COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69928 CITY OF EUCLID : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION DANIEL P. BRACKIS : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 23, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Euclid Municipal Court, Case No. 95-TRC-907-AB. JUDGMENT: AFFIRMED IN PART, REVERSED AND REMANDED IN PART. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Deborah A. LeBarron Director of Law Richard A. Wiegand Prosecuting Attorney 585 East 222nd Street Euclid, Ohio 44123 For Defendant-appellant: Michael E. Murman, Esq. 14701 Detroit Avenue, #555 Lakewood, Ohio 44107 SWEENEY, JAMES D., C.J.: Defendant-appellant Daniel Brackis appeals from his convictions for driving under the influence of alcohol (DUI) in violation of R.C. 4511.19 and driving while under license suspension (DUS) in violation of the Euclid Codified Ordinances 335.07. The appellant was sentenced to a term of incarceration on count one of 365 days, with credit for time served, and fined $1,025.00. In addition to the suspension of the appellant's driving privileges for ten years, the appellant was also placed on five years active probation. On count two of the indictment, the appellant was sentenced to a term of incarceration of 182 days and fined $1,000.00. The sentences were ordered to be served concurrently. Both parties acknowledge that although no verbatim transcript exists, the trial court has settled the record pursuant to App. R. 9(C). The following facts are based upon those set forth in the approved and settled record. Euclid Police Officer Hoffman testified that while on routine patrol on February 5, 1995, at 1:00 a.m., in the City of Euclid, he drove past the Village Tavern. Officer Hoffman observed a parked vehicle with the motor running and exhaust coming from the vehicle. As Officer Hoffman entered the parking lot and exited his police vehicle, the engine was turned off in the parked vehicle. The officer identified the appellant as the occupant of the vehicle. - 3 - Upon talking to the appellant, Officer Hoffman smelled the odor of an alcoholic beverage emanating from the appellant. The appellant was unable to produce either a driver's license or another form of identification. Officer Hoffman testified that the radio was playing. The appellant staggered as he exited the vehicle at the officer's request. The officer testified that due to the coldness of the night, field sobriety tests were not given at the scene, but at the police station. Of the four tests given to the appellant, he passed only three. Officer Hoffman testified that he has made 60 to 70 arrests for driving under the influence, and that in his opinion the appellant was under the influence of alcohol. The appellant testified on his own behalf. At approximately 11:00 p.m. the appellant, a friend, and a third person who was to be the designated driver, arrived at the Village Tavern. After the designated driver left, the appellant telephoned his landlord for a ride home. Prior to his arrest, the appellant had been waiting in his car for his landlord for five to ten minutes. The appellant testified that the vehicle was not running; that he had prior DUI and DUS convictions; and that as a result of these convictions he had no driver's license. The defendant denied that he was in the driver's seat, denied that he staggered, and stated that he had no intention to drive the vehicle. The appellant sets forth four assignments of error. The first assignment of error: - 4 - I THE TRIAL COURT ERRED IN FAILING TO DISMISS THE CHARGES AGAINST THE APPELLANT WHEN THE SPEEDY TRIAL TIME UNDER R.C. 2945.71 HAD EXPIRED. The appellant asserts that the trial court erred when it denied him his Constitutional right to a speedy trial. The docket indicates that the summons was issued for violations of R.C. 4511.19, DUI, and Euclid Codified Ordinances 335.07, DUS, on February 5, 1995. After arraignment and the entry of a plea of not guilty, trial was set for March 2, 1995. The appellant failed to appear for trial and a capias was issued. Although both the appellee and the appellant agree that the appellant was re-arrested on September 4, 1995, the record shows that the warrant was served on September 6, 1995. On September 13, 1995, the appellant's counsel filed a motion to withdraw as 1 counsel. An oral hearing was held on the motion on September 21, 1995, at which time the motion was overruled. On September 22, 1995, a notice of appearance was filed by new counsel and the court gave leave for the appellant's first counsel to withdraw. On October 6, 1995, the appellant filed a motion to dismiss based upon the expiration of the time for trial. On October 9, 1995, after a trial by jury, the appellant was found guilty on both counts of the indictment. 1 The time-stamped motion to withdraw as counsel, signed by trial counsel, is present in the record transmitted to this court on appeal. The motion is listed on the certified docket under the heading "Original Papers." - 5 - R.C. 2945.71(B)(2) requires that a misdemeanor defendant must be brought to trial within ninety days. For the purposes of computing time under this section, each day the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. R.C. 2945.71(E). The time within which an accused must be brought to trial may be extended for certain reasons as set forth in R.C. 2945.72. The Ohio Supreme Court has concluded in State v. Bauer (1980), 61 Ohio St.2d 83: ... a defendant who fails to appear at a scheduled trial, and whose trial must therefore be rescheduled for a later date, waives his right to assert the provisions of R.C. 2945.71 through R.C. 2945.73 for that period of time which elapses from his initial arrest to the date he is subsequently rearrested. In the case sub judice, the appellant waived his right to assert the provisions of R.C. 2945.71 for the time period between February 5, 1995, and September 6, 1995. The speedy trial time began to run anew September 7, 1995. However, R.C. 2945.72(C) provides that any period of delay necessitated by the accused's lack of counsel extends the speedy trial time provided that such delay is not due to lack of diligence in providing counsel to an indigent accused. Thus, courts have held that the time between the filing of the motion to withdraw as counsel and the hearing on the motion is not attributable to the appellee. State v. Smith (Sept. 16, 1994), Erie App. No. E-93-75, - 6 - unreported; State v. Papalardo (Jan. 29, 1992), Hamilton App. No. C-9008800, unreported. Hence, the time here began to run on September 7, 1995, but was tolled between September 13, 1995, the date of the filing of the motion by appellant's counsel to withdraw, and September 21, 1995, the date of the motion hearing. The number of days counted against the appellee between September 7, 1995, and September 13, 1995, is seven. The number of days the time was tolled between September 14, 1995, and September 21, 1995, is eight. The number of days counted against the appellee between September 22, 1995, and October 9, 1995 is eighteen. Therefore, the total number attributable against the appellee is twenty-five. Multiplying the twenty-five by three, the total time expired for speedy trial purposes was seventy-five, well within the ninety days permitted. The appellant's first assignment of error is overruled. The second assignment of error: II THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. The appellant asserts that he was rendered ineffective assistance of counsel by counsel's failure to file a motion to suppress, failure to ensure that a verbatim transcript was recorded, and by eliciting testimony from the appellant regarding his prior history of driving under the influence of alcohol and driving with a suspended license. - 7 - To prevail on a claim for ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668. A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio App.3d 162. The burden of proving ineffectiveness is on the defendant. State v. Smith (1981), 3 Ohio App.3d 115. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To establish prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra. The appellant was not rendered ineffective assistance of counsel when counsel failed to file a motion to suppress. Claims that counsel was ineffective for failing to file a motion to suppress have been rejected where the appellant can allege no facts which would support the motion. State v. Johnson (May 23, 1996), Cuyahoga App. No. 69178, unreported. In State v. Gill (1994), 70 Ohio St.3d 150, the Supreme Court held: A person who is in the driver's seat of a mo to r ve - 8 - hi cl e wi th th e ig ni ti on ke y in th e ig ni ti on an d wh o, in hi s or he r bo dy ha s a pr oh ib it ed co nc en tr at io n of al co - 9 - ho l, is "o pe ra ti ng " th e ve hi cl e wi th in th e me an in g of R. C. 45 11 .1 9 wh et he r or no t th e en gi ne of th e ve hi cl e - 10 - is ru nn in g. (S ta te v. Cl ea ry [1 98 6] , 22 Oh io St .3 d 19 8, 22 OB R 35 1, 49 0 N. E. 2d 57 4; St at e v. Mc Gl on e [1 99 1] , 59 Oh - 11 - io St .3 d 12 2, 57 0 N. E. 2d 11 15 , ap pl ie d an d fo ll ow ed .) In Gill, supra, the court found that sufficient articulable facts to justify an investigation inquiry are present when officers notice a parked vehicle with headlights lit, the radio on, and the defendant, who emanated a strong odor of alcohol, asleep in the driver's seat. The defendant failed the field sobriety tests administered at the scene. Id. at 154-155. The record before this court indicates that late at night, an experienced officer who had previously observed intoxicated persons in this particular parking lot, noticed a parked vehicle with the motor running at the Village Tavern. After approaching the vehicle, the officer noted that the radio was playing and that the appellant, who could produce no identification, smelled of alcohol. - 12 - The officer observed the appellant stagger as the appellant exited the parked vehicle. Such circumstances are sufficient to justify the officer's investigation. The appellant was not rendered ineffective assistance of counsel by counsel's failure to file a motion to suppress. The failure to request a verbatim transcript is not per se ineffective assistance of counsel. See In re Hannah (1995) 106 Ohio App.3d 766 where this court determined that reasons exist why an attorney would fail to request a recording. This court has also held that an appellant is not denied effective assistance of counsel due to the absence of a verbatim transcript since a statement pursuant to App.R. 9(C) allows for a full and fair appeal. State v. Ciero (July 2, 1992), Cuyahoga App. Nos. 60834, 60835, unreported. The appellant herein provided this court with the appropriate substitute record pursuant to App.R. 9(C). In addition, this court must note that the appellant has failed to even allege, much less demonstrate, any prejudice by counsel's failure to request a recording of the trial. Finally, the appellant was not rendered ineffective assistance of counsel by counsel's direct examination of the appellant. Although counsel apparently elicited information regarding the appellant's prior convictions, the appellant has failed to demonstrate that the prosecution would have been precluded from raising the issue on cross-examination. The trial tactics of - 13 - defense counsel will not be second guessed by this court. State v. Berry (Nov. 2, 1995), Cuyahoga App. No. 68762, unreported, citing to Strickland, supra and to State v. Smith (1991), 75 Ohio App.3d 73. The appellant's second assignment of error is overruled. The third assignment of error: III A MOTION FOR JUDGMENT OF ACQUITTAL UNDER CRIMINAL RULE 29(A) SHOULD BE GRANTED WHEN THE EVIDENCE IS SUCH THAT REASONABLE MINDS COULD NOT FAIL TO FIND REASONABLE DOUBT. The appellant argues that the court erred in failing to grant his motion for acquittal because Officer Hoffman lacked justification for the investigatory stop. As stated in the previous assignment of error, the circumstances present in this case were sufficient to justify the officers investigation. See Gill, supra. The appellant's third assignment of error is overruled. The fourth assignment of error: IV THE TRIAL COURT ERRED BY IMPOSING AN ILLEGAL SENTENCE ON THE APPELLANT IN EXCESS OF THE STATUTORY LIMITS. In this assignment of error, the appellant contends that the court erred when it imposed both the maximum sentence allowable for the appellant's offense and an additional five-year term of probation. - 14 - R.C. 2951.02(A)(1) states that in determining whether to suspend a sentence of imprisonment imposed upon an offender for a misdemeanor and place the offender on probation, the court shall consider the certain risks and circumstances. The very language of the statute indicates that a court may not consider probation an option unless it suspends the sentence of an offender. State v. Savchuk (Sept. 15, 1995), Lake App. No. 93-L-187, unreported. Since the trial court chose not to suspend any of the sentence imposed on Brackis, the trial court exceeded its discretion when it imposed a term of probation in addition to the maximum sentence. The appellant's fourth assignment of error is well taken. This case is remanded to the trial court for a determination of a proper sentence. Judgment affirmed as to the conviction, but reversed and remanded for sentencing. - 15 - This cause is affirmed in part and reversed and remanded in part. The court finds there were reasonable grounds for this appeal. It is, therefore, considered that said appellant(s) and appellee(s) each pay one-half of the 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. Exceptions. PATRICIA A. BLACKMON, J., and JOHN T. PATTON, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .