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State v. Starks

Court of Appeals of Ohio, Second District, Montgomery

July 12, 2019

STATE OF OHIO Plaintiff-Appellee
v.
MICHAEL A. STARKS Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2017-CR-3331

          MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          BRIAN A. MUENCHENBACH, Atty. Reg. No. 0088722, Attorney for Defendant-Appellant

          OPINION

          HALL, J.

         {¶ 1} Michael A. Starks appeals from his conviction and sentence following a no-contest plea to charges of improper handling of a firearm in a motor vehicle (F4), aggravated drug possession (F1), and possession of drug paraphernalia (M4).

         {¶ 2} Starks advances four assignments of error. First, he challenges the trial court's denial of his motion to suppress evidence seized during a traffic stop. He argues that the stop for a single marked-lane violation was unlawful and, therefore, that evidence discovered after an officer approached the car and smelled marijuana was subject to suppression. Second, he contends the trial court erred in denying his motion for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to challenge a search-warrant affidavit for a motel room he was renting. He also contends the trial court erred in denying his motion to suppress evidence found in the motel room. Third, he claims the trial court erred in denying his motion for a continuance after he retained new counsel. Fourth, he alleges ineffective assistance of counsel based on counsel's handling of the motion to suppress related to the traffic stop and the motion for a Franks hearing regarding the affidavit for a warrant to search his motel room.

         {¶ 3} The charges against Starks stemmed from a traffic stop of a car he was driving around 1:00 a.m. on October 19, 2017. Suppression-hearing testimony from Miamisburg police officer Nicholas Bell reflects that Bell and his partner saw Starks cross the line dividing two southbound lanes of Byers Road in Miamisburg. Starks crossed the dividing line while going around a curve and stayed in that position through the curve before going back in the right-hand lane. The officers followed Starks into the parking lot of a Knights Inn motel. They initiated a traffic stop based on a marked-lane violation of R.C. 4511.33. As the cruiser came to a stop with its overhead lights activated, Starks' front-seat passenger, Cheree Alexander, exited Starks' car. Bell got out of the cruiser and ordered her back into Starks' car. Bell then approached the stopped vehicle and detected an odor of raw marijuana. As he got closer, he determined that the odor was coming from inside Starks' car. Bell asked for the passenger's identification, and she retrieved her purse from behind the driver's seat. She then placed the purse on her lap and opened it, exposing the contents to Bell, who saw a baggie of suspected marijuana. Bell seized the purse, and Starks' car was searched. A loaded handgun was found under the driver's seat. Police also found jewelry and collectible coins in the vehicle. A detective subsequently submitted a search-warrant affidavit and obtained a warrant to search a Knights Inn motel room that Starks had rented. After obtaining the warrant, police searched the room and found a large quantity of methamphetamine.

         {¶ 4} Following his indictment, Starks moved to suppress evidence obtained as a result of the traffic stop. He argued that police had no basis for the stop. (Doc. #12.) He also separately moved to suppress evidence found inside the motel room on the grounds that the search warrant was issued without probable cause. (Doc. # 26.) Additionally, Starks moved for a Franks hearing. He argued that the search warrant affidavit omitted Cheree Alexander's statement to officers that the she was in the process of moving and that the jewelry and collectible coins in Starks' car, as well as other items, belonged to her. (Doc. # 39.) The trial court denied both suppression motions after a hearing and declined to hold a Franks hearing. (Doc. # 29, 42.)

         {¶ 5} Just days before Starks' scheduled August 20, 2018 trial date, newly retained counsel filed a "Limited Notice of Substitution of Counsel and Motion to Continue Trial." (Doc. # 57.) Prior to this filing, Starks had been represented solely by appointed counsel. In the filing, retained counsel entered an appearance as Starks' attorney of record "contingent upon the granting of a continuance." (Doc. # 57.) Retained counsel explained that he had just been retained and that he needed more time to prepare. (Id.) The following day, Starks' appointed counsel moved to withdraw, citing "a breakdown in attorney client communication[.]" (Doc. # 58.) That same day, retained counsel filed a notice of "appearance as co-counsel for Defendant[.]" (Doc. # 59.) On August 23, 2018, the trial court filed an order formally continuing the trial date until August 27, 2018. It also overruled appointed counsel's motion to withdraw. (Doc. #65.) Less than an hour after this ruling, retained counsel moved to continue the scheduled August 27, 2018 trial date. (Doc. #66.) The parties then discussed the issue with the trial court on the record on August 24, 2018. At that time, the trial court noted the existence of retained counsel's renewed motion to continue filed the prior day. (August 24, 2018 Hearing Tr. at 54.) The trial court noted that it already had granted a one-week continuance for retained counsel to explore whether "there may be issues that would ultimately lead to a resolution of the case." (Id. at 55-56.) Retained counsel responded: "That's correct, Your Honor. And it's my understanding at this time we are prepared to withdraw our prior plea of not guilty and enter a plea today." (Id. at 56.)

         {¶ 6} Starks then entered a negotiated no-contest plea to the charges against him in exchange for an agreed four-year mandatory sentence. The trial court accepted the plea and made findings of guilt. (Id. at 71.) At the conclusion of the plea hearing, appointed counsel sought to withdraw from further representation, and the trial court granted the request. (Id. at 72.) Starks subsequently appeared for sentencing with retained counsel, and the trial court imposed the agreed aggregate four-year prison sentence. (Id. at 75.) On October 1, 2018, the trial court filed an amended termination entry journalizing Starks' conviction and sentence. (Doc. # 82.) This appeal followed.

         {¶ 7} In his first assignment of error, Starks challenges the trial court's denial of his motion to suppress evidence found during the traffic stop in the Knights Inn parking lot. He argues that a single "lane departure" did not justify a traffic stop, as a matter of law. Therefore, he claims that the stop was illegal and that officer Bell would not have smelled marijuana or seen it in Alexander's purse but for the unlawful stop. Because the marijuana provided the basis to search Starks' vehicle, he reasons that the search itself was illegal and all evidence obtained as a result of the stop should have been suppressed.

         {¶ 8} Upon review, we find Starks' argument to be without merit. The Ohio Supreme Court has held that "a traffic stop is constitutionally valid when a law-enforcement officer witnesses a motorist drift over the lane markings in violation of R.C. 4511.33, even without further evidence of erratic or unsafe driving." State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 25. Here Bell presented uncontroverted testimony that Starks crossed over the dividing line between two lanes while going around a curve and stayed in that position through the curve before going back in the right-hand lane. (January 19, 2018 Tr. at 11-12.) Bell made a traffic stop because he believed Starks' act of failing to maintain a single lane of travel constituted a marked-lane violation under R.C. 4511.33. (Id. at 14-15.) Bell was correct. Under R.C. 4511.33(A)(1), a vehicle "shall be driven, as nearly as is practicable, entirely within a single lane[.]" At a minimum, Bell's observation of Starks crossing over the dividing line between two lanes while going around a curve provided reasonable, articulable suspicion justifying a stop for a marked-lane violation. Compare State v. Andrews, 2017-Ohio-1383, 89 N.E.3d 157, ¶ 53 (2d Dist.) (holding that even a de minimis violation of the marked-lane statute by driving into an adjacent lane by half a tire width provided reasonable, articulable suspicion for a traffic stop).

         {¶ 9} In opposition to our conclusion, Starks cites State v. Grenoble, 12th Dist. Preble No. CA2010-09-011, 2011-Ohio-2343. But his reliance on Grenoble is misplaced. In that case, the Twelfth District rejected the defendant's assertion "that one marked lane violation is an insufficient basis for an officer to stop a motorist." Id. at ¶ 16. The Twelfth District characterized this argument as "misguided" in light of the Ohio Supreme Court's holding in Mays. Id. The fact that the defendant in Grenoble drove outside of his marked lane multiple times while also driving too slowly does not mean that a defendant cannot be stopped for a single marked-lane violation. Mays makes clear that the traffic stop in Starks' case was lawful.

         {¶ 10} Because the traffic stop was proper, Bell lawfully approached Starks' vehicle and detected the smell of raw marijuana. According to Bell, he had smelled marijuana in its raw and burnt forms approximately 1, 000 times over his nearly 15-year career. (January 19, 2018 Tr. at 16-17.) Bell determined the smell was emanating from Starks' vehicle. (Id. at 17.) When he asked for passenger Alexander's identification, she opened her purse and he saw a suspected baggie of marijuana on top. (Id. at 18.) Bell's detection of the odor of marijuana and his observation of marijuana in Alexander's possession gave him probable cause to search the vehicle. State v. Moore,90 Ohio St.3d 47, 48, 734 N.E.2d 804 (2000) (holding that "the smell ...


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