COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68998 and 68999 CITY OF PARMA : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION CYNTHIA A. KLINE : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 7, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Parma Municipal Court Case No. 94-CRB-2340 and 94-CRB-2220 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: WILLIAM MASON, Prosecutor DAVID TOETZ, Assistant City of Parma 5750 West 54th Street Parma, Ohio 44129 For Defendant-Appellant: MARK A. STANTON Short, Shepherd & Stanton 700 West St. Clair Avenue #110 Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: Cynthia Kline, appeals from her convictions in the Parma Municipal Court for the offenses of failure to comply with an order of a police officer when she bypassed a police roadblock to get to her home, criminal trespass for failing to leave the police station, and obstruction of official business when she refused to relinquish prescription medicine during her booking procedure. On November 5, 1994, defendant, while traveling to her home on Ridge Road, Parma in Ohio, stopped at a police roadblock near the north driveway of the Busch Funeral Home in the city of Parma, where police had rerouted traffic due an accident. The parties do not dispute that Officer Bobak told Ms. Kline to either turn around in the funeral home parking lot or to park her car and walk to her destination. Ms. Kline contends that she told the officer that she lived on the street and wanted to drive to her home. Ms. Kline then drove into the parking lot of the Busch Funeral Home, parked her car, and attempted to carry her groceries to her residence. When she fell, she returned to her car and drove out the other exit from the parking lot to her residence. Officer Stastny followed her and issued a ticket to her for failure to comply with the order of a police officer. - 3 - Ms. Kline had observed that some other motorists who lived in the area were permitted to drive to their homes and therefore believed that her actions did not warrant the ticket. At a city council meeting she was advised to try to resolve the matter by lodging a citizen's complaint with the police department. As matter of police policy, Lt. Cornachio, the officer assigned to investigate the complaint, met with Ms. Kline on November 28, 1994 at the Parma Police Department where she complained that she observed several cars being permitted through the roadblock on November 5, 1994 and that the police officers treated her unfairly by not permitting her to pass through the roadblock. When she learned that Lt. Cornachio had been present at the November 5, 1994 accident scene, Ms. Kline told Lt. Cornachio that she believed that he could not be fair. Lt. Cornachio then tried to terminate the meeting, but, Ms. Kline refused to leave the police station despite several requests for her to do so. As a result, Lt. Cornachio arrested her for criminal trespass. During her booking procedure, Patrolman Manning requested that appellant give him a bottle of prescription medication in compliance with police policy which did not permit prisoners to possess medication. Ms. Kline then placed the bottle in her blouse and refused to comply with Officer Manning's requests to relinquish her medication. Lt. Cornachio then called a female - 4 - officer to retrieve the medicine and charged Ms. Kline with obstruction of official business. On April 10, 1995, the day of trial, counsel for Ms. Kline filed a motion to suppress evidence, which the court denied. The judge, then, sitting without a jury, found Ms Kline guilty of all three counts and sentenced her to 15 days jail with 14 days sus- pended, fined her $750.00 with $500.00 suspended, placed her on 8 months probation with 6 months reporting and 40 hours community service for the failure to comply with a lawful police order, and fined her an additional $100.00 on each of the two remaining offenses. Ms. Kline now appeals her convictions, assigning three errors for our review. Ms. Kline's first assignment of error states: I. APPELLANT WAS DENIED HER SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S FAILURE TO EMPLOY THE MOST BASIC PROCEDURES FOR A PROPER DEFENSE. Appellant claims her counsel's failure to timely file the motion to suppress evidence, his failure to present medical testimony or records of her medical condition, his failure to offer exhibits into evidence including a tape recording of the - 5 - Parma Law Director, and his lack of understanding regarding the burden of proof constituted ineffective assistance of counsel. The prosecution asserts on the other hand, that trial counsel's actions did not deprive Ms. Kline of a fair trial and therefore do not constitute ineffective assistance of counsel. The issue for our resolution is whether counsel's actions constituted ineffective assistance of counsel. Our analysis begins by examining the proper standard of review in cases alleging ineffective assistance of counsel. The United States Supreme Court in Strickland v. Washington (1984) 466 U.S. 668, set forth the following standard in its headnotes for determining whether or not a defendant has been deprived of effective assistance of counsel: * * * 11. The proper standard for attorney performance is that of reasonably effective assistance; when a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. * * * 20. An error by counsel, even if professionally unreasonable, does not warrant the setting aside of the judgment of a criminal proceeding if the error had no effect on the judgment. Thus, we must examine the conduct of appellant's counsel to determine whether the level of representation fell below the objective standard of reasonableness and whether it had an effect upon the judgment. We believe in this case it did and therefore reverse these convictions. - 6 - In the conduct of appellant's defense, counsel filed a motion to suppress evidence on the day of trial, which the trial court rejected as untimely. A review of the motion reveals it raised questions about whether or not the police advised defendant of her Miranda rights at the time of her arrest for criminal trespass, and alleged that the prosecutor failed to produce police reports during discovery. This is troubling because at trial, Lt. Cornachio testified that he did not advise the appellant of her Miranda rights at the time of her arrest and was not aware if any other officer had done so. (Tr. 94). In this instance, the failure of counsel to bring these issues to the trial court in timely fashion constitutes deficient legal performance which may have affected the outcome of the trial. Other examples which corroborate our conclusion of deficient performance include the failure to offer into evidence a tape recording of the Parma Law Director who allegedly told Ms. Kline that she should not have received a ticket on November 5, 1994. Based on this allegation, defense counsel, at a minimum, had a duty to subpoena the law director to inquire whether these statements had in fact been made. Failure to offer this evidence clearly falls below an objective standard of reasonableness under prevailing professional norms. The record further demonstrates that defense counsel improperly argued the burden of proof in connection with the Crim. R. 29 Motion for Acquittal made at the conclusion of the - 7 - State's case. (Tr. 112). Defense counsel could not have been effective during the proceedings if he didn't understand the requisite degree of proof at that stage of the case. Based upon our review of the transcript and the pleadings, we unanimously concur that in this instance, counsel's representation fell below an objective standard of reasonableness under prevailing professional norms which materially affected the judgment of the court as to all three convictions. Accordingly, we find this assignment of error to be well taken, those convictions are reversed and this matter is remanded to the Parma Municipal Court for further proceedings. The remaining assignments of error state: II. APPELLANT WAS DEPRIVED OF HER CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW BECAUSE THE TRIAL COURT CONSISTENTLY VIOLATED THE MANDATORY STANDARD OF IMPARTIALITY AND DEMONSTRATED A PREDISPOSITION TOWARDS JUDGMENT. III. THE TRIAL COURT ERRED WHEN A CONVICTION WAS ORDERED FOR THE CHARGE OF OBSTRUCTING OFFICIAL BUSINESS. Pursuant to App. R. 12, these assignments of error are rendered moot by the conclusions reached in our analysis of the first assignment of error and therefore we are not required to decide or rule upon them. - 8 - In accordance with the foregoing analysis, the judgment of the trial court is reversed and the matter is now remanded to the trial court for further proceedings. Judgment reversed and remanded. - 9 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, C.J., MCMONAGLE, J. CONCUR JUDGE TERRENCE O'DONNELL 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, .