COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70807 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JIMMY BRUNDIDGE : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 3, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CR-313450 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES R. WILLIS, ESQ. CUYAHOGA COUNTY PROSECUTOR Courthouse Square Building BY: DIANE SMILANICK, ESQ. Suite 595 ASSISTANT COUNTY PROSECUTOR 310 Lakeside Avenue, N.W. The Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Petitioner Jimmy Brundidge appeals from the denial of his petition for postconviction relief. For the reasons set forth below, we affirm. On April 12, 1994, petitioner was indicted in case no. 307418. Petitioner was charged with possession of cocaine (less than the bulk amount); carrying a concealed weapon; possession of criminal tools; aggravated trafficking; and preparing cocaine for shipment. Each count of the indictment stated that the date of the offense was December 18, 1993. The record further reflects that on August 23, 1994, the state issued a superseding indictment designated case no. 313450. This indictment also stated that the date of the offense was December 18, 1993 and contained four counts. Count one charged petitioner with possession of cocaine (in an amount equal to or exceeding the bulk amount) with a firearm specification. Count two charged petitioner with preparing cocaine for shipment with a firearm specification. Count three charged him with carrying a concealed weapon. Count four charged him with possession of criminal tools. Petitioner retained attorney Jimmie Mack to represent him and pleaded not guilty at his arraignment. On September 30, 1994, Mack filed a motion to suppress statements (which asserted a violation of the protections against self-incrimination); a motion to suppress eyewitness identification testimony; and a motion to suppress evidence (which asserted that the evidence obtained was the fruit of an unconstitutional search - 3 - and seizure). In addition, Mack filed a supplemental motion to suppress evidence in which he asserted that petitioner's initial stop and search was unlawful. This motion further contained allegations that following petitioner's arrest in the city of Cleveland, he was taken to Maple Heights and his home where the police threatened petitioner, petitioner's girlfriend, and his baby with incarceration or detention if petitioner refused to consent to a search of the home. On February 7, 1995, petitioner appeared in court with Mack and entered a guilty plea to count one of the superseding indictment, and the remaining counts were nolled. The court accepted the plea and sentenced petitioner to a term of three years incarceration on the firearm specification plus three to fifteen years on the possession count. Petitioner did not file a direct appeal from his conviction upon the guilty plea. On January 19, 1996, petitioner filed a motion to vacate or set aside his conviction, pursuant to R.C. 2953.21. Petitioner maintained that the plea was not properly entered because it was premised upon incorrect advice from Mr. Mack. Petitioner asserted that he pleaded guilty upon advice from Mr. Mack that petitioner could not prevail in the matter. Petitioner further claimed that the plea resulted from Mr. Mack's failure to inform him that the state carried the burden of demonstrating that petitioner was lawfully seized and his home was lawfully searched. The trial court held an evidentiary hearing on petitioner's - 4 - motion on April 16, 1996. Petitioner's evidence indicated that he was arrested on December 18, 1993 while sitting in a car which had been parked on private property in Cleveland. According to petitioner, after he and his companions had been parked for approximately ten minutes, they were approached by police brandishing weapons who then searched the men and the vehicle. The police then took petitioner to Maple Heights and his home in that city where they threatened petitioner and his girlfriend in order to obtain consent to search the home. Petitioner's evidence further indicated that Mack informed him that the evidence obtained against him would not be suppressed since petitioner was initially stopped and searched upon information provided by a confidential, reliable informant and that the subsequent search of petitioner's home was justified by petitioner's written consent to search. Petitioner complained that Mack did not speak with another occupant of the vehicle and did not speak with petitioner's girlfriend who was present when his home was searched. Finally, petitioner denied knowledge of the motions to suppress which were filed in the matter and maintained that he entered his guilty plea after Mack repeatedly insisted that he would not prevail. In opposition, the state presented the testimony of Mr. Mack and the motions which he prepared and filed on behalf of petitioner. Mack testified that he represented petitioner following his indictment in case no. 307418, a five count - 5 - indictment which contained no firearm specifications. Mack asserted, however, that he learned in a pretrial conference that the initial stop was predicated upon information obtained by a confidential informant who told police that petitioner was to make a delivery of drugs, and then described petitioner, his vehicle, and the route petitioner would travel. Mack further stated that petitioner then "basically verified this." (Tr. 87). Nonetheless, Mack filed an array of motions in this matter including a motion for disclosure of the names of informants on July 6, 1994. In addition, Mack filed a motion to suppress evidence, and supplemental motion to suppress, which challenged both the initial stop and the search of petitioner's home. Mack also asserted that he informed petitioner that there would be a likelihood that he would not prevail on his challenge to the initial stop because the information from the confidential informant could be found to supply probable cause for the stop. Mack further informed petitioner that the search of petitioner's home "was absolutely, unequivocally illegal." (Tr. 86). Mack testified that he then had extensive discussions with the prosecuting attorneys who eventually agreed to offer petitioner a plea bargain under which he would serve a total of four years incarceration for all charges. Petitioner reportedly insisted on obtaining probation and rejected the offer. Thereafter, petitioner was re-indicted under case no. 313450 which now contained firearm specifications. The record reveals - 6 - that Mack again filed motions to suppress the evidence under the new case number, again challenging both the stop of petitioner and the search of his home. Under the new charges, however, the prosecuting attorneys now offered a plea bargain which would require six years incarceration. Petitioner continued to insist upon obtaining probation and Mack arranged with the prosecuting attorneys that petitioner could obtain probation if he "worked with" the investigating officers. (Tr. 71). Petitioner ultimately did not do so, however, and according to Mack, a hearing was scheduled for February 7, 1995 on his motion to suppress. Also at this time, Mack sought to have the newly added gun specification removed from the indictment. Mack explained to petitioner that the search of his home would probably be found to be unlawful, that it was up to the judge to determine the facts, but that it was more probable that he would lose on his challenge to the initial stop, and that he probably would have to serve time in prison. Thereafter, as they prepared to go forward on the motion to suppress, petitioner decided to accept the state's plea agreement. After hearing the foregoing evidence offered in connection with petitioner's motion to vacate his sentence, the trial court denied the petition and concluded in relevant part as follows: Review of Petitioner's testimony and that of [his] other witnesses adduced at the April 16, 1996 hearing appears self-serving, inconsistent and incredible when considering the content of the myriad of defense pretrial motions which are found in the Court file, to-wit: Motion to Suppress Statements, Motion to Suppress Eye Witness Identification Testimony, Motion to Suppress the Evidence; Motion for Discovery and to Examine Exculpatory - 7 - and Mitigatory Material, Motion for Bill of Particulars and Supplemental Motion to Suppress the Evidence. These motions demonstrate that in the pretrial phase of this case, defense counsel properly asserted and addressed the specific facts and issues presented in Petitioner's Motion to Vacate or Set Aside Sentence. It is presumed that defendant knowingly, voluntarily and intelligently entered his plea to Count One, thereby waiving his rights to pursue these constitutional challenges and waiving his right to trial. Petitioner now appeals and assigns a single error for our review. Petitioner's assignment of error states: THE COURT ERRED WHEN DENIED APPELLANT'S MOTION TO VACATE HIS GUILTY PLEA AND VACATE HIS SENTENCE. Within this assignment of error, petitioner maintains that the trial court erred in determining that he was not deprived of his constitutional right of effective assistance of counsel. Petitioner asserts that the evidence of record demonstrates that his guilty plea was the result of erroneous legal advice. The state maintains that petitioner's claims are barred by the doctrine of res judicata. Petitions for postconviction relief are governed by R.C. 2953.21 which provides, in relation to crimes which occurred prior to July 1, 1996, in relevant part as follows: (A) Any person convicted of a criminal offense *** claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a verified petition at any time in the court which imposed sentence, stating the grounds - 8 - for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. * * * (E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues, hold the hearing, and make and file written findings of fact and conclusions of law upon entering judgment. Postconviction relief is properly pursued where the petitioner asserts that he has been deprived of the effective assistance of counsel in entering a guilty plea. Burrows v. Engle (C.A.6, 1976), 545 F.2d 552. Regarding the threshold issue of whether the claims raised in this matter are barred by the doctrine of res judicata, we note that claims raised pursuant to this statute must not raise issues which were raised or could have been raised on appeal. State v. Perry (1967), 10 Ohio St.2d 175, 180-181, paragraph nine of the syllabus. Where a petitioner seeks postconviction relief on the basis of issues which were raised or could have been raised on appeal, the petition is properly denied by application of the doctrine of res judicata. Id. paragraph nine of the syllabus; State v. Ishmail (1981), 67 Ohio St.2d 16, 18. To overcome the res judicata bar, the evidence must show that the petitioner could not have appealed the original constitutional claim based on the information in the original trial record. State v. Combs (1994), 100 Ohio App.3d 90, 97-98. Generally, the petitioner must provide evidence outside the record to demonstrate that after conviction, - 9 - he obtained evidence to support the claim. Id.; State v. Cooperrider (1983), 4 Ohio St.3d 226, 228. In this instance, the original trial record would not have supported petitioner's claim and petitioner relied upon evidence outside of the original record. We are therefore unable to conclude that the claim could have been raised on direct appeal or that this matter is barred by application of the doctrine of res judicata. Proceeding to the merits of petitioner's appeal, we further note that where a petitioner asserts a claim of ineffectiveness of trial counsel, petitioner must, in order to overcome the presumption that his counsel was effective, submit sufficient evidentiary facts which, if proven, would show that the petitioner was prejudiced by ineffective counsel. State v. Smith (1987), 36 Ohio App.3d 162, 163. See State v. Jenkins (1987), 42 Ohio App.3d 97, 100; State v. Apanovich (1991), 70 Ohio App.3d 758, 762. Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable - 10 - professional judgment. Strickland v. Washington (1984), 466 U.S 668, 691. Moreover, a claim premised upon counsel's alleged failure to "investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgements." Id. at 691. A claim which is premised upon counsel's alleged failure to pursue suppression of the evidence involves a consideration of the merits of such motion. State v. Gibson (1980), 69 Ohio App.2d 91, 94-95; State v. Woods (March 5, 1997), Medina App. No. 2589-M, unreported. Finally, in evaluating a challenge to the weight of the evidence supporting a trial court's determination, this court determines whether the finder of fact clearly lost its way and created a manifest miscarriage of justice. Cf. State v. Martin (1983), 20 Ohio App.3d 172, 175; McDonald v. State (C.P. 1991), 62 Ohio Misc.2d 262, 268. Moreover, it is axiomatic that the credibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Applying all of the foregoing, we are unable to conclude that the trial court erred in denying petitioner's motion to vacate the conviction entered upon petitioner's guilty plea. There is no basis from which we may conclude that the trial court lost its way in accepting the evidence presented by the state over that - 11 - presented by petitioner. First, as to the claim premised upon Mack's failure to speak with some individuals at the scene of the stop and search, it is clear that the salient issues were: (1) the sufficiency of the information provided by the confidential informant; (2) whether petitioner was unlawfully transported; and (3) what statements influenced petitioner's consent to search his home. In light of these circumstances, the record does not demonstrate that Mack's decision in this instance was unreasonable. Secondly, as to the claim that Mack failed to provide petitioner with proper legal advice regarding the suppression issues, the record contains numerous motions to suppress the evidence obtained as the result of the stop and the subsequent searches, thus supporting the state's contention that petitioner's trial counsel did in fact properly pursue issues arising from petitioner's stop and arrest and the search of his home. Cf. State v. Williams (1991), 74 Ohio App.3d 686, 699. As to Mack's admission that he did not believe that petitioner could prevail on his challenge to the stop and arrest, the law is clear that an informant's tip may provide probable cause to justify a warrantless arrest. See Draper v. United States (1959), 358 U.S. 307, 313; State v. Heston (1972), 29 Ohio St.2d 152, cert. denied (1972), 409 U.S. 1038, 93 S.Ct. 534. The Heston Court held at paragraphs one and two of the syllabus as follows: 1. An unidentified informer's tip that a defendant has committed a felony, which is corroborated by evidence - 12 - uncovered by independent police work verifying in detail the information supplied by the informer and makes apparent its trustworthiness, is sufficient to establish probable cause for an arrest. 2. An arrest without a warrant is valid where the arresting officer has probable cause to believe that a felony was committed by defendant and the circumstances are such as to make it impracticable to secure a warrant. See, also, State v. Woods (1982), 8 Ohio App.3d 56, 58 (a police officer's personal observations and independent police investiga- tion which confirm an anonymous informant's tip that an individual is armed demonstrate its reliability so as to justify a stop and limited search). In this instance, the record suggests that the state had maintained that petitioner's initial stop was linked to information provided by an informant (see Motion for Disclosure of Informants filed in case no. 307418 on July 6, 1994; see, also, October 5, 1994 Supplemental Motion to Suppress "defendant asserts that the detectives involved had the practice of stopping cars on the basis of claimed anonymous tip"). Nonetheless, petitioner presented no evidence to demonstrate that the stop and subsequent arrest were not the result of information provided from an informant; or to demonstrate that such informant was unreliable; or to demonstrate that the information provided was unverified by the observations of the arresting officers; or to demonstrate that the information was uncorroborated by independent police investigation. Conversely, Mack testified that the informant provided the police with a description of defendant and the route he would be travelling, - 13 - which they then verified in their independent investigation. Mack further established that petitioner "verified" to him that there was in fact an informant in this instance. (Tr. 87). Accordingly, we are unable to conclude that the trial court lost its way in concluding that Mack properly addressed the relevant legal issues and that petitioner knowingly, voluntarily and intelligently entered his guilty plea. The assignment of error is overruled. Affirmed. - 14 - 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 Common Pleas Court 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. SWEENEY, C.J., AND ROCCO, J., CONCUR. ANN DYKE JUDGE 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 .