[Cite as Cleveland v. Holley, 2020-Ohio-1275.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, : No. 108460
v. :
LORINDA HOLLEY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: April 2, 2020
Criminal Appeal from the Cleveland Municipal Court Case No. 2018-CRB-007390
Appearances:
Barbara A. Langhenry, Cleveland Director of Law, and Karyn J. Lynn and Karrie Howard, Assistant Prosecuting Attorneys, for appellee.
Wargo Law, L.L.C., and Leslie E. Wargo, for appellant.
ANITA LASTER MAYS, J.:
Defendant-appellant Lorinda Holley (“Holley”) appeals her
conviction and asks this court to reverse her conviction. We vacate Holley’s
conviction and remand to the trial court for a new trial. After a bench trial, Holley was found guilty of assault, a first-degree
misdemeanor, in violation of R.C. 2903.13. The trial court sentenced Holley to 180
days of imprisonment, which was suspended, and an $1,000 fine, of which $750 was
suspended. The trial court also referred Holley to the probation department,
because she was on probation at the time of the offense.
I. Facts and Procedural History
At the trial, Chelsey Mounts (“Mounts”) testified that Holley and
Holley’s boyfriend, Anthony Powell (“Powell”) came to Mounts’s home to pick up
the daughter of Mounts’s brother’s girlfriend, Kayla Sender (“Sender”). Sender’s
daughter resides with Holley’s mother but was visiting with Sender on the day of the
incident. Mounts testified that Powell came to the front door, and she answered the
door. At this time, according to Mounts, Holley was in the car, but exited the car
when Powell told Holley to “beat Mounts’s ass.” Mounts testified that Holley swung
and hit her, and Mounts fought back. As the two women were fighting, Powell tried
to break it up and Sender ran to grab mace and her cell phone. Powell eventually
broke up the fight.
Sender testified that Holley is her cousin, and that when Mounts
answered the door, Holley swung on Mounts. As the two women were fighting,
Sender claims that she ran back to get her cell phone to record the incident. She also
grabbed her mace in case Powell tried to assault her. Sender explained that after the
fight, Holley and Powell left the home. Holley’s testimony differs in that she stated Mounts hit her first and
that she was trying to defend herself. She also stated that Powell broke up the fight.
Powell corroborated Holley’s testimony regarding Mounts hitting Holley first.
Powell states that Mounts came out of the house and walked to the car where Holley
was sitting in the driver’s seat. When Holley exited the car, Mounts swung at her,
which started the fight.
At the conclusion of all the testimony, the trial court found Holley
guilty of assault. The trial court stated to Holley, “[i]t does look like there was mutual
combat and I’m very sorry that you lost hair because it seem[s] like you got some of
the worst of it.” (Tr. 174.) At sentencing, the trial court called Holley to speak.
Before she spoke, Holley’s counsel stated to the court, “Ms. Holley has the text
messages that were not included in her file. She said she just printed them out to be
included.” (Tr. 2.) The city’s attorney stated that they had not previously seen the
messages, because they had not been entered into evidence. Later during the
sentencing hearing, the trial court stated, referring to the text messages, “[a]nd
again, as to these, it’s too bad that these were not included in the – yeah, you can
give her back her original, it’s too bad that these were not included in trial.” (Tr. 9.)
The city’s attorney noted that some of the text messages were in the
file. (Tr. 10.) As a result, the trial court stated, “[w]hat I’m gonna do is leave it for
the Court of Appeals, if necessary. I would only indicate that this could’ve been
handled in a much different way, ma’am.” (Tr. 10.) The trial court then proceeded
to sentencing. Holley filed this appeal assigning three assignments of error for
review. We will only review the first assignment of error because it is dispositive of
the case.
I. Appellant was deprived her constitutional rights to due process, a fair trial, and the effective assistance of counsel;
II. The trial court erred in finding appellant guilty of assault because the conviction is against the sufficiency of the evidence; and
III. Appellant’s conviction for assault is against the manifest weight of the evidence.
II. Ineffective Assistance of Counsel
A. Standard of review
To establish a claim for ineffective assistance of counsel, Holley must
show her trial counsel’s performance was deficient, and that the deficient
performance prejudiced the defense so as to deprive Holley of a fair trial. Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To establish prejudice, Holley
must demonstrate there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland at 694.
In evaluating a claim of ineffective assistance of counsel, a court must
give great deference to counsel’s performance. Id. at 689. “A reviewing court will
strongly presume that counsel rendered adequate 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. Thus, “[t]rial strategy
or tactical decisions cannot form the basis for a claim of ineffective counsel.” State
v. Foster, 8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186, ¶ 23, citing State v.
Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980). Additionally, the failure to do a
futile act cannot be the basis for claims of ineffective assistance of counsel, nor could
such a failure be prejudicial. State v. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-
Ohio-1228, at ¶ 37.
B. Whether Appellant was Deprived of her Constitutional Rights to Due Process, a Fair Trial, and the Effective Assistance of Counsel
Holley claims that she was denied the effective assistance of counsel
because her trial counsel did not offer the text messages she provided as evidence
that Holley was not the aggressor in the fight between Holley and Mounts. In order
to reverse Holley’s conviction, she must demonstrate that her counsel’s performance
was deficient, and that deficiency prejudiced her. State v. Jones, 8th Dist. Cuyahoga
No. 102260, 2016-Ohio-688, ¶ 14. Holley argues that these text messages were
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.’” (Citations omitted.) State v. Jones, 8th Dist.
Cuyahoga No. 101311, 2015-Ohio-1818, ¶ 20.
The trial court’s statements that it was too bad the text messages were
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[Cite as Cleveland v. Holley, 2020-Ohio-1275.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, : No. 108460
v. :
LORINDA HOLLEY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: April 2, 2020
Criminal Appeal from the Cleveland Municipal Court Case No. 2018-CRB-007390
Appearances:
Barbara A. Langhenry, Cleveland Director of Law, and Karyn J. Lynn and Karrie Howard, Assistant Prosecuting Attorneys, for appellee.
Wargo Law, L.L.C., and Leslie E. Wargo, for appellant.
ANITA LASTER MAYS, J.:
Defendant-appellant Lorinda Holley (“Holley”) appeals her
conviction and asks this court to reverse her conviction. We vacate Holley’s
conviction and remand to the trial court for a new trial. After a bench trial, Holley was found guilty of assault, a first-degree
misdemeanor, in violation of R.C. 2903.13. The trial court sentenced Holley to 180
days of imprisonment, which was suspended, and an $1,000 fine, of which $750 was
suspended. The trial court also referred Holley to the probation department,
because she was on probation at the time of the offense.
I. Facts and Procedural History
At the trial, Chelsey Mounts (“Mounts”) testified that Holley and
Holley’s boyfriend, Anthony Powell (“Powell”) came to Mounts’s home to pick up
the daughter of Mounts’s brother’s girlfriend, Kayla Sender (“Sender”). Sender’s
daughter resides with Holley’s mother but was visiting with Sender on the day of the
incident. Mounts testified that Powell came to the front door, and she answered the
door. At this time, according to Mounts, Holley was in the car, but exited the car
when Powell told Holley to “beat Mounts’s ass.” Mounts testified that Holley swung
and hit her, and Mounts fought back. As the two women were fighting, Powell tried
to break it up and Sender ran to grab mace and her cell phone. Powell eventually
broke up the fight.
Sender testified that Holley is her cousin, and that when Mounts
answered the door, Holley swung on Mounts. As the two women were fighting,
Sender claims that she ran back to get her cell phone to record the incident. She also
grabbed her mace in case Powell tried to assault her. Sender explained that after the
fight, Holley and Powell left the home. Holley’s testimony differs in that she stated Mounts hit her first and
that she was trying to defend herself. She also stated that Powell broke up the fight.
Powell corroborated Holley’s testimony regarding Mounts hitting Holley first.
Powell states that Mounts came out of the house and walked to the car where Holley
was sitting in the driver’s seat. When Holley exited the car, Mounts swung at her,
which started the fight.
At the conclusion of all the testimony, the trial court found Holley
guilty of assault. The trial court stated to Holley, “[i]t does look like there was mutual
combat and I’m very sorry that you lost hair because it seem[s] like you got some of
the worst of it.” (Tr. 174.) At sentencing, the trial court called Holley to speak.
Before she spoke, Holley’s counsel stated to the court, “Ms. Holley has the text
messages that were not included in her file. She said she just printed them out to be
included.” (Tr. 2.) The city’s attorney stated that they had not previously seen the
messages, because they had not been entered into evidence. Later during the
sentencing hearing, the trial court stated, referring to the text messages, “[a]nd
again, as to these, it’s too bad that these were not included in the – yeah, you can
give her back her original, it’s too bad that these were not included in trial.” (Tr. 9.)
The city’s attorney noted that some of the text messages were in the
file. (Tr. 10.) As a result, the trial court stated, “[w]hat I’m gonna do is leave it for
the Court of Appeals, if necessary. I would only indicate that this could’ve been
handled in a much different way, ma’am.” (Tr. 10.) The trial court then proceeded
to sentencing. Holley filed this appeal assigning three assignments of error for
review. We will only review the first assignment of error because it is dispositive of
the case.
I. Appellant was deprived her constitutional rights to due process, a fair trial, and the effective assistance of counsel;
II. The trial court erred in finding appellant guilty of assault because the conviction is against the sufficiency of the evidence; and
III. Appellant’s conviction for assault is against the manifest weight of the evidence.
II. Ineffective Assistance of Counsel
A. Standard of review
To establish a claim for ineffective assistance of counsel, Holley must
show her trial counsel’s performance was deficient, and that the deficient
performance prejudiced the defense so as to deprive Holley of a fair trial. Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To establish prejudice, Holley
must demonstrate there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland at 694.
In evaluating a claim of ineffective assistance of counsel, a court must
give great deference to counsel’s performance. Id. at 689. “A reviewing court will
strongly presume that counsel rendered adequate 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. Thus, “[t]rial strategy
or tactical decisions cannot form the basis for a claim of ineffective counsel.” State
v. Foster, 8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186, ¶ 23, citing State v.
Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980). Additionally, the failure to do a
futile act cannot be the basis for claims of ineffective assistance of counsel, nor could
such a failure be prejudicial. State v. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-
Ohio-1228, at ¶ 37.
B. Whether Appellant was Deprived of her Constitutional Rights to Due Process, a Fair Trial, and the Effective Assistance of Counsel
Holley claims that she was denied the effective assistance of counsel
because her trial counsel did not offer the text messages she provided as evidence
that Holley was not the aggressor in the fight between Holley and Mounts. In order
to reverse Holley’s conviction, she must demonstrate that her counsel’s performance
was deficient, and that deficiency prejudiced her. State v. Jones, 8th Dist. Cuyahoga
No. 102260, 2016-Ohio-688, ¶ 14. Holley argues that these text messages were
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.’” (Citations omitted.) State v. Jones, 8th Dist.
Cuyahoga No. 101311, 2015-Ohio-1818, ¶ 20.
The trial court’s statements that it was too bad the text messages were
not included at trial, and that the trial court would leave it for the Court of Appeals
to decide, possibly demonstrates that the text messages could have been used as favorable evidence for Holley. The trial court read one of the messages at
sentencing, stating, “the victim says, ‘I had you on the car, I punched you in yo sh*t
when we first started and you went straight for my hair. Ain’t hit me not once, LOL,
and pull up b**ch, I’m waiting.’” (Tr. 9.) The trial courts statements and the text
messages between Mounts and Holley demonstrate that had Holley’s trial counsel
introduced the text messages as evidence, the result of the proceeding could have
been different. We also note that the city prosecutor stated that some of the text
messages were in its file but did not elaborate as to the contents. (Tr. 10.) As a
result, we find that Holley’s trial counsel was deficient in its representation of her by
not introducing the text messages into evidence at trial, and that deficiency
prejudiced Holley.
Holley also argues that she was deprived effective assistance of
counsel because trial counsel did not move the trial court for a new trial before
sentencing. “Crim.R. 33(A)(1) provides for the granting of a motion for new trial
because of irregularity in the proceedings that prevented the defendant from
receiving a fair trial.” State v. Baker, 8th Dist. Cuyahoga No. 95300, 2011-Ohio-
2784, ¶ 36. Unless Holley demonstrates that she was prejudiced or prevented from
having a fair trial, a new trial will not be granted nor any conviction reversed due to
the nonadmission of the text messages. See State v. Zielinski, 12th Dist. Warren
No. CA2010-12-121, 2011-Ohio-6535, ¶ 59. However, after a review of the record
and for the reasons stated above, Holley has demonstrated prejudiced, and thus trial
counsel should have moved the trial court for a new trial. Therefore, we reverse Holley’s convictions and remand to the trial
court for a new trial.
We need not address the other assignments of error because
assignment of error one disposes of the appeal. App.R. 12.
Judgment reversed and remanded.
It is ordered that the appellant recover from appellee 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
PATRICIA ANN BLACKMON, P.J., and RAYMOND C. HEADEN, J., CONCUR