State v. Dover, 2015 Ohio 4785

Dover was convicted of Aggravated Robbery with a firearm specification in Clark County, Ohio.
The victim testified Dover pointed a gun at her back and demanded money; no gun was recovered or introduced into evidence.
Trial defense urged that there was no gun, arguing not proven beyond a reasonable doubt each element of the crime.
On direct appeal, we upheld the conviction and rejected challenges to weight of the evidence and to a potential lesser-included offense instruction for Robbery abandoned at trial.
Dover moved to reopen the appeal on the sole issue of appellate counsel’s effectiveness for not raising trial counsel’s failure to request a Robbery instruction.
The appellate court held trial strategy could justify not requesting the Robbery instruction and found no plain error or manifest injustice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was appellate counsel ineffective for not raising trial counsel’s failure to request Robbery instruction?	Dover asserts ineffective assistance for failure to seek Robbery instruction.	State contends trial strategy supported not requesting the instruction and no prejudice occurred.	No reversible error; no prejudice.

State v. Wine, 140 Ohio St.3d 409 (2014) (courts must give lesser‑included instruction when warranted by the evidence)
Strickland v. Washington, 466 U.S. 668 (1984) (defendant must show deficient performance and prejudice)
State v. LeGrant, 2014-Ohio-5803 (2d Dist. Miami) (plain error standard and ineffective assistance analysis)
State v. Bradley, 42 Ohio St.3d 136 (1989) (standard for ineffective assistance review and reasonable assistance presumption)
State v. Carter, 72 Ohio St.3d 545 (1995) (strong presumption of reasonable assistance; trial strategy defense decisions)
State v. Sallie, 81 Ohio St.3d 673 (1998) (deference to trial strategy in reviewing counsel performance)
State v. Griffie, 74 Ohio St.3d 332 (1996) (trial strategy in withholding lesser‑included instructions)
State v. Clayton, 62 Ohio St.2d 45 (1980) (allocation of lesser‑included offenses as strategic decision)
State v. Lyle, 2015-Ohio-1181 (3d Dist. Allen) (failure to request lesser‑included instruction as trial strategy)
State v. Conley, 2015-Ohio-2553 (2d Dist. Montgomery) (distinguishing when lesser‑included instruction is warranted)
State v. Pullen, 2015-Ohio-552 (2d Dist. Montgomery) (lesser‑included instruction not warranted by facts)
State v. Coots, 2015-Ohio-126 (2d Dist.) (lesser‑included instruction warranted by evidence in some cases)