State v. Kendall, 2012 Ohio 1172

Ronald Kendall, a passenger in Michael Thomas’ car, was approached by a man outside after which Officer Hornacek stopped the vehicle believing a drug transaction occurred.
Officer Hornacek observed Kendall making movements as if reaching under the front seat and ordered Kendall out; a search under the seat revealed a black box containing pills (oxycodone, buprenorphine, hydrocodone).
A jury convicted Kendall of aggravated drug possession and possession of drugs; the court sentenced him to 10 months in prison, suspended to 18 months of community control.
Kendall appealed raising four assignments of error, including ineffective assistance of counsel for not filing a suppression motion, evidentiary sufficiency, weight of the evidence, and failure to merge allied offenses for sentencing.
The appellate court affirmed Kendall’s convictions, but remanded to apply Johnson (allied offenses) for potential merger, and remanded for resentencing accordingly.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance for suppression motion	Kendall argues reasonable suspicion supported a stop and suppression would have succeeded.	State contends record is limited; failure to suppress may be strategic and not reversible error.	No reversible error; insufficient record to show likelihood of suppression victory.
Sufficiency of the evidence to support possession	State asserts Kendall possessed the drugs found under his seat.	Kendall claims no knowledge or control over the container.	Sufficient evidence; rational finder of fact could conclude Kendall possessed the drugs.
Weight of the evidence	State asserts credibility of witnesses supported ownership or control.	Kendall argues testimony denying ownership undermines verdict.	Not against the manifest weight; verdict supported by evidence showing Kendall’s conduct and concealment.
Merger of allied offenses for sentencing	Kendall argues court should merge counts under allied offenses analysis.	Johnson requires reapplication for merger; remand appropriate.	Remanded to permit trial court to apply Johnson in the first instance.

State v. Mundt, 115 Ohio St.3d 22 (2007-Ohio-4836) (ineffective assistance standard for suppression motions)
State v. Madrigal, 87 Ohio St.3d 378 (2000-Ohio-) (failure to file suppression may be strategy; need basis to suppress)
Kimmelman v. Morrison, 477 U.S. 365 (1986) (per se ineffective assistance not presumed; need suppression basis)
State v. Fair, 2011-Ohio-3330 (2nd Dist. No. 24120, 2011) (prejudice prong in suppression context requires probability of success)
State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (allied offenses of similar import; requires merger analysis on conduct)
State v. Creel, 2011-Ohio-5893 (9th Dist. No. 25476, 2011) (remand for applying Johnson merger determination)
State v. Otten, 33 Ohio App.3d 339 (9th Dist. 1989) (weight-of-the-evidence standard requires overall record review)