OH8: IAC claim requires offer of proof of merits of search claim

Defendant satisfies the performance prong of Strickland because it was determined his motion to suppress was waived by defense counsel’s failure to file it. Because the merits issue for prejudice was based on consent, there had to be at least an offer of proof as to how he might have won the motion to suppress, and here there was nothing for the court to evaluate to even grant a hearing. State v. Michailides, 2013-Ohio-5316, 2013 Ohio App. LEXIS 5538 (8th Dist. December 5, 2013):

[*P18] In regard to his argument that the police officer’s testimony established the merits of Michailides’s argument attempting to establish the involuntariness of his alleged consent, if given, Michailides suffers from the lack of an evidentiary record on the events leading to his detention in the police car. Generally, courts must consider certain factors in determining whether any consent is voluntary, including (1) the suspect’s custodial status and the length of the initial detention; (2) whether the consent was given in public or at a police station; (3) the presence of threats, promises, or coercive police procedures; (4) the words and conduct of the suspect; (5) the extent and level of the suspect’s cooperation with the police; (6) the suspect’s awareness of his right to refuse to consent and his experience with law enforcement; (7) the suspect’s education and intelligence; and (8) the suspect’s belief that no incriminating evidence will be found. State v. Clark, 8th Dist. Cuyahoga No. 96768, 2012-Ohio-2058.

[*P19] Michailides never proffered the reasons behind his consent, if indeed given, and we cannot review most of the above factors from the facts established on the record. The testifying police officer, despite the patent credibility issues given the discrepancies in his testimony, never testified to whether the officers responded with weapons drawn or other show of force; the length of Michailides’s detention prior to the alleged consent; or Michailides’s education, intelligence, or prior experience with law enforcement. See Clark (defendant’s consent not voluntary and inherently coerced in light of the fact that six officers confronted the defendant in his residence with weapons drawn).

[*P20] In short, and especially in consideration of the fact that the trial court denied the suppression motion without a hearing, the record on this direct appeal, including the sparse proffer of Michailides’s anticipated testimony, does not provide enough factual support to determine whether there is a reasonable probability the suppression motion would have been granted had a hearing been held. As with most ineffective assistance of counsel claims, Michailides is limited to a post-conviction remedy in which additional evidence can be established for review. State v. Hicks, 8th Dist. Cuyahoga No. 60985, 1991 Ohio App. LEXIS 2560 (May 30, 1991), at *1, citing State v. Gibson, 69 Ohio App.2d 91, 430 N.E.2d 954 (8th Dist.1980). Michailides’s second assignment of error is accordingly overruled.