Cleveland v. Marsh

2022 Ohio 2587

• Court: Ohio Court of Appeals
• Decided: July 28, 2022
• Docket: 111129
• Status: Published

Opinion

[Cite as Cleveland v. Marsh, 2022-Ohio-2587.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CITY OF CLEVELAND, :

Plaintiff-Appellee, : No. 111129 v. :

KAMILYA D. MARSH, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 28, 2022

Criminal Appeal from the Cleveland Municipal Court Case No. 2020 CRB 005644

Appearances:

Mark D. Griffin, City of Cleveland Director of Law, Aqueelah Jordan, Chief Prosecutor, and Matt Bezbatchenko, Assistant City Prosecutor, for appellee.

Law Offices of Craig W. Smotzer, LLC, and Craig W. Smotzer, for appellant. SEAN C. GALLAGHER, A.J.:

Kamilya Marsh appeals her conviction for aggravated menacing,

following a bench trial, culminating in a ten-day jail term, $50 fine, and court costs.

For the following reasons, we affirm.

Marsh’s daughter (an adult) physically assaulted the victim (a minor)

on a public sidewalk near their homes. The parties lived in the same neighborhood.

After the initial altercation, the victim was angered and remained in the area. Marsh

was alleged to have brandished a firearm at that time in response to the victim’s

continued presence, or at the least told the victim she would shoot her if she did not

leave the area. According to Marsh, however, she does not own a firearm and never

told the victim she would fire a weapon. The victim and her mother (who witnessed

the altercation and Marsh’s conduct) disagreed on the description of the firearm.

The victim claimed it was a silver revolver, while her mother claimed the firearm

was black with no further descriptive information.1 According to Marsh, the victim

remained on Marsh’s property at the time of the alleged offense, but the victim

claimed to be walking on the street at the time. Police officers arrested Marsh for a

first-degree misdemeanor aggravated menacing charge, a violation of Cleveland

Codified Ordinances 621.06.

The pretrial proceedings were lengthy. The court set the case for a

pretrial conference on October 27, 2020, at which time a warrant was issued for

1 Marsh assigns no error to the weight of the evidence in support of her conviction following the bench trial. The trial court expressly found the evidence of the brandishing of the firearm to constitute the aggravated menacing offense. Tr. 65:20-69:4. Marsh’s failure to appear. On December 30, 2020, an assistant Cuyahoga County

Public Defender filed a motion to recall the capias and to issue a new court date. The

court scheduled a hearing on January 8, 2021. The January 8 hearing resulted in a

pretrial being scheduled for January 27, 2021, culminating with a trial date of

May 19, 2021, after a series of pretrial conferences. The victim and her mother did

not appear for the May 19 trial date, and the matter was continued. The court

granted a final continuance over the defense objection and set a new trial date of

June 2, 2021. On June 2, 2021, the case again was called for the trial; however, the

victim and her mother appeared, but Marsh left the courthouse after their arrival.

The court again issued a warrant for Marsh.

The warrant was eventually recalled, and a new pretrial conference

date was set for September 20, 2021. A second assistant public defender appeared

on Marsh’s behalf. Eventually, a new trial date was set for October 27, 2021, with

the help of a third assistant public defender. On October 27, 2021, Marsh appeared

for trial with a fourth assistant public defender, who was “filling in” on the case for

that week.

According to the fourth assistant public defender, she was not

anticipating the victim or her mother to appear and was unprepared to proceed to

trial. After the court provided an opportunity for the fourth assistant public

defender to step outside the courtroom to make phone calls, the trial commenced.

The third assistant public defender appears to have been available because he

entered an appearance to present Marsh’s case in chief. During the city’s case in chief, the fourth assistant public defender, in

representing Marsh, cross-examined the victim and her mother in an attempt to

demonstrate that the victim had been trespassing on Marsh’s property. Marsh also

challenged the victim’s and her mother’s credibility, especially pertinent in light of

the victim and her mother’s inability to agree on the description of the firearm, and

probed the witnesses on their actual state of fear from Marsh’s alleged conduct.

After the city rested its case in chief and the municipal court denied the Crim.R. 29

request for acquittal, the third assistant public defender entered his appearance to

present Marsh’s defense, largely building on the theme from Marsh’s cross-

examination of the city’s witnesses — that the victim had become the aggressor and

was threatening to damage Marsh’s home in an attempt to provoke Marsh or her

daughter into a physical fight and that the victims were not in fear of harm from

Marsh. The defense’s case in chief was in harmony with the overall trial strategy

pursued during the city’s case. Tr. 63:11-19. Marsh also testified to the fact that she

did not own a firearm.

At the conclusion of the trial, the municipal court found Marsh guilty

of the aggravated menacing, and this appeal timely followed. Marsh now claims that

the trial court erred in denying her request for a continuance of the trial based on

the fact that the third assistant public defender was unavailable and that the fourth

assistant public defender to enter an appearance was unprepared to proceed on the

day of trial. In the alternative, Marsh claims that the combined representation of the third and fourth assistant public defenders constituted ineffective assistance of

counsel.

“The grant or denial of a continuance is a matter which is entrusted

to the broad, sound discretion of the trial judge. [Therefore, an] appellate court

must not reverse the denial of a continuance unless there has been an abuse of

discretion.” State v. Caraballo, 8th Dist. Cuyahoga No. 97915, 2012-Ohio-5725,

¶ 29, quoting State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981), Ungar

v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), and State v.

Bayless, 48 Ohio St.2d 73, 101, 357 N.E.2d 1035 (1976). “When determining

whether the trial court should have granted a motion for a continuance: ‘the length

of delay requested, prior continuances, inconvenience, the reasons for the delay,

whether the defendant contributed to the delay, and other relevant factors’” are

considered. Id. at ¶ 30, quoting State v. Landrum, 53 Ohio St.3d 107, 115, 559

N.E.2d 710 (1990).

The basis of Marsh’s request for a continuance of the trial was to

facilitate the third assistant public defender’s appearance because the assistant

public defender filling in for the week declared herself unprepared for trial. Defense

counsel, at the time of her continuance request, did not offer a time frame for when

the third assistant public defender would become available or the reason for his

unavailability. The third assistant public defender ultimately entered an appearance

at the trial. Although in hindsight it appears that a brief delay to the trial would have

facilitated the third public defender’s appearance, and thus it could be argued that the abundance of caution would have militated in favor of the short delay, there is

no prejudice. And further on this point, nothing in the record indicates whether the

municipal court was informed of the fact that the third assistant public defender

could have been available with only a short delay. Nevertheless, the issues

surrounding the denial of a continuance, however, are not dispositive.

If we conclude the assistant public defenders’ representation of

Marsh at trial constitutes ineffective assistance of counsel, the continuance issue is

moot. App.R. 12(A)(1)(c). In that situation, the matter would be remanded for a

new trial. On the other hand, if we find that the representation of Marsh at trial did

not constitute ineffective assistance of counsel, any error with respect to the

continuance would be at best harmless error since despite the lack of a continuance,

Marsh received constitutionally adequate representation from the public defender’s

office during her trial. Crim.R. 52(A). In this particular case, the continuance

request was inextricably intertwined with the ineffective assistance of counsel claim.

State v. Blair, 171 Ohio App.3d 702, 2007-Ohio-2417, 872 N.E.2d 986, ¶ 1 (2d Dist.)

(resolving the lack of continuance of the trial under the ineffective-assistance-of-

counsel claim based on defense counsel’s professed lack of preparedness).

“[A]ppellate courts generally review ineffective assistance of counsel

claims on a de novo basis * * *.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.2d 77, ¶ 53. In order to prevail on an ineffective assistance of counsel

claim, the defendant must show that his trial counsel’s performance was deficient,

and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 49. “[A] court must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance * * *.” Strickland at 689. To establish prejudice,

the defendant must demonstrate there is a “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694.

In this case, Marsh’s entire argument is premised on the fourth

assistant public defender’s self-disparaging proclamation that her representation

during trial would constitute ineffective assistance of counsel because she was not

anticipating the trial to proceed and was merely “filling in” for the third assistant

public defender for the week. Even if accepted as true, the fact that Marsh’s counsel

claimed her performance at trial would be deficient is not in and of itself dispositive.

Whether counsel’s performance was deficient is determined by the actual

representation provided, not from conclusory statements uttered beforehand.

Further, a defense counsel’s legal conclusion as to the existence of ineffective

assistance of counsel, is not binding. It is for this court to decide whether defense

counsel’s conduct constituted ineffective assistance of counsel based on the specific

instances of unprofessional conduct identified by the defendant. State v. Eaton, 8th

Dist. Cuyahoga Nos. 105926 and 105927, 2018-Ohio-1968, ¶ 22 (defendant failed

“to cite any specific instances in the record to support his claim; therefore, he is

unable to demonstrate that counsel’s conduct had an effect” on the verdict). Although counsel’s preparedness factors into the analysis, we must still review the

defense counsel’s conduct at the ensuing trial and cannot presume that counsel’s

performance was unprofessional solely based on her pretrial conclusion.

A claim of ineffective assistance requires the defendant to not only

prove a deficient performance, but that the outcome of the proceeding would have

been different. An offender’s “failure to prove either prong of the Strickland two-

part test makes it unnecessary for a court to consider the other prong.” Eaton at ¶ 1,

citing State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), and

Strickland at 697. “‘In particular, a court need not determine whether counsel’s

performance was deficient before examining the prejudice suffered by the defendant

as a result of the alleged deficiencies. * * * If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice * * * that course

should be followed.’” Id., quoting Strickland.

Marsh claims we can presume that the outcome would have been

different based on the fourth assistant public defender’s self-disparaging statements

alone. The Strickland analysis, which Marsh presented as the controlling standard,

requires a defendant to demonstrate prejudice. Id. It is the defendant’s burden to

demonstrate that the outcome would have been different. State v. Spaulding, 151

Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 94. The Strickland analysis is a

two-part test, and one this court of review must undertake and not assume to exist

based on the demonstration that counsel rendered a deficient performance. Id.;

State v. York, 3d Dist. Union No. 14-21-14, 2022-Ohio-1626, ¶ 94 (“[B]are claims of prejudice or “[c]onclusory statements that the outcome would have been different,

without more, are not enough to carry a defendant’s burden on the issue of

prejudice.”), quoting State v. Williams, 1st Dist. Hamilton No. C-180588, 2020-

Ohio-1368, ¶ 22; State v. Longworth, 12th Dist. Butler No. CA2021-02-015, 2021-

Ohio-4538, ¶ 35 (prejudice cannot be established through speculation and

conjecture), quoting State v. Brown, 9th Dist. Lorain No. 20CA011618, 2021-Ohio-

2540, ¶ 63, and State v. Behrle, 4th Dist. Adams No. 20CA1110, 2021-Ohio-1386,

¶ 40.

A defendant is relieved of the burden to demonstrate prejudice only

in the narrowest of circumstances, one such being counsel’s total absence during a

critical stage of the proceeding. Cronic v. U.S., 466 U.S. 648, 658, 104 S.Ct. 2039,

80 L.Ed.2d 657 (1984) (defense attorney’s trial preparation period was not so short

as to deprive defendant of his Sixth Amendment rights).

Marsh has not claimed, much less even referenced, the relevant case

law derived from Cronic to avoid the necessity of demonstrating prejudice. App.R.

16(A)(7). We will not take up the mantle of proving the existence of error on her

behalf. It is not this court’s obligation to provide analysis and a complete discussion

of the standard of review. State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-

4034, 19 N.E.3d 900, ¶ 19, quoting State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-

2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part),

and Carducci v. Ryan, 714 F.2d 171, 177 (D.C. Cir.1983) (“‘[A]ppellate courts do not

sit as self-directed boards of legal inquiry and research, but [preside] essentially as arbiters of legal questions presented and argued by the parties before them.’”); State

v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 21, quoting State v.

1981 Dodge Ram Van, 36 Ohio St.3d 168, 170, 522 N.E.2d 524 (1988) (“[A]ppellate

courts should not decide cases on the basis of a new, unbriefed issue without

‘giv[ing] the parties notice of its intention and an opportunity to brief the issue.’”).

Inasmuch as Marsh cites Blair, 171 Ohio App.3d 702, 2007-Ohio-

2417, 872 N.E.2d 986, at ¶ 1 (2d Dist.), in support of her request for a new trial, we

find that case unpersuasive with respect to Marsh’s claim that we may presume the

existence of prejudice in this case. In Blair, similar to the current situation, several

assistant public defenders represented the defendant throughout the pretrial

proceedings. The latest to enter an appearance received the case the day before trial

and professed his inability to proceed. The court denied a continuance, and the

assistant public defender sat idle throughout the trial, providing no representation

to the defendant. Id. at ¶ 3. Importantly, in reversing the conviction, the focus was

on the claim of the ineffective assistance of counsel standard as announced under

Strickland. The Second District concluded that the prejudice prong of the

ineffective-assistance-of-counsel claim was not merely presumed, but was based on

other indicia of ineffective assistance to support the prejudice claim. Id. at ¶ 17. The

court was demonstrably troubled by the fact that the public defender’s office in

general had failed to prepare for trial, failed to file a notice of alibi and failed to

timely demand trial. Id. Further, and more important, the court was focused on the

defense counsel’s decision to not participate in trial after having the request for a continuance denied. Id., but see State v. Robinson, 2d Dist. Clark No. 2013 CA 69,

2014-Ohio-3645, ¶ 37 (defense counsel’s four days of preparation time for a felony

rape trial did not violate the defendant’s constitutional rights).

Blair represents a unique situation in which the defense counsel

completely failed to undertake his obligations to the defendant. Cronic, 466 U.S. at

658, 104 S.Ct. 2039, 80 L.Ed.2d 657. Importantly, Blair emphasized the necessity

of demonstrating that the outcome of the proceedings would have been different

rather than merely presuming prejudice based on the trial counsel’s self-serving

claims of rendering ineffective assistance, although arguably the defendant was

relieved of that burden in Blair based on the absolute failure of defense counsel to

provide any representation during the trial under Cronic. None of the factors

contributing to the Second District’s conclusion are present in this case, and Marsh

asks this court to presume prejudice exists solely based on defense counsel’s

statements. Upon the arguments presented for our review, Blair is inapposite.

Further, not even Blair permits a presumption of prejudice and Marsh has not cited,

much less demonstrated the applicability of Cronic and its progeny to his situation

in which his defense attorneys participated in the trial. App.R. 16(A)(7).

Nevertheless, even if we gave Marsh every benefit of the doubt with

respect to the prejudice prong of the analysis, Marsh has not cited any specific

instances in the record to support her claim that either of the defense attorneys’

conduct was deficient. Eaton, 8th Dist. Cuyahoga Nos. 105926 and 105927, 2018-

Ohio-1968, at ¶ 22 (the failure to cite any specific instances in the record to support an ineffective-assistance-of-counsel claim means that the defendant is unable to

demonstrate that counsel’s conduct affected the verdict); App.R. 16(A)(7). Defense

counsel’s self-disparaging legal conclusion before trial is not sufficient to

demonstrate the existence of ineffective assistance of counsel, which must consider

defense counsel’s trial conduct.

In light of the limited arguments presented for review, we overrule

both assigned errors. Despite the fourth assistant public defender’s protestations

otherwise, the record demonstrates that she fulfilled her obligation to provide a

zealous defense and Marsh has not claimed, much less demonstrated, that either

defense attorney missed any defenses or opportunities, much less any specific

instance of unprofessional conduct during the actual trial, that could have affected

the outcome of the proceeding. Further, the continuance requested was for the sole

purpose of permitting the third assistant public defender to appear at trial, which

was accomplished during Marsh’s case in chief, and he confirmed that his

colleague’s trial tactic was in line with the overall theory of the defense he anticipated

pursuing— harmonizing the defense’s trial tactic as between the two attorneys.

Tr. 63:11-19.

Without any other assigned errors having been provided for our

consideration, we affirm the conviction.

It is ordered that 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

municipal court to carry this judgment into execution. Case remanded to the trial

court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

____________________________________ SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, J., and EMANUELLA D. GROVES, J., CONCUR