[Cite as State v. Ward, 2012-Ohio-3446.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      SCIOTO COUNTY


STATE OF OHIO,                                  :
                                                :
             Plaintiff-Appellee,                :         Case No: 10CA3370
                                                :
             v.                                 :
                                                :         DECISION AND
KEITH WARD,                                     :         JUDGMENT ENTRY
                                                :
             Defendant-Appellant.               :         July 27, 2012



                                           APPEARANCES:

Bryan Scott Hicks, Lebanon, Ohio, for Appellant.

Mark E. Kuhn, Scioto County Prosecutor, Portsmouth, Ohio, for Appellee.


Kline, J.:

        {¶1}      Keith Ward (hereinafter “Ward”) appeals the judgment of the Scioto

County Court of Common Pleas, which convicted him of numerous crimes related to the

robbery of a pharmacy. On appeal, Ward contends that his trial counsel was ineffective

for failing to file a motion to suppress. Because Ward cannot prove that there was a

basis to suppress the evidence in question, we disagree. Accordingly, we overrule

Ward’s assignments of error and affirm the judgment of the trial court.

                                                I.

        {¶2}      On March 9, 2010, David Nelson (hereinafter “Nelson”) robbed Gahm’s

pharmacy in West Portsmouth, Ohio. After being apprehended, Nelson implicated
Scioto App. No. 10CA3370                                                           2


Ward as the getaway driver. Ward was then located and placed into custody in

Lancaster, Ohio.

       {¶3}   On March 15, 2010, Detective Jodi Conkel traveled to Lancaster to

transport Ward back to Scioto County. Detective Conkel retrieved Ward, placed him in

her vehicle, and gave Ward his Miranda warnings. There is no evidence that Ward

acknowledged an understanding of his Miranda rights at that time. Nevertheless, during

the drive back to Scioto County, Ward gave an unrecorded statement that implicated

himself as a willing participant in the robbery of Gahm’s pharmacy.

       {¶4}   The following morning, Detective Conkel interviewed Ward at the Scioto

County Sheriff’s Office. This time, the interview was recorded, and Ward acknowledged

that he understood his Miranda rights. But during the March 16, 2010 interview, Ward

denied being a willing participant in the robbery of Gahm’s pharmacy. Instead, Ward

claimed that Nelson forced him to participate.

       {¶5}   Based on the incident at Gahm’s pharmacy, a Scioto County Grand Jury

returned a ten-count indictment against Ward.

       {¶6}   On May 4, 2010, the state filed a response to Ward’s request for

discovery. The state’s response included information about both of Ward’s statements

to Detective Conkel -- the one on March 15, 2010, and the one on March 16, 2010.

       {¶7}   At Ward’s jury trial, Detective Conkel testified about Ward’s two different

statements. Other witnesses also testified on the state’s behalf. And eventually, the

jury found Ward guilty of all ten counts. Later, after merging the appropriate counts, the

trial court sentenced Ward accordingly.
Scioto App. No. 10CA3370                                                           3


       {¶8}    Ward appeals and asserts the following assignments of error: I. “THE

DEFENDANT WAS INEFFECTIVELY REPRESENTED AS DEFENSE COUNSEL DID

NOT FILE A MOTION TO SUPPRESS THE CAR ‘STATEMENT.’” And II. “HAD

DEFENSE COUNSEL FILED A MOTION TO SUPPRESS, THE CAR ‘STATEMENT’

SHOULD HAVE BEEN SUPPRESSED AS THERE WAS NO EVIDENCE PRESENTED

THAT IT WAS A KNOWING, INTELLIGENT, AND VOLUNTARY WAIVER OF WARD’S

CONSTITUTIONAL RIGHTS[.]”

                                            II.

       {¶9}    Ward’s two assignments of error address the same fundamental issue.

Therefore, we will address his assignments of error together. Ward contends that his

March 15, 2010 statement to Detective Conkel should have been suppressed. And

because his trial counsel did not file a motion to suppress the March 15, 2010

statement, Ward claims that he received ineffective assistance of counsel. We find,

however, that Ward cannot prove that there was a basis to suppress the March 15,

2010 statement. Therefore, Ward has failed to demonstrate that his trial counsel was

ineffective.

       {¶10} “In Ohio, a properly licensed attorney is presumed competent. * * * The

appellant bears the burden of proving that his trial counsel was ineffective.” State v.

Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988); accord State v. Norman,

4th Dist. Nos. 08CA3059 & 08CA3066, 2009-Ohio-5458, ¶ 65. To secure reversal for

the ineffective assistance of counsel, one must show two things: (1) “that counsel’s

performance was deficient * * *[,]” which “requires showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
Scioto App. No. 10CA3370                                                             4


the Sixth Amendment[;]” and (2) “that the deficient performance prejudiced the defense

* * *[,]” which “requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Norman at ¶ 65. “Failure

to satisfy either prong is fatal as the accused’s burden requires proof of both elements.”

State v. Hall, 4th Dist. No. 07CA837, 2007–Ohio–6091, ¶ 11, citing State v. Drummond,

111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205.

       {¶11} Ward bases his ineffective-assistance-of-counsel claim on Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Essentially, Ward argues

that the March 15, 2010 statement would have been suppressed because there was no

evidence that he acknowledged understanding his Miranda rights. Ward’s argument

relies upon the United States Supreme Court’s decision in Tague v. Louisiana, 444 U.S.

469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980). In Tague, the defendant filed a motion to

suppress a statement that he gave to law enforcement. The trial court denied the

defendant’s motion, but the United States Supreme Court held the following: “In this

case no evidence at all was introduced to prove that petitioner knowingly and

intelligently waived his rights before making the inculpatory statement. The statement

was therefore inadmissible.” Id. at 471. More recently, the United States Supreme

Court stated the following: “If the State establishes that a Miranda warning was given

and the accused made an uncoerced statement, this showing, standing alone, is

insufficient to demonstrate ‘a valid waiver’ of Miranda rights. The prosecution must

make the additional showing that the accused understood these rights.” (Internal
Scioto App. No. 10CA3370                                                            5


citation omitted.) Berghuis v. Thompkins, 560 U.S. ___, 130 S.Ct. 2250, 2261, 176

L.Ed.2d 1098 (2010).

       {¶12} Because there was no evidence that Ward acknowledged understanding

his Miranda rights, Ward argues that he could not have voluntarily, knowingly, and

intelligently waived those rights. Therefore, Ward claims that his March 15, 2010

statement to Detective Conkel would have been suppressed if his trial counsel had filed

the appropriate motion. But, under Miranda, law enforcement officers are not required

to ask “whether a suspect understands his or her rights[.]” State v. Lather, 110 Ohio

St.3d 270, 2006-Ohio-4477, 853 N.E.2d 279, ¶ 13. Furthermore, the Supreme Court of

Ohio has held

              that a court may infer from the totality of the circumstances

              that a defendant voluntarily, knowingly, and intelligently

              waived his rights. State v. Clark (1988), 38 Ohio St.3d 252,

              261, 527 N.E.2d 844, 853; State v. Gapen, 104 Ohio St.3d

              358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 52. The totality of

              the circumstances includes “‘e.g., the age, mentality, and

              prior criminal experience of the accused; the length,

              intensity, and frequency of interrogation; the existence of

              physical deprivation or mistreatment; and the existence of

              threat or inducement.’” State v. Dixon, 101 Ohio St.3d 328,

              2004-Ohio-1585, 805 N.E.2d 1042, ¶ 25, quoting State v.

              Eley (1996), 77 Ohio St.3d 174, 178, 672 N.E.2d 640. By

              definition of “totality,” a court is to look to all of the evidence
Scioto App. No. 10CA3370                                                               6


              to determine a suspect’s understanding, which can be

              implied by his conduct and the situation. (Emphasis sic.)

              Lather at ¶ 9.

       {¶13} With an understanding of the totality-of-the-circumstances approach, we

note that “[f]ailing to file a motion to suppress does not constitute ineffective assistance

of counsel per se.” State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d

858, ¶ 65, citing State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).

Instead, “[t]o establish ineffective assistance of counsel for failure to file a motion to

suppress, a defendant must prove that there was a basis to suppress the evidence in

question.” Brown at ¶ 65, citing State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845,

817 N.E.2d 29, ¶ 35.

       {¶14} Here, after considering the totality of the circumstances, we find the

following: Ward cannot prove that there was a basis to suppress his March 15, 2010

statement to Detective Conkel. If Ward’s trial counsel had filed a motion to suppress,

we believe the state could have demonstrated that Ward understood his Miranda rights.

First, Ward has an extensive felony record -- the prosecutor, in fact, called it the worst

he had “seen in 16 years of being prosecutor.” Transcript at 349. This is significant

because “previous contact with police” is a factor for determining whether suspects

understood their Miranda rights. See Lather at ¶ 13. Next, there is no evidence “to

suggest that [Ward] was intellectually or emotionally impaired so as to affect his ability

to understand his rights as they were presented to him by [Detective Conkel].” See

State v. Smith, 2d Dist. No. 2004 CA 90, 2005-Ohio-3757, ¶ 21. And finally, in giving

his March 16, 2010 statement, Ward acknowledged that he understood his Miranda
Scioto App. No. 10CA3370                                                             7


rights. There is no evidence that law enforcement officials did anything special on or

before March 16, 2010, to assist Ward in understanding his Miranda rights, and Ward

has not even attempted to explain away this seemingly implausible scenario -- that is,

the implausibility of failing to understand the Miranda rights one day but, with no further

assistance, understanding those same rights the very next day. Accordingly, the totality

of the circumstances demonstrates that Ward understood his Miranda rights before

giving the March 15, 2010 statement. “The evidence, therefore, did not justify a motion

to suppress. Consequently, appellant cannot meet his burden to prove trial counsel

failed an essential duty in neglecting to file it.” State v. Fryerson, 8th Dist. No. 82940,

2003-Ohio-6041, ¶ 18.

        {¶15} Accordingly, because Ward cannot demonstrate ineffective assistance of

counsel, we overrule Ward’s two assignments of error and affirm the judgment of the

trial court.

                                                                  JUDGMENT AFFIRMED.
Scioto App. No. 10CA3370                                                            8


                                   JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.

       The Court finds that there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.

Harsha, J. and McFarland, J.: Concur in Judgment & Opinion.


                                   For the Court


                                   BY:_____________________________
                                      Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
