on August 10, 2011 before a judge.

The trial court heard testimony from the patrolman, Appellant, and Appellant’s wife

before closing arguments. The court found Appellant guilty of refusing the breath

test, a violation of R.C. 4511.19, and failure to obey a traffic control light, in violation

of R.C. 4513.263. The court found Appellant not guilty of the seat belt violation due

to the absence of any mention of the offense during the state’s case. The court

sentenced Appellant to 180 days in jail, with 170 days suspended; $750.00 and

$25.00 in fines and costs. The court also required that Appellant undergo an alcohol

assessment to be completed within 30 days. While the court suspended Appellant’s

operator’s license for two years, the court granted occupational driving privileges with

restricted plates and an ignition interlock. Appellant was also sentenced to twenty-
                                                                                      -7-

four months of community control. Appellant filed his timely appeal on August 15,

2011.

                                  Argument and Law

                                  Assignment of Error

        APPELLANT’S      RIGHT     TO     DUE     PROCESS       OF     LAW     AS

        GUARANTEED BY THE 4th, 5th, 6th, AND 14th AMENDMENTS TO THE

        U.S. CONSTITUTION AS WELL AS ARTICLE 1 § 10 OF THE OHIO

        CONSTITUTION, WAS DENIED BY THE APPLLEANT’S [SIC] TRIAL

        ATTORNEY’S INEFFECTIVE REPRESENTATION.

        {¶13} To prevail on a claim of ineffective assistance of counsel, Appellant

must show not only that counsel's performance was deficient, but also that he was

prejudiced by that deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674, (1984) see also State v. Williams, 99 Ohio St.3d 493, 2003-

Ohio-4396, 794 N.E.2d 27, ¶107. “Deficient performance” means performance falling

below an objective standard of reasonable representation.            “Prejudice,” in this

context, means a reasonable probability that, but for counsel's errors, the result of the

proceeding would have been different. Strickland at 687-688, 694. Moreover, in

evaluating the performance of counsel, “strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional judgments
                                                                                      -8-

support the limitations on investigation.” Id. at 690-691. Each of the alleged errors

will be evaluated under the two-pronged Strickland test.

       {¶14} Appellant argues that trial counsel was deficient due to his failure to file

an appearance or any other pre-trial motion, including a motion for discovery.

Appellant also complains about a form that appears in the record as the prosecutor’s

subpoena worksheet. This form indicates that a subpoena duces tecum was to be

issued for the patrolman and that he was to produce at trial any video and/or reports.

The subsequent subpoena that appears in the record is labeled duces tecum, but

does not identify what materials the officer is to produce. Although it does refer to an

attachment, it is not clear what was attached to this subpoena. Apparently, Appellant

believes that counsel was deficient for not requiring the patrolman to produce a

videotape of the arrest.

       {¶15} At trial, defense counsel discussed a failed breath test report which

appears in the record, and according to testimony was the only copy of this report.

The information in the transcript reflects that the breath analysis report was available

at trial, along with the ticket and warning concerning the breath test, both of which

were provided to Appellant at the time of his arrest. Also of record is a typed arrest

report, addressed to the judge and time-stamped on April 21, 2011, the date of

Appellant’s arrest. These are the only reports that appear in the record and the only

material referred to during the trial.

       {¶16} There is nothing in the testimony offered at trial to suggest a video was

made of the events of that night.        Appellant did not testify that he saw video
                                                                                      -9-

equipment or had any reason to believe that he was being recorded.                  The

prosecution did not reference a video or introduce any evidence or information

beyond the testimony of the patrolman, the failed breath analysis report, and the

ticket and warning information. Nothing in the record suggests that the prosecutor

possessed any additional information and the prosecution appears to have relied

only on the documents Appellant received on the night he was arrested along with

the typed arrest report that was filed with the court on April 21, 2011.

       {¶17} The fact that the breath analysis report, ticket, breath test warning and

typed arrest report were the only materials available is supported by the fact that the

prosecutor’s office issued a subpoena duces tecum requesting that any additional

material be produced by the patrolman at trial and the patrolman appeared at trial

without any new material. No new evidence was discussed or introduced at trial.

Moreover, had the patrolman provided any additional material at trial, defense

counsel would have had the same access to the new material as the state. Both

sides would have seen the material for the first time at trial. The only evidence the

state actually relies on was filed with the clerk on April 21, 2011, and was available to

defense counsel. Appellant does not argue or offer proof in any form that a video

exists, beyond the reference in the subpoena duces tecum and a general assertion

that he believes “[i]t is widely known that almost every police cruiser now possesses

some sort of video and audio recording equipment. This is especially true of the Ohio

Highway Patrol official police cruisers.” (Appellant’s Brf., p. 6.) Although Appellant

claims this is general knowledge, he has produced nothing to support this claim: no
                                                                                   -10-

law or procedural requirement that would indicate a video should have been taken of

the events that night, and certainly nothing to indicate that anything captured on the

video would have assisted his case. More importantly, Appellant was not charged in

connection with any of the events he believes would have been recorded, other than

failure to stop at a red light.   Appellant admits to this violation.    Appellant also

concedes that he failed the various field sobriety tests. It appears that Appellant is

arguing that defense counsel was deficient in failing to ask for something that did not

exist and was not probative of the only real issue at trial: whether he refused the

breath test. Even if this were deficient performance on counsel’s part, and it is not,

Appellant has not shown that he was prejudiced by the alleged deficiency.

       {¶18} Appellant’s entire defense at trial revolved around the various injuries

he believed accounted for his failure to pass the tests administered to him. Because

Appellant was charged with failure to comply with the breath test, his assertion that

the intoxicated friend he was driving home, who was not present at trial, was the

source of the scent of alcohol is not relevant. Appellant’s assertions that his weak

knee and his astigmatism were responsible for other failures are similarly not relevant

to the offense with which he was actually charged, although the fact that he failed

these tests is relevant to the patrolman’s decision to administer a breath test.

       {¶19} Appellant argues that defense counsel should have produced “proper

medical documents” at trial to support his arguments. Any document or physical

proof of Appellant’s injuries would certainly have been in Appellant’s possession or

under Appellant’s own control. Appellant does not indicate that these records were
                                                                                   -11-

provided to counsel, or even that the records actually exist. In order to satisfy the

elements of Strickland, Appellant must demonstrate both that counsel’s performance

was substandard and that prejudice resulted from that substandard performance. To

achieve this, Appellant must be able to cite to material in the record.       Although

Appellant now claims that counsel should have produced medical evidence, nothing

in the record identifies what kind of medical evidence or establishes that relevant

evidence exists. Assuming relevant records exist, we have no way to ascertain that

they were ever supplied to counsel. It is not clear from this record that evidence

beyond Appellant’s own testimony exists or if such evidence exists, that it would be

exculpatory. Moreover, even if this alleged evidence was produced at trial, nothing in

this record, or raised by Appellant on appeal, could result in the guarantee of

acquittal.

       {¶20} To reverse a verdict on a claim of ineffective assistance of counsel,

Appellant must demonstrate that counsel’s performance was deficient and show

prejudice resulting from the deficiency. “To establish prejudice, ‘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.’ ” State v. Noling, 98 Ohio St.3d 44,

2002-Ohio-7044, 781 N.E.2d 88, ¶108.         Appellant in this instance fails on both

elements.    He has not demonstrated that any of the alleged errors constituted

deficient performance under the circumstances, and has further failed to connect the

alleged errors to any reasonable probability that had counsel acted otherwise the
                                                                                   -12-

result of the trial would have been different. Appellant’s single assignment of error is

overruled.

                                       Conclusion

       {¶21} Appellant admitted that he failed to stop for a red light and does not

challenge his conviction on that offense. Appellant’s focus is on his conviction for

refusing to take a breathalyzer test. Appellant argues that counsel was deficient in

failing to request discovery from the state, but fails to identify any potentially

exculpatory evidence. Appellant has also failed to support his claim that counsel

should have produced medical records in support of his testimony regarding his

various medical conditions.     Appellant makes no showing that evidence of these

conditions, should evidence exist, would have altered the outcome of the trial.

Because Appellant has not identified deficient performance on trial counsel’s part or

prejudice resulting from this performance, his single assignment of error is overruled

and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

DeGenaro, P.J., concurs.
