COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68054 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MARCUS PARKER : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 7, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-310,770 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor PAMELA C. O'BANNON, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender ARTHUR A. ELKINS, Assistant The Marion Building, #307 1276 West Third Street Cleveland, Ohio 44113-1569 AUGUST PRYATEL, J.: Defendant-appellant Marcus Parker appeals his convictions for aggravated trafficking in violation of R.C. 2925.03(A)(2) and R.C. 2925.03(A)(4). For reasons explained below, we affirm the lower court's judgment. The evidence adduced at appellant's trial reveals the follow- ing facts concerning the incident which led to the appellant's convictions. On April 19, 1994, at approximately 9:48 p.m., Cuyahoga Metropolitan Housing Authority ("CMHA") Police Officer Daniel B. Sawyer was assigned to a surveillance detail at Garden Court in East Cleveland, Ohio. Several complaints had been received about drug activity in the area. From inside the vacant CMHA unit where he was posted, Officer Sawyer heard a whistle outside. He then observed a female standing in the alley of Garden Court. The appellant came out of 2382 Garden Court and approached the female. The two spoke briefly, and then the appellant went back into 2382 Garden Court. After a very short time, the appellant came back outside, leaving the unit's door wide open, tossing a small white object in his right hand, which he gave to the female. The female then handed something to the appellant, which he put into his pocket, and they both walked away in a southerly direction along Garden Court. Officer Sawyer radioed the - 3 - incident to a vehicle and requested backup. He then exited the surveillance unit and apprehended both the appellant and the female. When Officers Matthew Martin and Thomas Hinkle arrived upon the scene, the appellant and the female were already in handcuffs. The officers questioned the female, who indicated that the object she had received from the appellant was a piece of suspected crack cocaine. The female told the officers that she had swallowed the rock of crack cocaine. The officers also questioned the appellant. When asked where he lived, the appellant responded, "4901 Quincy Avenue." The officers escorted the appellant back to 2382 Garden Court, the unit out of which Officer Sawyer had seen him come, and asked him who lived there. The appellant told the officers he did not know. When they reached the rear of 2382 Garden Court, they found the back door wide open. After receiving no response to their calls, the officers entered the apartment for the resident's safety. Officer Sawyer went upstairs and entered the one open bedroom. Two plastic bags containing approximately fifty rocks of crack cocaine were discovered on top of a floor model television in plain view. Officer Sawyer removed the cocaine and carried it downstairs. Officer Martin then went upstairs and returned with appellant's bank book, driver's license and an identification card. The wallet and driver's license were found on the headboard of the bed; the bank book was found lying on the bed. - 4 - It was subsequently learned that the unit belonged to the appellant's mother, that the appellant was not on the lease, and that the appellant's grandmother lived at 4901 Quincy Avenue. In his case, the appellant elected to take the stand. The appellant testified that at the time of his arrest, he was living with his grandmother at 4901 Quincy Avenue. He stated that on April 19, 1994, he went to his mother's apartment located at 2382 Garden Court to see if she needed some groceries and simply to check on her due to her mental illness. The appellant said he was unable to gain access to his mother's apartment because the front door was locked and she was not home. The appellant claimed that as he was walking to the apartment's back door, he was grabbed and handcuffed by Officer Sawyer. He testified that Officer Sawyer searched appellant's pockets and found his bank book, driver's license and work identification card. The appellant denied ownership of the crack cocaine found in the bedroom of 2382 Garden Court. At the conclusion of the trial, the trial judge found the appellant guilty of two counts of drug trafficking. The judge sentenced the appellant to concurrent terms of three to ten years of incarceration at the Lorain Correctional Institution on each count, eighteen months of which was to be served as actual incar- ceration on count one. The appellant has filed a timely appeal of his convictions and presents two assignments of error for this court's review: - 5 - I. THE OFFENSES OF DRUG TRAFFICKING, IN VIOLATION OF R.C. 2925.03(A)(2), AND POSSESSION OF COCAINE, IN VIOLATION OF R.C. 2925.03(A)(4), ARE ALLIED OFFENSES OF SIMILAR IMPORT WITHIN THE CONTEMPLATION OF R.C. 2941.25. II. APPELLANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I, OF THE OHIO CONSTITUTION. I. Under his first assignment of error, the appellant argues that the trial court erred in convicting and sentencing him under both R.C. 2925.03(A)(2) and R.C. 2925.03(A)(4) as they are allied offenses of similar import. The appellant, however, waived his right to assign this claimed error by failing to raise an objec- tion at trial. State v. Comen (1990), 50 Ohio St.3d 206, 211 (wherein the Ohio Supreme Court declined to address the issue of whether offenses were allied offenses of similar import because the issue was not raised at trial); State v. Gilbert (Sep. 22, 1994), Cuyahoga App. No. 66269, unreported (wherein it was held that plain error does not exist under these circumstances). In addition, this court has consistently held that drug trafficking, in violation of R.C. 2925.03(A)(2), and drug posses- sion, in violation of R.C. 2925.03(A)(4), are not allied offenses of similar import. State v. Jordan (1992), 73 Ohio App.3d 524; State v. Roberson (Jan. 19, 1995), Cuyahoga App. No. 64956, - 6 - unreported; State v. Burrage (Jan. 26, 1995), Cuyahoga App. Nos. 66520, 66521, unreported; State v. Gilbert (Sept. 22, 1994), Cuyahoga App. No. 66269, unreported. Accordingly, the appellant's first assignment of error is overruled. In his second assignment of error, the appellant asserts that he received ineffective assistance of counsel. In order to receive a new trial for ineffective assistance of counsel, an appellant must make a two-part showing. First, there must be a demonstration that the attorney's representation fell below "an objective standard of reasonable representation." State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. Second, it must be shown that the attorney's substandard representation resulted in prejudice to the defendant. Id. The same test was previously announced by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 687. To establish prejudice, a defendant must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of his trial would have been different. State v. Seiber (1990), 56 Ohio St.3d 4; State v. Tyler (1990), 50 Ohio St.3d 24. In evaluating defense counsel's performance, a strong presumption exists that the assistance which was rendered was effective. Strickland v. Washington, supra. at 689-69. The appellant cites two instances which he believes consti- tute ineffective assistance of counsel. The first instance is the - 7 - failure of counsel to request the merger of his sentences. We have already held under the appellant's first assignment of error, however, that R.C. 2325.03(A)(2) and R.C. 2325.02(A)(4) are not allied offenses of similar import. Therefore, counsel's failure to raise the issue was within the ambit of reasonable representation since it is axiomatic that trial counsel cannot be deemed ineffective merely for doing a vain act. State v. Box (1993), 89 Ohio App.3d 614; State v. Roberson, supra; State v. Gilbert, supra. The second instance cited by the appellant as demonstrating ineffective assistance of counsel is that his attorney failed to pursue a motion to suppress the cocaine. Although counsel did file a pre-trial motion to suppress the cocaine, the motion was withdrawn by counsel prior to the start of trial. The appellant insists that had counsel pursued the motion, it would have been appropriately granted as the initial investigatory stop was sus- pect. Where there exist no grounds for the suppression of evidence, defense counsel has no duty to pursue a motion to suppress evidence. State v. Gibson (1980), 69 Ohio App.2d 91, 95; State v. Means (June 30, 1994), Cuyahoga App. No. 65744, unreported. Moreover, where the record is devoid of facts to indicate that a motion to suppress would have been granted, a claim for ineffec- tive assistance of counsel on this basis must fail. State v. Woolum (1976), 47 Ohio App.2d 313; State v. Means, supra; Cf., - 8 - State v. Lipford (Dec. 7, 1989), Cuyahoga App. No. 56027, unre- ported. In this case, the record is devoid of evidence indicating that the motion to suppress would have been granted. The appellant has consistently denied that the cocaine recovered from inside his mother's apartment was his and further denied that he was even staying in the apartment. Consequently, the appellant lacked standing to challenge the admission of the cocaine. United States v. Salvucci (1980), 448 U.S. 83, 65 L.Ed.2d 619, 100 S.Ct. 2547 (no standing conferred where defendant failed to assert possessory interest in property seized); Rakas v. Illinois (1978), 439 U.S. 128, 58 L.Ed.2d 387, 99 S.Ct. 421 (no standing conferred where defendant failed to assert possessory interest in weapons); State v. Coleman (1989), 45 Ohio St.3d 298 (no standing conferred where defendant failed to establish personal interest in his grandmother's apartment); State v. Means, supra (no standing conferred where defendant failed to assert possessory interest in drugs seized). Since the appellant has failed to demonstrate either that counsel's performance fell below an objective standard of reason- ableness or that he was prejudiced thereby, his second assignment of error is overruled. The judgment of the trial court is affirmed. - 9 - It is ordered that appellee recover of appellant its 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, J. CONCURRING SARA J. HARPER, P.J. DISSENTING JUDGE AUGUST PRYATEL* *SITTING BY ASSIGNMENT: August Pryatel, retired Judge of the Eighth Appellate District. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .