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State v. Menchu

Court of Appeals of Ohio, Second District, Montgomery

October 20, 2017

STATE OF OHIO Plaintiff-Appellee
JOSE M.S. MENCHU Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2014-CR-3738

          MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          JOHN S. PINARD, Atty. Reg. No. 0085567, Attorney for Defendant-Appellant


          TUCKER, J.

         {¶ 1} Defendant-appellant Jose Menchu appeals from his conviction and sentence for trafficking in cocaine. He contends that he was denied the effective assistance of counsel because his attorney failed to seek suppression of evidence seized following a traffic stop. We conclude that Menchu has failed to demonstrate that counsel's conduct fell below an objective standard of reasonableness. Accordingly, the judgment of the trial court is affirmed.

         I. Facts and Procedural History

         {¶ 2} On October 28, 2014, members of the Montgomery County Sheriffs Office R.A.N.G.E. Task Force and the Bulk Smuggling Task Force were involved in an investigation of possible drug activity associated with a residence located at 2149 East Fifth Street in Dayton. On that day, members of the Task Force were watching the residence when, at approximately 7:00 p.m., they observed a blue panel van park at the residence. A man, later identified as Menchu, was observed exiting the van and entering the home. A few minutes later, Menchu exited the residence carrying a plastic grocery bag that he did not have when he entered the home. He returned to the van and drove away.

         {¶ 3} Montgomery County Sheriffs Deputy Joseph Caito was participating in the Task Force investigation. On that day, he was in a marked cruiser with his K-9 parter, Gunner. He was sitting at a location on Third Street when he received instructions to look for and follow the van and, if possible, execute a traffic stop. Caito observed the van, and after the van turned onto Third Street, he began to follow it. Caito noticed that the van's rear license plate light was not illuminated, and he, based upon this, initiated a traffic stop. Caito made contact with Menchu who voluntarily admitted that he was not in the United States legally and that he had no valid driver's license.

         {¶ 4} Caito asked Menchu to exit the vehicle. He then deployed Gunner for a free-air sniff around the exterior of the van. Gunner gave a passive alert which indicated the presence of narcotics. A search of the van revealed a plastic grocery bag. The contents of the bag, confirmed to be cocaine, weighed 487 grams. Menchu was taken into custody, and returned to the home at 2149 East Fifth Street. He consented to a search of the house. He was advised of, and waived, his Miranda rights. He stated that he had purchased the cocaine found in the van, and that he was looking for a purchaser.

         {¶ 5} On November 7, 2014, Menchu was indicted on one count of possesson of cocaine (100 grams) in violation of R.C. 2925.11 (A) and one count of trafficking in cocaine (100 grams) in violation of R.C. 2925.03(A)(2). Menchu filed a motion to suppress on December 15, 2014 in which he argued that his waiver of Miranda rights was invalid. He subsequently filed a motion to "expand" his motion to suppress in which he argued that he did not execute a valid consent for the search of his residence. Following hearings, both motions were denied.

         {¶ 6} On January 13, 2016, Menchu filed a motion to suppress and on January 15 a motion for independent drug testing. Both motions were based upon the claim that the cocaine seized was not pure, and, thus, the weight of the seized contraband had to be calculated based upon the weight of the cocaine, as opposed to filler, within the mixture. After hearing arguments from counsel and permitting briefing on the issue, the trial court overruled the motions.

         {¶ 7} Menchu waived his right to trial by jury, and the matter proceeded to a bench trial in October 2016. The trial court found Menchu guilty of both counts of the indictment. The two convictions were merged, and the State elected to proceed to sentencing on the trafficking count. The court sentenced Menchu to a mandatory term of eleven years in prison. Menchu appeals.

         II. Analysis

         {¶ 8} Menchu's sole assignment of error ...

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