[Cite as State v. Michie, 2020-Ohio-3152.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                     No. 19AP-435
v.                                                 :              (C.P.C. No. 17CR-4752)

Tyrone Michie,                                     :           (REGULAR CALENDAR)

                 Defendant-Appellant.              :




                                             D E C I S I O N

                                       Rendered on June 2, 2020


                 On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                 Prichard, for appellee.

                 On brief: Tyrone Michie, pro se.

                  APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.
        {¶ 1} Defendant-appellant, Tyrone Michie, appeals the June 10, 2019 decision of
the Franklin County Common Pleas Court denying his petition for postconviction relief
without a hearing, and asserts a single assignment of error:
                 Trial counsel rendered ineffective assistance of counsel in
                 violation of the Appellant's rights to the Fourth, Sixth, and
                 Fourteenth Amendment of the United States and Ohio
                 Constitution [sic] for failing to file a meritorious motion to
                 suppress. Thus, Appellant's guilty plea was not knowingly,
                 voluntarily, and intelligently entered.

        {¶ 2} On June 19, 2018, Michie was sentenced to 16 years of mandatory
incarceration for possession of cocaine and aggravated possession of methamphetamine.
No. 19AP-435                                                                                2


His conviction arose from the surveillance of an apartment at 6118 Cooper Woods Drive,
the delivery of packages of cocaine and methamphetamine to that apartment on August 17,
2017, and the execution of a search warrant on that apartment on August 18, 2017.
         {¶ 3} At 1:24 p.m. on August 17, Michie was witnessed arriving at the apartment in
his grey Chevy Malibu, keying himself into the apartment, and then leaving at 1:40 p.m. At
3:44 p.m., a man in a green GMC van arrived at the apartment, and a woman walked out of
the apartment, went to the driver's side of the van, and then returned inside the apartment.
The driver of the van was photographed following her inside and carrying a postal box. Two
minutes later, Michie arrived back at the apartment and again keyed himself in. Within a
few minutes, all three people left the apartment and drove away. The following day, the
police executed a search warrant on the apartment. Although Michie had been witnessed
driving through the complex where the apartment was located that morning, he was not
present when the police began searching the premises. But as he was leaving another
residence, Michie was stopped for a traffic violation and arrested for driving without a valid
license. His keys were seized at that time, and they were subsequently used to open both
the apartment and two small safes in the apartment, in which the delivered drugs were
found.
         {¶ 4} Following his plea and presentence investigation, Michie was sentenced to
mandatory terms of incarceration totaling 16 years and a mandatory fine of $20,000. The
trial court subsequently entered an order deferring collection of the fine until Michie's
release. Michie did not file a direct appeal.
         {¶ 5} On March 14, 2019, Michie filed a post-conviction relief petition, asserting
his counsel was ineffective for failing to file a motion to suppress. Michie attached police
reports and surveillance logs to his petition, and argues he was not directly seen with the
narcotics and did not visit the apartment on the date the search warrant was executed. In
a brief entry, the trial court denied defendant's postconviction petition and motion for
appointment of counsel without a hearing: "this Court finds that Defendant has not
provided sufficient evidentiary documentation to require a hearing on the matter [and] res
judicata applies to bar Defendant's constitutional claims." (June 1, 2019 Entry.) This
timely appeal followed.
No. 19AP-435                                                                                  3


       {¶ 6} R.C. 2953.21(A)(1)(a) authorizes "[a]ny person who has been convicted of a
criminal offense and sentenced to death and who claims that there was a denial or
infringement of the person's rights under either of those Constitutions that creates a
reasonable probability of an altered verdict [to] file a petition in the court that imposed
sentence, stating the grounds for relief relied upon, and asking the court to vacate or set
aside the judgment or sentence or to grant other appropriate relief." R.C. 2953.21(A)(2)
provides that "if no appeal is taken," a timely postconviction petition may be filed "no later
than three hundred sixty-five days after the expiration of the time for filing the appeal."
       {¶ 7} As a general matter, "[a] petition for postconviction relief is a collateral civil
attack on a criminal judgment, not an appeal of the judgment." State v. Sidibeh, 10th Dist.
No. 12AP-498, 2013-Ohio-2309, ¶ 8, citing State v. Steffen, 70 Ohio St.3d 399, 410 (1994).
A petition for postconviction relief " 'is a means to reach constitutional issues which would
otherwise be impossible to reach because the evidence supporting those issues is not
contained in the record.' " Id., quoting State v. Murphy, 10th Dist. No. 00AP-233 (Dec.
26, 2000). And a petitioner is not automatically entitled to an evidentiary hearing on a
postconviction petition. Id. at ¶ 13, citing State v. Jackson, 64 Ohio St.2d 107, 110-13
(1980). To warrant an evidentiary hearing, the petitioner bears the initial burden of
providing evidence demonstrating a cognizable claim of constitutional error. Id., citing
R.C. 2953.21(C). Before a defendant can obtain a hearing, the defendant must provide
evidentiary documentation setting forth specific operative facts to support his claims. State
v. Kapper, 5 Ohio St.3d 36, 38 (1983). The trial court may deny a postconviction petition
without an evidentiary hearing "if the petition, supporting affidavits, documentary
evidence, and trial record do not demonstrate sufficient operative facts to establish
substantive grounds for relief." Sidibeh at ¶ 13, citing State v. Calhoun, 86 Ohio St.3d 279
(1999), paragraph two of the syllabus.
       {¶ 8} This court reviews a trial court's decision denying a postconviction petition
without a hearing for an abuse of discretion. See, e.g., State v. Howard, 10th Dist. No.
15AP-161, 2016-Ohio-504, ¶ 15-21 (citing and quoting cases). An abuse of discretion
connotes a decision that is unreasonable, arbitrary, or unconscionable.             Id., citing
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Further, "a reviewing court should
not overrule the trial court's finding on a petition for postconviction relief that is supported
No. 19AP-435                                                                                 4


by competent and credible evidence." Sidibeh at ¶ 7, quoting State v. Gondor, 112 Ohio
St.3d 377, 2006-Ohio- 6679, ¶ 58.
       {¶ 9} Michie asserts that his plea was not valid because his counsel was
constitutionally ineffective because a motion to suppress was not filed. To prevail on a
claim of ineffective assistance of counsel, a defendant must demonstrate that counsel
"made errors so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984).
To establish that counsel's performance was deficient, a "defendant must show that
counsel's representation fell below an objective standard of reasonableness." Id. To
establish prejudice, a defendant must show there is a reasonable probability that but for
counsel's unprofessional errors, the result of the proceeding would have been different. Id.
at 694. A properly licensed attorney is presumed competent, and a defendant bears the
burden of showing ineffective assistance of counsel. State v. Hamblin, 37 Ohio St.3d 153,
155-56 (1988). Moreover, the Sixth Amendment guarantee of the effective assistance of
counsel does not require defense counsel to file or pursue a motion to suppress in every
case. State v. Flors, 38 Ohio App.3d 133, 139 (8th Dist.1987), citing Kimmelman v.
Morrison, 477 U.S. 365, 385-86 (1986). "In order to demonstrate ineffective assistance of
counsel premised on a failure to file a motion to suppress, defendant must establish a basis
existed to suppress the evidence in question." State v. Messer-Tomak, 10th Dist. No. 10AP-
847, 2011-Ohio-3700, ¶ 41, citing State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845,
¶ 35. "Where the record contains no evidence which would justify the filing of a motion to
suppress, the appellant has not met his burden of proving that his attorney violated an
essential duty by failing to file the motion." State v. Gibson, 69 Ohio App.2d 91, 95 (8th
Dist.1980). And "even when some evidence in the record supports a motion to suppress,
we must presume that defense counsel was effective if counsel could have reasonably
decided that filing a motion to suppress would have been a futile act." State v. Phillips, 10th
Dist. No. 14AP-79, 2014-Ohio-5162, ¶ 84, citing State v. Jones, 10th Dist. No. 99AP-704
(June 13, 2000).
       {¶ 10} There are two separate searches in Michie's case—that of the drug apartment
based on a search warrant, and that of Michie himself when he was arrested. Michie's brief
on appeal implies that the search of his person provided the basis for the search warrant,
No. 19AP-435                                                                                 5


but that is flatly incorrect—the investigative report that he attached to his motion for
appointment of counsel states that "[w]hen the search warrant was executed * * * Detectives
witnessed Tyrone Michie leaving [another] residence and arranged for Patrol Officers to
make a traffic stop." (Mar. 14, 2019 Mot. for Appointment at 3.) For that reason, it seems
that the search of the apartment cannot be the subject of his complaint, and, accordingly,
Michie's postconviction claims are apparently limited to the automobile stop, the search of
his person, and the seizure of his keys. He suggests that he was stopped and arrested for a
minor misdemeanor traffic offense, but that is not clear from the evidentiary materials he
has presented. The evidentiary materials he attached to his petition do not address the
basis of his traffic stop and arrest, and one of the exhibits he has attached to his brief
indicates he was driving without a valid license and that the police who conducted the stop
and arrest were acting in part on that information.
       {¶ 11} Michie seems to argue that the search warrant for the drug apartment cannot
provide the probable cause required to arrest him, and if the warrant were the sole basis for
his arrest he well might be correct. But Michie was driving without a valid operator's
license, and "traffic stops based on probable cause to believe a traffic violation has occurred
are lawful, even where the alleged violation is minor or where the officer had an ulterior
motive for initiating the stop." State v. Salsbury, 10th Dist. No. 07AP-321, 2007-Ohio-
6857, ¶ 6, citing Whren v. United States, 517 U.S. 806 (1996), and Dayton v. Erickson, 76
Ohio St.3d 3 (1996). Neither Michie's petition nor his brief even argue let alone establish
that the traffic stop and arrest were unlawful in any way.
       {¶ 12} Reading Michie's brief most charitably, it seems that his complaint relates to
the seizure of his keys, which he had on his person at the time of his detention and which
were then used to unlock both the drug apartment and the two safes inside the apartment
containing cocaine and methamphetamine. But the surveillance logs Michie attached to
his postconviction petition demonstrate that he had keyed himself into the drug apartment
at least two times on the previous day, and they also show that he drove into the complex
where the drug apartment was situated earlier that day. Even if Michie's arrest following
the traffic stop was not unsupported by probable cause—something he has not even tried
to demonstrate—surely the police had probable cause to believe that Michie possessed keys
that unlocked the drug house, as they had seen him unlock it two times on the previous day.
No. 19AP-435                                                                                   6


"[I]t is clear that 'only the probability, and not a prima facie showing, of criminal activity is
the standard of probable cause.' " (Internal citations and quotations omitted.) State v.
George, 45 Ohio St.3d 325, 329 (1989), quoting Illinois v. Gates, 462 U.S. 213, 235 (1983).
"For the run-of-the-mine case, which this surely is, we think there is no realistic alternative
to the traditional common-law rule that probable cause justifies a search and seizure."
Whren at 819.
       {¶ 13} Accordingly, because the evidentiary materials that Michie attached to his
postconviction petition to not demonstrate that he had a successful Fourth Amendment
claim, his counsel was not ineffective for choosing not to file a motion to suppress. And the
trial court's decision to deny his postconviction petition without a hearing was therefore
not erroneous. For all these reasons, we overrule Michie's single assignment of error and
affirm the judgment of the Franklin County Court of Common Pleas denying his
postconviction petition without a hearing.
                                                                          Judgment affirmed.
                                 KLATT, J., concurs.
                        LUPER SCHUSTER, J., concurs separately.

LUPER SCHUSTER, J., concurring.
       {¶ 14} While I concur in the judgment of the majority overruling Michie's sole
assignment of error, I write separately because I would reach that result for different
reasons than the majority.
       {¶ 15} As this court has noted, "the doctrine of res judicata precludes a defendant
from raising, in a petition for postconviction relief, an ineffective assistance of counsel claim
that was or could have been raised at trial or on direct appeal." State v. McBride, 10th Dist.
No. 14AP-237, 2014-Ohio-5102, ¶ 6, citing State v. Davis, 10th Dist. No. 13AP-98, 2014-
Ohio-90, ¶ 22. "To overcome the res judicata bar, the defendant must offer competent,
relevant and material evidence, outside the trial court record, to demonstrate that the
defendant could not have appealed the constitutional claim based upon information in the
original trial record." Id., citing State v. Young, 10th Dist. No. 05AP-641, 2006-Ohio-1165,
¶ 20; State v. Braden, 10th Dist. No. 02AP-954, 2003-Ohio-2949, ¶ 27. "The evidence
offered in support must 'advance the petitioner's claim beyond a mere hypothesis.' " State
v. Murphy, 10th Dist. No. 15AP-460, 2015-Ohio-4282, ¶ 16, quoting State v. Lawson, 10th
No. 19AP-435                                                                                  7


Dist. No. 02AP-148, 2002-Ohio-3329, ¶ 15. "Additionally, the petitioner must not rely on
evidence that was in existence or available for use at the time of trial and that the petitioner
should have submitted at trial if he wished to make use of it." Id., citing Lawson at ¶ 15.
       {¶ 16} Here, Michie argues his trial counsel was ineffective for failing to file a motion
to suppress the evidence obtained as a result of his traffic stop and subsequent arrest.
Michie did not file a direct appeal. To the extent his arguments in support of his claim are
based on the trial record, res judicata operates to bar those arguments. McBride at ¶ 7,
citing State v. Dixon, 10th Dist. No. 03AP-564, 2004-Ohio-3374, ¶ 12 (finding res judicata
bars consideration of an ineffective assistance of counsel claim that could have been raised
on direct appeal). Additionally, to the extent Michie's claim relies on materials made
available by the state during the course of discovery, even if we were to construe those
materials as being outside the record for purposes of a direct appeal, those materials
nonetheless were in existence and available at the time of trial if he wished to rely on them.
Murphy at ¶ 16, citing Lawson at ¶ 15-16. Further, those materials do not advance his claim
beyond mere hypothesis, and I would find them insufficient to overcome the res judicata
bar to his claim. Lawson at ¶ 15. Thus, rather than engage in the Strickland analysis for
the merits of Michie's ineffective assistance of counsel claim, as the majority does, I would
instead conclude res judicata bars the consideration of Michie's claim for ineffective
assistance of counsel, and I would overrule his sole assignment of error on that basis.
Accordingly, I concur separately.
