Opinion
2023-T-0010
07-24-2023
STATE OF OHIO, Plaintiff-Appellee, v. HOMER RAY BROWN, Defendant-Appellant.
Dennis Watkins, Trumbull County Prosecutor, and Deena L. DeVico, Assistant Prosecutor, Administration Building, (For Plaintiff-Appellee). Martin Yavorcik, (For Defendant-Appellant).
Criminal Appeal from the Eastern District Court Trial Court No. 2022 CRB 00373 E
Dennis Watkins, Trumbull County Prosecutor, and Deena L. DeVico, Assistant Prosecutor, Administration Building, (For Plaintiff-Appellee).
Martin Yavorcik, (For Defendant-Appellant).
OPINION
MATT LYNCH, J.
{¶1} Defendant-appellant, Homer Ray Brown, appeals his conviction for Domestic Violence in the Trumbull County Eastern District Court. For the following reasons, we affirm the judgment of the lower court.
{¶2} On December 19, 2022, Complaints were filed in the Trumbull County Eastern District Court, alleging that Brown had committed Domestic Violence, a misdemeanor of the fourth degree, in violation of R.C. 2919.25(C), and Resisting Arrest, a misdemeanor of the second degree, in violation of R.C. 2921.33(B).
{¶3} On December 22, 2022, Brown entered a plea of no contest to Domestic Violence and guilty to Resisting Arrest. At the plea hearing, the victim, Brown's wife, indicated that she had signed the Rule 11 plea agreement. She stated: "I asked her [the prosecutor] if I could sign that with the understanding that I do not agree with the domestic charge, I would prefer that it go as a disorderly conduct. However, I'm not given that choice. * * * I agree with the rest of it. I do not agree with there being a domestic on his record." She explained that she agreed they needed counseling and Brown needed drug and alcohol treatment, but reiterated that she did not agree "with the domestic being on his record." The prosecutor indicated that, after reviewing the report and the victim's statement, she was surprised "that the officers only did the M4." The Rule 11 Recommendation and Judgment Entry contains a notation that "victim doesn't want the domestic violence charge but agrees with the remainder of the Rule 11 agreement."
{¶4} Following the victim's statements, Brown's counsel indicated that none of the details in the police report "suggested that [Brown] was physically violent with her at all" and argued that "this should be a disorderly conduct." When asked about the plea Brown intended to enter, defense counsel indicated: "I'm gonna to do something different. We're gonna plead to the resisting arrest * * *. We're gonna plead no contest to the other charge and ask you to please consider the arguments that have been made today and the statements made by his wife in the courtroom." The State indicated that, if this matter proceeded to trial, it would have proven that Brown threw household items at the victim, that he laid hands on the victim and made her uncomfortable, she was terrified, and threats were made that he would kill her.
{¶5} The court accepted the guilty plea for Resisting Arrest and the no contest plea for Domestic Violence. For Domestic Violence, Brown was ordered to serve 30 days in jail with 26 suspended and was placed on one year of probation. For Resisting Arrest, he was ordered to serve 90 days in jail, with the term suspended.
{¶6} Brown timely appeals and raises the following assignment of error:
{¶7} "The trial court erred in allowing a conviction despite ineffective assistance of counsel."
{¶8} To demonstrate ineffective assistance of counsel, a defendant must prove "(1) that counsel's performance fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding." State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "To show that a defendant has been prejudiced by counsel's deficient performance, 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, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.
{¶9} "[I]n the context of a no contest plea, in asserting a claim of ineffective assistance of counsel, the defendant must demonstrate that, but for his attorney's error, he would not have entered his no contest plea and instead would have insisted on going to trial." State v. Barnett, 11th Dist. Portage No. 2006-P-0117, 2007-Ohio-4954, ¶ 52. "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[ly] impaired the defendant's knowing and intelligent waiver of his right to a trial." (Citation omitted.) State v. Francis, 11th Dist. Trumbull No. 2009-T-0015, 2010-Ohio-2686, ¶ 92.
{¶10} When evaluating trial counsel's conduct, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Citation omitted.) State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 81. "A reviewing court may not second-guess decisions of counsel which can be considered matters of trial strategy." State v. Stroud, 11th Dist. Ashtabula Nos. 2022-A-0032, et al., 2023-Ohio-569, ¶ 50, citing State v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 56 (2d Dist.). "Debatable strategic and tactical decisions may not form the basis of a claim for ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy had been available." Id.
{¶11} Brown argues that "it is clear from the record the alleged victim's testimony would not have supported a conviction of Domestic Violence," emphasizing her statements at the plea hearing. He contends that "trial counsel was ineffective for allowing Appellant to plead no contest to a charge the State of Ohio would not have been able to legally prove."
{¶12} The State argues that the victim did not deny Brown threatened harm, there was evidence to support a Domestic Violence conviction, and any reasonable counsel would have advised Brown to plead to the offense.
{¶13} It has been consistently held that defense counsel's advisement whether to enter a plea is a matter of strategy, which is not second-guessed by the courts. State v. Caskey, 11th Dist. Lake No. 2010-L-014, 2010-Ohio-4697, ¶ 31 ("[t]he decision to advise a criminal defendant to enter a guilty plea is a strategic decision"); State v. Davis, 6th Dist. Lucas No. L-16-1313, 2018-Ohio-2984, ¶ 31 ("[t]he decision to accept a plea agreement is undeniably strategic") (citation omitted). While it may be argued that the State did not have a strong case, there are a multitude of reasons why a defendant, under the counsel of his attorney, might enter a guilty or no contest plea, including that "a defendant may want to take responsibility for his crime, a defendant may wish to avoid the attention of a public trial or a defendant may simply want the case to be over and spare himself (and perhaps also his family) the time and stress of going through a trial." State v. Musleh, 8th Dist. Cuyahoga No. 105305, 2017-Ohio-8166, ¶ 29 (rejecting an ineffective assistance claim based on the argument that defendant received "no benefit" from entering a guilty plea). See also State v. Talley, 11th Dist. Lake Nos. 2017-L-143 and 2017-L-144, 2018-Ohio-5065, ¶ 34-40 (rejecting the argument that counsel was ineffective and a guilty plea was not entered knowingly and voluntarily, emphasizing that a defendant may choose to plead guilty to avoid trial and reduce the likelihood of a maximum sentence). While it is accurate that trial counsel indicated at the plea hearing that he believed there was limited or weak evidence to support a Domestic Violence conviction, a decision to enter a plea rather than proceed to trial may still be advisable. This is why appellate courts do not second-guess defense counsel's strategic choices.
{¶14} Brown emphasizes that the victim made statements at the plea hearing indicating that her testimony, if given at trial, would not support the Domestic Violence conviction, questioning how a plea would be advisable under these circumstances. Brown was charged with Domestic Violence under R.C. 2919.25(C): "No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member." At the plea hearing, the victim indicated several times that she did not want Brown to have "a domestic on his record" and disagreed with that charge. The fact that she did not wish for Brown to face a Domestic Violence conviction and its consequences for the incident does not establish that the offense did not happen or that the State could not prove its case at trial. She indicated that her statements to police that she was "terrified" after the incident did not mean she was afraid of Brown but merely that she was "terrified that he's not going to be able to get the help that he needs" for mental health issues. It would appear that, in the context of discussing an alleged domestic violence incident with police immediately after its occurrence, a statement of being terrified would relate to Brown's conduct toward her and not a desire for him to receive treatment. Although Brown argues that this testimony would have raised reasonable doubt at trial, it is impossible to anticipate what the victim may or may not have testified to at trial had the matter proceeded. We cannot speculate as to her testimony or what other evidence may have been presented or admissible, such as police statements or body camera evidence.
{¶15} Courts have rejected ineffective assistance claims that arise from an argument that the State had a weak case against the defendant and, thus, the defendant should not have been counseled to enter a plea to a charge. In State v. Nickelson, 4th Dist. Lawrence No. 09CA8, 2009-Ohio-7006, the court rejected the argument that counsel was ineffective for advising a defendant to enter a plea agreement where the prosecution had a "weak case," observing that "any evaluation concerning the strengths or weaknesses of the prosecution's case is a question of trial strategy or tactics, and such matters are not generally reviewed for ineffective assistance claims." Id. at ¶ 7. In State v. Miller, 7th Dist. Jefferson No. 98-JE-51, 2001 WL 1155853 (Sept. 26, 2001), the court rejected an argument that counsel was ineffective by recommending the defendant enter a guilty plea where the prosecutor had certified that it did not have a reasonable probability of succeeding at trial. The court found that the prosecution, "even with what appears to be a weak case, could have proceeded with prosecution, or could have uncovered new evidence to strengthen its case," and this justified a finding that counsel "used a reasonable trial tactic" in recommending a plea agreement. Id. at *6. We reiterate that we cannot second-guess matters of trial strategy or determine the strength of the State's case at this stage of the proceedings. Counsel's strategic decisions fell "within the range of professionally reasonable judgments." Strickland, 466 U.S. at 699, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶16} The sole assignment of error is without merit.
{¶17} For the foregoing reasons, Brown's conviction for Domestic Violence in the Trumbull County Eastern District Court is affirmed. Costs to be taxed against appellant.
JOHN J. EKLUND, P.J., EUGENE A. LUCCI, J., concur.