Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
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
S. PINARD, Atty. Reg. No. 0085567, Attorney for
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.
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.
8} Menchu's sole assignment of error ...