State v. Dover
2015 Ohio 4785
Ohio Ct. App.2015Background
- Dover was convicted of Aggravated Robbery with a firearm specification in Clark County and appealed.
- Appellate review previously affirmed; Dover sought to reopen for ineffective assistance on trial counsel not requesting Robbery instruction.
- Trial relied on defense that no gun was proven, emphasizing lack of gun testimony and absence of gun recovery.
- Trial court did not give a Robbery instruction; Wine requires lesser-included instructions when warranted.
- Court differentiated between trial strategy and reversible error; whether failure to request Robbery instruction caused manifest injustice.
- Court ultimately held no prejudice established; no plain error; affirmed the trial court’s judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance for failing to request Robbery instruction | Dover's counsel failed to request Robbery; appellate counsel must raise it as error. | Counsel's decision was a trial strategy; no prejudice from not requesting Robbery. | No plain error; no substantial likelihood of different outcome; affirmed. |
Key Cases Cited
- State v. LeGrant, 2014-Ohio-5803 (Ohio Ct. App. 2d Dist. 2014) (plain-error standard for ineffective assistance applies)
- State v. Bradley, 42 Ohio St.3d Met? 538 N.E.2d 373 (Ohio Supreme Court 1989) (framework for ineffective assistance claims)
- State v. Wine, 2014-Ohio-3948 (Ohio Supreme Court 2014) (trial courts must give lesser-included offense instructions when warranted)
- State v. Carter, 72 Ohio St.3d 545, 651 N.E.2d 965 (Ohio Supreme Court 1995) (strong presumption of reasonable professional assistance)
- State v. Sallie, 81 Ohio St.3d 673, 675 (Ohio Supreme Court 1998) (counsel's strategic decisions reviewed with deference)
- State v. Murphy, 91 Ohio St.3d 516, 747 N.E.2d 765 (Ohio Supreme Court 2001) (trial strategy relevance in evaluating performance)
- State v. Griffie, 74 Ohio St.3d 332, 658 N.E.2d 764 (Ohio Supreme Court 1996) (defense strategy decisions generally not ineffective assistance)
- State v. Lyle, 2015-Ohio-1181 (Ohio 3d Dist. Allen 2015) (failure to request lesser-included instruction as trial strategy)
- State v. Conley, 2015-Ohio-2553 (Ohio 2d Dist. Montgomery 2015) (distinguishes when lesser-included instruction warranted)
- State v. Pullen, 2015-Ohio-552 (Ohio 2d Dist. Montgomery 2015) (lesser-included instruction not warranted by facts in some cases)
- State v. Coots, 2015-Ohio-126 (Ohio 2d Dist. Montgomery 2015) (distinguishes impropriety of failure to instruct when not warranted)