JAN2±2011 JAN CLERK OF COURT SUPREME COURT OF HI. CLERK OF COURT I SUPREME COURT OF 9Hlp IN THE SUPREME COURT OF OHIO

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1 IN THE SUPREME COURT OF OHIO STATE OF OHIO Appellee, vs. RAYMOND INGRAM Appellant. SUPREME COURT CASE NO ON APPEAL FROM THE COURT OF APPEALS, NINTH APPELLATE DISTRICT 10CA0022-M MEDINA COUNTY COURT OF COMMON PLEAS CASE NO. 08CR0476 MEMORANDUM IN OPPOSITION TO JURISDICTION OF THE STATE OF OHIO DEAN HOLMAN (# ) Medina County Prosecuting Attorney 72 Public Square Medina, Ohio (330) (330) (fax) RAYMOND INGRAM Inmate # Lake Erie Correctional Institution P.O. Box 8000 Conneaut, Ohio BY: MATTHEW KERN (# ) Assistant Prosecuting Attorney Medina County Prosecutor's Office 72 Public Square Medina, Ohio (330) (330) (fax) COUNSEL FOR APPELLEE E L ^v JAN CLERK OF COURT SUPREME COURT OF HI APPELLANT, PRO SE JAN2±2011 CLERK OF COURT I SUPREME COURT OF 9Hlp

2 TABLE OF CONTENTS TABLE OF AUTHORITIES iii EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS... 4 LAW AND ARGUMENT... 4 Response to Appellant's First Proposition of Law INGRAM'S APPELLATE COUNSEL RENDERED EFFECTIVE ASSISTANCE, EXERCISING CARE AND LEGAL STRATEGY IN THE REPRESENTATION BY CHOOSING THE STRONGEST ISSUES TO ADDRESS... 4 Response to Appellant's Second Proposition of Law... 8 II. INGRAM FAILED TO ESTABLISH THAT THERE WAS A GENUINE ISSUE AS TO WHETHER HE H'AD PRESENTED A COLORABLE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL... 8 CONCLUSION PROOF OF SERVICE ii

3 CASES TABLE OF AUTHORITIES California v. Carney (1985), 471 U.S Carroll v. United States (1925), 267 U.S Illinois v. Caballes (2005), 543 U.S , 9 Jones v. Barnes (1983), 463 U.S Lockhart v. Fretwell (1993), 506 U.S Myers v. Garson (1993), 66 Ohio St. 3d 610, 614, 614 N.E.2d 742, Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273, Smith v. Murray (1986), 477 U.S State v. Abuhilwa (Mar. 29, 1995), 9th Dist. No State v. Barbee, 9th Dist. No. 07CA009183, 2008 Ohio , 9 State v. Bird (1998), 81 Ohio St.3d State v. Bradley (1989), 42 Ohio St. 3d , 5 State v. Campbell (1994), 69 Ohio St. 3d 38, 53, 630 N.E.2d 339, State v. Clayton (1980), 62 Ohio St. 2d State v. Fanning (1982), 1 Ohio St. 3d State v. Farris (2006), 109 Ohio St. 3d 519, 2006 Ohio State v. Hamblin (1988), 37 Ohio St. 3d State v. Ingram (Nov. 22, 2010), 9' Dist. No. loca0022-m... 3 State v. Ingram, 9"' Dist. No. 09CA0020-M, 2009 Ohio State v. Ingram, 9"' Dist. No. 10CA0022-M, 2010 Ohio , 4, 7, 9 State v. Kay, 9t' Dist. No. 09CA0018, 2009 Ohio , 9 State v. Lytle (1976), 48 Ohio St. 2d State v. Mills (1992), 62 Ohio St. 3d State v. Murnahan (1992), 63 Ohio St. 3d 60, 584 N.E.2d State v. Phillips (1995), 74 Ohio St. 3d State v. Sherman (June 25, 1999), 11tb Dist. No. 98-P State v. Thompson (1987), 33 Ohio St. 3d I... 5 State v. Were, 120 Ohio St. 3d 85, 88, 2008 Ohio , 9 State v. Williams, 9t" Dist. No. 09CA009679, 2010 Ohio , 9 State v. Young (Apr. 19, 1999), 5th Dist. No. 30-CA Strickland v. Washington (1984), 466 U.S , 4, 5, 6 Terry v. Ohio (1968), 392 U.S United States v. Place (1983), 462 U.S , 9 STATUTES R.C (A)(C)(4)(e) RULES App. R. 26(B)...:... 8, 9 m

4 EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL OUESTION AND IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST This Honorable Court should not accept jurisdiction for the following reasons: 1. The decision of the Ninth Judicial District Court of Appeals denying Ingram's App. R. 26(B) Application to Reopen created no injustice as the Ninth District Court of Appeals did not err in its factual inquiry. 2. No issue or substantial constitutional question exists in the Appellant's appeal to this Honorable Court because Ingram does not challenge the caselaw under which an alert by a trained canine establishes probable cause for a search. The attempted appeal further presents no viable question of general public interest warranting the exercise of this Court's jurisdiction because Ingram presents his challenge as a factual matter and not as a statement of law. STATEMENT OF THE CASE The Medina County Grand Jury indicted Ingram on November 6, 2008, charging him with one (1) count of Possession of Drugs in violation of R.C (A)(C)(4)(e), a felony of the first degree, and an attendant forfeiture specification. The trial court arraigned Ingram on November 10, 2008; Ingram pleaded not guilty. Ingram filed, on December 9, 2008, a motion to suppress arguing that Deputy Schismenos did not have reasonable suspicion to stop Ingram's vehicle and violated his expectation of privacy by recording the conversations Ingram had while detained in the back of the patrol vehicle. The trial court held a hearing on the motion on January 6, On January 9, 2009, the trial court denied Ingram's motion in its entirety. Ingram changed his plea to no contest on January 15, The trial court found Ingram guilty of Possession of Drugs in violation of R.C (A)(C)(4)(e) and the forfeiture specification. The trial court sentenced Ingram on February 26, 2009, to a mandatory five (5) year prison sentence, granting credit for one hundred and twenty-four (124) days served. The

5 trial court forfeited the two hundred and twenty-six (226) dollars found on Ingram at the time of arrest and suspended his driver's license for six (6) months. Ingram timely appealed to the Ninth District Court of Appeals arguing that the traffic stop was invalid. The appellate court noticed a defect in the imposition of post release control and vacated the sentence as void. The Ninth District therefore remanded the matter for resentencing and noted its lack of jurisdiction to address his lone assignment of error. State v. Ingram, 9th Dist. No. 09CA0020-M, 2009 Ohio The trial court resentenced Ingram to properly impose postrelease control on January 26, Following resentencing, Ingram timely appealed to the Ninth District Court of Appeals and raised two (2) assignments of error: 1. The trial court erred in denying the Appellant's motion to suppress as the evidence was insufficient to support a finding that the arresting officer had a reasonable and articulable suspicion to make a traffic stop of the Appellant's vehicle. II. The trial court erred in denying the Appellant's motion to suppress his recorded conversations as those conversations were clearly protected by Ohio Revised Code The Ninth District overruled each assignment and affirmed Ingram's conviction on August 2, State v. Ingram, 9th Dist. No. 10CA0022-M, 2010 Ohio Ingram did not timely file notice of appeal to this Honorable Court. ln Supreme Court Case No , Ingram moved for leave to file a delayed appeal. That motion has been fully briefed and is awaiting a decision. After filing his Motion for Leave to File a Delayed Appeal in Case No , Ingram filed in the Ninth District Court of Appeals an App. R. 26(B) Application to Reopen on October 14, In his brief in support, Ingram raised one (1) assignment of error: 2

6 I. Appellant was denied effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution where his appellate counsel omitted a dead bang winner, prejudicing Appellant to receiving a full review by the court. Ingram alleged that he would have prevailed in the appellate court had appellate counsel raised the following assignment of error: 1. Trial counsel's performance was deficient and appellant was prejudiced where counsel failed to challenge whether Medina County Sheriffs Deputy had probable cause to search the trunk of Appellant's vehicle where officer only detected smell of burnt marijuana emanating from passenger compartment of Appellant's vehicle. The appellate court denied Ingram's Application to Reopen on November 22, The Ninth District held that Ingram failed to satisfy the ineffective assistance standard in Strickland v. Washington (1984), 466 U.S. 668, because Ingram's counsel was not deficient for failing to challenge the search of the vehicle's trunk on the basis Ingram asserted. State v. Ingram (Nov. 22, 2010), 9t' Dist. No. 10CA0022-M (Appendix A, Appellant's Memorandum in Support of Jurisdiction). Ingram filed notice of appeal in this Court and a Memorandnm in Support of Jurisdiction on December 27, The State hereby responds. 3

7 STATEMENT OF THE FACTS The Ninth District Court of Appeals in the underlying decision and judgment entry of August 2, 2010, found the essential facts as follows: On October 22, 2008, Medina County Sheriffs Deputy Paul Schismenos stopped a vehicle after witnessing a marked lane violation. When Deputy Schismenos approached the driver, later identified as Ingram, he smelled bumt marijuana. Deputy Schismenos left Ingram's passenger in the vehicle, but asked Ingram to exit. He then placed Ingram in the back of the police cruiser. Ingram admitted that he had a suspended license, and Deputy Schismenos called for a canine unit. The canine alerted on Ingram's vehicle, and the officers searched it. The officers discovered crack cocaine in Ingram's trunk. At some point, the officers removed Ingram's passenger from the vehicle and placed her in the back of the police cruiser with Ingram. During their time in the rear seat of the police cruiser, Ingram and his passenger made several incriminating statements. Their statements were recorded on tape by the police cruiser's recording device. State v. Ingram, 9th Dist. 10CA0022-M, 2010 Ohio 3546, at 2. The State of Ohio agrees with those findings. Resnonseto A LAW AND ARGUMENT Du ellant's First Proposition of Law 1. INGRAM'S APPELLATE COUNSEL RENDERED EFFECTIVE ASSISTANCE, EXERCISING CARE AND LEGAL STRATEGY IN THE REPRESENTATION BY CHOOSING THE STRONGEST ISSUES TO ADDRESS. As the Ninth District Court of Appeals below noted, the appropriate standard of review to assess claims of ineffective assistance of counsel is the two (2)-prong standard folmd in Strickland v. Washington, 466 U.S "The first inquiry is whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any defense counsel's essential duties to appellant." State v. Young (Apr. 19, 1999), 5th Dist. No. 30-CA-85, citing Lockhart v. Fretwell (1993), 506 U.S. 364; Strickland, 466 U.S. at 687; State v. Bradley (1989), 42 Ohio St. 3d

8 "In determining whether counsel's representation fell below an objective standard of reasonableness, judicial scrutiny of counsel's performance must be highly deferential." Id. "Because of the inherent difficulties in making the first determination, a court must indulge in a strong presumption that the challenged action might be considered sound trial strategy." State v. Bird (1998), 81 Ohio St.3d 582; Strickland, 466 U.S. at 689; State v. Lytle (1976), 48 Ohio St. 2d 391; State v. Thompson (1987), 33 Ohio St. 3d 1; State v. Hamblin (1988), 37 Ohio St. 3d 153; State v. Abuhilwa (Mar. 29, 1995), 9th Dist. No "[D]ebatable... tactics... do not constitute a deprivation of effective counsel." State v. Phillips (1995), 74 Ohio St. 3d 72; State v. Clayton (1980), 62 Ohio St. 2d 45; State v. Sherman (June 25, 1999), 11th Dist. No. 98-P In the second prong of a Strickland ineffective assistance of counsel claim, the court determines whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Bradley, 42 Ohio St. 3d 136; see also Strickland, 466 U.S. at 687, 693. Ingrams notes in passing the United States Supreme Court's holding in Jones v. Barnes (1983), 463 U.S This Honorable Court has likewise held that "counsel need not raise all nonfrivolous issues on appeal." State v. Campbell (1994), 69 Ohio St. 3d 38, 53, 630 N.E.2d 339, 353, citing Jones, 463 U.S. at 751. Additionally, as this Court in Campbell noted, the "process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail... is the hallmark of effective appellate advocacy." Id., citing Smith v. Murray (1986), 477 U.S. 527, 536 and Jones, 463 U.S In this case, to reopen his appeal Ingram must show that his appellate counsel rendered ineffective assistant in failing to assign as error the allegation that his trial counsel rendered ineffective assistance in failing to challenge the search of the vehicle's trunk. In essence, Ingram 5

9 must show that the search of the vehicle's trunk violated the Fourth Amendment, that counsel at both levels were deficient for choosing other arguments to make, and further show that there is a reasonable probability that, but for the failure to so challenge, the Ninth District Court of Appeals would have ruled in his favor. Strickland, 466 U.S. at 694. Ingram argues strenuously that the smell of burnt marijuana was not sufficient to establish probable cause for Deputy Schismenos to search the vehicle's trunk. Appellant's Memorandum in Support of Jurisdiction at 6, 8-9. Although he notes the State's argument throughout this entire case was that the search was based on the alert of a trained drug dog and not on the odor of burnt marijuana, Ingram alleges that the dog did not actually alert. Memorandum in Support of Jurisdiction at 1, 7, 8. Ingram's argument goes not to legal issues alleged to have been decided erroneously but to the factual findings of the court below. A grant of jurisdiction in this case would therefore be inappropriate. See Myers v. Garson (1993), 66 Ohio St. 3d 610, 614, 614 N.E.2d 742, 745 (where decision in case turns on credibility of testimony and there exists competent and credible evidence supporting the findings and conclusions of the trial court, deference to such findings and conclusions must be given by the reviewing court), citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273, As the Court in Myers noted, the rationale underlying deference to a trial court's factual findings is the trial court's better position to view witnesses and observe their demeanor, gestures and voice inflections. Id. at 615, citing Seasons Coal Co., 10 Ohio St. 3d at 80. Although those rationales do not necessarily apply to the appellate court's findings of fact, the appellate court's review of the challenge to the suppression decision was based on the record and the testimony given before the trial court. The trial court did have an opportunity to view the witnesses and observe their demeanor, gestures 6

10 and voice inflection. Id. The appellate court below found that the trial court's factual findings were supported by the record. Ingram, 2010 Ohio 3546, at 16, 11, citing State v. Mills (1992), 62 Ohio St. 3d 357, 366, and State v. Fanning (1982), 1 Ohio St. 3d 19. Moreover, even assuming that Ingram's appellate counsel was deficient, Ingram cannot show that the Ninth District Court of Appeals would have ruled in his favor on that assignment of error. To the contrary, the Ninth District Court of Appeals below found that the canine alerted to the vehicle. Ingram, 2010 Ohio 3546, at 2 ("The canine alerted on Ingram's vehicle..."). Although the Fourth Amendment preference is for warrants, Terry v. Ohio (1968), 392 U.S. 1, 20, numerous exceptions to the warrant requirement exist, see, e.g., California v. Carney (1985), 471 U.S. 386, citing Carroll v. United States (1925), 267 U.S. 132 ("automobile exception" to warrant requirement of Fourth Amendment). Moreover, the United States Supreme Court has held that the alert of a properly trained drug dog is sufficient, by itself, to establish probable cause for a search. Illinois v. Caballes (2005), 543 U.S. 405, ; United States v. Place (1983), 462 U.S The Ninth District Court of Appeals routinely follows these precedents. E.g., State v. Williams, 9a' Dist. No. 09CA009679, 2010 Ohio 3667, at 20; State v. Kay, 9'h Dist. No. 09CA0018, 2009 Ohio 4801, at 10; State v. Barbee, 9th Dist. No. 07CA009183, 2008 Ohio 3587, at 18. In light of the fact that the appeals court found that the trained drug dog did alert to the vehicle's trunk, Ingram, 2010 Ohio 3546, at 2 ("The canine alerted on Ingram's vehicle..."), Ingram cannot show that, had appellate counsel presented the argument he asserts counsel should have made, the Ninth District Court of Appeals would have reversed his conviction. Ingram relies almost entirely on this Court's decision in State v. Farris (2006), 109 Ohio St. 3d 519, 2006 Ohio Although Ingram accurately cites Farris' holding, Ingram's 7

11 reliance on Farris is nevertheless misplaced. In this case the State did not rely on Deputy Schismenos' smelling bun7t marijuana to search the trunk; throughout this case the State relied on the alert of a trained drug dog as establishing probable cause to search the trunk. As neither the trial court nor the appellate court erred in finding that the trained drug dog alerted to the trunk of Ingram's vehicle, the search of Ingram's vehicle and the subsequent discovery of more than twenty-five (25) but less than one hundred (100) grams of cocaine base (crack cocaine) packaged in double bags was supported by probable cause. Accordingly, neither Ingram's trial counsel nor his appellate counsel can be faulted for failing to raise the issue. Therefore, Ingram fails to present a viable argument that his appellate counsel rendered deficient performance or that he suffered prejudice. Resnonseto A on ellant's Second Proposition of Law II. INGRAM FAILED TO ESTABLISH THAT THERE WAS A GENUINE ISSUE AS TO WHETHER HE HAD PRESENTED A COLORABLE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL. Ingram attempts to revive the merits of his underlying appeal in this appeal of the appellate court's denial of his App. R. 26(B) Application to Reopen. Because Applications to Reopen are limited to questions of ineffective assistance of counsel, App. R. 26(B); State v. Were, 120 Ohio St. 3d 85, 88, 2008 Ohio 5277, at 11, citing State v. Murnahan (1992), 63 Ohio St. 3d 60, 584 N.E.2d 1204, the State respectfully asserts that this Honorable Court may not consider directly whether the search of Ingram's vehicle was supported by probable cause. Ingram's plea that the Court view the dashboard recording of the traffic stop is inappropriate.i I Furthermore, such a review would likely not shed light on the matter. As the appellate court below noted in its decision affirming Ingram's conviction, the dashboard camera of the traffic stop "is somewhat grainy and its details are difficult to discern... Ingram, 2010 Ohio 3546, at

12 Even assuming the Court would have limited jurisdiction to consider the underlying merits of the search in this App. R. 26(B) context to determine whether appellate counsel was ineffective, the appellate court below did not err in refusing to grant the application to reopen as no genuine issue whether Ingram was denied the effective assistance of counsel on appeal. As described in greater detail above, the appellate court found that the trained drug dog alerted to the trunk of Ingram's vehicle. Ingram, 2010 Ohio 3546, at 2. That finding is supported by competent and credible evidence presented in the trial court. Id. at 6, 11. Additionally, the Ninth District follows the United States Supreme Court's decisions in Caballes, 543 U.S. at , and Place, 462 U.S. 696, which hold that the alert of a trained drug dog is sufficient to establish probable cause to search. Williams, 2010 Ohio 3667, at 20; Kay, 2009 Ohio 4801, at 10; Barbee, 2008 Ohio 3587, at 18. Ingram thus fails to show why the Ninth District Court of Appeals would have reversed his conviction. In light of that failure, Ingram fails to demonstrate his entitlement to relief on Sixth Amendment ineffective assistance grounds. Moreover, even outside the nature of App. R. 26(B) Applications to Reopen, the search of Ingram's vehicle was not in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. At every step, Deputy Schismenos scrupulously complied with existing precedent in conducting the investigation. Ingram fails to show that counsel's performance was deficient or that he suffered prejudice. He thus failed to establish whether there is a genuine issue as to whether he had a colorable claim that he was denied the effective assistance of counsel on appeal. App. R. 26(B)(5); State v. Were, 120 Ohio St. 3d at 88. Accordingly, the Ninth District Court of Appeals denied his application to reopen. That decision was not erroneous and jurisdiction in this Honorable Court would be inappropriate. 9

13 CONCLUSION For all of the foregoing reasons, the State of Ohio respectfully requests that this Honorable Court decline jurisdiction over the instant case. Respectfully submitted, DEAN HOLMAN, # Prosecuting Attorney Medina County, Ohio By: MATT$EW KERN,, Assistant Prosecuting Attorney Medina County Prosecutor's Office 72 Public Square Medina, Ohio (330) (330) (fax) PROOF OF SERVICE I hereby certify that a copy of the foregoing Memorandum in Opposition to Jurisdiction of the State of Ohio was forwarded to Raymond Ingram, Appellant Pro Se, Inmate # , Lake Erie Correctional Institution, P.O. Box 8000, Conneaut, Ohio Assi^tant Prosecuting Attorney 10