COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72808 CITY OF BRECKSVILLE : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION ROBERT J. LINN : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 11, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Garfield Heights Municipal Court, No. 97-TRC-01162A/C. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Roger A. Wadsworth, Esq. Prosecutor, City of Brecksville Sergio DiGeronimo, Esq. Assistant Prosecutor 8927 Brecksville Road Brecksville, OH 44141 For Defendant-Appellant: James P. Sammon, Esq. Sammon & Bolmeyer Co. 614 Superior Avenue, N.W. 1160 Rockefeller Building Cleveland, OH 44113-1311 TIMOTHY E. McMONAGLE, J.: Defendant-appellant, Robert Linn, appeals his conviction after a plea of no contest in the Garfield Heights Municipal Court for driving under suspension or revocation in violation of R.C. 4507.02 -2- and for faulty exhaust in violation of R.C. 4513.22. Appellant asserts that the trial court erred when it denied his motions to suppress and for a continuance and, moreover, he was denied effective assistance of counsel. We find the appeal without merit and affirm. The facts pertinent to the issues in this appeal are as follows. Appellant was traveling southbound on Interstate 77 within the city of Brecksville, Ohio on February 14, 1997 at about 10:40 p.m. when he was stopped by a Brecksville patrol officer. As a result of this traffic stop, appellant was cited for three traffic violations: 1) faulty exhaust, R.C. 4513.22; 2) no driver's license, R.C. 4507.02; 3) driving with suspended license, R.C. 4507.02. The vehicle was towed from the scene and impounded. On February 19, 1997, appellant entered a plea of not guilty and waived his rights to a speedy trial and to a jury trial. On February 21, 1997, the court appointed counsel for appellant. However, appellant's appointed counsel moved for permission to withdraw from representation, which was granted by the court on May 14, 1997. On May 16, 1997 the court appointed new counsel for appellant and set the matter for bench trial on July 2, 1997. On July 2, prior to commencement of the bench trial, appellant orally requested a jury trial as a means of continuance to file a motion to suppress. The court then held a hearing on appellant's oral motion to suppress the evidence against him. At the hearing, the state called the arresting officer, David Hetrick of the Brecksville Police Department. Officer Hetrick testified that on -3- the night of the arrest, the loud noise from the vehicle which appellant was driving drew his attention. The officer observed an exhaust hanging down from the vehicle and shaking which led him to believe that the system was broken. He issued citations to the appellant for faulty exhaust, no driver's license and driving with a suspended license; documented the condition of the exhaust at the time the vehicle was impounded; and took a photo of the vehicle at the impound lot. He testified that the photo which he took shows the pipe disconnected from the muffler device. On cross-examination Officer Hetrick testified that the car was towed from the front because it is a front-wheel drive vehicle. Appellant, after waiving his Fifth Amendment privilege, testified on his own behalf. He stated that on the day of his arrest he could not hear a loud exhaust. He said the arresting officer had told him he was pulled over because the exhaust was hanging. He said the officer permitted him to observe the condition of the exhaust and appellant noted one section of the tail pipe was hanging four inches off the ground before the car was towed. Appellant did not notice that the pipes were disconnected. He said that after his mother received the car from the impound lot he checked the exhaust system again and found the exhaust was disconnected. Appellant's mother, the owner of the vehicle, testified that she had driven the car earlier on the day of the incident and although the motor was loud there was no noise from the exhaust. She said that when she retrieved the car from the impound lot it -4- was loud because the pipe was apart. She stated that the pipe had not been apart prior to that time. On cross-examination, she admitted she was not in the vehicle at the time of the traffic stop and, therefore, was unable to testify as to the condition of the car at the time of the traffic stop. The court, finding the police officer had probable cause to make the traffic stop, denied appellant's motion to suppress. Appellant, then, withdrew his guilty plea to the charges against him and entered a plea of no contest to the charges of driving under suspension and faulty exhaust. The state agreed to enter a nolle prosequi to the charge of no operator's license. The court entered a verdict of guilty as to both charges, fined appellant $1,000 with $900 suspended, sentenced appellant to a term of one hundred eighty days incarceration with one hundred fifty days suspended, and placed appellant on inactive probation for one year. From this judgment appellant brings this appeal and advances three assignments of error for our review. I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO SUPPRESS. II. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. III. THE TRIAL COURT ABUSED ITS DISCRETION IN NOT GRANTING DEFENDANT'S MOTION FOR CONTINUANCE IN ORDER TO PROPERLY PREPARE HIS DEFENSE. In his first assigned error, appellant complains that the trial court erred in denying his motion to suppress. Specifically, -5- appellant contends that no evidence was presented to show that the vehicle had a faulty tail pipe at the time of the traffic stop. In a suppression hearing, the evaluation of evidence and the credibility witnesses are issues for the trier of fact. State v. Mills (1992), 62 Ohio St.3d 357. The trial court assumes the role as trier of fact and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. State v. Klein (1991), 73 Ohio App.3d 486. Appellate courts should give deference to the judgment of the trier of fact. State v. George (1989), 45 Ohio St.3d 325. Accordingly, an appellate court is bound to accept a trial court's findings of fact if they are supported by competent, credible evidence. Klein, supra. In order for a law enforcement officer to make a valid and constitutional stop of an automobile, there must exist a reasonable suspicion by the officer that a traffic law is being violated or that criminal activity is being carried on. Delaware v. Prouse (1979), 440 U.S. 648, 663; State v. Evans (1993), 67 Ohio St.3d 405. The officer does not need probable cause for an arrest in order to make an investigative stop but only needs specific and articulable facts with which to warrant his further investigation. State v. Bobo (1988), 37 Ohio St.3d 177. In determining the appropriateness of an investigative stop, a reviewing court must view the stop in light of the totality of the surrounding circumstances, giving due weight to the officer's experience and training. State v. Andrews (1991), 57 Ohio St. 3d 86. R.C. 4513.22 provides in pertinent part that: -6- [e]very motor vehicle and motorcycle with an internal combustion engine shall at all times be equipped with a muffler which is in good working order and in constant operation to prevent excessive or unusual noise. *** Excessive or unusual noise from a muffler is prohibited by the statute and, thus, observation of a loud muffler provides a reasonable suspicion to warrant the stop of an automobile. State v. Van Scoder (1994), 92 Ohio App.3d 853. In the matter sub judice,the arresting officer testified that while on patrol he drives his patrol car with the windows open, the loud noise emanating from appellant's car drew his attention, he pulled behind appellant's car and noticed the exhaust system hanging and shaking which led him to believe the exhaust system was broken. He stated that because he observed a violation of the motor vehicle laws regarding a faulty exhaust system he pursued and stopped the vehicle. From the record before us, we find that there is sufficient credible evidence to support the conclusion that the officer had a reasonable suspicion that a traffic law was being violated and, consequently,that the officer made a valid constitutional stop of appellant's automobile. Accordingly, we find appellant's first assignment of error without merit. In his second assigned error, appellant complains that he was denied effective assistance of counsel. Specifically, appellant asserts that his counsel was newly assigned, unprepared and failed to object to the hearing on the motion to suppress from going forward on July 2, 1997. -7- To prevail on a claim of ineffective assistance of counsel, appellant must show that counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having a just result. This standard requires appellant to satisfy a two-part test. First, appellant must show that counsel's representation fell below an objective standard of reasonableness. Second, appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different when considering the totality of the evidence that was before the court. Strickland v. Washington (1984), 466 U.S. 668. This test is applied in the context of Ohio law that states that a properly licensed attorney is presumed competent. State v. Hamblin (1988), 37 Ohio St.3d 153. The record reveals that on May 19, 1997 appellant was assigned counsel to represent him at a trial set for July 2, 1997. We see no evidence in the record, nor does appellant direct us to any, that his counsel was unprepared to properly advocate for appellant on the scheduled trial date. Moreover, we find no reason for appellant's counsel to have objected to the trial court proceeding on appellant's oral motion to suppress. Finally, we can find no prejudice to appellant, nor does appellant indicate prejudice, from the representation which he received from his appointed counsel. Consequently, a review of the record fails to disclose that the performance of appellant's counsel was either seriously flawed or so deficient as to result in prejudice to appellant. Accordingly, we find appellant's second assignment of error to be without merit. -8- In his third assigned error, appellant complains that the trial court abused its discretion in failing to grant appellant's motion for a continuance. Specifically, appellant argues that where the court knew that appellant was represented by new counsel, its decision to deny a continuance was unreasonable, unconscionable and arbitrary. The trial court is afforded wide latitude when deciding to grant or deny a continuance. Hartt v. Munobe (1993), 67 Ohio St.3d 3, 9. An appellate court will not reverse the decision of the denial of a continuance absent an abuse of discretion. State v. Unger(1981), 67 Ohio St.2d 65, 67. An abuse of discretion connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87. A review of a trial court's decision to grant or deny a continuance consists of a balancing test-the trial court's interest in controlling its own docket, including facilitating and prompting an efficient dispatch of justice, versus any potential prejudice to the moving party.[citations omitted]. Some of the objective factors to be considered by a trial court in evaluating the need for a continuance are the following: `the length of the delay requested; whether other continuances have been requested and received; the incon- venience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the [moving party] contrib- uted to the circumstance which gives rise to the request for continuance; and other relevant factors, depending on the unique facts of the -9- case.' Unger, 67 Ohio St.2d at 67- 68, 21 O.O.3d at 43,423 N.E.2d at 1080. See Bland. Ham v. Park (1996), 110 Ohio App.3d 803, 810-811. The record reflects these facts: appellant was arrested in February, 1997, pled not guilty, counsel was appointed for him and he waived his right to jury trial; he failed to attend his pretrial in April which necessitated a capias to be issued; his appointed counsel withdrew with appellant's consent in May due to conflict ; new counsel was appointed for appellant on May 19; and a bench trial was scheduled for July 2, 1997. On July 2, the morning of trial, appellant orally requested a jury trial in order to gain additional time to move the court to suppress the evidence based upon his theory that the traffic stop made by the arresting officer was an improper stop. In response to appellant's request for continuance, the court offered to conduct a hearing on appellant's oral motion to suppress the evidence rather than proceed with trial at the scheduled time. The record reveals that the court explained the procedure to appellant who was represented by counsel and, after giving appellant time to consider this option, gave appellant an opportunity to object on the record. Neither counsel nor appellant objected on the record to this procedure nor did appellant make an oral motion to continue the hearing on his motion to suppress. Therefore, by agreement of the parties and without objection, the court conducted a hearing on appellant's oral motion to suppress in lieu of holding trial that day. -10- From the record before us, we find no evidence that the court's actions in failing to continue the trial date were unreasonable, arbitrary or unconscionable and find no abuse of discretion by the trial court. Appellant's third assignment of error is without merit. Accordingly, the judgment of the trial court is affirmed. -11- 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 Garfield Heights Municipal 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. BLACKMON, A.J. and JAMES D. SWEENEY, J., CONCUR. TIMOTHY E. McMONAGLE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .