[Cite as State v. Gardner, 2013-Ohio-2269.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 12CA88
MARSHENE GARDNER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Common
                                               Pleas Court, Case No. 2012CR0189


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         May 29, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JAMES J. MAYER, JR.                            RANDALL E. FRY
Prosecuting Attorney                           10 West Newlon Place
Richland County, Ohio                          Mansfield, Ohio 44902

By: JOHN C. NIEFT
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 12CA88                                                        2

Hoffman, P.J.


       {¶1}   Defendant-appellant Marshene Gardner appeals his conviction and

sentence entered by the Richland County Court of Common Pleas, on one count of

having weapons under disability, in violation of R.C. 2923.12(A)(2), a felony of the third

degree; and one count of receiving stolen property (firearm), in violation of R.C. 2923.11

and 2913.51(A), following a plea of guilty. Plaintiff-appellee is the state of Ohio.

                                  STATEMENT OF THE CASE1

       {¶2}   The Richland County Grand Jury indicted Appellant on one count of

having weapons under disability, and one count of receiving stolen property (firearm).

The charges arose from an incident which occurred at the residence at 315 Second

Ave, Mansfield, Ohio, on March 24, 2012. At the time of the offense Appellant was on

post release control in connection with a 2008 conviction for domestic violence.

Appellant appeared before the trial court for arraignment on May 15, 2012, and entered

a plea of not guilty to the Indictment.

       {¶3}   Appellant filed a motion to suppress the evidence obtained during the

search of the Second Ave. residence as well as the evidence of his arrest. The State

filed a memorandum in response, arguing Appellant did not have standing to seek

suppression of the search of the Second Ave. residence as he was neither a resident of

the home nor an overnight guest. Alternatively, the State argued police entry into the

residence was made pursuant to exigent circumstances and the evidence discovered

was discovered during the execution of a search warrant.



1
  A statement of the facts underlying Appellant’s conviction is not necessary for our
disposition of Appellant’s appeal.
Richland County, Case No. 12CA88                                                         3


       {¶4}   The trial court conducted a hearing on the motion on July 3, 2012. At the

hearing, Appellant conceded he was neither the owner nor the occupier, but continued

to dispute his arrest. Upon conclusion of the hearing, the trial court orally pronounced

its rulings. The trial court found Appellant did not have standing to contest the search

warrant or the search of the Second Ave. residence. The trial court further found the

police had probable cause to arrest Appellant.         The trial court also entertained

Appellant’s oral motion to exclude or limit other acts evidence. The trial court partially

granted the motion. The trial court issued its judgment entry outlining its rulings on July

10, 2012.

       {¶5}   On July 5, 2012, the day the matter was scheduled for trial, Appellant

appeared before the trial court, withdrew his former plea of not guilty, and pled guilty to

both counts of the Indictment. In exchange for his guilty plea, the State agreed not to

pursue burglary charges related to the March 24, 2012 incident as well as domestic

violence charges which arose prior to March 24, 2012.           The trial court accepted

Appellant’s plea, found him guilty, and sentenced him to an aggregate term of

imprisonment of three years. The trial court memorialized the conviction and sentence

via Judgment Entry filed July 5, 2012.

       {¶6}   It is from this conviction and sentence Appellant appeals, raising as his

sole assignment of error:

       {¶7}   “I. THE DEFENDANT-APPELLANT WAS DEPRIVED OF HIS SIXTH

AMENDMENT RIGHT IN THE UNITED STATES CONSTITUTION TO EFFECTIVE

ASSISTANCE OF COUNSEL AS THE TRIAL COUNSEL PLED THE DEFENDANT-

APPELLANT      GUILTY       ON   BOTH COUNTS,         INSTEAD OF PLEADING             THE
Richland County, Case No. 12CA88                                                           4


DEFENDANT-APPELLANT             NO     CONTEST,       THEREBY        PRECLUDING         THE

DEFENDANT-APPELLANT FROM APPEALING THE RULING OF THE TRIAL COURT

ON THE DEFENDANT-APPELLANT’S MOTION TO SUPPRESS.”

                                                 I

       {¶8}   In his sole assignment of error, Appellant raises an ineffective assistance

of counsel claim. Specifically, Appellant assets trial counsel was ineffective for failing to

advise him that a no-contest plea, as opposed to a guilty plea, would have preserved

his right to contest the denial of his motion to suppress.

       {¶9}   Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio

adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). These cases require a two-pronged analysis: First, we must determine

whether counsel's assistance was ineffective; whether counsel's performance fell below

an objective standard of reasonable representation and was violative of any of his

essential duties to the client. If we find ineffective assistance of counsel, we must then

determine whether or not the defense was actually prejudiced by counsel's

ineffectiveness such that the reliability of the outcome of the trial is suspect. This

requires a showing that there is a reasonable probability that but for counsel's

unprofessional error, the outcome of the trial would have been different. Id. Trial counsel

is entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675, 693 N.E.2d

267 (1998).
Richland County, Case No. 12CA88                                                         5


      {¶10} The United States Supreme Court and the Ohio Supreme Court have held

a reviewing court “need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697.

      {¶11} Upon review of the record including the transcript of the hearing on the

motion to suppress, we find Appellant has not affirmatively demonstrated he would have

been successful in an appeal from the trial court’s denial of his motion to suppress.

Accordingly, we find Appellant was not prejudiced by the failure of trial counsel to advise

him to enter a no contest plea.

      {¶12} Appellant’s sole assignment of error is overruled.

      {¶13} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Baldwin, J. concur

                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ Sheila G. Farmer __________________
                                             HON. SHEILA G. FARMER


                                             s/ Craig R. Baldwin ___________________
                                             HON. CRAIG R. BALDWIN
Richland County, Case No. 12CA88                                                 6


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
MARSHENE GARDNER                           :
                                           :
       Defendant-Appellant                 :         Case No. 12CA88


       For the reason stated in our accompanying Opinion, the judgment of the

Richland County Court of Common Pleas is affirmed. Cost to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER


                                           s/ Craig R. Baldwin ___________________
                                           HON. CRAIG R. BALDWIN
