[Cite as State v. Robinson,
2025-Ohio-1537.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, :
: Case Nos. 23CA5
Plaintiff-Appellee, : 23CA6
:
v. :
: DECISION AND JUDGMENT
BRIAN ROBINSON, : ENTRY
:
Defendant-Appellant. : RELEASED: 04/22/2025
APPEARANCES:
L. Scott Petroff, Athens, Ohio, for appellant.
Lisa Eliason, Athens City Law Director, and Justin Townley, Assistant Law
Director, Athens, Ohio, for appellee.
Wilkin, J.
{¶1} This is an appeal from Athens County Municipal Court in which
appellant, Brian Robinson, pleaded no contest to resisting arrest in case number
22CRB0107-2, and operating a vehicle under the influence (“OVI”) in case
number 2022TRC05790. The trial court accepted Robinson’s pleas and found
him guilty of the offenses. The trial court suspended the jail-time sentence for
each offense on the condition that Robinson successfully complete two years of
community control. Robinson presents three assignments of error challenging
the trial court’s decision denying his motion to suppress and the effectiveness of
his trial counsel.
{¶2} In the first assignment of error, Robinson argues that the trial court
committed plain error when it found that the initial encounter with Trooper
Athens App. Nos. 23CA5 & 23CA6 2
Christopher Jewell was constitutional pursuant to the community caretaking
exception. We disagree. Robinson’s vehicle abruptly stopped on the side of the
road and then immediately all lights turned off. The trooper observed the vehicle
come to an abrupt stop after just passing the trooper on the other side of the
road. The trooper suspected the vehicle was disabled and the driver needed
assistance. Contrary to Robinson’s assertions, the trooper’s approach of the
now parked vehicle on the side of the road with no lights on meets the
community caretaking exception and the trooper’s initial contact with Robinson
was a consensual encounter.
{¶3} In the second assignment of error, Robinson argues that the trial
court erred when it overruled his motion to suppress because the trooper did not
have reasonable articulable suspicion to re-approach. According to Robinson,
there were no new facts to support the re-approach and for the trooper to request
Robinson to exit the vehicle and to perform field sobriety testing. We disagree.
Trooper Jewell’s initial approach upon Robinson was a consensual encounter;
thus, he could rely upon the same set of facts that led to his suspicion of
Robinson’s impairment. And based upon the totality of the circumstances, we
find that the trooper was justified in his suspicion that Robinson was driving
under the influence.
{¶4} In the final assignment of error, Robinson contends his trial counsel
was ineffective for failing to argue in the motion to suppress that the trooper
lacked probable cause to arrest him. And this deficient performance prejudiced
Robinson as the motion would have been granted since the trial court under the
Athens App. Nos. 23CA5 & 23CA6 3
lesser standard of reasonable articulable suspicion found the case “very close.”
We first note that Robinson pleaded no contest, thus, he waived raising claims of
ineffective assistance of counsel that do not pertain to his plea being entered into
knowingly, intelligently and voluntarily. But even if we consider the issue, we find
Robinson fails to demonstrate prejudice as the evidence demonstrates the
trooper had probable cause to arrest Robinson for driving under the influence.
Accordingly, we overrule Robinson’s assignments of error and affirm his
judgment of conviction entries.
FACTS AND PROCEDURAL BACKGROUND
{¶5} Trooper Jewell has been employed with the Ohio State Highway
Patrol since graduating from the academy in January 2022. His post is the city of
Athens and in December 2022, he was patrolling westbound U.S. Route 50
during his night shift. As he was driving, around midnight, he saw a vehicle pass
him in the opposite direction, and, as he was looking in his rear-view mirror,
Trooper Jewell saw the vehicle come “to an abrupt stop, and immediately turns
its lights off.” This behavior was “out of the normal” for Trooper Jewell and he
believed the vehicle was disabled. Trooper Jewell, thus, turned around and
approached the vehicle.
{¶6} As the trooper walked up to the vehicle to make sure that the driver
did not need assistance, he saw an unfrozen puddle of liquid that was outside the
driver’s door when everything else around it was frozen. The trooper believed
the liquid to be urine. As the trooper continued to approach, he noticed a pizza
smell from the vehicle and saw an open box of pizza, noticed that Robinson, the
Athens App. Nos. 23CA5 & 23CA6 4
driver, was avoiding eye contact and was “very nervous.” Further, the trooper
observed Robinson had bloodshot eyes and a slurred speech.
{¶7} After one minute of interacting with Robinson and determining that
Robinson was not experiencing issues with his vehicle, the trooper told him “take
care” and began walking back to his patrol cruiser. However, within seconds, the
trooper turned around and went back to Robinson’s vehicle. It was at this point
that the trooper asked Robinson to exit the vehicle and complete field sobriety
tests. Robinson declined any field sobriety testing. The trooper informed
Robinson he was under arrest and asked him to place his hands behind his back.
Robinson did not comply and ran. The trooper caught up with Robinson and
placed him under arrest.
{¶8} Robinson was issued several citations under two case numbers. In
case number 22CRB01607, Robinson was accused of obstructing official
business as a second-degree misdemeanor; resisting arrest as a second-degree
misdemeanor; possession of drug paraphernalia (marijuana), as a minor
misdemeanor; and possession of drugs (marijuana), also as a minor
misdemeanor. And in case number 2022TRC05790, Robinson was charged with
two counts of OVI.
{¶9} The arraignment and future proceedings were held jointly. Robinson
also filed the same motion to suppress for both cases. The State responded to
the motion to suppress and a joint suppression hearing was held. The only
witness was Trooper Jewell and two videos were played during the hearing: the
dash camera video from the cruiser and the trooper’s body camera video.
Athens App. Nos. 23CA5 & 23CA6 5
{¶10} After the trooper’s testimony and arguments by both parties, the trial
court denied the motion to suppress:
Counsel, it’s fairly clear that the initial approach was the
caretaking capacity of law enforcement, and I don’t have any
problem with him approaching and investigating with regards to why
there was a sudden stop. The trooper seems to have been ready to
release Mr. Robinson and turned and walked away, and then he
changed his mind.
...
So bloodshot eyes, speech, nervousness, and the puddle on
the highway.
...
I find this is very close, about whether or not there was enough
for the stop of the second approach.
...
I’m going to find that there is not probable cause at this
moment in the stop, but there is a reasonable articulable suspicion
for expanding the scope. And I will deny the motion to suppress,
based on the Court’s conclusion that there was a reasonable and
articulable suspicion. There was no field sobriety testing. There was
an attempt to start, but there was not, and so that would not be part
of any evidence that would come in if this goes to trial. I don’t believe
that there is anything else argued, and therefore I don’t think there’s
anything else for the Court to rule on.
{¶11} Several days after the trial court’s denial of Robinson’s motion to
suppress, Robinson pleaded no contest to resisting arrest and one count of OVI.
The remaining offenses were dismissed. The trial court accepted Robinson’s
pleas and found him guilty. The court then proceeded to sentence Robinson to
jail for each offense, 90 days and 180 days, respectively. The trial court also
imposed a $500 and $750 fine for each offense, respectively. The trial court,
however, suspended the jail time and some of the fines as long as Robinson
complies with the conditions of his two-year community-control sanction for each
offense.
{¶12} It is from this judgment of conviction entries that Robinson appeals.
Athens App. Nos. 23CA5 & 23CA6 6
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT PLAINLY ERRED WHEN IT HELD THAT THE
INITIAL ENCOUNTER WITH APPELLANT FELL UNDER THE
COMMUNITY CARE TAKING EXCEPTION.
II. THE TRIAL COURT ERRED WHEN IT FOUND THAT
REASONABLE SUSPICION EXISTED THAT WOULD ALLOW A
SEIZURE FOR THE PURPOSE OF INVESTIGATING AN OVI.
III. APPELLANT SUFFERED PREJUDICE DUE TO THE
INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF
HIS RIGHT TO DUE PROCESS AS GUARANTEED BY THE OHIO
AND UNITED STATES CONSTITUTIONS WHEN TRIAL COUNSEL
LIMITED THE MOTION TO SUPPRESS AND FAILED TO
CHALLENGE WHETHER THERE WAS PROBABLE CAUSE TO
ARREST.
ASSIGNMENT OF ERROR I
{¶13} In the first assignment of error, Robinson maintains that the trial
court committed plain error when it determined that the trooper’s initial contact
with Robinson was not a seizure and that the investigation was lawful pursuant to
the community caretaking exception. Robinson asserts that we should review
the trial court’s community caretaking exception determination under the plain
error standard, because, while he failed to raise the issue in his motion to
suppress, he adequately raised and argued it before the trial court. Robinson
claims there was insufficient evidence to support the trial court’s findings.
According to Robinson, his abrupt stopping and turning off the lights fails to
support a reasonable belief that he required immediate assistance for serious
injury or to avoid a loss of life. Rather, the evidence demonstrates that the
trooper activated his overhead lights making the initial encounter a seizure.
Athens App. Nos. 23CA5 & 23CA6 7
{¶14} The State does not address whether our review of the issue is under
plain error and simply asserts that the trooper’s approach of Robinson’s parked
vehicle was not a seizure. The State maintains that Robinson was already
parked and the encounter was consensual with the trooper acting as a caretaker.
Law and Analysis
{¶15} The exclusionary rule bars the use of evidence secured by an
unconstitutional search and seizure. State v. Johnson, 2014-Ohio-5021, ¶ 40.
“[A] motion to suppress is the proper vehicle for raising constitutional challenges
based on the exclusionary rule[.]” State v. French,
72 Ohio St.3d 446, 449
(1995). Crim.R. 12(C)(3) requires that a motion to suppress be filed prior to trial.
Moreover,
Failure by the defendant to raise defenses or objections or to
make requests that must be made prior to trial, at the time set by the
court pursuant to division (D) of this rule, or prior to any extension of
time made by the court, shall constitute waiver of the defenses or
objections, but the court for good cause shown may grant relief from
the waiver.
Crim.R. 12(H).
{¶16} Robinson maintains that we should apply the plain error standard of
review on whether the trial court erred in concluding that the initial encounter was
constitutional pursuant to the community caretaking exception. In order to apply
plain error, we first need to determine whether Robinson forfeited the issue or
whether he waived any challenge to the constitutionality of the initial encounter.
{¶17} “Waiver is the intentional relinquishment or abandonment of a right,”
whereas, forfeiture “is a failure to preserve an objection.” State v. Payne, 2007-
Ohio-4642, ¶ 23. “Appellate courts may consider a forfeited argument, but not a
Athens App. Nos. 23CA5 & 23CA6 8
waived one, under a plain-error analysis.” State v. Trego, 2023-Ohio-1114, ¶ 19
(4th Dist.), citing Payne. Thus, we “held that an appellant’s failure to file a motion
to suppress and further failure to object to evidence at trial on the specific
grounds raised on appeal ‘results in a waiver and is fatal’ to the appellant’s
argument on appeal that the trial court committed reversible error by not
excluding the evidence.” Id. at ¶ 20, citing State v. Chafin,
2017-Ohio-7622, ¶ 19
(4th Dist.).
{¶18} In the matter at bar, it can be argued that Robinson waived any
challenge to the constitutionality of the initial encounter making plain error
inapplicable. This is because Robinson requested the suppression of the
evidence since it was obtained as a “result of an unconstitutionally prolonged
detention in violation of Robinson’s Fourth Amendment right[.]” Robinson
continued to argue how there were no additional facts between the trooper telling
Robinson to “take care” and then re-approaching and prolonging Robinson’s
detention. He concludes the motion maintaining that there was no reasonable
articulable suspicion to extend the stop since there were no new facts.
{¶19} At the suppression hearing, Robinson’s counsel objected to the
State continuing to play more of the body camera video arguing:
this is a single issue motion to suppress, which is whether there was
enough evidence to prolong the detention. We’ve seen everything
we need in order to— related to that, so everything else is beyond
the scope of the actual hearing.
...
It’s that it’s irrelevant to the sole issue of the hearing, which is
whether there was enough facts and circumstances to prolong the
detention beyond the initial interaction.
Athens App. Nos. 23CA5 & 23CA6 9
{¶20} Later in the suppression hearing, Robinson’s counsel argued that
the stop was extended without any new facts and how the trooper’s observations
were all based on the initial encounter and there was nothing new that warranted
the trooper to turn around and go back to Robinson’s car and begin an OVI
investigation. Several minutes later, Robinson’s counsel again reiterated that the
issue is the prolonging of the stop in which he argued that once the trooper told
Robinson to “take care,” he already had all the factors that the trooper is claiming
are the basis for the prolonging of the stop. But that the law requires additional
facts, which Robinson contends did not occur here, and therefore, suppression of
the evidence is warranted.
{¶21} As the record demonstrates, it is debatable that Robinson
intentionally relinquished any challenge to Trooper Jewell’s initial approach and
interaction with him, thus, making plain error analysis inapplicable. However, it is
also arguable that Robinson forfeited the issue by failing to include it in the
motion to suppress. In that case, we must apply plain error in determining
whether the trial court properly determined that the community caretaking
exception applied.
{¶22} “The burden of demonstrating plain error is on the party asserting it.”
State v. Quarterman, 2014-Ohio-4034, ¶ 16. “Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention
of the court.” Crim.R. 52(B). In order to establish plain error, Robinson “must
show that (1) there was an error or deviation from a legal rule, (2) the error was
plain and obvious, and (3) the error affected the outcome of the trial.” State v.
Athens App. Nos. 23CA5 & 23CA6 10
Mohamed,
2017-Ohio-7468, ¶ 26, citing State v. Barnes,
2002-Ohio-68, ¶ 27.
“Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” State v. Long,
53 Ohio St.2d 91, 97 (1978).
{¶23} Appellate review of a motion to suppress presents a mixed question
of law and fact. State v. Burnside, 2003-Ohio-5372, ¶ 8.
When considering a motion to suppress, the trial court
assumes the role of trier of fact and is therefore in the best position
to resolve factual questions and evaluate the credibility of witnesses.
State v. Mills (1992), 62 Ohio St.3d 357, 366,
582 N.E.2d 972.
Consequently, an appellate court must accept the trial court’s
findings of fact if they are supported by competent, credible
evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57,
437
N.E.2d 583. Accepting these facts as true, the appellate court must
then independently determine, without deference to the conclusion
of the trial court, whether the facts satisfy the applicable legal
standard. State v. McNamara (1997), 124 Ohio App.3d 706,
707
N.E.2d 539.
Id.
{¶24} The Fourth Amendment of the United States Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and 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.
{¶25} As relevant here,
The community-caretaking/emergency-aid exception to the
Fourth Amendment warrant requirement allows police officers to stop
a person to render aid if they reasonably believe that there is an
immediate need for their assistance to protect life or prevent serious
injury.
State v. Dunn, 2012-Ohio-1008, syllabus.
Athens App. Nos. 23CA5 & 23CA6 11
{¶26} Thus, the exception “allows a law-enforcement officer with
objectively reasonable grounds to believe that there is an immediate need for his
or her assistance to protect life or prevent serious injury to effect a community
caretaking/emergency-aid stop.” Id. at ¶ 26. And “ ‘ [e]xigency’ denotes the
existence of ‘real immediate and serious consequences’ that would certainly
occur were a police officer to postpone action to get a warrant.” State v. Pine,
2023-Ohio-2191, ¶ 29 (4th Dist.), appeal not accepted,
2023-Ohio-3789, ¶ 29-31,
quoting State v. Parker,
2018-Ohio-3239, ¶ 21 (11th Dist.).
{¶27} The trial court in the matter at bar found that “the initial approach
was the caretaking capacity of law enforcement, and I don’t have any problem
with him approaching and investigating with regards to why there was a sudden
stop.” We find the trial court’s conclusion to be factually supported by competent,
credible evidence, and legally sound.
{¶28} Trooper Jewell was driving and saw Robinson’s vehicle pass by on
the other side of U.S. Route 50. The trooper continued to view Robinson’s
vehicle in his rearview mirror. Within seconds, the trooper saw Robinson’s
vehicle pull off to the side of the road, come to an abrupt stop, and “immediately
turns its lights off.” This was out of the normal and to the trooper, this appeared
to “be a disabled vehicle.” As a trooper, and in his daily operations, he renders
aid to disabled vehicles that he comes across. Thus, the trooper turned around
and approached Robinson’s vehicle because he was concerned the driver
needed assistance and to “make sure that he can get back on the roadway[.]”
We find these circumstances meet the community caretaking exception.
Athens App. Nos. 23CA5 & 23CA6 12
{¶29} We also note that when Trooper Jewell approached Robinson, he
was in a parked vehicle on the side of the road. “ ‘A consensual encounter can
occur when a police officer approaches and questions individuals in or near a
parked car.’ ” (Citations omitted.) State v. McCarthy, 2022-Ohio-4738, ¶ 13 (2d
Dist.), quoting State v. Schott,
1997 WL 254141, *3 (2d Dist. May 16, 1997). The
Second District Court of Appeals emphasized that “no objective justification is
required for an officer to engage in a consensual encounter.” Id. at ¶ 14, citing
Florida v. Bostick,
501 U.S. 429 (1991). As we independently determine the trial
court’s legal conclusion, we can affirm the trial court’s decision on other grounds.
See State v. Jones,
2004-Ohio-7280, ¶ 43 (4th Dist.). Therefore, the initial
encounter was consensual and does not violate Robinson’s constitutional rights.
{¶30} Accordingly, we overrule Robinson’s first assignment of error.
ASSIGNMENT OF ERROR II
{¶31} In the second assignment of error, Robinson argues that the trooper
did not have reasonable articulable suspicion to re-approach him. The trooper’s
reasoning was based on his observations at the initial encounter, and moreover,
they do not rise to the level of reasonable articulable suspicion of impairment.
The bloodshot eyes and slurred speech are the only factors that apply, since
nervousness is normal behavior and the unfrozen puddle was not tested. And
these two factors are insufficient to warrant arresting Robinson for driving under
the influence. Moreover, Robinson maintains that the trooper was “unable to
clearly and consistently describe when and what exactly elevated his initial
approach to a reasonable suspicion” to request Robinson to complete field
Athens App. Nos. 23CA5 & 23CA6 13
sobriety testing and then to arrest him. Robinson concludes by asserting that
this “is the kind of inarticulable hunch that is insufficient to support a finding of
reasonable suspicion.”
{¶32} In response, the State contends that the totality of the
circumstances demonstrate reasonable articulable suspicion to investigate
Robinson’s impairment. The State points out that the trooper observed Robinson
abruptly stop on the side of the road and turn his lights off; an unfrozen puddle
that the trooper believed was urine next to the driver’s door; Robinson avoided
eye contact and was “extremely nervous;” and Robinson had bloodshot eyes and
a slurred speech. Thus, the State maintains the trooper had articulable suspicion
of criminal activity.
Law and Analysis
{¶33} As we previously outlined above, review of a motion to suppress
presents a mixed question of law and fact. Burnside, 2003-Ohio-5372, ¶ 8.
Further, as an appellate court, we accept the trial court’s factual findings if they
are supported by competent, credible evidence since the trial court assumes the
role of trier of fact.
Id. We then independently determine “whether the facts
satisfy the applicable legal standard.”
Id., citing State v. McNamara,
124 Ohio
App.3d 706 (4th Dist. 1997).
{¶34} “ ‘An officer’s temporary detention of an individual during a traffic
stop constitutes a seizure of a person within the meaning of the Fourth
Amendment.’ ” State v. Gurley, 2015-Ohio-5361, ¶ 20 (4th Dist.), quoting State
v. Lewis,
2008-Ohio-6691, ¶ 14 (4th Dist.). We reiterate that The Fourth
Athens App. Nos. 23CA5 & 23CA6 14
Amendment of the United States Constitution protects “against unreasonable
searches and seizures.” A traffic stop is constitutionally valid “if an officer has a
reasonable and articulable suspicion that a motorist has committed, is
committing, or is about to commit a crime.” State v. Mays,
2008-Ohio-4539, ¶ 7,
citing Delaware v. Prouse,
440 U.S. 648, 663 (1979).
{¶35} “To conduct an investigatory stop, the officer must be able to point
to specific and articulable facts which, taken together with rational inferences
derived from those facts, give rise to a reasonable suspicion that the individual is
engaged or about to be engaged in criminal activity.” State v. Kilbarger, 2012-
Ohio-1521, ¶ 15 (4th Dist.). Further, “ ‘[t]he propriety of an investigative stop by a
police officer must be viewed in light of the totality of the surrounding
circumstances.’ ” Id., quoting State v. Freeman,
64 Ohio St.2d 291 (1980),
paragraph one of the syllabus. Moreover, “ ‘[t]he existence of reasonable
suspicion depends on whether an objectively reasonable police officer would
believe that the driver’s conduct constituted a traffic violation based on the totality
of the circumstances known to the officer at the time of the stop.’ ” State v. Lask,
2020-Ohio-1037, ¶ 17 (4th Dist.), quoting State v. Hudson,
2018-Ohio-2717, ¶ 15
(4th Dist.).
{¶36} We first address Robinson’s assertion that the trooper extended the
stop after informing him “take care” and the trooper was thus required to
articulate additional facts to prolong the stop. As we previously noted in the first
assignment of error, Robinson did not challenge the initial encounter. And based
on the facts available for our review, Robinson was voluntarily parked on the side
Athens App. Nos. 23CA5 & 23CA6 15
of a public road. And we previously held “[t]he mere approach and questioning of
persons seated within parked vehicles does not constitute a seizure …, i.e., it is
a consensual encounter.” State v. Jones, 2012-Ohio-1523, ¶ 9 (4th Dist.).
Robinson continued to be voluntarily parked on a public roadway as the trooper
walked away and within seconds turned around and re-approached Robinson.
Thus, under the facts of this case, the trooper could rely on the same set of
observations and factors to articulate the reasonable suspicion to investigate
Robinson’s impairment as there was no initial traffic stop that was prolonged.1
{¶37} The issue then is whether Trooper Jewell had sufficient articulable
facts to support investigating Robinson for impairment. Driving while impaired is
a traffic offense that
law enforcement officers do in fact have a duty to dispel their
concerns regarding impaired drivers before concluding a traffic
stop. Village of Kirtland Hills v. Kunka, 11th Dist. Lake No. 2012–L–
095, 2013-Ohio-738,
2013 WL 792793, ¶ 26. (“Where the officer
possesses a reasonable suspicion that a suspect is guilty of an OVI
offense, he has the authority, if not the duty, to expand the scope of
the stop to conduct further investigation regardless of whether
circumstances exist, as they inevitably will, that support the
conclusion that the suspect is innocent. The suspect’s ultimate guilt
or innocence is not the issue in an investigatory stop, but, rather,
whether reasonable justification exists for continuing the
search/seizure.”)
State v. Burkhart, 2016-Ohio-7534, ¶ 19 (4th Dist.).
{¶38} Both parties reference the Eleventh District Court of Appeals
decision in State v. Evans, 127 Ohio App.3d 56 (11th Dist. 1998), in which the
1
“[T]he detention of a stopped driver may continue beyond [the normal] time frame when additional
facts are encountered that give rise to a reasonable, articulable suspicion of criminal activity beyond
that which prompted the initial stop.” State v. Batchili,
2007-Ohio-2204, ¶ 15, quoting State v.
Howard,
2006-Ohio-5656, ¶ 16 (12th Dist.), citing State v. Myers,
63 Ohio App. 3d 765, 771 (2d
Dist. 1990).
Athens App. Nos. 23CA5 & 23CA6 16
court “noted several factors a court should consider when reviewing the totality of
the circumstances surrounding an officer’s decision to administer field-sobriety
tests.” State v. Coates,
2002-Ohio-2160, *4 (4th Dist.), citing Evans. These
factors include, but are not limited to:
(1) the time and day of the stop (Friday or Saturday night as opposed
to, e.g., Tuesday morning); (2) the location of the stop (whether near
establishments selling alcohol); (3) any indicia of erratic driving
before the stop that may indicate a lack of coordination (speeding,
weaving, unusual braking, etc.); (4) whether there is a cognizable
report that the driver may be intoxicated; (5) the condition of the
suspect's eyes (bloodshot, glassy, glazed, etc.); (6) impairments of
the suspect’s ability to speak (slurred speech, overly deliberate
speech, etc.); (7) the odor of alcohol coming from the interior of the
car, or, more significantly, on the suspect’s person or breath; (8) the
intensity of that odor, as described by the officer (“very strong,”
“strong,” “moderate,” “slight,” etc.); (9) the suspect’s demeanor
(belligerent, uncooperative, etc.); (10) any actions by the suspect
after the stop that might indicate a lack of coordination (dropping
keys, falling over, fumbling for a wallet, etc.); and (11) the suspect's
admission of alcohol consumption, the number of drinks had, and the
amount of time in which they were consumed, if given. All of these
factors, together with the officer's previous experience in dealing with
drunken drivers, may be taken into account by a reviewing court in
determining whether the officer acted reasonably.
Evans at 63, fn 2.
{¶39} And we previously emphasized that “no single one being
determinative of the issue of impairment.” State v. Greene, 2019-Ohio-3155, ¶
13 (4th Dist.). Thus, there is no requirement that a set number must be present
to find reasonable articulable suspicion for Trooper Jewell to investigate
Robinson’s impairment and request administering field sobriety testing. In State
v. Russo, the Eleventh District Court of Appeals upheld the constitutionality of an
investigative OVI stop based on the presence of four of the Evans factors
concluding:
Athens App. Nos. 23CA5 & 23CA6 17
We must look at the totality of the circumstances through the
eyes of Officer Stirewalt, giving due deference to his training and
experience, to determine whether reasonable suspicion existed for
the officer to conduct field sobriety testing. In this case, at least four
of the Evans factors were met. These factors, along with Officer
Stirewalt's experience, established a reasonable articulable
suspicion that further investigation was warranted to determine
whether Mr. Russo should be arrested for OVI.
2020-Ohio-3236, ¶ 45 (11th Dist.).
{¶40} In the case at bar, the trial court in rejecting Robinson’s motion to
suppress summarized the trooper’s observations at the time he requested for
Robinson to exit the vehicle and complete field sobriety testing: “So bloodshot
eyes, speech, nervousness, and the puddle on the highway.” This factual
conclusion is supported by Trooper Jewell’s testimony:
not looking at me in the eyes, just looking around, looking at
something in his car, looking at his phone. I could see his bloodshot
eyes.
...
I mentioned the way he was acting was outside of how I deal
with individuals on a typical disabled vehicle. I gave him no reason
that, in my opinion, other than my presence, to be extremely nervous.
I talked to him very calmly, and he seemed to me, it seems, out of
the ordinary for a typical disabled vehicle stop. [inaudible] I could
smell the pizza, so his bloodshot, glossy eyes, that and the slurred
speech, and a combination of that with the urine outside the car. I
just believed that— I didn’t— when I checked his eyes while he was
in the vehicle, I was trying to, not to impede on [inaudible] I didn’t
want to pull him out of the car— or, not pull him out of the car, ask
him out of the car, because at that point I wanted to err on, is this
more of a disabled vehicle, this is not just simply [inaudible] the
combination of everything, I felt like I needed to— I [inaudible] I
needed to look at everything more.
{¶41} Therefore, as the record demonstrates, four of the Evans factors are
present: the time—midnight; avoiding eye contact and bloodshot/glossy eyes;
slurred speech; and fidgeting with his phone. Additionally, we have Robinson’s
Athens App. Nos. 23CA5 & 23CA6 18
abrupt stopping within seconds of passing the trooper’s cruiser, parking on the
side of the road and turning off all lights, and being “extremely nervous.”
Accordingly, under the totality of the surrounding circumstances, Trooper Jewell
articulated specific facts demonstrating a reasonable and articulable suspicion
that Robinson was driving the vehicle while impaired.
{¶42} Wherefore, Robinson’s second assignment of error is overruled and
the trial court’s decision denying his motion to suppress is affirmed.
ASSIGNMENT OF ERROR III
{¶43} In the third assignment of error, Robinson contends his trial counsel
was ineffective for failing to argue in the motion to suppress that there was no
probable cause to arrest Robinson. Robinson maintains that had his counsel
argued the lack of probable cause, the motion to suppress would have been
granted as the trial court found the case “very close” under the reasonable
suspicion standard. Robinson declined any field sobriety tests and the only
additional fact of impairment was the smell of alcohol, which is insufficient. Thus,
there were no additional facts to warrant probable cause for the arrest.
{¶44} In response, the State asserts Robinson’s counsel was not
ineffective as he filed a motion to suppress and argued the same issues that
Robinson now claims should have been argued. Further, the State argues that
Robinson cannot demonstrate prejudice since the outcome would not have been
different. The State contends that once the trooper had reasonable suspicion to
investigate Robinson’s impairment, the evidence then became clear to
demonstrate probable cause for his arrest.
Athens App. Nos. 23CA5 & 23CA6 19
Law and Analysis
A. Robinson’s Plea
{¶45} Robinson pleaded no contest to resisting arrest and driving while
under the influence and he does not challenge his pleas as being unknowingly,
unintelligently, and involuntarily entered into. We previously held that a “
defendant who pleads guilty waives the right to claim ineffective assistance of
counsel on appeal, except to the extent that counsel’s deficient performance
caused the plea to be less than knowing and voluntary.” State v. Persons, 2003-
Ohio-4213, ¶ 11 (4th Dist.). Other appellate district courts have extended this to
no contest pleas. The Eleventh District Court of Appeals recently reiterated:
“This court repeatedly held that ‘[a] plea of guilty or no contest
waives any prejudice a defendant suffers arising out of his counsel’s
alleged ineffective assistance, except with respect to a claim that the
particular failure alleged impaired the defendant’s knowing and
intelligent waiver of his right to a trial.’ ” (Citations omitted). State v.
Armstrong, 2017-Ohio-625, ¶ 14 (11th Dist.) quoting State v.
Bregitzer, 2012-Ohio-5586, ¶ 17 (11th Dist.). Therefore, a no contest
or guilty plea precludes claims of ineffective assistance regarding
suppression issues because an offender is unable to demonstrate
the prejudice necessary to support such a claim. Id. at ¶ 15.
State v. Smith, 2024-Ohio-3066, ¶ 17 (11th Dist.).
{¶46} Similarly, the Sixth District held that “when a defendant pleads guilty
or no contest, he waives his right to assert an ineffective assistance of counsel
claim on appeal except to the extent the defects complained of caused the plea
to be less than knowing, intelligent, and voluntary.” State v. Miller, 2010-Ohio-
5175, ¶ 18 (6th Dist.), citing State v. Barnett, 73 Ohio App.3d 244 (2d Dist. 1991).
The Second District in State v. Pullen, also found that Pullen’s decision to plead
no contest resulted in the “only other issue of ineffective assistance of trial
Athens App. Nos. 23CA5 & 23CA6 20
counsel that would be cognizable in this appeal is ineffective assistance
adversely affecting the voluntariness and knowing nature” of his plea. 2008-
Ohio-2894, ¶ 52 (2d Dist.).
{¶47} Because Robinson pleaded no contest and does not assert his trial
counsel’s representation affected his decision to enter the plea, we find that he
waived the right to assert his trial counsel was ineffective for failing to argue other
constitutional violations in the motion to suppress.
{¶48} Assuming arguendo that Robinson’s no contest pleas did not waive
his ineffective assistance of counsel argument, we nonetheless find no merit to
his claim.
B. Ineffective Assistance of Counsel
{¶49} To demonstrate ineffective assistance of counsel, Robinson “must
show (1) deficient performance by counsel, i.e., performance falling below an
objective standard of reasonable representation, and (2) prejudice, i.e., a
reasonable probability that, but for counsel’s errors, the proceeding’s result would
have been different.” State v. Short, 2011-Ohio-3641, ¶ 113, citing Strickland v.
Washington,
466 U.S. 668, 687-688, 694 (1984); State v. Bradley,
42 Ohio St.3d
136 (1988), paragraph two of the syllabus. Failure to demonstrate either
prong of this test “is fatal to the claim.” State v. Jones,
2008-Ohio-968, ¶ 14 (4th
Dist.), citing Strickland.
{¶50} Robinson “has the burden of proof because in Ohio, a properly
licensed attorney is presumed competent.” State v. Gondor, 2006-Ohio-6679, ¶
62, citing State v. Calhoun,
86 Ohio St.3d 279, 289 (1999), citing Vaughn v.
Athens App. Nos. 23CA5 & 23CA6 21
Maxwell,
2 Ohio St.2d 299 (1965). “In order to overcome this presumption, the
petitioner must submit sufficient operative facts or evidentiary documents that
demonstrate that the petitioner was prejudiced by the ineffective assistance.”
Id.,
citing State v. Davis,
133 Ohio App.3d 511, 513 (8th Dist. 1999). To demonstrate
prejudice, Robinson “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.”
Strickland at 694.
{¶51} Counsel’s failure to file a motion to suppress is not per se ineffective
assistance of counsel. State v. Walters, 2013-Ohio-772, ¶ 20 (4th Dist.), citing
State v. Madrigal,
87 Ohio St.3d 378, 389 (2000). “[T]he failure to file a motion to
suppress amounts to ineffective assistance of counsel only when the record
demonstrates that the motion would have been successful if made.”
Id. citing
State v. Resendiz,
2009-Ohio-6177, ¶ 29 (12th Dist.).
{¶52} Robinson maintains his trial counsel was ineffective for failing to
include in the motion to suppress a claim that Trooper Jewell lacked probable
cause to arrest him for OVI. The Supreme Court of Ohio held that
[p]robable cause is “defined in terms of facts and
circumstances ‘sufficient to warrant a prudent man in believing that
the [suspect] had committed or was committing an offense.’ ”
(Brackets added in Gerstein.) Gerstein v. Pugh, 420 U.S. 103, 111-
112, 95 S.Ct. 854,
43 L.Ed.2d 54 (1975), quoting
Beck at 91, 85 S.Ct.
223.
State v. Jordan,
2021-Ohio-3922, ¶ 19.
Athens App. Nos. 23CA5 & 23CA6 22
{¶53} “An officer has probable cause to arrest a driver for OVI if all the
facts and circumstances within the officer’s knowledge were sufficient to cause a
prudent person to believe that the individual had committed, or was committing,
OVI.” State v. Linek, 2024-Ohio-6127, ¶ 21 (4th Dist.). Probable cause to arrest
is “less than the amount of evidence needed to prove guilt beyond a reasonable
doubt in a criminal trial.”
Id., citing Adams v. Williams,
407 U.S. 143, 149 (1972).
To determine whether probable cause to arrest exists, a
reviewing court should examine the “totality of the circumstances.”
Illinois v. Gates, 462 U.S. 213, 230-31 (1983). The relevant inquiry
when examining the totality of the circumstances supporting
probable cause “is not whether particular conduct is ‘innocent’ or
‘guilty,’ but the degree of suspicion that attaches to particular types
of noncrimnal [sic.] acts.” Id. at 243-44, n.13.
Linek at ¶ 22.
{¶54} At the time Trooper Jewell placed Robinson under arrest, the
following factors were present to demonstrate probable cause to arrest Robinson
for an OVI offense: (1) abruptly stopping after passing the trooper; (2) parking on
the side of the road and turning all lights off; (3) the time was midnight; (4)
avoided eye contact; (5) was extremely nervous; (6) had bloodshot/glossy eyes;
(7) had slurred speech; (8) was fidgeting with his phone; (9) had an odor of
alcohol on his breath; and (10) declined field sobriety tests.
{¶55} We note that “evidence of erratic driving is not required to support a
conviction for OVI” and instead, the State is solely required to demonstrate
Robinson was impaired while driving. Sate v. Oliver, 2024-Ohio-4542, ¶ 39 (11th
Dist.). Further, “[f]ield-sobriety tests are not required to prove an OVI conviction.”
Athens App. Nos. 23CA5 & 23CA6 23
Cleveland v. Clark,
2024-Ohio-4491, ¶ 41 (8th Dist.), citing Solon v. Hrivnak,
2014-Ohio-3135, ¶ 17 (8th Dist.).
{¶56} We conclude, under the totality of the circumstances, there was
probable cause to arrest Robinson for OVI, and, therefore, the inclusion of such
in Robinson’s motion to suppress would have been a futile act. Thus, Robinson
cannot demonstrate prejudice to support his claim for ineffective assistance of
counsel.
{¶57} Accordingly, we overrule Robinson’s third assignment of error.
CONCLUSION
{¶58} Having overruled Robinson’s three assignments of error, we affirm
the trial court’s judgment entry of conviction.
JUDGMENT AFFIRMED.
Athens App. Nos. 23CA5 & 23CA6 24
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay
the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Athens County Common Pleas 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.
Abele, J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
