APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 12 01 0008.
RONALD T. GATTS, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
BETH WHITMORE, Judge.
(¶ 1} Defendant-Appellant, George Greer, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.
(¶ 2}Late in the evening on January 2, 2012, Greer was found by a passerby, slumped over the steering wheel of his car. His car had been in a collision, was still running, and was half-on, half-off the roadway. It appeared that Greer had struck a telephone pole. The passerby called 911 but before the police arrived, Greer awoke, drove his car down the street, and pulled into a church parking lot. The passerby testified that Greer was unable to keep the car on the roadway as he drove down the street to the parking lot and that he did a "doughnut" in the parking lot before ultimately parking his car in the back of the lot. The police and EMS arrived on scene as Greer was walking away from his vehicle.
(¶3} Officer Daniel Gump and Officer David Crockett testified that Greer smelled of alcohol and had slurred speech and blood shot eyes. Greer refused medical treatment, to perform field sobriety tests, or to provide a breath sample. Officer Gump placed Greer under arrest, and, after it was determined that he had prior convictions for driving under the influence, he was transported to the hospital for a mandatory blood draw.
(¶4} Greer was indicted on (1) possession of marijuana, in violation of R.C. 2925.11(A)(C)(3), a minor misdemeanor; (2) operating a motor vehicle under the influence of alcohol ("OVI"), in violation of R.C. 4511.19(A)(1)(a), a felony of the third degree; (3) driving under suspension, in violation of R.C. 4510.11, a first degree misdemeanor; (4) failure to control, in violation of R.C. 4511.202, a minor misdemeanor; and (5) OVI with a blood alcohol content of .17 or more, in violation of R.C. 4511.19(A)(1)(f), a felony of the third degree. The two OVI counts contained a mandatory prison specification, alleging Greer had been convicted of or had pleaded guilty to five or more OVI offenses within the past twenty years.
(¶5} Greer pleaded guilty to the charges of possession of marijuana and failure to control and was found guilty by a jury of the remaining charges. He now appeals and raises five assignments of error for our review. To facilitate the analysis, we address several of the assignments of error together.
Assignment of Error Number One
GEORGE GREER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL, HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS AS CONTAINED IN THE UNITED STATES CONSTITUTION, AND HIS OHIO CONSTITUTIONAL RIGHTS UNDER SECTION 16, ARTICLE 1.
(¶6} In his first assignment of error, Greer argues that his trial attorney was ineffective because (1) he failed to file a motion to suppress the lab results from the blood alcohol test, and (2) in his motion for acquittal, he failed to argue that the State had not met its burden to show that Greer's blood was drawn in compliance with the Ohio Administrative Code ("OAC").
(¶7} To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that counsel's performance was deficient to the extent that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and (2) that but for counsel's deficient performance the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). Accord State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus. In Ohio, the burden of proof lies with the defendant because a properly licensed attorney is presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62.
(¶8} The General Assembly has established the threshold criteria for the admissibility of alcohol test results in OVI cases. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 9. To be admissible, the testing must be done "in accordance with methods approved by the director of health." Id. ., quoting R.C. 4511.19(D)(1)(b). The Director of Health has set forth regulations for alcohol testing in OAC 3701-53.
(¶9} The defendant seeking to challenge the validity of an alcohol test must do so in a pretrial motion to suppress. Burnside at ¶ 24. At the suppression hearing, the State then must show that "the test was administered in substantial compliance with the regulations prescribed by the Director of Health." Id. "[A]ny statutory and/or regulatory provision not specifically challenged in a motion to suppress is deemed satisfied." State v. Tomko, 9th Dist. Summit No. 19253, 1999 WL 1037762, *5 (Nov. 3, 1999), citing State v. French, 72 Ohio St.3d 446 (1995), paragraph one of the syllabus.
(¶10} Greer argues that his trial counsel was ineffective because, in his motion for acquittal, he failed to argue that the State had not met its burden to show that his blood was drawn in compliance with the OAC. However, because Greer did not file a motion to suppress, the State was not required to prove substantial compliance. See Tomko at *5. Therefore, we cannot conclude that Greer's trial counsel was ineffective for failing to make such an argument.
(¶11} Greer further argues that his trial counsel was ineffective because he failed to file a motion to suppress the blood test results. Specifically, he argues that counsel should have challenged the test results because there is no evidence that his blood was drawn in compliance with the OAC. However, the reason there is no evidence of compliance is because counsel did not file a motion to suppress.
(¶12} An attorney's decision not to file a motion to suppress may be considered a trial strategy. State v. Downing, 9th Dist. Summit No. 22012, 2004-Ohio-5952, ¶ 23. Without some indication in the record that it was objectively unreasonable for counsel not to file a motion to suppress, we conclude counsel's decision was a strategic one. Trial tactics, even debatable ones, do not establish ineffective assistance of counsel. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 146. Accord State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 152.
(¶13} Lastly, in his supplemental brief, Greer argues that his counsel was ineffective for failing to file a motion to suppress because his blood was drawn without a warrant in violation of his Fourth Amendment rights. In support of his argument, Greer cites to Missouri v. McNeely, 569 U.S.___, 133 S.Ct. 1552 (2013).
(¶14} In McNeely, the Court held that the natural metabolization of alcohol in the bloodstream does not create a per se exigency justifying an exception to the Fourth Amendment warrant requirement for nonconsensual blood testing in all drunk-driving cases. Id. at 1556. The Court determined that each case must be reviewed based on the totality of the circumstances to determine whether an exigency exists. Id.
(¶15} In Ohio, R.C. 4511.191(A)(5) authorizes a nonconsensual blood draw of a driver that is arrested for OVI and has prior OVI offenses. In 2011, this Court found that statute to be constitutional. State v. Slates, 9th Dist. Summit No. 25019, 2011-Ohio-295, ¶ 41-58. While we note that McNeely was pending before the Supreme Court at the time of Greer's trial, it cannot be said that counsel's performance was deficient for following controlling precedent. See State v. White, 85 Ohio St.3d 433, 452 (1999). See also State v. Adams, 7th Dist. Mahoning No. 08 MA 246, 2011-Ohio-5361, ¶ 388. Because Greer has not established that his counsel's performance was deficient for challenging the constitutionality of his nonconsensual blood draw, his claim of ineffective assistance of counsel must fail.
(¶16} Greer's first assignment of error is overruled.
Assignment of Error Number Two
THE COURT ERRED TO THE PREJUDICE OF GEORGE GREER BY FAILING TO EXCLUDE THE STATE OF OHIO'S DOCUMENTS ALLEGING HIS PAST DUI CONVICTIONS OR PLEAS OF GUILTY OR NO CONTEST WITH THE COURT'S FINDINGS OF GUILT, OVER THE OBJECTION OF TRIAL COUNSEL AS SAID JOURNAL ENTRIES DID NOT CONFORM TO CRIMINAL RULE 32.
Assignment of Error Number Three
THE COURT ERRED TO THE PREJUDICE OF GEORGE GREER BY FAILING TO EXCLUDE THE STATE OF OHIO'S EXHIBITS ALLEGING HIS PAST DUI CONVICTIONS OR PLEAS OF GUILTY OR NO CONTEST WITH THE COURT'S FINDINGS OF GUILT, OVER THE OBJECTIONS OF TRIAL COUNSEL BECAUSE THE POLICE OFFICER WAS UNABLE TO PROPERLY IDENTIFY THE GEORGE GREER ...