State v. HayesState v. Hayes
Carly M. Edelstein, Columbus, Ohio, for appellant.1
Dave Yost, Ohio Attorney General, and Joel King, Assistant Attorney General, Columbus, Ohio, for Appellee.
CRIMINAL CASE FROM COMMON PLEAS COURT
{¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of conviction and sentence. A jury found Joshua Hayes, defendant below and appellant herein, guilty of (1) forty counts of improper use of the Ohio Law Enforcement Gateway (OHLEG), in violation of
{¶ 2} Appellant raises the following assignments of error for review:
“TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO RAISE AN AFFIRMATIVE DEFENSE PROVIDED FOR IN
R.C. 2913.04 .”
SECOND ASSIGNMENT OF ERROR:
“JOSHUA HAYES’ INDICTMENT AND CONVICTION UNDER
R.C. 2913.04(C) AND2913.04(D) VIOLATED HIS RIGHT TO DUE PROCESS AS GUARANTEED BY THEFOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION ANDARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION .”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT DENIED MR. HAYES THE EFFECTIVE ASSISTANCE OF COUNSEL FOR COUNTS 40-42.”
{¶ 3} The present case arises out of appellant‘s alleged misuse of OHLEG and LEADS while employed as a Village of Manchester police officer. After an audit raised suspicions, Ohio Bureau of Criminal Investigation Special Agent David Hornyak investigated whether appellant had made any improper searches. Agent Hornyak subsequently determined that appellant had conducted multiple OHLEG and LEADS searches of himself and several individuals, including Brian Edwards, Carla Knipp, Codey Carter, James White, Kristopher Blanton, Sarah Lowman, David Rowe and Deanna Dryden.
{¶ 4} An Adams County Grand Jury returned an indictment that charged appellant with ninety-two counts of unauthorized use of OHLELG and seventeen counts of unauthorized use of LEADS, all fifth-degree felonies, in violation of
{¶ 5} At trial, OHLEG quality assurance specialist Michelle Roach-Haver testified that an authorized user may access OHLEG for the administration of criminal justice only and that “[c]uriosity is not an authorized use of OHLEG information.” Roach-Haver explained that the OHLEG rules and regulations define “the administration of criminal justice” as follows:
The detection, apprehension, detention, pre-trial release, post-trial release, prosecution, adjudication, correctional supervision, rehabilitation of accused persons or criminal offenders. This also includes criminal identification activities, the collections, storage, and dissemination of criminal history record information and criminal justice employment. In addition, administration of criminal justice includes crime prevention programs to the extent access to criminal history record information is admitted to law enforcement agencies for law enforcement programs as in record checks for individuals who participate in a neighborhood watch or safe house programs.
The state presented Roach-Haver with a copy of appellant‘s request for OHLEG access. The form states, just below appellant‘s signature, that “[t]he undersigned agrees that all information from this site is for law enforcement purposes ONLY. Any dissemination to the public is strictly prohibited.”
{¶ 6} Roach-Haver additionally related that every time a user logs in to OHLEG, the user must agree to access OHLEG “for the official purposes of my agency and the administration of criminal justice.” A user must also agree with the following two statements: (1) “I acknowledge and agree that I will utilize this information exсlusively for the administration of criminal justice for the official purpose of my agency“; and (2) “I acknowledge that any unauthorized access or misuse of the law enforcement information and data on this site is prohibited by Revised Code
{¶ 7} During Roach-Haver‘s testimony, the state also introduced the OHLEG training video. The training video states that “OHLEG sources are privileged and to be used in the administration of criminal justice only. Definition of such duties includes detection, apprehension, detention, pre-trial release, post-trial release, prosecution, adjudication, correctional supervision, rehabilitation of accused persons, and identification activities as outlined in the OHLEG rules and regulations.”
{¶ 8} Roach-Haver testified that using OHLEG to inquire whether a friend has an outstanding warrant is not a proper use of OHLEG. When questioned whether appellant may have properly used OHLEG to dеtermine whether his friend, Brian Edwards, had any active warrants, Roach-Haver responded that OHLEG does not show any warrants-active or otherwise. She later indicated that, although OHLEG would not display warrants, it would produce an alert that “there is something active in LEADS.”
{¶ 9} Roach-Haver explained that “[u]sing the system for personal use or personal gain in any manner would be considered misuse.” The OHLEG rules and regulations explicitly provide: “Access to OHLEG is limited to use for official law enforcement/administration of criminal justice purposes only, not for personal use or gain.” Roach-Haver further stated that a user is allowed to conduct a self-search during a seven-day practice period and that after the seven-day period, self-searches are not authorized. The OHLEG manual specifically states that a new user is permitted “to run a self-search for a period of seven days from the date they receive their access as a means of learning how to use the search engine tool.” The rule also provides that
{¶ 10} Roach-Haver explained that on July 30, 2015, at approximately 12:20 a.m., appellant accessed OHLEG and searched Brian Edwards‘s social security number, then viewed seven different records associated with Edwards. She stated that on October 5, 2015, at approximately 4:08 a.m., appellant searched a Carla Knipp who lives in Lawrence County. Roach-Haver additionally detailed the other times appellant accessed OHLEG to search for himself, James White, Joe Himes, Kristopher Blanton, Sarah Lowman, and David Rowe.
{¶ 11} Jeremy Hansford testified that he is the Ohio State Highway Patrol data system administrator who oversees the Ohio Criminal Justice Information Services, including LEADS. Hansford explained that officers may access LEADS to obtain “driving information, criminal history information, wants, warrants, stolen vehicles, missing people, * * * known suspected terrorists, [and] fugitive felons.” He stated that LEADS contains national files, while OHLEG contains only Ohio files.
{¶ 12} Hansford related that an officer must be certified to use LEADS. He testified that in October 2014, appellant passed the certification test. Hansford stated that the certification test requires the user to know “what its permitted use is.” Hansford indicated that the LEADS manual states that “LEADS can be used for the administration of criminal justice by authorized criminal justice agencies” and defines “the administration of criminal justice” as “the performance of any of the following activities: detection, apprehension, detention, pre-trial release, post-trial release, prosecution, adjudication, correctional supervision, rehabilitation of accused person or criminal offenders.”
{¶ 14} Hansford testified that when a user logs in to the LEADS mobile application, a red warning banner advises the user that “[u]nauthorized use of the system is prohibited and may be subject to criminal and civil penalties.” After log in, another screen appears that the user must review and accept before continuing. It states: “I will conduct LEADS queries only for official business or as part of my job assignment. I will not share LEADS query results outside of my organization, including to the public.” Additionally, appellant signed a “LEADS Security Agreement” that recites appellant‘s understanding that he “may use OHLEG/LEADS access for [his] employment with the Manchester Police Department for Law Enforcement Investigative purposes only.”
{¶ 15} Carla Knipp testified that she and appellant dated until December 2015, and that appellant is the father of her children. Knipp stated that on October 5, 2015 at 4:08 a.m., she was not involved in any type of criminal investigation with appellant and that she had never been a suspect in a crime. Knipp related that after appellant‘s searches came to light, appellant informed Knipp that he had searched her name because “he was calibrating the system.”
{¶ 16} David Rowe testified that he dated Knipp, and that on the date appellant searched him (April 4, 2016, at 10:01 a.m.), he had not been involved in any type of criminal investigation with appellant. He further stated that he lived an hour and one-half away from Manchester and had never been to Manchester until the date of his testimony.
{¶ 18} Defense counsel, however, asked the court to continue the trial and explained:
I believe that I‘m put in an ethical situation at this point that I‘ve already violated ethics and that if I continue I‘m either stuck between representing my client or violating ethics. I don‘t feel there is any way that an attorney can proceed without a conflict of interest at this point with what has been said and accused.
The prosecutor asserted that continuing the trial would not serve any purpose and that the court‘s options were to declare a mistrial or proceed with the jury trial.
{¶ 19} The trial court observed that the parties had previously discussed the matter in chambers and that the parties indicated that defense counsel may inquire into the circumstances when cross-еxamining the Village of Manchester Chief of Police, Jeffrey Bowling. Appellant‘s counsel stated, “That‘s correct, Your Honor.” The prosecutor stated, “as long as [the Chief of
{¶ 20} The state‘s next witness, Brian Edwards, testified that he is one of appellant‘s friends, as well as a Manchester volunteer firefighter. Edwards stated that he had no law enforcement interaction with appellant and, that on the dates appellant searched his name in OHLEG and LEADS, appellant had not stopped Edwards to investigate any alleged criminal conduct. Edwards additionally related that he did not ask appellant to check his vehicle registration or license plates. Edwards explained that he did, however, ask appellant to investigate whether Edwards had an outstanding warrant in the State of Kentucky, and, on another occasion, asked appellant if Edwards had a warrant for failing to pay a judgment. Edwards indicated that both times, appellant informed him that Edwards did not have any warrants.
{¶ 21} James White testified that he volunteers at the fire station and that one time, appellant asked White if White “want[ed] to play a game.” White responded affirmatively, and appellant told White to give appellant White‘s social security number so that appellant could check if White had any warrants. Appellant informed White that if the search revealed a warrant, appellant would be “taking [White] in.”
{¶ 22} Deanna Dryden testified that she works at a local bar and, although appellant investigated a fight or two that she had reported at the bar, she had never been involved in a traffic stop or other criminal investigation on the dates and times that appellant searched her information in LEADS.
{¶ 24} Joe Himes, an emergency mеdical technician and volunteer firefighter, testified that in April 2015 appellant informed Himes that his vehicle registration sticker had expired. Himes stated that he did not, however, have any criminal interaction with appellant during the other times appellant searched Himes‘s information.
{¶ 25} Sarah Lowman testified that she encountered appellant on May 29, 2016 while she walked home from a bar. Appellant stopped Lowman and her friend and asked for identification. Lowman gave appellant her identification and social security number. A few days later, Lowman and appellant developed a romantic relationship and remained in a relationship until December 2016. Lowman indicated, however, that she had not been involved in any law enforcement investigations when appellant searched her information on June 5, 2016.
{¶ 26} Former Manchester Police Officer Jason Mallott testified that he and appellant formerly lived together in a house owned by Cody Carter. Officer Mallott explained that when employed with the Village of Manchester, he often ran vehicle tags if he had reasonable suspicion to do so. Officer Mallott additionally stated that OHLEG will show a “warrant block,” which is a block on a driver‘s license. Officer Mallott indicated that if he wanted to know if someone had a warrant, however, he would use LEADS.
{¶ 27} Jeffrey Bowling, the former Village of Manchester Chief of Police, testified that appellant twice signed a form indicating that appellant understood OHLEG and LEADS access
{¶ 28} On cross-examination, defense counsel asked Chief Bowling whether a criminal investigation of Blanton existed, and the chief responded negatively. Defense counsel asked if the chief was “positive of that,” and the chief stated, “Uh-uh.” Chief Bowling further explained that Blanton quit his position as magistrate because appellant “filed a complaint on him.”
{¶ 29} Cody Carter testified that appеllant was a former tenant and that he does not recall being the subject of a law enforcement investigation.
{¶ 30} Before the state presented its next witness, Blanton, defense counsel moved for a mistrial or continuance and requested to withdraw from representing appellant due to a “potential conflict.” In particular, defense counsel asserted that he could not present a complete defense due to a potential ethics violation because appellant would testify that he searched Blanton‘s name to obtain his address to complete a disciplinary complaint regarding Blanton‘s dismissal of the speeding ticket. The prosecutor, however, argued that prohibiting defense counsel from inquiring into any formal disciplinary complaint that appellant might have filed bore no relevancy to the case. The prosecutor thus asserted that if appellant “is alleging that he ran [Blanton‘s name] for a legal investigation then who cares what happened [next].” The prosecutor claimed thаt appellant could present the factual circumstances of Blanton‘s conduct and could assert that appellant believed Blanton acted improperly, but could not argue or present evidence that appellant might have filed a formal complaint with the disciplinary counsel.
{¶ 31} At this juncture, the trial court asked defense counsel to explain the relevancy of any formal complaint appellant may have filed. Defense counsel asserted that “it would add
{¶ 32} The prosecutor again reiterated that nothing prevented appellant from attesting to appellant‘s belief that Blanton acted improperly. The prosecutor explained:
So nothing is handcuffing the defendant to present as much as he wants what [sic] his delusional belief that this was a law enforcement purpose and that instead of talking to the, I don‘t know, 20 some thousand sworn officers in the State of Ohio, they are just going to send it to a few attorneys of the disciplinary counsel.
{¶ 33} The trial court overruled appellant‘s motions. Blanton then testified that, when employed as the traffic court magistrate, he dismissed a ticket appellant had issued to the Adams County Sheriff‘s granddaughter. Blanton stated that a member of the granddaughter‘s family had approached him about the speeding ticket and that Blanton later dismissed the ticket. Blanton further explained that dismissing a speeding ticket for a first-time offender who is a young driver is not uncommon.
{¶ 34} Special Agent David Hornyak testified that he investigated the OHLEG and LEADS complaints against appellant to determine whether appellant possessed a proper purpose to conduct the searches. Agent Hornyak explained that to determine whether аppellant possessed a proper law enforcement purpose to conduct the searches, Agent Hornyak reviewed appellant‘s time sheets, official records and call logs and compared them to the OHLEG and LEADS searches. Agent Hornyak stated that his investigation indicated that appellant had conducted multiple searches that did not have a proper law enforcement purpose.
{¶ 36} Appellant also testified in his defense. He explained that he believed all of his OHLEG and LEADS searches were for legitimate law enforcement purposes and offered the following as reasons for his searches:
- Edwards asked appellant whether Edwards had a warrant.
- Appellant checked the status of Knipp‘s license and registration due to financial difficulties he and Knipp were experiencing.
- Appellant searched Carter‘s information as “a status check on operating a vehicle” to see if Carter‘s license and registration were valid.
- Appellant searched White as a status check and because White asked appellant to do so.
- Appellant checked Himes‘s license and registration to investigate whether Himes was on-duty at the time appellant viewed Himes‘s vehicle in the fire station parking lot. Appellant explained that he ran tags of cars parked at the fire station to help protect property-to ensure “it was the right person that was supposed to be on duty that day.” Appellant stated that he searched Himes another time after Himes‘s supervisor requested a status check.
Appellant performed self-searches while “calibrating the system,” i.е., testing whether the wireless connection was working. - Appellant searched Blanton “as part of an investigation that [appellant] conducted in reference to possible criminal charges.” Appellant explained that he believed Blanton “[i]mproperly dismissed a ticket.”
- Appellant stated that he searched Lowman while following up on his paperwork prepared as a result of the May 29, 2016 encounter.
- Appellant claimed that all of the other searches he conducted were completed while he was on “[r]outine traffic patrol.” Appellant explained that he ran license plates “[e]very time [he] drove by somebody.”
{¶ 37} Appellant additionally claimed that he did not receive any OHLEG or LEADS training before he gained access to the systems, and that until trial no one had shown him the OHLEG training video.
{¶ 38} On cross-examination, the prosecutor questioned appellant regarding his claim that he searched Lowman as a follow-up to his earlier encounter with her. The prosecutor noted that the reports introduced at trial indicated that appellant had cleared the scene on the night of the encounter. Appellant, however, stated that the “narrative” he prepared of the encounter was not documented in the evidence presented at trial.
{¶ 39} The prosecutor additionally asked appellant what criminal conduct appellant believed Blanton had engaged in by dismissing the speeding ticket, and appellant replied it “would have to be up to the Supreme Court [of Ohio] Disciplinary Counsel.” Appellant further claimed that he investigated Blanton pursuant to Chief Bowling‘s and the mayor‘s request.
{¶ 41} The prosecutor questioned appellant regarding his motivation for searching Knipp and noted that Knipp testified that appellant searched her name because he was “calibrating the system.” The prоsecutor asked appellant whether Knipp was lying. Appellant responded, “Me and [Knipp] hardly talk really, okay, I told [Knipp] what the situation was out of respect for [her].” Appellant further claimed that he was allowed to run random searches.
{¶ 42} After the close of evidence, appellant asked the trial court to give the jury an instruction that conducting random license plate searches is not improper and instruct the jury that “[a]n officer does not need probable cause to run a license plate” and that an officer can “run random license plate searches.” The trial court declined appellant‘s request.
{¶ 43} During closing arguments, the prosecutor argued that the only elements the parties dispute is whether appellant used OHLEG and LEADS beyond consent. The prosecutor asserted that appellant had consent to use the systems for the administration of criminal justice, but that appellant could not search an individual unless that person is suspected of a crime or involved in a criminal investigation. Thе prosecutor therefore claimed that appellant did not have consent to use OHLEG or LEADS to search his girlfriend, ex-girlfriend, landlord, or friends when none of those individuals had been suspected of a crime or otherwise involved in a criminal investigation.
{¶ 44} Defense counsel argued that the definition of “the administration of criminal justice” does not require an individual to be a suspect and that appellant performed all of the searches alleged to have violated
{¶ 46} The jury subsequently found appellant guilty of forty OHLEG offenses as follows: (1) all but one of the offenses involving Edwards; аnd (2) all of the offenses involving Knipp, Carter, appellant‘s self-searches, Blanton, Lowman, and Rowe. The jury found appellant not guilty of the OHLEG offenses involving Himes. The jury found appellant guilty of five LEADS offenses as follows: (1) one offense involving Edwards; (2) two offenses involving Dryden; (3) one offense involving Upole; and (4) one offense involving appellant‘s self-search. On October 17, 2017, the trial court sentenced appellant to serve three years of community control and one hundred eighty days in jail. This appeal followed.
I
{¶ 47} In his first assignment of error, appellant asserts that trial counsel did not provide constitutionally effective assistance of counsel. In particular, appellant alleges that trial counsel failed to raise the
A
{¶ 48} The
{¶ 49} To establish constitutionally ineffective assistance of counsel, a defendant must show (1) that his counsel‘s performance was deficient and (2) that the deficient performance prejudiced the defense and deprived the defendant of a fair trial. E.g., Strickland, 466 U.S. at 687; State v. Myers, — Ohio St.3d —, 2018-Ohio-1903, — N.E.3d —, ¶ 183; State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 85. “Failure to establish either
1
{¶ 50} The deficient performance part of an ineffectiveness claim “is necessarily linked to the practice and expectations of the legal community: ‘The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.‘” Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), quoting Strickland, 466 U.S. at 688; accord Hinton, 571 U.S. at 273. Prevailing professional norms dictate that “a lawyer must have ‘full authority to manage the conduct of the trial.‘” State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 24, quoting Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). Furthermore, “‘[i]n any case presenting an ineffectiveness claim, “the performance inquiry must be whether counsel‘s assistance was reasonable considering all the circumstances.‘” Hinton, 571 U.S. at 273, quoting Strickland, 466 U.S. at 688. Accordingly, “[i]n order to show deficient performance, the defendant must prove that counsel‘s performance fell below an objective level of reasonable representation.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95 (citations omitted).
{¶ 51} Moreover, when considering whether trial counsel‘s representation amounts to deficient performance, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Thus, “the defendant must overcome the presumption that, under the circumstances,
2
{¶ 52} To establish prejudice, a defendant must demonstrate that a reasonable probability exists that “‘but for counsel‘s errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the outcome.‘” Hinton, 571 U.S. at 275, quoting Strickland, 466 U.S. at 694; e.g., State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus; accord State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 91 (indicating that prejudice component requires a “but for” analysis). “‘[T]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.‘” Hinton, 571 U.S. at 275, quoting Strickland, 466 U.S. at 695. Furthermore, courts ordinarily may not simply presume the existence of prejudice but, instead, must require the defendant to affirmatively establish prejudice. State v. Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. Ross No. 01CA2592 (Apr. 2, 2002); see generally Roe v. Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)
{¶ 53} In the case at bar, as we explain below, we do not believe that a reasonable probability exists that the outcome of appellant‘s trial would have been different but for trial counsel‘s alleged deficiency in failing to request an affirmative defense instruction.
B
{¶ 54} Appellant claims that trial counsel performed ineffectively by failing to request the court to give the jury an
{¶ 55} Generally, a trial court has broad discretion to decide how to fashion jury instructions. The trial court must not, however, fail to “fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. Additionally, a trial court may not omit a requested instruction, if such instruction is “‘a correct, pertinent statement of the law and [is] appropriate to the facts * * *.‘”
{¶ 56}
(1) At the time of the alleged offense, the actor, though mistaken, reasonably believed that the actor was authorized to use or operate the property.
(2) At the time of the alleged offense, the actor reasonably believed that the owner or person empowered to give consent would authorize thе actor to use or operate the property.
{¶ 57} Appellant claims that he presented sufficient evidence at trial to support a finding that he reasonably believed that his use of OHLEG and LEADS was authorized. Appellant thus alleges that trial counsel acted deficiently by failing to request an affirmative-defense instruction.
{¶ 58}
(C) Except as permitted under section
5503.101 of the Revised Code , no person shall knowingly gain access to, attempt to gain access to, cause access to be granted to, or disseminate information gained from access to the law enforcement automated database system created pursuant to section5503.10 of the Revised Code without the consent of, or beyond the scope of the express or implied consent of, thе chair of the law enforcement automated data system steering committee.(D) No person shall knowingly gain access to, attempt to gain access to, cause access to be granted to, or disseminate information gained from access to the Ohio law enforcement gateway established and operated pursuant to division (C)(1) of section
109.57 of the Revised Code without the consent of, or beyond the scope of the express or implied consent of, the superintendent of the bureau of criminal identification and investigation.
{¶ 59} At trial, the state presented evidence that appellant had consent to use OHLEG and LEADS for the administration of criminal justice only. The state introduced evidence to illustrate that the “administration of criminal justice” means “the detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders.”
{¶ 60} Appellant claims that a reasonable probability exists that an affirmative-defense instruction would have led the jury to conclude that he reasonably believed that his use of OHLEG and LEADS was for the administration of criminal justice. We do not believe,
{¶ 62} In sum, the evidence shows that although appellant acknowledged the proper uses of OHLEG and LEADS each time he logged in, the individuals appellant searched did not involve an accused person or a criminal offender, or were connected in any manner whatsoever to the detection or apprehension of such a person. Thus, even if trial counsel had requested an affirmative-defense instruction, appellant did not present sufficient evidence to warrant the instruction. Also, it is not reasonably probable that the jury would have determined that
{¶ 63} We therefore do not find a reasonable probability exists that the outcome of appellant‘s trial would have been different if the court had given the jury the
{¶ 64} Accordingly, based upon the foregoing reasons, we overrule appellant‘s first assignment of error.
II
{¶ 65} In his second assignment of error, appellant asserts that his
{¶ 66} Trial counsel‘s failure to raise the constitutionality of
{¶ 67}
{¶ 68} After our review in the case sub judice, we do not believe that the trial court committed plain error. Courts have rejected vagueness challenges to
Appellant, a law enforcement officer, could and should have understood his duties and responsibilities with regard to utilizing the LEADS system for legitimate law enforcement purposes. Appellant knew or should have known the acts which would be against the expressеd or implied consent of the law enforcement automated data system steering committee and/or the superintendent of the bureau of criminal identification and investigation. The evidence demonstrates Appellant was LEADS certified, and successfully completed retesting, scoring high averages. The Ohio Administrative Code sections cited by the trial court herein provide adequate notice of what Appellant is required to do or prohibited to do under the statute.
Id. at ¶ 17. Consequently, based upon the foregoing authority, we do not believe that the trial court plainly erred by failing to conclude that appellant‘s convictions violated his due process rights.
{¶ 69} Accordingly, based upon the foregoing reasons, we overrule appellant‘s second assignment of error.
III
{¶ 70} In his third assignment of error, appellant asserts that the trial court‘s decision to deny appellant‘s motion to continue required defense counsel to “either provide a complete defense for his client and risk disciplinary action or decline to raise that defense for the client in order to protect himself.” Appellant claims that defense counsel‘s conflict between counsel‘s own interest in avoiding a possible ethics violation and appellant‘s defense left him unable to provide constitutionally effective assistance of counsel and that counsel‘s conflict of interest justifies a presumption of ineffectiveness.
{¶ 71} Within this assignment of error, appellant also claims that the trial court denial of trial counsel‘s request for a continuance constitutes an abuse of discretion.
A
These include “the complete denial of counsel * * * at a critical stage of [the] trial” and the complete failure of counsel “to subject the prosecution‘s case to meaningful adversarial testing.” [Cronic,] 466 U.S. at 659, 104 S.Ct. at 2047, 80 L.Ed.2d at 668. “Ineffectiveness is also presumed when counsel ‘actively represented conflicting interests.‘” Id. at 661, 104 S.Ct. at 2048, 80 L.Ed.2d at 669, fn. 28, quoting Cuyler v. Sullivan (1980), 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333, 347. Also included are such extreme cases as Powell v. Alabama (1932), 287 U.S. 45, 53, S.Ct. 55, 77 L.Ed. 158, where defense counsel was appointed only a few minutes before the trial commenced. See Cronic, 466 U.S. at 659–661, 104 S.Ct. at 2047–2048, 80 L.Ed.2d at 668–669 (discussing Powell).
“Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.” Cronic, 466 U.S. at 659, 104 S.Ct. at 2047, 80 L.Ed.2d at 668, fn. 26.
Sanders, 92 Ohio St.3d at 277.
{¶ 73} In the case at bar, we do not believe that the circumstances are of such a magnitude that we must presume prejudice. Trial counsel presented all of the facts and circumstances surrounding appellant‘s belief that Blanton‘s dismissal of the speeding ticket
B
{¶ 74} To the extent appellant also argues that the trial court also erred by denying his motion to continue, we point out that the Appellate Rules require each assignment of error to be presented separately. Also,
{¶ 75} In the case at bar, appellant did not raise the issue of the trial court‘s decision to deny his motion to continue as a separate assignment of error. We therefore will disregard the argument. Moreover, we further point out that the record contains nothing to suggest that the court abused its discretion by denying appellant‘s motion to continue.
{¶ 76} Accordingly, based upon the foregoing reasons, we overrule appellant‘s third assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to
Harsha, J. & Hoover, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.