State v. Marneros, 109258

2021-Ohio-2844

STATE OF OHIO, Plaintiff-Appellee, v. MICHAEL MARNEROS, Defendant-Appellant.

No. 109258

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 19, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-638811-B

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Megan Helton, Assistant Prosecuting Attorney for appellee.

Joseph Pagano, for appellant

JOURNAL ENTRY AND OPINION

MARY EILEEN KILBANE, JUDGE

{¶ 1} Defendant-appellant Michael Marneros ("Marneros") appeals his convictions for firearm-related offenses. For the reasons that follow, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

{¶ 2} On April 4, 2019, Marneros was driving with codefendant Wayman Kent ("Kent") in the front passenger seat to a gas station located at the intersection of East 131st Street and Harvard Avenue in East Cleveland. The vehicle belonged to his fiancée Terancita Jones-Green ("Green"), a retired Cleveland police officer. Earlier that morning, Marneros had dropped her off at church.

{¶ 3} The gas station had been reported for high drug activity to the Cleveland Police Vice Unit. In response to the reports, several vice officers were detailed to that area to conduct surveillance for drug activity. That day, Sergeant Jarrod Durichko ("Durichko") was conducting surveillance with Detective Daniel Hourihan ("Hourihan"), Detective Robert Kowza ("Kowza"), and Detective Matthew Pollack ("Pollack"). They are not a traffic enforcement unit and generally do not stop vehicles for traffic violations. Durichko testified that the vice unit focuses mostly on drug enforcement, but also handles cases dealing with prostitution as well as liquor and gambling enforcement.

{¶ 4} The unit was conducting surveillance at the intersection of East 131st Street and Harvard Avenue, which included the gas station Marneros had pulled into. According to Hourihan they were there specifically looking for drug activity and drug dealers. Durichko was undercover at the intersection, observing the gas station and looking for drug activity. The other detectives were in a takedown capacity, which means they were equipped to take action if Durichko viewed any criminal activity. Hourihan was in an unmarked car facing west on East 136th Street and Kowza and Pollack were in another vehicle together behind Hourihan.

{¶ 5} During their surveillance, Durichko witnessed Marneros's vehicle pull into the gas station next to a gas pump, where three separate individuals each came up to the car, briefly leaned into the driver's side window, and then walked away. Durichko testified that it was the three individuals approaching Marneros's vehicle and sticking their head in the window that were "red flags" for him that there was likely a drug exchange occurring. However, no actual hand-to-hand exchange of drugs or money was witnessed by the officers.

{¶ 6} As Marneros was leaving the gas station parking lot, he turned left to head east on Harvard Avenue without using his turn signal. Because Marneros did not use a turn signal, Durichko radioed Hourihan, who was on East 136th Street, to conduct a traffic stop of Marneros's vehicle for a traffic violation. As Marneros passed East 136th Street, Hourihan pulled Marneros over. Upon stopping the car, Hourihan spoke with Marneros and learned his driver's license was under suspension. Hourihan removed Marneros from the vehicle and conducted a pat-down, finding a small bag of marijuana. At this time, Hourihan radioed Pollack and Kowza to assist him with the stop. They arrived and Pollack began speaking with Kent.

{¶ 7} While detained in handcuffs, Marneros called Green to inform her about the traffic stop of her vehicle. After speaking with her, Marneros informed the officers that there was a firearm in the vehicle. Green claimed she had placed her firearm in between the driver's seat and the center front console, which Marneros conveyed to the officers. Upon learning this, the officers searched the vehicle and found the firearm and a box of ammunition under the driver's seat. The firearm's serial number was scratched off. In the meantime, Kent was detained and patted down by Pollack, who found contraband in Kent's underwear. Both men were arrested and taken to jail. Marneros was issued a citation for violating CCO 431.14, signals before changing course, turning or stopping, a minor misdemeanor, and CCO 435.07(A), driving under a suspended/revoked license, a first-degree misdemeanor.

{¶ 8} On April 26, 2019, a Cuyahoga County Grand Jury indicted Marneros and Kent on charges that arose out of the April 4, 2019 traffic stop. Marneros was charged with: Count 1, having weapons while under disability in violation of R.C. 2923.13(A)(2), a third-degree felony; Count 2 improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B), a fourth-degree felony; Count 3 carrying a concealed weapon in violation of R.C. 2923.12(A)(2), a fourth-degree felony; and Count 4 possessing a defaced firearm in violation of R.C. 2923.201(A)(2), a misdemeanor of the first degree. Kent was charged with drug offenses for the drugs found on his person.

{¶ 9} Thereafter, various pretrial hearings occurred. Kent's counsel filed a motion to suppress, and the court held a hearing on the motion on August 6, 2019. Durichko, Hourihan, and Pollack testified at the suppression hearing. The court denied Kent's motion to suppress. Marneros's counsel never filed a motion to suppress on his behalf. A plea agreement was offered by the state, which required both Marneros and Kent to jointly accept the plea agreement, otherwise they would go to trial. The state offered to amend Count 1, to add the attempt statute to make the charge attempted having weapons while under disability, a fourth-degree felony and nolle Counts 2 and 3, leaving Count 4 as indicted. The deal would have reduced Marneros's potential maximum prison sentence from 36 months to 19 months on the having weapons while under disability charge. Marneros declined this offer and chose to take the case to trial.

{¶ 10} On August 7, 2019, a joint jury trial commenced for both Marneros and Kent. The state called Mallory Foran, an employee of the Cuyahoga County Regional Forensic Science Laboratory in the firearm and toolmark section. She testified regarding the operability of the firearm found in Green's vehicle, which she found to be operable as designed. The state also called Leslie Lemmberbrock, who testified as a forensic drug chemist for the Cuyahoga County Medical Examiner's office regarding the drugs found during the traffic stop. Through testing, she was able to identify the substance in Marneros's bag as marijuana and the substances in Kent's bags as oxycodone, acetaminophen, heroin, fentanyl, cocaine, and tramadol. Finally, the state called Durichko, Pollack, and Hourihan. The defense only called Green, who testified regarding the firearm in her vehicle, and John Rogers, Kent's previous employer.

{¶ 11} On August 12, 2019, the jury returned a verdict of guilty on all counts. A sentencing hearing was set for September 19, 2019. Marneros failed to attend this hearing and a capias was issued the same day. On October 18, 2019, Marneros was apprehended. On October 22, 2019, the court proceeded with a sentencing hearing where it imposed an aggregate 36-month sentence, the maximum sentences on all counts, and ordered them to run concurrently: 36 months for the weapons while under a disability charge, 18 months for the improperly handling firearms in a motor vehicle charge, 18 months for carrying a concealed weapon charge, and 6 months for possessing a defaced firearm. The court also advised Marneros of the possibility of a three-year discretionary period of postrelease control.

{¶ 12} This appeal follows. Marneros asserts five assignments of error:

I. Appellant's Sixth Amendment rights were violated because counsel did not file a motion to suppress and did not object to the testimony of Mallory Foran.

II. Appellant's convictions were not supported by sufficient evidence and the trial court erred by denying his motions for acquittal.

III. The convictions were against the manifest weight of the evidence.

IV. The trial court erred by giving the proposed jury instruction on constructive possession over appellant's objection.

V. Appellant's sentence is contrary to law because the record does not support the imposition of maximum sentences on each count.

LAW AND ANALYSIS

{¶ 13} Marneros's first assignment of error alleges his Sixth Amendment rights were violated when he received ineffective assistance of counsel in two distinct instances in his case. Marneros alleges the first instance occurred when his trial counsel failed to file a motion to suppress the firearm found during the initial traffic stop, the basis for all four charges and convictions. Marneros alleges the officers did not have probable cause to justify the traffic stop, which would mean that the firearm should have been suppressed and the state would not have had evidence to support any of his four charges. The second instance of ineffective assistance occurred when trial counsel failed to object to Mallory Foran's ("Foran") testimony regarding operability of the firearm found in his vehicle.

{¶ 14} Article I, Section 10 of the Ohio Constitution and the Sixth Amendment of the United States Constitution grant a defendant the right in all criminal prosecutions to have counsel's assistance for one's defense. The Supreme Court of the United States has reasoned that the right to counsel for one's defense entails having the right to effective assistance of counsel. McMann v Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). To that effect, the United States Supreme...