[Cite as State v. Maston, 2018-Ohio-1948.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 CITY OF KETTERING                                 :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 27567
                                                   :
 v.                                                :   Trial Court Case No. 2016-CRB-677
                                                   :
 WILLIAM J. MASTON                                 :   (Criminal Appeal from
                                                   :    Municipal Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                              Rendered on the 18th day of May, 2018.

                                              ...........

JOHN D. EVERETT, Atty. Reg. No. 0069911, 2325 Wilmington Pike, Kettering, Ohio
45420
      Attorney for Plaintiff-Appellee

SCOTT N. BLAUVELT, Atty. Reg. No. 0068177, 315 S. Monument Avenue, Hamilton,
Ohio 45011
      Attorney for Defendant-Appellant

                                             .............
                                                                                           -2-


FROELICH, J.

       {¶ 1} William J. Maston was convicted after a bench trial in the Kettering Municipal

Court of possession of a controlled substance (Xanax), a third-degree misdemeanor, and

possession of marijuana (less than 100 grams), a minor misdemeanor.                  For the

possession of a controlled substance, the trial court sentenced him to 60 days in jail, of

which 54 days were suspended, ordered him to pay a $25 fine and courts costs, and

placed him on unsupervised probation for two years. The trial court ordered Maston to

pay a $10 fine for possession of marijuana. The trial court stayed Maston’s sentences

pending appeal.

       {¶ 2} Maston raises three issues on appeal: (1) the trial court’s denial of his pre-

trial motion to suppress; (2) the State’s use of a laboratory report in lieu of testimony from

the analyst at trial; and (3) ineffective assistance of counsel. For the following reasons,

Maston’s conviction for possession of a controlled substance will be reversed, and the

case will be remanded for further proceedings on that charge.             His conviction for

possession of marijuana will be affirmed.

                         I. Background and Procedural History

       {¶ 3} At approximately 2:00 a.m. on March 28, 2016, Maston was a passenger in

a vehicle driven by Hannah Tincher. As Tincher was driving on East Dorothy Lane in

Kettering, Officer Devin Maloney initiated a traffic stop due to a traffic violation. After

back-up arrived, Maloney conducted a free-air sniff by his canine partner, Jax. Jax

alerted to an odor of narcotics, and the officer discovered a small amount of marijuana

and some Xanax pills in the center console. Maston told the officer that the marijuana

belonged to him, but he denied possession of the Xanax pills. Officer Maloney issued
                                                                                               -3-


Maston a summons for both the marijuana and Xanax pills.

       {¶ 4} Maston moved to suppress the physical evidence against him and the

statements he made to the officer. He argued that he was unlawfully detained, that the

stop was unlawfully extended by the free-air canine sniff, and that the officer unlawfully

searched the vehicle. Maston further claimed that he was entitled to Miranda warnings

as a result of his detention and that any statements he made were subject to suppression.

After a hearing during which Officer Maloney was the sole witness, the trial court overruled

Maston’s motion to suppress. The court found that (1) Maloney had a reasonable and

articulable suspicion of a traffic violation to justify a stop of Tincher’s vehicle, (2) the free-

air sniff did not extend the length of the traffic stop beyond the normal time required to

investigate and complete a traffic stop, and the alert on Tincher’s vehicle by the police

canine justified the search of the vehicle and Maston’s continued detention, and (3)

Maston was never “in custody” for purposes of Miranda, and there was no right to Miranda

warnings during the encounter.

       {¶ 5} The matter proceeded to a bench trial on March 22, 2017. Officer Maloney

was the sole witness for the State.         The State also presented a laboratory report

identifying the substance of the alleged Xanax pills (State’s Exhibit A); the exhibit was

admitted over Maston’s objection.        Maston presented no witnesses, but offered the

judgment entry from Tincher’s case regarding the marijuana (Defendant’s Exhibit 1);

Tincher had pled guilty to disorderly conduct. In his closing argument, Maston asserted

that the State did not prove beyond a reasonable doubt that he constructively possessed

the Xanax pills and, further, that regardless of what he had said at the scene about his

ownership of the marijuana, the court should consider Tincher’s guilty plea with respect
                                                                                           -4-


to his alleged possession of the marijuana. In a written entry dated March 24, 2017, the

trial court found Maston guilty of possession of both the marijuana and the Xanax pills.

       {¶ 6} Maston appeals from his convictions.

                                  II. Motion to Suppress

       {¶ 7} In his first assignment of error, Maston claims that the trial court erred in

overruling his motion to suppress.

       {¶ 8} In deciding a motion to suppress, the trial court assumes the role of trier of

facts and is in the best position to resolve questions of fact and evaluate the credibility of

witnesses. State v. Pence, 2d Dist. Clark No. 2013 CA 109, 2014-Ohio-5072, ¶ 7, citing

State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996). The court

of appeals must accept the trial court’s findings of fact if they are supported by competent,

credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662, 2005-

Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d

Dist.1994). Accepting those facts as true, the appellate court must then determine as a

matter of law, without deference to the trial court’s legal conclusion, whether the

applicable legal standard is satisfied. Id.

       {¶ 9} Officer Maloney’s testimony at the suppression hearing established the

following facts. At 2:09 a.m. on March 28, 2016, Maloney was driving near 2102 East

Dorothy Lane in a marked cruiser with his canine partner, Jax, who is certified to detect

heroin, marijuana, methamphetamines, and cocaine. Maloney observed a vehicle in the

right lane that he recognized from a residence with a “known drug history.”            When

Maloney moved behind the vehicle, the vehicle switched to the left lane and immediately

turned left into a Taco Bell parking lot. Officer Maloney decided to stop the vehicle for a
                                                                                       -5-


marked lanes violation.

       {¶ 10} Officer Maloney approached the vehicle and saw that Hannah Tincher was

the driver and Maston was the front-seat passenger. Maloney was familiar with the

couple; he testified that he had been to their residence on several occasions for domestic

disputes and that Maston had been arrested on several of those occasions. Maloney

asked if he could search the vehicle, but he did not get a clear affirmative response.

Maloney called for back-up and then proceeded to look into the couple’s “criminal history”

and “call history” on Justice Web and to begin writing a traffic ticket. Maloney explained

that he ran Tincher’s and Maston’s identifications and looked to see if Tincher’s driver’s

license was valid and if either person had an outstanding warrant. Officer Anderson

arrived at 2:16 a.m., while Officer Maloney was working on the traffic ticket.

       {¶ 11} Officer Maloney explained to Officer Anderson why he had called for back-

up, and then Officer Maloney conducted a free-air sniff with Jax; Tincher and Maston

stood with Officer Anderson while the free-air sniff occurred. As Maloney walked Jax

around TIncher’s vehicle counter-clockwise, Jax alerted to the presence of illegal drugs.

Maloney returned Jax to his cruiser and began to search the interior of Tincher’s car.

Upon opening the center console, Officer Maloney observed a small baggie of marijuana

and a small baggie with 11 Xanax pills.

       {¶ 12} After finding the drugs, Officer Maloney walked over to where Officer

Anderson was standing with Tincher and Maston. Maloney testified, “Prior to being

handcuffed, [Maston] admitted that the marijuana belonged to him, and he denied

possession of the Xanax. He mentioned something about his brother or cousin being in

the vehicle as a passenger prior to the stop. He said they could have been left in there
                                                                                              -6-


by him, at which point Mr. Maston and Mrs. Tincher were both detained until we could

figure out the possession of the Xanax.” (Supp.Tr. at 15-16.)

       {¶ 13} Officer Maloney testified that neither Tincher nor Maston was arrested. He

issued a summons for possession of Xanax and a traffic citation for the marked lanes

violation to Tincher and issued a summons for possession of Xanax and marijuana to

Maston. Maloney did not, at any point, inform Maston of his Miranda rights.

       {¶ 14} Maston raises two issues on appeal. First, Maston claims that he was

unreasonably detained during the stop in order for the officer to conduct a free-air canine

sniff and a search of the vehicle. Second, he claims that his statements should have

been suppressed, because the officer failed to provide Miranda warnings.

       {¶ 15} The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, police officers may briefly stop and/or

temporarily detain individuals in order to investigate possible criminal activity if the officers

have a reasonable, articulable suspicion that criminal activity may be afoot, including a

minor traffic violation. Id.; State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894

N.E.2d 1204, ¶ 7-8.

       {¶ 16} Maston does not claim on appeal that the initial stop of Tincher’s vehicle

was unlawful. Nevertheless, Officer Maloney observed Tincher’s vehicle change lanes

and immediately turn left into a fast-food restaurant parking lot. The trial court found,

and we agree, that Maloney’s observations led him to reasonably believe that Tincher

had committed a traffic violation, justifying the officer’s stop of the vehicle.

       {¶ 17} Law enforcement officers may detain the driver and passengers only for the
                                                                                          -7-


time necessary to complete the reason for the stop. When a law enforcement officer

stops a vehicle for a traffic violation, the officer may detain the motorist for a period of

time sufficient to issue the motorist a citation and perform routine procedures, such as a

computer check on the motorist’s driver’s license, registration and vehicle plates. State

v. Thomas, 2d Dist. Montgomery No. 22833, 2009-Ohio-3520, ¶ 14, citing State v. Pryor,

2d Dist. Montgomery No. 20800, 2005-Ohio-2770, ¶ 15.

       {¶ 18} “[A] police stop exceeding the time needed to handle the matter for which

the stop was made violates the Constitution’s shield against unreasonable seizures. A

seizure justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful

if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing

a ticket for the violation.” Rodriguez v. United States, __ U.S. __, 135 S.Ct. 1609, 1612,

191 L.Ed.2d 492 (2015). Rodriguez made clear “that an officer may not prolong a traffic

stop to perform a drug sniff even if the ‘overall duration of the stop remains reasonable in

relation to the duration of other stops involving similar circumstances.’ ” State v. Hall,

2017-Ohio-2682, 90 N.E.3d 276, ¶ 13 (2d Dist.), quoting Rodriguez, 135 S.Ct. at 1616.

       {¶ 19} A police officer need not have a reasonable suspicion that a vehicle

contains contraband prior to summoning a canine drug unit or conducting a canine free

air sniff. Thomas at ¶ 15. Furthermore, the use of a trained narcotics dog to sniff an

automobile does not constitute a “search” under the Fourth Amendment. Id., citing Pryor

at ¶ 13; Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). If a

trained canine alerts to the odor of drugs from a lawfully stopped and detained vehicle,

an officer has probable cause to search the vehicle for contraband. State v. Heard, 2d

Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 17.
                                                                                        -8-


      {¶ 20} Here, the vehicle in which Maston was a passenger was stopped by Officer

Maloney, who had his canine partner, Jax, in the cruiser. After speaking with Tincher

and Maston, Maloney returned to his cruiser, where he ran Tincher’s and Maston’s

identifications through Justice Web. The officer stated that he looked to see if Tincher’s

driver’s license was valid and whether there were any outstanding warrants for Tincher

and/or Maston. Maloney also stated that he began to write a traffic citation for Tincher.

Maloney had not completed these activities when Officer Anderson arrived at 2:16 a.m.,

seven minutes after the traffic stop began.         Officer Maloney’s testimony at the

suppression hearing demonstrated that, as required by Rodriguez, he diligently

performed the tasks necessary to complete the traffic stop until Officer Anderson arrived,

at which time he conducted the free-air sniff by Jax.

      {¶ 21} Jax alerted on Tincher’s vehicle, indicating the possible presence of heroin,

cocaine, marijuana, or methamphetamines, i.e., the drugs that Jax was trained to detect.

Jax’s alert gave Officer Maloney probable cause to search the vehicle. Accordingly, the

traffic stop was not unlawfully extended by the search.

      {¶ 22} Under the Fifth Amendment to the United States Constitution, no person

shall be compelled to be a witness against himself or herself. In order to ensure that this

right is protected, statements resulting from custodial interrogations are admissible only

after a showing that the procedural safeguards described in Miranda v. Arizona, 384 U.S.

436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), have been followed. State v. Earnest,

2d Dist. Montgomery No. 26646, 2015-Ohio-3913, ¶ 21.              Individuals involved in

temporary investigatory detentions, such as routine traffic stops, are not “in custody” for

purposes of Miranda. Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d
                                                                                        -9-

317 (1984); State v. Bizzell, 2017-Ohio-8902, __ N.E.3d __, ¶ 14 (2d Dist.).

      {¶ 23} Although Maston was not free to leave for the duration of the traffic stop, he

was not “in custody” when he made the incriminating statements about the drugs. While

Officer Maloney searched Tincher’s vehicle, Maston and Tincher stood with Officer

Anderson on the curb area next to Taco Bell. Officer Maloney testified that, prior to being

handcuffed, Maston admitted to ownership of the marijuana, denied possession of the

Xanax, and suggested that other individuals who were previously in the vehicle could

have left the drugs behind. Officer Maloney testified that Tincher and Maston were then

“detained until we could figure out the possession of the Xanax,” but he did not ask

Maston any questions after Maston was handcuffed. Accordingly, the record reflects that

Maston was not in custody when he made statements about the drugs in the vehicle and

that there was no custodial interrogation after those statements.

      {¶ 24} Maston’s first assignment of error is overruled.

                 II. The State’s Use of the Laboratory Report at Trial

      {¶ 25} Maston’s second assignment of error states:

      The trial court erred to the prejudice of Appellant by permitting admission of

      a drug analysis report in lieu of actual analyst testimony, in violation of

      Appellant’s right of confrontation under the Sixth Amendment to the United

      States Constitution.

      {¶ 26} The Confrontation Clause of the Sixth Amendment to the United States

Constitution prohibits the admission of an out-of-court statement of a witness who does

not appear at trial if the statement is testimonial, unless the witness is unavailable and

the defendant has had a prior opportunity to cross-examine the witness. Crawford v.
                                                                                          -10-

Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); State v.

Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 34. A laboratory report

stating that forensic analysis has identified a sample as a particular substance is a

testimonial statement. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527,

174 L.Ed.2d 314 (2009); Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180

L.Ed.2d 610 (2011).

      {¶ 27} Pursuant to R.C. 2925.51, in criminal prosecutions for drug offenses, a

laboratory drug analysis report may, under certain circumstances, be used as prima-facie

evidence of the identity and weight of the controlled substance.           Specifically, R.C.

2925.51(A) provides, in relevant part:

      In any criminal prosecution for a violation of this chapter * * *, a laboratory

      report * * *, stating that the substance that is the basis of the alleged offense

      has been weighed and analyzed and stating the findings as to the content,

      weight, and identity of the substance and that it contains any amount of a

      controlled substance and the number and description of unit dosages, is

      prima-facie evidence of the content, identity, and weight or the existence

      and number of unit dosages of the substance. * * *

A notarized statement by the signer of the report, which must meet certain statutory

requirements, must be attached to the report. R.C. 2925.51(A). Further, the report

must contain “notice of the right of the accused to demand, and the manner in which the

accused shall demand, the testimony of the person signing the report.” R.C. 2925.51(D).

      {¶ 28} With limited exceptions not relevant here, to use the lab report as evidence,

the prosecuting attorney must serve a copy of the report on “the attorney of record for the
                                                                                             -11-


accused, or on the accused if the accused has no attorney.” R.C. 2925.51(B). If, within

seven days of receiving the State’s notice of intent to submit the report, the defense

demands the testimony of the person who signed the report, the report may not be used

as prima-facie evidence of the contents, identity, and weight or the existence and number

of unit dosages of the substance. R.C. 2925.51(C). However, “[w]hen the [S]tate has

complied with its obligations under R.C. 2925.51, a defendant’s failure to use the

procedures of R.C. 2925.51(C) to demand that a laboratory analyst testify constitutes a

waiver of the opportunity to cross-examine the analyst at trial and allows the analyst’s

report to be admitted as prima facie evidence of the test results.” State v. Pasqualone,

121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, paragraph two of the syllabus.

See also State v. Hartman, 2016-Ohio-2883, 53 N.E.3d 519, ¶ 83 (2d Dist.) (“The U.S.

Supreme Court in Melendez-Diaz, supra, commented that state statutes, such as R.C.

2925.51, do not run afoul of the confrontation clause when the effect of the statute is only

to establish the procedural timing of when the right must be exercised.”).

         {¶ 29} At trial, the State asked the trial court to admit a laboratory report prepared

by Michele Taylor, a forensic scientist with the Bureau of Criminal Investigation. The

report indicated that she had received an envelope containing 11 white, rectangular,

scored tablets marked “XANAX <>2.”            Upon testing one pill, she found that the pill

contained 0.29 grams (+/- 0.04 grams) of Alprazolam.

         {¶ 30} Maston objected to the admission of the lab report, stating, “I’ll object for the

record that I wasn’t given notice of the * * * lab report, and the lab technician’s not here

to testify to the lab report.”1 The prosecutor responded that, according to his records,


1   The record reflects that the clerk mailed a subpoena for Taylor to appear for trial on
                                                                                         -12-


the lab report was given to Attorney Andrea Dewar Oladi (a different attorney at the Public

Defender’s Office) on July 12, 2016. The trial court allowed the lab report to be admitted.

       {¶ 31} The record reflects that Maston was represented by attorneys of the

Montgomery County Public Defender’s Officer throughout the trial court proceedings.

The possession of marijuana complaint was filed on March 28, 2016, and Maston,

represented by Attorney Dennis Fallang, entered a not-guilty plea, waiver of speedy trial

rights, and request for pretrial conference on March 31, 2016. Attorney Andrea Dewar

Oladi was listed as defense counsel on the court’s pretrial notice, filed on March 31, 2016,

and on May 31, 2016, Oladi filed a motion to suppress on Maston’s behalf.

       {¶ 32} On June 27, 2016, Attorney Molly Stitsinger filed a notice of substitution of

counsel in the trial court; the notice indicated that it was “delivered to the Kettering

Prosecutor[’]s Office on the date same was filed.” On the same date (June 27), Stitsinger

filed a request for discovery and a praecipe for a subpoena for Officer Maloney to appear

at the suppression hearing. Stitsinger represented Maston at the October 12, 2016

suppression hearing. At trial in March 2017, Maston was represented by Attorney Joe

Hyde. It is unclear when Hyde began his representation; his name first appears on a

February 21, 2017 notice setting the trial date.

       {¶ 33} Maston argues that there is no evidence of when a report was served on

defense counsel, because the State never filed a notice of intent to use the report in lieu

of live testimony. Maston further argues that, because no notice was filed, the record



March 8, 2017. However, Maston did not appear for trial on March 8, and the matter

was rescheduled for March 22, 2017. Taylor was not sent a subpoena for the March
22 trial date.
                                                                                         -13-


does not establish that defense counsel was served with a report that complied with R.C.

2925.51(A) and (D). We find nothing in R.C. 2925.51 that requires the State to file a

notice with the trial court when it serves a copy of the report on a defendant’s attorney of

record (or on the accused, if no counsel), and Maston has cited no authority to support

such a requirement. The prosecutor orally represented to the trial court that a copy of

the report was given to Oladi on July 12, 2016, and we find nothing in the record to refute

that statement. We note that Maston acknowledges in his appellate brief that State’s

Exhibit A complied with the requirements of R.C. 2925.51(A) and (D), and there is nothing

in the record to suggest that the copy of the report provided to Oladi differed from that

exhibit.

       {¶ 34} The State argues in its appellate brief that “[t]he lab report was served on

one of the three different attorneys for the defendant during the case. All three attorneys

work for the public defender’s office.” However, R.C. 2925.51(B) expressly states that

the “prosecuting attorney shall serve a copy of the report on the attorney of record for the

accused.” (Emphasis added.) Although the prosecutor served a copy of the lab report

on an attorney with the Public Defender’s Office (Oladi) who had previously been counsel

for Maston, Stitsinger was counsel of record -- and had been for two weeks, with notice

to the prosecutor -- when the prosecutor provided the lab report to Oladi. On this specific

record, the prosecutor’s service of the report on Oladi failed to comply with the statutory

requirement that the prosecutor serve a copy of the report on Maston’s counsel of record.2


2
 The Tenth District has noted that “it is not uncommon for an associate of a firm to appear
as substitute counsel on behalf of a partner when that partner is unable to make the court
appearance.” Freeman v. Freeman, 10th Dist. Franklin No. 03AP-85, 2003-Ohio-4959,
¶ 12. And, in Garcia v. Coler, 2d Dist. Greene No. 86-CA-36, 1987 WL 12647 (June 11,
1987), we commented that “the use of different attorneys from the same law firm did not
                                                                                          -14-


       {¶ 35} At trial, Maston’s attorney did not inform the trial court that Oladi was not

counsel of record when she (Oladi) was given a copy of Taylor’s report. Nevertheless,

because the attorney upon whom the State served a copy of the report was not Maston’s

counsel of record, the State did not satisfy all of the statutory prerequisites for using the

report at trial, and the trial court erred in allowing the State to use Taylor’s lab report as

prima facie evidence of the content of the alleged Xanax pills.

       {¶ 36} Maston’s second assignment of error is sustained.

                          III. Ineffective Assistance of Counsel

       {¶ 37} In his third assignment of error, Maston claims that his trial counsel

rendered ineffective assistance at trial.

       {¶ 38} We review alleged instances of ineffective assistance of trial counsel under

the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To establish ineffective assistance

of counsel, a defendant must demonstrate both that trial counsel’s conduct fell below an

objective standard of reasonableness and that the errors were serious enough to create

a reasonable probability that, but for the errors, the outcome of the case would have been

different. See Strickland at 688; Bradley at 142. Trial counsel is entitled to a strong



result in any discernible prejudice to the appellees.” In this case, there is no suggestion
that Oladi was acting as substitute counsel for Stitsinger when the prosecutor gave the
lab report to her (Oladi). Accordingly, we need not address, and we expressly state no
opinion on, whether service on substitute counsel would satisfy R.C. 2925.51(B).
Moreover, because Stitsinger filed a notice of substitution with the trial court, we are not
faced with the situation where the record fails to indicate who the “attorney of record”
within the Public Defender’s Office was at the time the lab report was served. We
expressly limit our analysis to the situation before us.
                                                                                           -15-


presumption that his or her conduct falls within the wide range of reasonable assistance.

Strickland, 466 U.S. at 688. A defendant is entitled to “reasonable competence” from his

or her attorney, not “perfect advocacy.” See Maryland v. Kulbicki, 136 S.Ct. 2, 5 (2015),

citing Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam).

         {¶ 39} “Strickland and its progeny establish that when a court is presented with

an ineffective-assistance-of-counsel claim, it should look to the full record presented

by the defendant to determine whether the defendant satisfied his [or her] burden to

prove deficient performance.” Reeves v. Alabama, __ U.S. __, 138 S.Ct. 22, 26, 199

L.Ed.2d 341 (2017). Hindsight is not permitted to distort the assessment of what was

reasonable in light of counsel’s perspective at the time, and a debatable decision

concerning trial strategy cannot form the basis of a finding of ineffective assistance of

counsel. State v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v.

Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 38 (2d Dist.).

         {¶ 40} At trial, Officer Maloney testified that he stopped a vehicle driven by Tincher

for a marked lanes violation. Maloney asked Tincher for consent to search the vehicle;

she declined. Maloney requested a second unit, and after Officer Anderson arrived,

Tincher and Maston, the passenger, were asked to exit the vehicle. Maloney testified

that both Tincher and Maston consented to a pat down, in which no contraband was

found.     Maloney then deployed Jax, his police canine, who alerted on the vehicle.

Maloney stated that he and Officer Anderson searched the vehicle, and Maloney located

drugs in the center console.

         {¶ 41} Officer Maloney testified that the drugs were “both wrapped in plastic

baggies [and in] the same type of bag.” Maloney stated that the bags were identical –
                                                                                        -16-


“the knots were tied the same, the same size bags, basically, they were identical in every

way except for the contents, one being marijuana, one being the Xanax pills.” When

asked what made him think one bag contained marijuana, Maloney responded, “I’ve seen

marijuana hundreds and hundreds of times. A green leafy substance that smelled or had

the odor of marijuana to it.” He indicated that he believed it was marijuana based on his

training and experience. Maloney stated that he believed the pills were Xanax pills when

he first saw them, but he also checked the pills through pillidentifier.com.

       {¶ 42} Officer Maloney then testified:

       Both occupants of the vehicle were placed in handcuffs and separated,

       detained, and Patrolman Anderson and I began to ask the driver and

       passenger who the, the marijuana and the pills belongs to. During which

       the Defendant admitted that the marijuana belonged to him. * * * He denied

       ownership of the Xanax pills. * * * Both the Defendant and the driver were

       taken out of handcuffs.      The Defendant was issued a summons for

       possession of marijuana and both the Defendant and the driver, Miss

       Tincher, were issued summons for possession of the Xanax pills.

(Trial Tr. at 10-11.) There was no testimony that Officer Maloney provided Miranda

warnings to Maston prior to asking any questions about the drugs.

       {¶ 43} Officer Maloney’s testimony at trial regarding the timing of Maston’s being

placed in handcuffs and Maston’s statements differed from his testimony at the

suppression hearing.    As stated above, Officer Maloney testified at the suppression

hearing that Maston made statements before being handcuffed and that the officer did

not ask Maston any questions after he was “detained.”          In contrast, Maloney’s trial
                                                                                           -17-


testimony indicated that Maston had been handcuffed prior to making statements

regarding his (Maston’s) ownership of the marijuana.           Maston thus claims that his

attorney rendered ineffective assistance by failing to seek a mistrial or reconsideration of

the trial court’s suppression decision in light of Officer Maloney’s testimony at trial that he

questioned Maston after he (Maston) was handcuffed.

       {¶ 44} “When a trial court overrules a defendant’s motion to suppress evidence, it

has the inherent authority to reconsider its ruling at trial.” State v. Hunter, 2d Dist.

Montgomery No. 25164, 2013-Ohio-3459, ¶ 18. In other words, the trial court had the

authority to reconsider the admissibility of Maston’s statements to Officer Maloney had it

been asked to do so.

       {¶ 45} We need not decide whether Maston’s attorney acted unreasonably in

failing to ask the trial court to reconsider the admissibility of Maston’s statement regarding

his ownership of the marijuana. Even assuming that counsel should have renewed his

motion to suppress, we cannot conclude, on this record, that there was a reasonable

probability that the outcome of Maston’s trial would have been different. Although the

officer’s testimony at trial may have supported an argument for the suppression of

Maston’s statements, it is unknown whether the trial court would have credited the

officer’s testimony at trial over his prior suppression hearing testimony, which undoubtedly

would have been brought to the court’s attention in response to Maston’s renewed

suppression motion.     And, we can only speculate how Officer Maloney would have

responded to any further questions about the discrepancies between his suppression

hearing testimony and trial testimony. It is also unknown whether, at a rehearing on the

suppression issue, the State or Maston would have called Officer Anderson to testify and
                                                                                         -18-


what Officer Anderson’s testimony would have been.

       {¶ 46} Maston’s third assignment of error is overruled.

                                     IV. Conclusion

       {¶ 47} In light of our disposition of Maston’s second assignment of error, Maston’s

conviction for possession of a controlled substance (Xanax) will be reversed, and the

matter will be remanded for further proceedings on that charge. Maston’s conviction for

possession of marijuana will be affirmed.

                                     .............



DONOVAN, J., concurs.

TUCKER, J., concurring:

       {¶ 48} I concur in Judge Froelich’s well-reasoned decision. I write separately to

note that if the record supported a conclusion that when Oladi was served with the report

she was acting as Stitsinger’s substitute, I would conclude that the service upon Oladi

satisfied R.C. 2925.51(B). Such a conclusion would be consistent with the reality that it

is not uncommon for a substitute attorney to appear for the attorney of record, and, in this

circumstance, the substitute is acting for the attorney of record so that a transaction with

the substitute constitutes a transaction with the attorney of record.



Copies mailed to:

John D. Everett
Scott N. Blauvelt
Hon. James F. Long
