State v. Richardson , 2022 Ohio 494 ( 2022 )

[Cite as State v. Richardson, 2022-Ohio-494.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-43
:
v. : Trial Court Case No. 2021-TRC-5488
:
ROLAND RICHARDSON : (Criminal Appeal from
: Municipal Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 18th day of February, 2022.
...........
MARC T. ROSS, Atty. Reg. No. 0070446, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, Appellate Division, 50 East Columbia Street, 4th Floor, Springfield,
Ohio 45502
Attorney for Plaintiff-Appellee
AMY E. BAILEY, Atty. Reg. No. 0088397, P.O. Box 188, Englewood, Ohio 45322
Attorney for Defendant-Appellant
.............
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DONOVAN, J.
{¶ 1} Defendant-appellant Roland Richardson appeals from his conviction for one
count of operating a vehicle while under the influence (OVI), in violation of R.C.
4511.19(A)(1)(h). Richardson filed a timely notice of appeal on July 14, 2021.
{¶ 2} Richardson’s appointed appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the
absence of any non-frivolous issues for appellate review. We notified Richardson of the
Anders filing and gave him an opportunity to file a pro se brief. No pro se brief has been
filed, and the time for doing so has expired.
{¶ 3} Under Anders, we must determine, “after a full examination of all the
proceedings,” whether the appeal is “wholly frivolous.” Anders at 744; Penson v. Ohio,
488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). A frivolous appeal is one that
presents issues lacking arguable merit, which means that, “on the facts and law involved,
no responsible contention can be made that [there is] a basis for reversal.” State v.
Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8, citing State v. Pullen, 2d
Dist. Montgomery No. 19232, 2003-Ohio-6078. “If we find that any issue presented or
which an independent analysis reveals is not wholly frivolous, we must appoint different
appellate counsel to represent the defendant.” Id. at ¶ 7, citing Pullen.
{¶ 4} We have conducted our independent review of the record under Penson, and
we agree with appellate counsel that there are no non-frivolous issues for review. As
such, we affirm the trial court’s judgment.
I. Procedural History
{¶ 5} On June 1, 2021, Richardson was charged with one count of OVI, in violation
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of R.C. 4511.19(A)(1)(h). On June 2, 2021, counsel was appointed by the trial court to
represent Richardson. The record establishes that the trial court held pretrial hearings
on June 11, 2021, and July 6, 2021. On July 7, 2021, a jury trial was held, and
Richardson was found guilty of the charged offense; the trial court sentenced him to 365
days in jail, with 125 days suspended. The trial court also gave Richardson credit for
time served from his date of arrest, May 31, 2021.
{¶ 6} Richardson appeals from his conviction.
II. Analysis
{¶ 7} Appellate counsel has not specifically assigned any potentially meritorious
errors for our review. However, she contends that, based upon her review of the record,
trial counsel was not ineffective in her representation of Richardson. In support,
appellate counsel points out that trial counsel “made several tactical decisions, most
notably: pursuing a jury trial and not having [Richardson] testify.” Appellant’s Brief, p. 7.
{¶ 8} This court reviews alleged instances of ineffective assistance of trial counsel
under the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State
v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). These cases provide that trial
counsel is entitled to a strong presumption that his or her conduct falls within the wide
range of reasonable assistance. Strickland at 689; Bradley at 142. To reverse a
conviction based on ineffective assistance of counsel, it must be demonstrated that trial
counsel's conduct fell below an objective standard of reasonableness and that his or her
errors were serious enough to create a reasonable probability that, but for the errors, the
result of the trial court proceeding would have been different. Bradley at 142.
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{¶ 9} Upon review, we conclude that there is nothing in the record to support a
claim of ineffective assistance of counsel. Trial counsel’s decisions to pursue a jury trial
and not to have Richardson testify were tactical decisions, as appellate counsel has
noted. Debatable strategic and tactical decisions may not form the basis of a claim for
ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy had
been available. State v. Cook, 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992). On the
record before us, there is nothing debatable or unreasonable regarding trial counsel’s
decision to take the matter to trial and/or keep Richardson from testifying.
{¶ 10} Finally, we have conducted an independent review of the record and find
no non-frivolous issues for appeal. We therefore agree with appellate counsel that
Richardson’s appeal is frivolous.
III. Conclusion
{¶ 11} The judgment of the trial court is affirmed.
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TUCKER, P.J. and WELBAUM, J., concur.
Copies sent to:
Marc T. Ross
Amy E. Bailey
Roland Richardson
Hon. Thomas E. Trempe