CITY OF CLEVELAND v. TERRI ELLIS
No. 105338
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 7, 2017
[Cite as Cleveland v. Ellis, 2017-Ohio-8874.]
BEFORE: Laster Mays, J., E.A. Gallagher, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cleveland Municipal Court Case No. 2016 CRB 017579
Patricia J. Smith
206 S. Meridian Street, Suite A
Ravenna, Ohio 44266
ATTORNEYS FOR APPELLEE
Barbara Langhenry
City of Cleveland Law Director
By: Gina Villa
Assistant City Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant Terri Ellis (“Ellis“) appeals her guilty verdict, asks this court to reverse her convictions, and grant her a new trial, or remand to the trial court for a new sentencing hearing. We affirm.
{¶2} Ellis was charge with one count of assault, a first-degree misdemeanor, in violation of
I. Facts
{¶3} On August 29, 2016, Ellis and Thomas Walker (“Walker“) both entered the parking lot of Home Depot in the city of Cleveland. Ellis was driving a sport utility vehicle and Walker was driving a motorcycle. As Ellis entered the parking lot, Walker honked his horn. According to Walker, Ellis “flipped him off.” Both Ellis and Walker parked their vehicles and entered into Home Depot without incident. Ellis exited first and claims that after she entered her vehicle and was headed to the exit that Walker rammed his shopping car into the side of her vehicle. Walker claims that Ellis was bumping him with her vehicle, and Walker smacked the hood of Ellis‘s vehicle. Ellis exited her vehicle, and testified that she retrieved a stick from her trunk and struck Walker with the stick. (Tr. 6.)
- Ms. Ellis was denied her Sixth Amendment right to effective assistance of cоunsel when her attorney failed to review readily available exculpatory evidence, prompted and allowed her to admit guilt while testifying as a witness, failed to raise a Crim.R. 29 motion at the close of the city‘s case-in-chief, and failed to properly prepare for sentencing; and
- The trial court erred by considering evidence not introduced at trial when determining the appellant‘s sentence and failing to make the statutory findings mandated under R.C. 2929.22 at the sentencing hearing.
II. Ineffective Assistance of Counsel
{¶5} In Ellis‘s first assignment of error, she contends that she was denied effectivе assistance of counsel because her counsel failed to review exculpatory evidence, allowed her to admit her guilt, failed to raise a Crim.R. 29 motion, and failed to prepare her for sentencing.
To establish ineffеctive assistance of counsel, a defendant must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for counsel‘s errors, the proceeding‘s result would have been different. Strickland at 687-688, 694; Bradley at paragraphs two and three of the syllabus.
In evaluating a claim of ineffective assistance of counsel, a court must give great deference to counsel‘s performance. Strickland at 689. “A reviewing court will strongly presume that counsel rendered adequаte assistance and made all significant decisions in the exercise of reasonable professional judgment.” State v. Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.
State v. Jones, 8th Dist. Cuyahoga No. 102260, 2016-Ohio-688, ¶ 14-16.
A. Exculpatory Evidence
{¶6} Ellis claims that her counsel was deficient because he failed to review the video surveillance of the incident at Home Depot, which Ellis claims is exculpatory evidence.
Exculpatory evidence is defined as evidence favorable to the accused, which “if disclosed and used effectively, * * * may make the difference between conviction and acquittal.” State v. Braun, 8th Dist. Cuyahoga No. 91131, 2009-Ohio-4875, ¶ 70, citing United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
{¶7} We find that Ellis‘s claim is without merit. The record reveals that аt trial, the trial court, prosecutor, and defense counsel were unable to review the video due to formatting issues. Yet, Ellis argues that the video would actually show what happened and would have given defense counsel an opportunity to impeach Walker. In other words, Ellis claims that the video evidence would show that Walker hit her vehicle, causing her to get out of the car and hit him with a broomstick. This is not exculpatory evidence. Walker testified to that fact and defense counsel was able to cross-examine him on his memory issues. Ellis does not demonstrate that the video footage would result in her acquittal, especially because she does not contradict the fact that after Walker banged on her hood that she assaulted Walker.
B. Admitted Guilt
{¶8} Additionally, Ellis argues that her counsel‘s performance was deficient because she received minimum to no preparation prior to taking the stand and defense counsel‘s lack of preparation caused her to admit she assaulted Walker on the stand. During direct examination, Ellis‘s counsel asked her about the incident. Ellis testified, “So, I got out of the vehicle. I went to the back and I grabbed the broom. I got out the vehicle, and I hit him with the broom on the side of his arm.” (Tr. 19-20.) Ellis‘s counsel then asked her, “Okay. Why did you do that?” (Tr. 20.) To which Ellis replied, “Because he kept banging on my car * * *.” (Tr. 20.)
To evaluate an ineffective assistance оf counsel claim, a reviewing court must determine whether the attorney‘s performance was deficient, if so,
(Additional citation omitted.) State v. King, 8th Dist. Cuyahogа No. 76696, 2000 Ohio App. LEXIS 4175 (Sept. 14, 2000).
{¶9} We find that Ellis does not demonstrate that her attorney‘s performance was deficient. In her testimony, Ellis gave the court her reason for hitting Walker. This attempt at justification for Ellis‘s action equates to counsel‘s trial strategy.
A strong presumption exists that a liсensed attorney is competent and that the challenged action is the product of sound trial strategy and falls within the wide range of professional assistance. Id. at 689. Generally, debatable trial tactics and strategies do not constitute ineffective assistance of counsel. State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995); State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).
State v. Hines, 8th Dist. Cuyahoga No. 90125, 2008-Ohio-4236, ¶ 15.
Ellis cannot claim that her counsel was ineffective because his strategy did not work.
The trier of fact is best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered tеstimony. State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶ 26, quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24.
State v. Pridgett, 8th Dist. Cuyahoga No. 101823, 2016-Ohio-687, ¶ 21.
The trial court listened, weighed the testimony, and made an unfavorable ruling against
C. Motion for Acquittal
{¶10} Ellis contends that her trial counsel‘s performance was deficient because he failed to rаise a
The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state‘s case.
{¶11} However,
“counsel‘s failure to make a Crim.R. 29 motion for acquittal is not ineffective assistance of counsеl where such a motion would have been fruitless. See Defiance v. Cannon, 70 Ohio App.3d 821, 826-827, 592 N.E.2d 884 (1990); Thomas v. United States, 951 F.2d 902, 905 (S.D.IA.1991) (holding that a failure of defense counsel to raise a meritless claim does not constitute ineffective assistance). See also, State v. Fields, 102 Ohio App.3d 284, 288-289, 656 N.E.2d 1383 (1995); State v. Turner, 3d Dist. Allen No. 1-96-27, 1997 Ohio App. LEXIS 851 (Feb. 27, 1997). A motion for acquittal may be granted by the trial court only where, construing the evidence most strongly in favor of the state, the evidence is insufficient to sustain a conviction. See Crim.R. 29; id. State v. McCroskey, 9th Dist. Wayne No. 96CA0026, 1997 Ohio App. LEXIS 1276 (Apr. 2, 1997).
State v. Scott, 6th Dist. Sandusky No. S-02-026, 2003-Ohio-2797, ¶ 20.
{¶12} Ellis argues that had counsel viewed the video, defense counsel could have impeached Walker‘s testimony and potentially undermined the veracity of Walker‘s testimony. Ellis goes on to state that Walker‘s testimony went unchallenged leading to her
[W]hile it is customary for defense counsel to make a motion for acquittal as a matter of course to test the sufficiency of the state‘s evidence, the failure to follow that course of action did not mean the performance of appellant‘s trial counsel fell below a reasonable standard of representation.
Id. at ¶ 21. We find that defense counsel‘s failure to raise a
D. Improper Preparation for Sentencing
{¶13} Ellis claims that her trial counsel‘s performance was deficient because he did not review the presentence report and made no argument on Ellis‘s behalf to mitigate the sentenсed imposed by the trial court.
Defense counsel has a duty to investigate mitigating circumstances in order to make informed tactical decisions about which information would be most helpful to a client‘s case. State v. Jackson, 10th Dist. Franklin No. 01AP-808, 2002-Ohio-3330, ¶ 84, citing State v. Johnson, 24 Ohio St.3d 87, 90, 494 N.E.2d 1061 (1986). However, out-of-record evidence that is merely cumulative of, or alternative to, other mitigation evidence defense counsel presented does not provide substantive grounds for a claim of ineffective assistance of counsel at mitigation. State v. Combs, 100 Ohio App.3d 90, at 98, 652 N.E.2d 205.
State v. Jackson, 8th Dist. Cuyahoga No. 104132, 2017-Ohio-2651, ¶ 42.
{¶14} Ellis does not demonstrate that her trial counsel‘s performance wаs deficient or that she was prejudiced by his decision not to mitigate during sentencing. In fact,
{¶15} Ellis‘s first assignment of error is overruled.
III. Sentencing
{¶16} In Ellis‘s second assignment of error, she argues thаt the trial court erred by considering the surveillance video evidence that she and the trial court were unable to view. She also argues that the trial court failed to make the statutory findings mandated under
{¶17} An appellate court reviews a misdemeanor sentence fоr an abuse of discretion. Cleveland v. Peoples, 8th Dist. Cuyahoga No. 100955, 2015-Ohio-674, ¶ 13.
“A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).” Id. “When reviewing a sentence, an appellate court should be guided by the presumption that the trial court‘s findings were correct. In the Matter Of: Michael L. Slusser, 140 Ohio App.3d 480, 487, 748 N.E.2d 105 (3d Dist.2000).” State v. Robles, 7th Dist. Mahoning No. 06-MA-112, 2007-Ohio-5241, ¶ 69.
{¶19} Ellis also contends that the trial court failed to make statutory findings at her sentencing hearing.
Failure to consider the sentencing criteria is an abuse of discretion; but when the sentence is within the statutory limit, a reviewing court will presume that the trial judge followed the standards in
R.C. 2929.22 , absent a showing otherwise. State v. Wagner, 80 Ohio App.3d at 95-96, 608 N.E.2d 852 (1992). Failing to explain the statutory reasons behind a certain sentence is only fatal if there are mitigating factors without any aggravating factors given at the sentencing hearing. State v. Flors, 38 Ohio App.3d 133, 140, 528 N.E.2d 950 (1987). A silent record raises the presumption that the trial court considered all of the factors listed inR.C. 2929.12 . State v. Fincher, 76 Ohio App.3d 721, 727, 603 N.E.2d 329 (1991), citing State v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988).
{¶20} We find that Ellis‘s sentence is within the statutory limit. At sentencing the trial court stated, “[f]ine is $1000, 180 days. I‘ll suspend 177 days. I‘m going to suspend $500 of the fine. Take the COP class, anger management class, one-year active probation. I‘m not ordering restitution.” (Tr. 12.) After reviewing the record, we find that the trial court did not explain the statutory reasons behind its sentence but it was
{¶21} Ellis‘s second assignment of error is overruled.
{¶22} Judgment is affirmed.
It is ordered that the appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
ANITA LASTER MAYS, JUDGE
EILEEN A. GALLAGHER, P.J., and PATRICIA ANN BLACKMON, J., CONCUR