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State of v. Eric D. Wheeler

October 28, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ERIC D. WHEELER
DEFENDANT-APPELLANT



Trial Court Case No. 2009-CR-1640 (Criminal Appeal from (Common Pleas Court)

The opinion of the court was delivered by: Fain, J.

Cite as State v. Wheeler,

OPINION

{¶1} Defendant-appellant Eric D. Wheeler appeals from an order denying his petition for post-conviction relief, without a hearing. In his petition, Wheeler claimed that his trial counsel was ineffective in preparing for, and prosecuting, his motion to suppress evidence, as a result of which his motion to suppress was overruled. Wheeler claims that in consequence of the overruling of his motion to suppress, he was forced to plead guilty to Possession of Controlled Substances, in violation of R.C. 2925.11(A), because the drugs he was attempting to suppress were found on his person.

{¶2} We conclude that even if everything set forth in Wheeler's affidavit in support of his petition for post-conviction relief is taken as true, it falls short of establishing ineffective assistance of trial counsel. If we accept as true Wheeler's claim that his counsel told him he could not testify at his suppression hearing, he has not pointed to anything to which he would have testified that would have changed the outcome. If we accept as true Wheeler's claim that his counsel failed to review the police report before the suppression hearing, nothing in that report, which Wheeler attached to his affidavit, leads to a conclusion that the police officer who patted him down and found the drugs lacked authority to do so. Accordingly, the order from which this appeal is taken is Affirmed.

I

{¶3} Early one evening in May 2009, Officers Michael Fuller and Halbert of the Dayton Police Department were patrolling the area of North Main Street near Main Mart, a convenience store. Both officers had received numerous complaints of drug activity and open-air drug sales taking place in the convenience store parking lot along with other illegal activity. Noticing a Jeep Cherokee from which no one was exiting and to which no one was approaching, the officers decided to engage the occupants in conversation.

{¶4} After parking their police cruiser behind the vehicle Wheeler occupied, but not in such close proximity as to block that vehicle, the officers approached. As Officer Fuller approached the vehicle, he noticed Wheeler's window was down and, at that time, smelled a strong odor of marijuana emanating from the vehicle. Officer Fuller also noticed that Wheeler's hands were shaking badly. Officer Fuller requested Wheeler to exit the vehicle so he could search for narcotics based on that smell. Upon exiting, Wheeler reached under his sweatshirt and into the waistband of his pants. Officer Fuller testified that Wheeler consented to a pat-down search of his person for weapons; in his affidavit, Wheeler denies having consented to the pat-down. Wheeler again reached inside his sweatshirt and into his pants. Officer Fuller was concerned that Wheeler could be in possession of a weapon and asked Officer Halbert to handcuff Wheeler in order to continue the pat-down.

{¶5} Continuing with the search, Officer Fuller felt what he recognized to be crack cocaine near the area of Wheeler's thighs. Officer Halbert retrieved the suspected crack cocaine, and subjected it to a cobalt reagent test. The test was positive. Officer Fuller also found two sums of money on Wheeler's person, in the total amount of $1,542. Wheeler was placed in custody and advised of his rights under Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. During booking procedures, a small bag of marijuana was found in Wheeler's left pants pocket, for which Wheeler was issued a minor misdemeanor citation.

{¶6} Wheeler was charged with Possession of Controlled Substances, in violation of R.C. 2925.11(A), a felony of the third degree. Wheeler moved to suppress the evidence, contending that it was obtained as the result of an unlawful search and seizure. The trial court overruled his motion to suppress. Thereafter, Wheeler pled guilty to the charge, and was sentenced accordingly.

{¶7} Wheeler appealed from his conviction and sentence. In July, 2011, we affirmed. State v. Wheeler, Montgomery App. No. 24112, 2011-Ohio-3423.

{¶8} Before we decided Wheeler's direct appeal, he filed the petition for post-conviction relief with which this appeal is concerned. The State moved for summary judgment, and the trial court, in an entry filed December 17, 2010, sustained the State's motion for summary judgment and overruled Wheeler's petition for post-conviction relief, without a hearing.

{ΒΆ9} From the order overruling his petition for post-conviction ...


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