State v. Eberhardt, 2020 Ohio 4124

Background

Victim Susane Malone gave nephew Scott Eberhardt a key ring (for her car and trailer) to work on an inoperable car; she testified she did not give him permission to enter her trailer.
On the evening of September 29, 2018, Malone’s son Michael Kitts checked the trailer, found the front doors unlocked, the large TV unplugged and lying in the living room, and discovered Eberhardt inside; dresser drawers were open and a book bag with a camera (normally stored in a bedroom) was found in the kitchen.
Deputies found no sign of forced entry; Eberhardt admitted possessing the key ring and later the keys were found in the yard of Malone’s mother’s house.
Eberhardt was indicted for second-degree burglary (R.C. 2911.12(A)(2)), tried by jury, convicted, and sentenced to an eight-year prison term to run consecutively to an existing sentence.
On appeal Eberhardt raised four issues: (1) sufficiency/manifest weight of the evidence, (2) trial court’s refusal to replace appointed counsel, (3) ineffective assistance of counsel, and (4) legality/support for the sentence (including consecutive service).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency / Manifest weight of burglary conviction (trespass, habitation, likely presence)	State: testimony and physical evidence (keys, presence inside, disturbed property, no forced entry) satisfy elements beyond a reasonable doubt	Eberhardt: had a key and permission to be there for car repair; trailer not occupied/likelihood of presence not proven	Affirmed. Evidence sufficient; verdict not against manifest weight.
Denial of request to discharge appointed counsel	State/Ct: no good cause shown; counsel prepared; request untimely (day of trial)	Eberhardt: breakdown in relationship; wanted new counsel before jury selection	Affirmed. No abuse of discretion; no complete breakdown in communication.
Ineffective assistance of counsel (failure to subpoena witnesses, failure to object, opening door to other-arrest evidence, prosecutor remarks)	State: counsel’s choices were tactical; omitted witnesses speculative; any errors harmless; no Strickland prejudice	Eberhardt: counsel failed to present alibi witnesses, should have objected and prevented prejudicial evidence/comments	Affirmed. Tactical decisions; defendant failed to show deficient performance or reasonable probability of different outcome.
Sentencing legality and consecutive sentence findings	State: sentence within statutory range; court considered R.C. 2929.11/2929.12 and made required R.C. 2929.14(C)(4) findings for consecutive terms	Eberhardt: court failed to follow sentencing statutes/principles; consecutive sentence unsupported by record	Affirmed. Sentence lawful and within range; record supports sentencing considerations and required consecutive-sentence findings.

Key Cases Cited

Alleyne v. United States, 570 U.S. 99 (jury must find facts that increase mandatory penalties beyond a reasonable doubt)
Hurst v. Florida, 136 S. Ct. 616 (Sixth Amendment jury-right principles regarding factfinding)
State v. Jenks, 61 Ohio St.3d 259 (standard for sufficiency of the evidence review)
State v. Thompkins, 78 Ohio St.3d 380 (manifest-weight review and when reversal is warranted)
Strickland v. Washington, 466 U.S. 668 (two-prong standard for ineffective assistance of counsel)
State v. Foster, 109 Ohio St.3d 1 (sentencing discretion after severance of mandatory judicial findings)
State v. Kalish, 120 Ohio St.3d 23 (appellate review framework for felony sentences post-Foster)
State v. Bonnell, 140 Ohio St.3d 209 (requirement that consecutive-sentence findings appear in the record/entry)
State v. Cowans, 87 Ohio St.3d 68 (standard for substituting appointed counsel)
State v. McKelton, 148 Ohio St.3d 261 (counsel’s duty to give candid appraisal; cited on counsel behavior)