STATE OF OHIO, Plaintiff-Appellee v. TOVA I. WALLACE-LEE, Defendant-Appellant
Appellate Case No. 2019-CA-19 | Trial Court Case No. 2018-CR-882
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
July 10, 2020
2020-Ohio-3681
TUCKER, P.J.
(Criminal Appeal from Common Pleas Court)
ΟΡΙΝΙΟΝ
Rendered on the 10th day of July, 2020.
MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney, Greene County Prosecutor‘s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
DAVID R. MILES, Atty. Reg. No. 0013841, 1160 East Dayton-Yellow Springs Road, Fairborn, Ohio 45324 Attorney for Defendant-Appellant
TUCKER, P.J.
{¶ 2} We conclude Wallace-Lee has failed to demonstrate that counsel‘s conduct fell below an objective standard of reasonableness. She has also failed to demonstrate error in the jury instructions. We further conclude that the record contains evidence sufficient to support the conviction for murder and that the conviction was not against the manifest weight of the evidence. Finally, we agree with Wallace-Lee that the trial court erred by imposing post-release control for an unclassified offense.
{¶ 3} Accordingly, the judgment of the trial court is reversed regarding the imposition of post-release control. In all other respects, the judgment of the trial court is affirmed. This matter is remanded for the trial court to issue an amended judgment entry in accordance with this opinion.
I. Facts and Procedural History
{¶ 4} On November 3, 2018, Wallace-Lee and Tre-Ana Tarver used Facebook to engage in a series of communications during which the two argued over a man with whom they were both involved. The communications were extended to include Mahogany Bruce and Adra Tarrent, two of Tarver‘s friends. Over the course of approximately seven hours, the online argument escalated; at its culmination, Wallace-Lee and Tarver agreed
{¶ 5} Around 11:00 p.m., Bruce, Tarver and Tarrent arrived at Wallace-Lee‘s home in Bruce‘s car. They parked in a lot located between a church and the backyard of Wallace-Lee‘s home. Tarver exited the car and walked toward Wallace-Lee, who was on the back porch of her home. Wallace-Lee also walked toward Tarver, and the two met in the yard. During a short encounter, Tarver threw a punch at Wallace-Lee, who then stabbed Tarver. One stab wound entered Tarver‘s chest and traveled at least two inches before penetrating her heart. Tarver also was stabbed in her left jaw/cheek area and twice in her back. Tarver died as a result of her injuries.
{¶ 6} Wallace-Lee was indicted on one count of murder in violation of
{¶ 7} At trial, Bruce testified that when the trio arrived at the church parking lot, she and Tarrent stayed with the vehicle while Tarver walked to the edge of the parking lot and into Wallace-Lee‘s backyard. Bruce testified Wallace-Lee, who had been on her back porch when they arrived, walked over to meet Tarver. Bruce testified she observed Tarver swing her fist at Wallace-Lee, but she did not see whether the blow connected. She testified the two women began to engage in a fistfight, and then she observed Tarver fall to the ground while screaming that she had been stabbed. Bruce testified she then ran over and pushed Wallace-Lee away. She further testified that a tall man came and
{¶ 8} Xenia Police Officer Andy Bishop was one of several officers who responded to the scene upon a dispatch regarding a fight.2 He testified that he pulled up to the front of the East Church Street residence and proceeded into the backyard where he observed two officers attempting to render aid to Tarver. He testified that, as he neared the officers, a woman approached him and stated, “You can go ahead and take me to jail now.” Tr. p. 242. Bishop told the woman to calm down and then asked for her name. The woman identified herself as Wallace-Lee, pointed at Tarver and stated, “They tried to come and fight me. I had my knife with me and I stabbed her.” Tr. p. 244.
{¶ 9} Bishop testified that Wallace-Lee‘s grandmother then suggested they go inside the house, as it was cold outside. He accompanied Wallace-Lee inside the house, where Wallace-Lee‘s grandparents and her aunt and uncle were also present. Once they were inside, Bishop asked Wallace-Lee to explain what had occurred. He testified that, according to Wallace-Lee, she and Tarver had been arguing on Facebook about a boy, and they planned to meet to fight. Wallace-Lee told Bishop that she instructed the three women to come to her home for the fight. She also stated that she knew when they arrived at her home, because they posted a message stating, “We‘re outside.” Tr. p. 248. Bishop testified Wallace-Lee further stated “she walked to the backdoor, grabbed a knife off the kitchen table, because she was scared, and walked outside.” Id. Wallace-Lee stated that the victim “swung on her with a closed fist and then [Wallace-Lee] stabbed her.” Tr. p. 249. During the conversation, Wallace-Lee‘s aunt took
{¶ 10} According to Bishop, Wallace-Lee did not indicate that anyone else punched her or that any of the three women had a weapon. He also testified that Wallace-Lee did not claim anyone had approached her door or tried to get inside the home. He further testified that Wallace-Lee did not claim to have told the women to leave the property or that she planned to call the police.
{¶ 11} Xenia Police Detective Matt Miller also testified for the State. According to Miller, he interviewed Wallace-Lee at the police department.3 Miller testified Wallace-Lee told him she received a message from Tarver indicating she had arrived at Wallace-Lee‘s residence. She stated that she then looked out the window, saw the three women, grabbed a knife, and went outside. She stated that she took the knife because she felt threatened. Wallace-Lee initially indicated she then blacked out and could not remember anything else.
{¶ 12} According to Miller, Wallace-Lee later stated that she met Tarver in the middle of the backyard, where the two got into a one-on-one fight. Wallace-Lee told Miller that Tarver hit her in the face, and Wallace-Lee then swung back at Tarver. Wallace-Lee went on to state that the two fell to the ground and then the two other women came and began to engage in the fight. Wallace-Lee told Miller that she then stabbed Tarver.
{¶ 13} Miller also testified that Wallace-Lee later changed her version of the details again and indicated that she and Tarver were in a one-on-one fight and Tarver hit her
{¶ 14} The State presented evidence that some of the messages regarding the fight had been deleted from Wallace-Lee‘s phone. The State also presented evidence that Tarver‘s blood was on the knife and that Wallace-Lee‘s DNA was found on the knife blade and handle. The evidence showed the knife had been found on the back porch of the home.
{¶ 15} In her defense, Wallace-Lee presented the testimony of her uncle, Bryan Wallace.4 Wallace testified he had a felony drug conviction and had been released from federal prison approximately three weeks prior to the incident. At the time of the offense, he was living in his parents’ home along with Wallace-Lee, and he was home on the night of the fight. He testified that he wanted to smoke, so he followed Wallace-Lee out of the house onto the back porch. He testified that Wallace-Lee did not say anything to him as they walked out. Wallace testified that he observed Tarver, Bruce and Tarrent in the parking lot behind the “backyard of the house.” Tr. p. 458. He also observed Tarver step into the yard as Wallace-Lee walked to meet her. According to Wallace, the two women “met in the middle of the yard” where they began to fight. Tr. p. 459. When asked if he observed anybody throw a punch, Wallace responded negatively. However, when asked to describe the fight, he described it as a “fist fight[ ],” “just throwing punches
{¶ 16} The jury convicted Wallace-Lee on both counts. During the sentencing hearing, the trial court merged the offenses, and the State elected to proceed on the murder conviction. The court imposed a sentence of 15 years to life and imposed post-release control for the murder and felonious assault convictions.
{¶ 17} Wallace-Lee appeals.
II. Jury Instructions on Self-defense
{¶ 18} The first assignment of error asserted by Wallace-Lee states:
THE TRIAL COURT ERRED IN ITS INSTRUCTIONS ON SELF-DEFENSE.
{¶ 19} Wallace-Lee argues the trial court‘s instructions on self-defense were improper.
{¶ 20} Jury instructions provided by a trial court “must be a correct, clear, and complete statement of the law applicable to the case.” McBride v. Quebe, 2d Dist. Montgomery No. 21310, 2006-Ohio-5128, ¶ 50, quoting Roberts v. State Farm Mut. Auto. Ins. Co., 155 Ohio App.3d 535, 2003-Ohio-5398, 802 N.E.2d 157, ¶ 48. Normally, courts
{¶ 21} Wallace-Lee first claims the trial court erred by referring to self-defense as an affirmative defense. We note the word “affirmative” was used only once in more than six pages of self-defense instructions. Specifically, when it began the self-defense instruction, the trial court stated, “Tova Wallace-Lee is asserting the affirmative defense known as self-defense as it relates to both charges to wit: Murder and Felonious Assault.” Tr. p. 564-565. The word “affirmative” was not defined, and it was not emphasized by the trial court or the parties. The jury was also correctly instructed that the burden of proof was on the State to demonstrate that Wallace-Lee did not act in self-defense.5
{¶ 22} Wallace-Lee does not explain how this one word resulted in any specific or
{¶ 23} Wallace-Lee next asserts it was inappropriate for the trial court to give an instruction on the definition of “fault.” In support, she states the evidence showed “she abandoned her plans to fight [Tarver]. It was [Tarver] and her cohorts who initiated the action. [Tarver] was a trespasser on the real property where [Wallace-Lee] was residing.”
{¶ 24} As noted in Part III below, a defendant is not entitled to a self-defense finding if she was at fault in creating the situation giving rise to the affray. At the time of trial, the
Fault as used in the definition of self-defense is as follows: The Defendant, Tova Wallace-Lee, was at fault in creating the situation giving rise to the fight if the State proves beyond a reasonable doubt that she chose to confront Tre‘Ana Tarver, or chose to knowingly go to a place where Tre‘Ana Tarver was, or refused to move in a direction away from Tre‘Ana Tarver even when the Defendant, Tova Wallace-Lee‘s actions were otherwise completely lawful.
{¶ 25} This instruction appears to have been based upon cases in which courts have found that a defendant was at fault in creating the situation giving rise to the affray, violated a duty to avoid danger or to retreat when choosing to confront the victim, chose to knowingly go to a place where the victim would, be or refused to move away from the victim, “even when the defendant‘s action was otherwise completely lawful.” See State
{¶ 26} Wallace-Lee does not argue that the instruction was incorrectly stated. Instead, she argues it was not appropriate to give an instruction on fault because the evidence, in her view, showed she was not at fault. Because Wallace-Lee cannot show that the “at fault” definition provided by the trial court caused the jury to reject her claim of self-defense, we cannot find plain error. Further, because the instruction tracked the language used in persuasive case law, and because there was a legitimate question regarding Wallace-Lee‘s fault in initiating the fight, we cannot conclude that the trial court erred by giving the “at fault” instruction.
{¶ 27} Wallace-Lee next complains “the trial court did not state provision one in
{¶ 28}
{¶ 29} Finally, Wallace-Lee asserts that the trial court should have given an instruction on “no duty to retreat.”
{¶ 30} A person generally has a duty to retreat, if possible, before resorting to lethal force. State v. Williford, 49 Ohio St.3d 247, 250, 551 N.E.2d 1279 (1990); State v. Dale, 2d Dist. Champaign No. 2012-CA-20, 2013-Ohio-2229, ¶ 15. “Implicit in the retreat requirement is a value judgment that retreat is preferred to a loss of life resulting from the use of deadly force.” (Citation omitted.) Dale at ¶ 15. “The only exception to this duty to retreat is when the [defendant] is attacked in his own home, in which case there is no duty to retreat * * *.” State v. Eng, 2d Dist. Montgomery No. 14015, 1994 WL 543277, *5 (Sept. 30, 1994). This exception to the duty to retreat, also known as the “castle doctrine,” is codified at
{¶ 31} Wallace-Lee asserts that she had no duty to retreat because Tarver was a trespasser on her property. We first note that there was no dispute that Wallace-Lee invited Tarver to her home to engage in a fight, and there was no evidence that Wallace-Lee told Tarver to leave. Further, there was no dispute that Wallace-Lee was not in her home, or even on the porch, at the time of the deadly fight. The evidence demonstrated that the fight took place in the middle of the back yard. On these facts, Wallace-Lee was not entitled to a jury instruction that she had no duty to retreat.
{¶ 32} Upon review of this record, we find no error, and certainly no plain error, in the jury instructions on self-defense. Accordingly, the first assignment of error is overruled.
III. Sufficiency and Manifest Weight of the Evidence
{¶ 33} The second and third assignments of error asserted by Wallace-Lee are as follows:
APPELLANT‘S CONVICTIONS FOR MURDER AND FELONIOUS ASSAULT ARE BASED UPON INSUFFICIENT EVIDENCE.
APPELLANT‘S CONVICTIONS FOR MURDER AND FELONIOUS ASSAULT ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 34} In both these assignments of error, Wallace-Lee contends the evidence did
{¶ 35} “A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). In such situations, we apply the test from State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), which states:
An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
(Citation omitted.) Id. at paragraph two of the syllabus.
{¶ 36} In contrast, “[a] weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence
{¶ 37} “Although sufficiency and manifest weight are different legal concepts, manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is supported by the manifest weight of the evidence necessarily includes a finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696, 85 N.E.3d 501, ¶ 58 (2d Dist.). As a result, “a determination that a conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.” (Citations omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.
{¶ 38} Finally, and importantly, “[b]ecause the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder‘s determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.” State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).
{¶ 40} As discussed, there was a factual issue concerning the “at fault” element. The jury was appropriately instructed on the “at fault” element and, based upon the evidence, we cannot conclude that the jury‘s resolution of this issue was against the manifest weight of the evidence. The second element requires a defendant to have a bona fide belief that she was in imminent danger of death or great bodily harm and that the only means of escape was the use of force. The test for this element involves “a combined objective and subjective test.” State v. Stargell, 2016-Ohio-5653, 70 N.E.3d 1126, ¶ 50 (2d Dist.), quoting State v. Thomas, 77 Ohio St.3d 323, 330, 673 N.E.2d 1339 (1997). The defendant‘s belief must have been objectively reasonable under the circumstances, and she must have subjectively believed she needed to resort to deadly force to defend herself. Id.
{¶ 41} Aside from Wallace-Lee‘s statement to Detective Miller claiming that the three women “jumped” her before she stabbed Tarver, there was no evidence to support her assertion that she believed she was “in danger of death or great bodily harm.” The
{¶ 42} “Another component contained within the second element is the defendant‘s bona fide belief that the use of force was the only means of escape. Part of this entails a showing that the defendant used ‘only that force that [was] reasonably necessary to repel the attack.’ ” (Citations omitted.) State v. Bundy, 2012-Ohio-3934, 974 N.E.2d 139, ¶ 55 (4th Dist.). “If * * * the amount of force used is so disproportionate that it shows an ‘unreasonable purpose to injure,’ the defense of self-defense is unavailable.” State v. Macklin, 8th Dist. Cuyahoga No. 94482, 2011-Ohio-87, ¶ 27.
{¶ 43} As stated, there was competent, credible evidence in the record upon which
{¶ 44} Upon review of the evidence, we cannot conclude that the jury clearly lost its way in assessing the validity of Wallace-Lee‘s claim that she had a bona fide fear of death or great bodily harm preceding the stabbing or that the force she used was necessary or proportionate.
{¶ 45} The third element of self-defense requires a determination whether Wallace-Lee “violated a duty to retreat” before resorting to the use of deadly force against Tarver. Since, as stated above, Wallace-Lee was not entitled to invoke the castle doctrine, the duty to retreat applied and required her to use any means of retreat reasonably available. See State v. Miller, 149 Ohio App.3d 782, 2002-Ohio-5812, 778 N.E.2d 1103, ¶ 8 (1st Dist.). “What is reasonably available necessarily depends upon the particular facts and circumstances of each case [and] is a question of fact for the trier of fact * * *.” State v. Barnett, 2d Dist. Montgomery No. 14019, 1994 WL 567551, *3 (Aug. 31, 1994).
{¶ 47} The jury did not lose its way in rejecting the self-defense argument raised by Wallace-Lee at the trial. Her conviction was supported by sufficient evidence and it was not against the manifest weight of the evidence.
{¶ 48} The second and third assignments of error are overruled.
IV. Ineffective Assistance of Counsel
{¶ 49} Wallace-Lee‘s fourth assignment of error is as follows:
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
{¶ 50} Wallace-Lee‘s assignment of error raises three issues related to the performance of her trial attorney. First, she contends trial counsel was ineffective for failing to seek suppression of statements she made to the police. She next claims trial counsel should have objected to the instructions given by the trial court regarding self-defense. Finally, she claims that trial counsel should have sought instructions on lesser included offenses rather than basing his trial strategy upon a claim of self-defense.
{¶ 51} To prevail on a claim of ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State v.
{¶ 52} Wallace-Lee first asserts that counsel was ineffective for failing to seek suppression of statements made to Officer Bishop at the scene. In support, she argues she was a suspect and thus entitled to Miranda warnings. Alternatively, she claims her statements were not voluntary because she was “hysterical, crying and screaming.”
{¶ 53} The failure to file a motion to suppress constitutes ineffective assistance of counsel only when the record establishes that the motion would have been successful if made. State v. Robinson, 108 Ohio App.3d 428, 433, 670 N.E.2d 1077 (3d Dist.1996); State v. Blagajevic, 21 Ohio App.3d 297, 299-300, 488 N.E.2d 495 (8th Dist.1985). Thus, we must address the question of whether such a motion was merited.
Until suspects are “in custody,” they do not have a right to warnings under Miranda [v. Arizona], 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966]. See, e.g., State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 13; State v. Frady, 142 Ohio App.3d 776, 780, 757 N.E.2d 12 (2d Dist.2001). Custodial interrogation is ” ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” State v. Roberts, 32 Ohio St.3d 225, 226, 513 N.E.2d 720, n. 1 (1987), quoting Miranda [at 444] * * *. In order to determine if a person is in custody for purposes of Miranda, the court must determine whether there was a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 27, citing California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983).
A seizure equivalent to an arrest exists where there is: (1) an intent to arrest, (2) the seizure is made under real or assumed authority, (3) accompanied by an actual or constructive seizure of the person, and, (4) which is so understood by the person arrested. State v. Walker, 2d Dist. Montgomery No. 24542, 2012-Ohio-847, ¶ 22; State v. Pyle, 2d Dist. Greene No. 2003-CA-35, 2003-Ohio-6664, ¶ 14. “A seizure is an arrest * * * if a ‘reasonable person’ in the suspect‘s position would have understood the situation to constitute a restraint on his freedom of movement of the
degree the law associated with formal arrest.” (Internal citations omitted.) Pyle at ¶ 14. The mere fact that an individual is sitting in the back seat of a police cruiser, with rear doors that do not open from the inside, without more, is not sufficient to establish custody. State v. Harris, 2d Dist. Montgomery No. 13279, 1992 WL 317447, *5 (Nov. 3, 1992). But if the police take actions that would lead a reasonable person in the defendant‘s position to believe that he was going to be detained indefinitely, the encounter is custodial. State v. Wilkins, 2d Dist. Montgomery No. 20152, 2004-Ohio-3917, ¶ 20.
State v. Moody, 2012-Ohio-3390, 974 N.E.2d 1273, ¶ 12-13 (2d Dist.).
{¶ 55} We also note that “[e]ven where Miranda warnings are not required, ‘a confession may [still] be involuntary [and excludable] if on the totality of the circumstances, the defendant‘s will was overcome by the circumstances surrounding the giving of the confession.’ ” In re R.L., 2014-Ohio-5065, 23 N.E.3d 298, ¶ 21 (2d Dist.), quoting In re N.J.M., 12th Dist. Warren No. CA2010-03-026, 2010-Ohio-5526, ¶ 18, citing State v. Fille, 12th Dist. Clermont No. CA2001-08-066, 2002-Ohio-3879, ¶ 15, and Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).
{¶ 56} There is nothing in this record to support a finding that Wallace-Lee was in custody or its equivalent when her statements were made. Nor is there evidence that her will was overborne by Bishop. Wallace-Lee‘s grandmother invited Bishop into the home where he asked Wallace-Lee to explain what had happened. Bishop testified that he was, at that time, merely attempting to ascertain what had occurred. He did not know whether Wallace-Lee was a suspect or the victim of a crime as Wallace-Lee had only
{¶ 57} We conclude that this record contains no indication that Wallace-Lee was in custody or that her statements to Bishop were involuntarily made. Thus, because a motion to suppress would have been meritless, Wallace-Lee‘s trial counsel was not ineffective for failing to file one.
{¶ 58} We next address the claim that counsel was ineffective because he failed to object to the instructions on self-defense. As stated in Part II above, we find no error in the instructions provided; therefore, we cannot say trial counsel was ineffective in this regard.
{¶ 59} Finally, we turn to whether trial counsel was ineffective for pursuing a claim of self-defense rather than seeking instructions on lesser-included offenses or inferior-degree offenses. Specifically, Wallace-Lee asserts counsel should have sought instructions on voluntary manslaughter, involuntary manslaughter (proximate result of aggravated assault), and reckless homicide, rather than relying on a claim of self-defense.
{¶ 60} The Ohio Supreme Court has recognized that a “[f]ailure to request instructions on lesser-included offenses is a matter of trial strategy and does not establish
{¶ 61} In discussing a similar situation, this court has stated:
We agree that the evidence presented at trial could have supported an instruction on aggravated assault. [The defendant] claimed, however, that he had acted in self-defense. Trial counsel could have reasonably concluded that presenting the jury with conflicting theories of the case would have been counterproductive. The theory of self-defense is based upon fear, whereas aggravated assault must be based upon passion or rage. Counsel may have concluded that it would have been more difficult to convince the jury that [the defendant] had been in fear while at the same time presenting evidence that he had acted out of passion or rage. Counsel apparently believed that self-defense was the stronger argument. Moreover, it was the argument that was most consistent with [the defendant‘s] statements to the police.
* * *
Debatable strategic and tactical decisions may not form the basis of a claim of ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy was available. Although [the defendant] points out that self-defense and aggravated assault are “not mutually exclusive,” counsel
could have reasonably concluded that the best tactic was to request an instruction as to only one of these theories. We will not second-guess that decision or categorize it as ineffective assistance.
State v. Baker, 159 Ohio App.3d 462, 2005-Ohio-45, 824 N.E.2d 162, ¶ 11-12 (2d Dist.).
{¶ 62} In this case, trial counsel could have reasonably determined that the evidence supported self-defense rather than manslaughter or reckless homicide. Entitlement to instructions on either voluntary manslaughter or involuntary manslaughter, as requested by Wallace-Lee, would have required a showing that she acted under the influence of sudden passion or in a sudden fit of rage brought on by serious provocation occasioned by Tarver. See
{¶ 63} Similarly, we cannot conclude that trial counsel was ineffective for failing to seek an instruction on reckless homicide. The evidence demonstrated that Wallace-Lee decided to take a knife out of the house to a fight she had pre-arranged. Then when
{¶ 64} “The strategy of defense counsel to refrain from seeking a charge on a lesser included offense will not be second-guessed on appeal.” State v. Pryor, 8th Dist. Cuyahoga No. 55454, 1989 WL 62214, *5 (June 8, 1989). The record fails to disclose why counsel elected not to request those instructions. Without any evidence suggesting trial counsel‘s reason for not seeking the instructions, and given the nature of the evidence presented at trial, we will presume that counsel was motivated by trial strategy.
{¶ 65} The fourth assignment of error is overruled.
V. Post-release Control
{¶ 66} Wallace-Lee‘s fifth assignment of error states:
THE TRIAL COURT IMPROPERLY ADVISED APPELLANT ON POST-RELEASE CONTROL.
{¶ 67} Wallace-Lee argues the trial court improperly imposed a three-year mandatory term of post-release control for the felonious assault conviction. In support, she notes the felonious assault conviction was merged with the murder conviction for purposes of sentencing. She further argues, “[p]ursuant to
{¶ 69} Both parties assert that this error is capable of being remedied via a nunc pro tunc order. We agree. In State v. Howard, 2d Dist. Montgomery No. 28328, 2019-Ohio-5357, we noted:
The Ohio Supreme Court has held that the trial court may correct the improper imposition of post-release control on a murder charge by means of a nunc pro tunc entry and that no resentencing hearing is required. State ex rel. Roberts v. Marsh, 156 Ohio St.3d 440, 2019-Ohio-1569, 128 N.E.3d 222, ¶ 10-11. The supreme court explained that “no resentencing hearing was required in the situation here, because the trial court simply deleted a postrelease-control provision that should not have been included in the initial sentence entry.” Id. at ¶ 11.
{¶ 70} We conclude the trial court erred in sentencing as outlined above. Therefore, the fifth assignment of error is sustained.
{¶ 71} Wallace-Lee‘s fifth assignment of error is sustained and her other assignments of error are overruled. The judgment of the trial court is reversed with respect to the imposition of post-release control, and the matter is remanded to the trial court for purposes of amending the judgment entry. In all other respects, the judgment of the trial court is affirmed.
DONOVAN, J. and HALL, J., concur.
Copies sent to:
MARCY A. VONDERWELL
DAVID R. MILES
Hon. Michael A. Buckwalter