State v. Quintero

[Cite as State v. Quintero, 

.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                        :

                 Plaintiff-Appellee,                  :
                                                                             No. 18AP-102
v.                                                    :                (C.P.C. No. 16CR-4823)

Tristan J. Quintero,                                  :             (REGULAR CALENDAR)

                 Defendant-Appellant.                 :




                                               D E C I S I O N

                                   Rendered on December 20, 2018


                 On brief: Ron O'Brien, Prosecuting              Attorney,     and
                 Barbara A. Farnbacher, for appellee.

                 On brief: Sydow Leis LLC, and Megan E. Grant, for
                 appellant.


                   APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

          {¶ 1} Defendant-appellant, Tristan J. Quintero, appeals from a judgment of
conviction entered by the Franklin County Court of Common Pleas pursuant to a plea of no
contest after the trial court denied his motion to suppress. For the following reasons, we
affirm.
I. Factual and Procedural Background
          {¶ 2} On September 2, 2016, a Franklin County Grand Jury indicted Quintero on
one count of trafficking in heroin, in violation of R.C. 2925.03, a felony of the first degree;
one count of possession of heroin, in violation of R.C. 2925.11, a felony of the first degree;
No. 18AP-102                                                                                   2

and count one aggravated possession of drugs, in violation of R.C. 2925.11, a felony of the
second degree.     Each count also contained a firearm specification pursuant to R.C.
2941.141(A). Quintero initially entered a plea of not guilty.
       {¶ 3} On December 18, 2016, Quintero filed a motion to suppress evidence. He
requested that all statements and evidence seized as a result of the search warrant executed
at 499 Beechwood Road be suppressed. He argued that the search warrant was obtained
in violation of the Fourth Amendment to the United States Constitution and comparable
provisions of the Ohio Constitution and that his statements were taken in violation of the
Fifth Amendment to the United States Constitution. The state opposed the motion. On
March 23, 2017, the trial court held a hearing on the motion to suppress.
       {¶ 4} At the hearing, Sergeant Dennis Allen, the head of the narcotics unit for the
city of Whitehall Division of Police, testified that the investigation of 499 Beechwood was
initiated by Patrolman Gary Baker. Baker had responded to a call from a neighbor who
thought the house was supposed to be vacant but saw people inside. Baker arrived at the
address and encountered Quintero. Quintero told Baker that he was just moving in.
According to Allen, Baker felt from Quintero's actions something shady was going on, so he
paid attention to the residence. Baker informed Allen he noticed additional traffic at 499
Beechwood and recommended Allen look into it.
       {¶ 5} On August 26, 2015, 499 Beechwood was included on a list of addresses to
conduct a trash pull. Detective John Earl explained at the suppression hearing how a trash
pull is conducted in general. An officer will drive to an addresses on the list and note if
there is any trash at the curb. If there is, the officer will then look for a nearby trash truck.
After making contact, the officer will ask the driver to collect trash from that address. The
officer will have the driver compact the whole back end of the truck so that it is empty. The
trash truck will then proceed to the address and collect the trash. The officer will watch the
trash being picked up and follow the truck to a location away from the address. The officer
then recovers the trash from the truck and takes it to the police department to be searched.
       {¶ 6} Allen testified that on the morning of August 26, 2015, he drove to 499
Beechwood, saw a trash can on the curb, notified Earl, and sat on an adjacent street to watch
the front of the residence. Earl testified he located a trash truck and asked the driver to
collect the trash. He verified the driver compacted the back end of the truck and that it was
No. 18AP-102                                                                                 3

empty. Earl followed the truck to 499 Beechwood. Both Allen and Earl watched the trash
being collected from 499 Beechwood. The truck then turned the corner onto Etna Road.
Allen met the truck and recovered the trash from the truck and took it to the police
department.     Earl and Allen proceeded to search through the trash.          They found a
prescription and ointment box with the name True Quintero on them and a large envelope
with the name Shirley Roberts on it. Allen testified that True is Quintero's daughter and
Roberts is his mother-in-law. Several torn baggies with a powdery residue were also
recovered. Allen conducted a field test on the residue, which tested positive for heroin.
         {¶ 7} Allen testified a second trash pull was conducted on September 2, 2015. He
stated he personally observed trash in the same container from the August 26 trash pull
sitting in the street near the curb. The same procedure was followed that day except that
Allen conducted the trash pull and search by himself. He found more torn baggies with
residue that tested positive for heroin. As a result of the second trash pull, Allen decided to
request a search warrant. He prepared the affidavit and sent it to the municipal court duty
judge. After the judge granted the search warrant, officers proceeded to 499 Beechwood to
execute the warrant.
         {¶ 8} Detective Guy Grinstead testified police arrived at 499 Beechwood on
September 2, 2015 at 12:42 p.m. to execute the search warrant. They waited for Quintero
to arrive, immediately detained him, and placed him in handcuffs. While other officers
went into the residence to clear the house, Grinstead waited with Quintero on the back
patio. When he got the all clear, Grinstead stated that at 1:05 p.m. he went over the
constitutional rights form with Quintero, who signed the acknowledgement at 1:08 p.m.
According to Grinstead, after he advised Quintero of his rights, Quintero agreed to
cooperate. Quintero then led the officers to where the drugs, firearms, and money were
located in the house. Quintero continued to cooperate with the police after the search was
completed. Through his attorney, Quintero informed Grinstead a week later he had
received a large shipment of marijuana. Grinstead denied Quintero requested an attorney
at any point and denied asking any questions regarding the drugs prior to reading Quintero
his rights. He did confirm that he told Quintero that if Quintero cooperated it may help him
later.
No. 18AP-102                                                                                4

       {¶ 9} Quintero presented two witnesses and his own testimony at the suppression
hearing. Lisa Gillenwater and Nicolas Rosales were neighbors of Quintero when he resided
at 499 Beechwood. They testified the property was quiet while Quintero lived there and
they did not observe any increased traffic in the area. Rosales, however, did say the
Quintero would set trash out sometimes but it was not all the time.
       {¶ 10} Quintero testified he moved into 499 Beechwood at the end of June 2015. His
lease for his prior address did not expire until December, so he did not set up trash service
at 499 Beechwood. Quintero explained he would keep trash on the side of his garage. After
it accumulated, he would take the trash in his truck and dump it at his former townhouse.
He denied he set out any trash on August 26 or September 2, 2015. Quintero stated he did
not call to set up trash service until October 2015.
       {¶ 11} On September 2, 2015, Quintero went to get his wife a new cell phone. When
he returned home, a van pulled into his driveway behind him. Officers exited the vehicle
with their guns drawn and ordered him out of his car. Quintero said he immediately
requested his attorney. He was handcuffed and had his phones and keys seized. He
questioned why the officers were there and was told about the search warrant. According
to Quintero, Grinstead began asking him what is in the house and saying they could make
this whole thing go away if he cooperated. Quintero said he remained quiet except for
asking for his attorney and to have his phones returned. Grinstead then showed Quintero
the form with his constitutional rights on it. He asked Quintero if he was aware of his rights
and Quintero said he was. Quintero acknowledged signing the form but stated he did not
read it. He also denied Grinstead read the form to him.
       {¶ 12} Quintero testified he began to get frustrated because the officers were
denying him an attorney, refusing to give back his phones, and making false promises. At
that point, he said he felt he did not have any other choice. From where he sat on the patio,
he said he could see into the house and Allen was near the closet where the drugs were.
Quintero began to give Grinstead information and eventually told the officers where they
could find the drugs and firearms.
       {¶ 13} At the suppression hearing, Quintero submitted several exhibits.            He
identified exhibit MH-N as an email he received from Nicole Rogue, a customer service
supervisor for Local Waste Services. In the email, she stated Quintero started his account
No. 18AP-102                                                                                 5

on June 23, 2015. The account was prorated and billed but no payment was received. On
August 31, 2015, the account went into suspension. It also referenced a screen shot that
showed the account having an end date. When an end date is placed on the account, it is
considered suspended and no longer on the route sheet for collection. Exhibit MH-O is the
screen shot but does not show the whole page as it is cut off at the bottom. "End date"
appears for the dates October 14, 2015 and January 2, 2016. Under the text column, it says
"JW From08/31/2015 to" and "JW from Overdue Accounts." Exhibit MH-Q is a past due
reminder notice from Local Waste Services.         It is addressed to Investments Laurel,
Quintero's landlord at 499 Beechwood. It states there is an outstanding balance and that
services would be suspended if the account remains unpaid after August 31, 2015. Quintero
testified Exhibit MH-R is another email from Nicole Rogue.             This one states "499
Beechwood was suspended from 8/31/2015 and was reactivated for services on
10/14/2015. This … time frame Local Waste Services did not remove refuse from this
property."
       {¶ 14} The trial court denied the motion to suppress. It determined the affidavit was
sufficient on its face and addressed each of the essential statutory elements. The trial court
also held the affidavit did not contain any deliberate or recklessly false statements. It found
the credible, first-hand testimony of the officers established the officers observed a trash
can placed at the curb in front of 499 Beechwood Road on August 26, 2015 and
September 2, 2015, and the officers observed the trash being collected from the can under
controlled conditions. The trial court also rejected Quintero's arguments that he was
interrogated in violation of his Fifth Amendment rights on September 2, 2015. The trial
court found Quintero's testimony was not credible under the totality of the circumstances.
The trial court noted the objective evidence presented at the hearing established Quintero
was read his rights, he signed an acknowledgement of those rights, and he voluntarily
waived them and elected to cooperate with the officers.
       {¶ 15} On May 16, 2017, Quintero filed a motion to reconsider the suppression of
evidence. He contended the trial court failed to fully consider the issues presented at the
hearing. Quintero specifically challenged the affidavit established a nexus between the
evidence collected from the trash pull and any alleged criminal activity inside the residence.
He also contested the trial court's determination that the affidavit did not contain any false
No. 18AP-102                                                                                  6

or misleading statements. He alleged statements in the affidavit were not consistent with
the evidence produced at the hearing. Also, he claimed the trial court committed error in
its summary of the testimony of defense witnesses and did not fully consider the evidence
produced from the trash removal company. The trial court denied the motion.
       {¶ 16} Two months later, defense counsel filed a motion to withdraw. He indicated
Quintero did not wish to proceed with him as counsel. The attorney alleged that Quintero
was refusing to follow his advice and cooperate with him. Quintero had also failed to pay a
trial retainer. The trial court granted the motion to withdraw and appointed the public
defender to represent Quintero after an affidavit of indigency was filed. At the end of
November 2017, Quintero informed the court he had arguments with the public defender
and he was not comfortable with her representing him. The trial court issued an entry
relieving the public defender of any further representation and appointed a new attorney
to represent Quintero.
       {¶ 17} On January 3, 2018, Quintero withdrew his plea of not guilty and entered a
plea of no contest to the indictment. The trial court proceeded to sentencing. It merged
the trafficking and possession of heroin counts and merged the firearm specifications. The
trial court imposed a five-year prison term for trafficking heroin and a consecutive, one-year term for the firearm specification. It also imposed a concurrent, four-year term for
aggravated possession of drugs, for a total sentence of six years.
II. The Appeal
       {¶ 18} Quintero appeals and raises the following assignments of error:
              [I.] The trial court erred when it denied defendant's motion to
              suppress.

              [II.] Appellant was denied his Sixth Amendment right to
              effective assistance of counsel when counsel failed to present
              mitigation at sentencing.

III. First Assignment of Error–Motion to Suppress
       {¶ 19} In the first assignment of error, Quintero challenges the trial court's denial of
his motion to suppress. The denial of a motion to suppress involves a mixed question of
law and fact. State v. Burnside, 

, 

, ¶ 8. When ruling on
a motion to suppress, the trial court assumes the role of trier of fact, and therefore is in the
best position to resolve questions of fact and evaluate the credibility of witnesses. State v.
No. 18AP-102                                                                                 

 Ohio St.3d 357, 366 (1992). Consequently, an appellate court must accept the trial
court's findings of fact if they are supported by competent, credible evidence. State v. Leak,

, 

. However, this court determines as a matter of
law, without deferring to the trial court's conclusions, whether these facts meet the
applicable legal standard. Burnside at ¶ 8.
        {¶ 20} There are three types of challenges to a trial court's decision on a motion to
suppress on appeal. "First, an appellant may challenge the trial court's finding of fact.
Second, an appellant may argue the trial court failed to apply the appropriate test or correct
law to the findings of fact. Finally, an appellant may argue the trial court has incorrectly
decided the ultimate or final issues raised in a motion to suppress." State v. Bates, 5th Dist.
No. 08 CA 15, 

. In this case, Quintero argues the trial court's factual
findings were erroneous. When reviewing a challenge of this nature, an appellate court
must determine whether the trial court's findings of fact are supported by the evidence
under the totality of the circumstances. See State v. Fanning, 

 (1982).
        A. Search of Residence
        {¶ 21} In his motion to suppress, Quintero argued the affidavit in support of the
search warrant was not supported by probable cause because it did not establish a nexus
between the police officer's observations and the place to be searched, and it contained false
statements that were deliberately or recklessly made.
        {¶ 22} The Fourth Amendment to the United States Constitution specifies that "no
warrants shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized."
Article I, Section 14 of the Ohio Constitution contains nearly identical language and
provides the same protection as the Fourth Amendment. State v. Banks-Harvey, 

, 

, citing State v. Jones, 

, 

,
¶ 12.
        {¶ 23} For a search warrant to issue, "the evidence must be sufficient for the
magistrate to conclude that there is a fair probability that evidence of a crime will be found
in a particular place. The reviewing court must then ensure that the magistrate had a
substantial basis for concluding that probable cause existed." State v. Castagnola, 

, 

, ¶ 35. Trial and appellate courts should accord great deference to
No. 18AP-102                                                                                    8

the magistrate's determination that the affidavit in support of the search establishes
probable cause and may not substitute their own judgment for that of the magistrate. State
v. George, 

 (1989), paragraph two of the syllabus. Doubtful or marginal
cases should be resolved in favor of upholding the warrant. 

       {¶ 24} If the affidavit contains false or misleading information, however, no
deference is owed to the issuing magistrate. "To successfully attack the veracity of a facially
sufficient search warrant affidavit, a defendant must show by a preponderance of the
evidence that the affiant made a false statement, either 'intentionally, or with reckless
disregard to the truth.' " State v. Waddy, 

 (1992), citing Franks v.
Delaware, 

 (1978).
       {¶ 25} The trial court found that the officers' testimony at the suppression hearing
was credible. Based on the testimony of Earl and Allen, the trial court found that the officers
observed a trash can placed at the curb in front of Quintero's residence at 499 Beechwood
on August 26, 2015 and September 2, 2015 and that the trash was collected under
controlled conditions.     The evidence from the trash pull on August 26 included a
prescription and an ointment box with the name True Quintero on them, an envelope with
the name Shirley Roberts on it, and several torn baggies with residue that field-tested
positive for heroin. The September 2 trash pull contained additional torn baggies with
residue that also field-tested positive for heroin. As a result of these findings, the trial court
concluded the affidavit established a sufficient nexus with illegal activity inside the
residence at 499 Beechwood and the affidavit did not contain any false or misleading
statements.
       {¶ 26} On appeal, Quintero contends the trial court ignored his evidence of emails
and reports from the trash company that he was not receiving collection services on the
dates of the trash pulls. Because the trial court chose to believe the testimony of the officers
over his own testimony and the business records of an uninterested party, the findings of
fact are erroneous and prejudicial.
       {¶ 27} It is fundamental the weight of the evidence and credibility of witnesses are
primarily for the trier of facts. State v. DeHass, 

 (1967), paragraph one
of the syllabus. This principle is applicable to suppression hearings as well as trials.

. The trial judge, having heard the witnesses testify, was in a far better
No. 18AP-102                                                                                 9

position to evaluate their testimony and credibility than an appellate court. There is
substantial evidence in the record upon which the trial court could base its findings of fact.
Earl and Allen testified they saw trash outside 499 Beechwood on August 26. The records
from the trash company indicate Quintero set up service on June 23, 2015 and his account
was not suspended until August 31, 2015, after the August 26 trash pull. From the
August 26 trash pull, the officers recovered evidence that was linked to Quintero's family
members. Although the trash company may have suspended Quintero's account on
August 31, 2015, this does not unequivocally show that trash was not put out on
September 2, 2015. Allen testified he observed a trash container on the street that day. One
of Quintero's neighbors testified he observed on occasion trash being set out in front of 499
Beechwood. Despite Quintero's denials, we conclude the trial court's findings of fact are
not contrary to the evidence.
       B. Quintero's Statements
       {¶ 28} Quintero also contends the trial court erred in denying his motion to suppress
his statements. He asserts his statements were not voluntary and he was questioned prior
to receiving his Miranda warnings. He further alleges the officers ignored his request for
counsel. According to Quintero, he asked for an attorney within 30 seconds of getting out
of his vehicle and then repeatedly requested one for the next one-half hour.
       {¶ 29} Under the Fifth Amendment to the United States Constitution, no person
shall be compelled to be a witness against himself or herself. To safeguard this right, a
suspect in police custody " 'must be warned prior to any questioning that he has the right
to remain silent, that anything he says can be used against him in a court of law, that he has
the right to the presence of an attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires.' " State v. Lather, 

, 

, ¶ 6, quoting Miranda v. Arizona, 

 (1966). "If a
suspect requests counsel, all interrogation must cease until an attorney is present or the
suspect himself initiates communication." State v. Curtis, 10th Dist. No. 05AP-795, 2006-
Ohio-4230, ¶ 13, citing Edwards v. Arizona, 

 (1981).
       {¶ 30} Whether there is a valid waiver of Miranda rights involves a dual inquiry.
" 'First, the relinquishment of the right must have been voluntary in the sense that it was
the product of a free and deliberate choice rather than intimidation, coercion, or deception.
No. 18AP-102                                                                               10

Second, the waiver must have been made with a full awareness of both the nature of the
right being abandoned and the consequences of the decision to abandon it.' " Lather at ¶ 7,
quoting Moran v. Burbine, 

 (1986).
       {¶ 31} The burden is on the prosecution to prove appellant made a knowing,
intelligent, and voluntary waiver of constitutional rights. State v. Drew, 10th Dist. No.
07AP-467, 

. Whether a suspect voluntarily waives his Miranda rights
is based on the totality of the circumstances. State v. Clark, 

 (1988).
The totality of the circumstances includes "the age, mentality, and prior criminal experience
of the accused; the length, intensity, and frequency of interrogation; the existence of
physical deprivation or mistreatment; and the existence of threat or inducement." State v.
Dixon, 

, 

, ¶ 25, citing State v. Eley, 

 (1996). "Only if the 'totality of the circumstances surrounding the interrogation' reveals
both an uncoerced choice and the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived." Lather at ¶ 7, citing 

.
       {¶ 32} The voluntariness of a statement is a separate and distinct issue from whether
a defendant validly waived his Miranda rights. State v. Eal, 10th Dist. No. 11AP-460, 2012-
Ohio-1373, ¶ 36. A defendant's statement to the police is considered voluntary absent
evidence of coercive police conduct. Colorado v. Spring, 

 (1987). The
critical question is whether the defendant's will to resist was overborne by coercive police
conduct to produce a confession not freely self-determined. State v. Dailey, 

 (1990), paragraph two of the syllabus. A police officer's assurances that a defendant's
cooperation will be considered, or that a statement will be helpful, do not invalidate an
otherwise legal confession. State v. Stringham, 2d Dist. No. 2002-CA-9, 

,
¶ 16. "[A] mere suggestion that cooperation may result in more lenient treatment is neither
misleading nor unduly coercive, as people 'convicted of criminal offenses generally are dealt
with more leniently when they have cooperated with the authorities.' " 

 quoting State v.
Farley, 2d Dist. No. 2002-CA-2, 

, ¶ 44. Although whether an individual
knowingly, voluntarily, and intelligently waived his Miranda rights and whether the
individual made a statement voluntarily are separate issues, the same totality-ofcircumstances test applies to both. 

, citing 

.
No. 18AP-102                                                                                   11

          {¶ 33} Here, after reviewing the totality of the evidence, we agree with the trial court
that Quintero understood and waived his rights and he voluntarily spoke to Grinstead.
" 'Where the prosecution shows that a Miranda warning was given and that it was
understood by the accused, an accused's uncoerced statement establishes an implied waiver
of the right to remain silent.' " State v. Valentine, 10th Dist. No. 14AP-893, 

, quoting Berghuis v. Thompkins, 

 (2010). Grinstead testified that he read
Quintero his Miranda rights and went over the constitutional rights form. Quintero
confirmed Grinstead presented him with the form and he stated he was aware of his rights.
He also signed the acknowledgement that he had read and been read the statement of his
rights.
          {¶ 34} Quintero, however, claims he repeatedly asked for his attorney and asked for
his phones so that he could call his attorney. Grinstead denies this occurred. According to
Grinstead, Quintero agreed to cooperate after signing the form and continued to provide
information after September 2.           Quintero does not claim there was any coercion,
intimidation, or deception. Instead, he testified he believed Grinstead was lying to him and
making false promises. There is no indication that Quintero's will was overborne. The trial
court found Grinstead's testimony was credible but Quintero's was not. Again, the trial
court's factual decision at a suppression hearing, which rests upon the credibility of witness
testimony, is accorded great deference on appellate review. State v. Robinson, 9th Dist. No.
16766 (Jan. 11, 1995); see also State v. Smith, 

 (1991). We conclude
the evidence in the record supports the trial court's findings and that Quintero waived his
rights and voluntarily gave statements.
          {¶ 35} Accordingly, we find Quintero has not established the trial court erred in
denying his motion to suppress. We overrule the first assignment of error.
IV. Second Assignment of Error–Ineffective Assistance of Counsel
          {¶ 36} In the second assignment of error, Quintero alleges his counsel did not
provide effective assistance of counsel when he failed to present mitigation at sentencing.
He argues his counsel was ineffective because counsel did not prepare a sentencing memo
or adequately prepare an argument at sentencing, counsel immediately proceeded to
sentencing, and counsel did not do research into Quintero's history or personal
circumstances other than review Quintero's prior record.
No. 18AP-102                                                                                12

       {¶ 37} The Sixth Amendment to the United States Constitution guarantees a
criminal defendant the right to the effective assistance of counsel. State v. Banks, 10th Dist.
No. 10AP-1065, 

, ¶ 12, citing McMann v. Richardson, 

(1970). In order to prevail on an ineffective assistance of counsel claim, a defendant must
prove (1) that his counsel's performance was deficient, and (2) that the deficient
performance prejudiced the defendant. Strickland v. Washington, 

(1984). This requires a showing that counsel made errors so serious that counsel was not
functioning as the counsel guaranteed by the Sixth Amendment and that the errors were so
serious as to deprive the defendant of a fair proceeding. State v. Canada, 10th Dist. No.
14AP-523, 

, ¶ 89. A failure to demonstrate either a performance error on
trial counsel's part or the requisite level of prejudice is fatal to defendant's claim of
ineffective assistance of counsel. State v. Madrigal, 

 (2000), citing

.
       {¶ 38} A properly licensed attorney in Ohio is presumed competent. Banks at ¶ 13,
citing State v. Lott, 

 (1990). The burden of proving ineffective
assistance of counsel is on the defendant. State v. Smith, 

 (1985).
Trial counsel is entitled to a strong presumption his or her performance was adequate and
the attorney's action constituted sound trial strategy. To demonstrate prejudice, the
defendant must prove that there exists a reasonable probability that, were it not for
counsel's errors, the result of the trial would have been different. State v. Bradley, 

 (1989), paragraph three of the syllabus.
       {¶ 39} When Quintero was sentenced, he was being represented by his fourth
attorney on the case. Quintero terminated the first two attorneys he had retained. After
Quintero filed an affidavit of indigency, the trial court appointed the public defender to the
case. In November 2017, Quintero informed the trial court he was no longer comfortable
being represented by the public defender. The trial court appointed private counsel to
represent him. A little over one month later, Quintero changed his plea to no contest, and
the trial court sentenced him.
       {¶ 40} At the plea portion of the January 3, 2018 hearing, the trial court asked
defense counsel if he was adequately up to speed on the case and if he had satisfied his
professional obligations to Quintero. Defense counsel responded affirmatively. Upon the
No. 18AP-102                                                                                13

trial court's inquiry, Quintero stated he was completely satisfied with his attorney. During
sentencing, defense counsel asked the trial court to take into consideration that Quintero
was facing mandatory time. He noted Quintero's prior record was a single conviction for
disorderly conduct. Defense counsel also informed the court Quintero had lost his job as a
result of these proceedings, he was indigent, he was trying to take care of his family, and he
recently experienced a death in the family.
       {¶ 41} We decline to find defense counsel's performance was deficient. Although his
statement in mitigation was brief, the presentation of mitigating evidence is a matter of trial
strategy. State v. Were, 

, 

, ¶ 241. In general, trial tactics
and strategies do not constitute a denial of effective assistance of counsel. State v. Clayton,

 (1980).
       {¶ 42} Even if counsel's performance at sentencing could be considered deficient,
Quintero has not demonstrated he was prejudiced as a result. State v. Hayes, 10th Dist.
No. 08AP-233, 

. He failed to identify what the mitigation evidence
would have been. He also fails to show how mitigating evidence would have resulted in a
lesser sentence.    The firearm specification required a one-year prison term.            R.C.
2929.14(B)(1)(a)(iii). Quintero also faced a sentence of 3 to 11 years for trafficking heroin
and a sentence of 2 to 8 years for aggravated possession of drugs. He received a prison term
of 5 and 4 years respectively. We are unwilling to speculate the outcome of sentencing
would have been different. Accordingly, we find Quintero has failed to establish he received
ineffective assistance of counsel. We overrule the second assignment of error.
       {¶ 43} For the foregoing reasons, Quintero's assignments of error are overruled, and
the judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                         Judgment affirmed.

                             TYACK and SADLER, JJ., concur.

                                      ____________