STATE OF OHIO, PLAINTIFF-APPELLEE vs. TIMOTHY WEST, DEFENDANT-APPELLANT
Nos. 97391 and 97900
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 25, 2013
2013-Ohio-4185
KATHLEEN ANN KEOUGH, J.
Cuyahoga County Court of Common Pleas, Case No. CR-548609, Application for Reopening, Motion No. 464038
JUDGMENT: APPLICATION DENIED
Timothy West, Pro Se
Richland Correctional Institution
No. 604-876
P.O. Box 8107
Mansfield, Ohio 44901-8107
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel Van
Assistant County Prosecutor
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113
{¶1} On April 11, 2013, the applicant, Timothy West, pursuant to
{¶2} Timothy West and his brother, Todd West, owned and used the large commercial building at 2341 Scranton Road, Cleveland, Ohio to grow hundreds of marijuana plants. As part of the investigation, the Cleveland police observed Timothy
{¶3} The grand jury indicted the brothers for the illegal cultivation of marijuana, drug trafficking, drug possession, and possession of criminal tools. Each indictment also included forfeiture specifications for Todd‘s 1998 Oldsmobile Intrigue, Timothy‘s 1999 Ford van, the money found on the brothers and in the brothers’ homes, a scale, a cell phone, and the Scranton Road property.
{¶4} Timothy testified at trial that he and his brother did not grow the marijuana, that Todd did not say anything to the police, and that they rented part of the building to others who actually grew the marijuana. In September 2011, the jury convicted the brothers on all counts. The judge ruled that the possession count merged with the trafficking count as allied offenses and sentenced the brothers to eight years on the cultivation charge, consecutive to eight years on the trafficking charge, and to 12 months
{¶5} Timothy‘s appellate counsel argued the following: (1) the violation of Timothy‘s Sixth Amendment right to confrontation by using Todd‘s incriminating statements against Timothy; (2) the failure to try the West brothers separately; (3) the failure to merge the cultivation and trafficking charges as allied offenses, (4) imposing consecutive sentences; (5) ineffective assistance of trial counsel for failing to file meritorious motions, failing to object to improper testimony, argument, jury instructions, and sentences; (6) the improper forfeiture of the cash and automobile; and (7) the improper forfeiture of the entire Scranton Road property. This court ruled that
{¶6} In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel‘s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.
{¶7} In Strickland, the United States Supreme Court ruled that judicial scrutiny of an attorney‘s work must be highly deferential. The Court noted that it is all too tempting for a defendant to second-guess his lawyer after conviction and that it would be all too easy for a court, examining an unsuccessful defense in hindsight, to conclude that a particular act or omission was deficient. Therefore, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the
{¶8} Specifically, in regard to claims of ineffective assistance of appellate counsel, the United States Supreme Court has upheld the appellate advocate‘s prerogative to decide strategy and tactics by selecting what he thinks are the most promising arguments out of all possible contentions. The court noted: “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Indeed, including weaker arguments might lessen the impact of the stronger ones. Accordingly, the Court ruled that judges should not second-guess reasonable professional judgments and impose on appellate counsel the duty to raise every “colorable” issue. Such rules would disserve the goal of vigorous and effective advocacy. The Supreme Court of Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.
{¶9} Additionally, even if a petitioner establishes that an error by his lawyer was professionally unreasonable under all the circumstances of the case, the petitioner must further establish prejudice: but for the unreasonable error there is a reasonable probability that the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court need not
{¶10} Moreover, appellate review is strictly limited to the record. The Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97 (1898). “Clearly, declining to raise claims without record support cannot constitute ineffective assistance of appellate counsel.” State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776 N.E.2d 79, ¶10.
{¶11} West‘s arguments are unpersuasive. First, he argues that the trial court was without jurisdiction to conduct the
{¶12} In his second proposed assignment of error, West argues that the trial court could not forfeit the Scranton Road property because it was not properly identified in either the indictment or the bill of particulars. He claims that because the forfeiture
{¶13} West‘s third and fourth arguments concern the fly-over thermal imaging search, which he submits was used in the supporting affidavit for the search warrants executed on November 10, 2010. Apparently, based on the police‘s investigation, including the brothers’ careful actions at the Scranton Road property and the smell of marijuana emanating from the property, the police obtained a warrant to conduct a fly-over thermal imaging search of the building. The police supported their affidavit for the search warrant of the Scranton Road property, inter alia, with the results from thermal imaging.
{¶14} Before trial, Todd West moved to suppress the search warrants and their fruits because the affidavits did not provide cause for the warrants. Timothy orally joined in this motion during court proceedings. The trial judge took the affidavits and the search warrants to review them. Subsequently, the judge denied the motion to
{¶15} Timothy West first argues that by not disclosing the affidavit for the fly-over search, the prosecutor violated his duty to disclose exculpatory material. West then continues that because the fly-over affidavit was improper and used to obtain the building search warrant, that search warrant must also be improper, and all fruits of the search warrants must be suppressed. In his second argument, West argues that the trial court erred in failing to conduct a hearing because the supporting affidavit was not in the record. West relies upon State v. Roberts, 62 Ohio St.2d 170, 405 N.E.2d 247 (1980), and Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), which require the court to hold a hearing when there is an allegation of deliberate falsehood or reckless disregard of the truth.
{¶16} These arguments are unpersuasive. First, there is a lack of record support. The affidavits and search warrants were not in the record and would not provide a foundation for any argument, especially one claiming that there was exculpatory material or deliberate falsehood. Furthermore, the reference to the fly-over search in the record made by Timothy‘s attorney indicates the results were merely inconclusive. (Tr. 188.) Under Franks and Roberts, to obtain a hearing on the affidavit, the defendant must make a substantial showing of a falsehood intentionally and knowingly used or in reckless
{¶17} Timothy‘s next argument is that his appellate counsel should have argued that the trial court erred when it denied his motion to return property. He alleges that when the police executed the search warrant for his home, they confiscated two cars. On May 17, 2011, Timothy filed a motion to return a 1995 Buick Century. The trial court never explicitly ruled on this motion; thus, Timothy, relying on the principle that an outstanding motion is deemed denied when the final order is issued, maintains that the trial court denied this motion. He further asserts that there was no defensible reason to retain the property. There was no evidence that the property was used in the commission of the crimes or that the property was obtained from proceeds of the crimes. Indeed, this court upheld appellate counsel‘s assignment of error that the $1,313 seized from the home
{¶18} However, this court declines to rule that appellate counsel was ineffective for not making this argument. First, there is a lack of record support. It appears that the inventory sheets from the searches of the homes were not made part of the record. Furthermore, when the officer in charge of the search of Timothy‘s home testified, he stated that only money and papers were seized. (Tr. 460.)
{¶19} This court notes that Timothy‘s appellate counsel argued seven assignments of error, successfully identified three errors and obtained substantial relief for his client, reducing his sentence and retrieving $1,313. This court further notes that the motion to return property is an ancillary matter, unrelated to the evidence, the conviction, and the sentence.
{¶20} In weighing these factors — the lack of record support, the multiple issues presented, the success of counsel in discerning arguments, and the ancillary nature of the motion — this court will follow the admonition of the supreme courts and conclude that appellate counsel in the exercise of professional judgment could decline to argue this point and, thus, was not ineffective.2
{¶22} Moreover, trial counsel during the sentencing hearing argued that Timothy was indigent and relied on the trial court‘s finding that both brothers were indigent. In
{¶23} Finally, Timothy argues that there was insufficient evidence to support the convictions for cultivation and trafficking. This court implicitly rejected this argument in addressing the admissibility of Todd‘s incriminating statements against Timothy. This court reviewed the evidence against Timothy and ruled that “sufficient admissible evidence was present to render the extrajudicial statements made by Todd harmless beyond a reasonable doubt.” West, 2013-Ohio-96, ¶14.
{¶24} Accordingly, this court denies the application to reopen.
KATHLEEN ANN KEOUGH, JUDGE
MARY JANE BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR