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State v. Brown

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 11, 2017


         Cuyahoga County Court of Common Pleas Case No. CR-14-587887-A Application for Reopening Motion No. 503100

          FOR APPELLANT Fredric A. Brown, pro se.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Gregory J. Ochocki Assistant County Prosecutor.



         {¶1} On December 29, 2016, the applicant, Fredric Brown, pursuant to App.R. 26(B), applied to reopen this court's judgment in State v. Brown, 8th Dist. Cuyahoga No. 103491, 2016-Ohio-7221, in which this court affirmed Brown's convictions for two counts of trafficking in persons naming two separate victims.[1] Brown argues that his appellate counsel was ineffective for failing to argue (1) lack of probable cause; (2) ineffective assistance of trial counsel for failing to argue lack of probable cause and for failing to file a motion to suppress; and (3) speedy trial. The state of Ohio filed its brief in opposition on January 25, 2017. For the following reasons, this court denies the application to reopen.

         {¶2} In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.

         {¶3} In Strickland, the United States Supreme Court ruled that judicial scrutiny of an attorney's work must be highly deferential. The court noted that it is all too tempting for a defendant to second-guess his lawyer after conviction and that it would be all too easy for a court, examining an unsuccessful defense in hindsight, to conclude that a particular act or omission was deficient. Therefore, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland at 689.

         {¶4} Specifically, in regard to claims of ineffective assistance of appellate counsel, the United States Supreme Court has upheld the appellate advocate's prerogative to decide strategy and tactics by selecting what he thinks are the most promising arguments out of all possible contentions. The court noted: "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Indeed, including weaker arguments might lessen the impact of the stronger ones. Accordingly, the court ruled that judges should not second-guess reasonable professional judgments and impose on appellate counsel the duty to raise every "colorable" issue. Such rules would disserve the goal of vigorous and effective advocacy. The Supreme Court of Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.

         {¶5} Moreover, even if a petitioner establishes that an error by his lawyer was professionally unreasonable under all the circumstances of the case, the petitioner must further establish prejudice: but for the unreasonable error there is a reasonable probability that the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court need not determine whether counsel's performance was deficient before examining prejudice suffered by the defendant as a result of alleged deficiencies.

         {¶6} Brown argues the police lacked probable cause for stopping his van as he pulled out of a hotel parking lot. He cites the communication between officers before the "traffic stop" to show that the stop was merely pretense. He also argues that the police conducted a warrantless search of their cell phones. Thus, he continues, his trial counsel was ineffective for refusing to file a motion to suppress.

         {¶7} During the trial, the two main investigating police officers testified that they had noticed an advertisement on Backpage showing young girls for sex for hire and that the background of the photograph appeared to be a local hotel, an American Best Value Inn. The first officer further testified that he talked to the hotel's desk clerk who said that she thought prostitution was being practiced in two of the rooms. The officer ran the license plate of the subject van and discovered several irregularities. The van was purporting to be a taxi, but it did not have a delivery plate, and the owner's license was expired. The first officer testified he saw a male and three females enter the van. When the van left the hotel parking lot, the driver committed several traffic violations. He failed to come to a complete stop on private property before pulling out onto the street, and the turn was very wide with the van in both lanes for a few seconds. (Tr. 268-270, 357-360.)

         {¶8} Thus, the first officer stopped the van and called the second officer for assistance. Brown was driving the van. His fiancée was in the front passenger seat, and two girls, ages 15 and 16, were in the back seats. When the first officer approached Brown and the van, he noticed the smell of burnt marijuana on Brown. Brown did not produce his driver's license upon request. His answers to the first officer's questions did not "add up." When the second officer arrived, he noticed that the girls in the van appeared to be the girls in the Backpage advertisement. The second officer called the number in the advertisement, and the fiancée's phone began ringing. The second officer repeated the call several times, and the fiancée's phone responded. This was the evidentiary foundation on which Brown wanted his attorney to file a motion to suppress.

         {¶9} At a pretrial hearing on the record, Brown, his attorney, the prosecutor, and the judge discussed the issue. Brown's trial attorney opined that the quality and quantity of the evidence would probably not successfully support a motion to suppress and that an unsuccessful suppression hearing would harden the state's position for a plea bargain. (Tr. 30-32, 52-53.) Thus, to keep open the possibility of a favorable plea bargain, trial counsel did not file a motion to suppress. The evidence of the traffic violations would have provided a sufficient basis for the stop and further investigation. State v. Cozart, 8th Dist. Cuyahoga No. 91226, 2009-Ohio-489. Also, calling a cell phone number is not a warrantless search. Following the Supreme Court's admonition, this court will not second-guess either trial or appellate counsel's professional judgment in deciding strategy and tactics.

         {¶10} Moreover, Brown's reliance on Roe v. Flores-Ortega,528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), is misplaced. That case stands for the principle that an attorney has a constitutionally imposed duty to consult with a defendant about taking an appeal when there is reason to think a defendant would want to appeal or showed an interest in filing an appeal. It does not stand for the proposition ...

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