State v. Ducksworth

2025 Ohio 480

• Court: Ohio Court of Appeals
• Decided: February 12, 2025
• Docket: 2024CA00084
• Status: Published

Opinion

[Cite as State v. Ducksworth, 2025-Ohio-480.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Andrew J. King, J. -vs-

JULIAN DUCKSWORTH Case No. 2024CA00084

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2024CR0252

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 12, 2025

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE BERNIE L. HUNT Prosecuting Attorney 2395 McGinty Road, N.W. Stark County, Ohio North Canton, Ohio 44720

CHRISTOPHER A. PIEKARSKI Assistant Prosecuting Attorney Appellate Division 110 Central Plaza, South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2024CA00084 2

Hoffman, J. {¶1} Defendant-appellant Julian Ducksworth appeals the judgment entered by

the Stark County Common Pleas Court convicting him following jury trial of theft (R.C.

2913.02(A)) and criminal trespass (R.C. 2911.21(A)(1)(D)(1)), and sentencing him to an

aggregate term of incarceration of 180 days. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On January 20, 2024, K.G. was working as the store manager of the Dollar

Tree on Cherry Avenue in Canton, Ohio. Around 7:40 p.m., she observed Appellant

placing items inside a large grocery bag. K.G. told Appellant to drop the bag and stop

stealing. Appellant continued to place items inside the bag.

{¶3} K.G. blocked the store’s exit doors, and asked Appellant to drop the bag

before she would allow him to leave. Appellant said, “[D]on’t make me do this.” Tr. 112.

Appellant pushed through K.G. and the door, exiting the store. K.G. followed Appellant

to the parking lot, where a struggle for the bag ensued. The bag’s straps broke, and all

items were recovered by the store. Appellant walked away.

{¶4} Canton Police Officer Michael Bartel responded to the scene. He watched

the store’s surveillance video and a cell phone video of the incident, from which it

“appeared” Appellant used his body to push through K.G. and out the doors of the store.

Officer Bartel also testified Appellant had been trespassed from the store on September

1, 2023.

{¶5} Appellant was indicted by the Stark County Grand Jury with one count of

robbery with a repeat violent offender specification, and one count of criminal trespass.

The case proceeded to jury trial in the Stark County Common Pleas Court. Stark County, Case No. 2024CA00084 3

{¶6} At trial, K.G. testified while exiting the store, Appellant pushed her, knocking

her to the ground. She testified her chest hurt for several days after the incident. K.G.

told police at the scene Appellant did not touch her. However, at trial K.G. suggested she

might have told police Appellant didn’t touch her in response to a bystander who

suggested to police Appellant choked K.G. She could not recall word-for-word what she

told police at the scene.

{¶7} Appellant testified at trial. Appellant admitted he stole household cleaning

items and food from the store. However, he denied pushing K.G. and knocking her to the

ground while leaving the store.

{¶8} Appellant requested a lesser-included offense jury instruction of theft on the

charge of robbery. The trial court instructed the jury as requested. The jury found

Appellant not guilty of robbery but guilty of the lesser-included offense of theft, and also

of criminal trespass. The trial court sentenced Appellant to 180 days incarceration for

theft and 30 days incarceration for criminal trespass, to be served concurrently, for an

aggregate term of 180 days incarceration. It is from the April 30, 2024 judgment of the

trial court Appellant prosecutes his appeal, assigning as error:

I. APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL.

II. APPELLANT’S ACTIONS WERE NOT THE MOST SERIOUS

CONDUCT CONSTITUTING THE OFFENSE OF THEFT, AND THUS DID

NOT NECESSITATE A MAXIMUM SENTENCE. Stark County, Case No. 2024CA00084 4

I.

{¶9} In his first assignment of error, Appellant argues his trial counsel was

ineffective for requesting a jury instruction on the lesser-included offense of theft, and

putting Appellant on the stand confessing his guilt to the lesser-included offense. Counsel

conceded in opening statement Appellant stole items from the store, and the case turned

solely on whether he pushed K.G. to the ground.

{¶10} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153 (1988). Therefore, in order to prevail on a claim of ineffective assistance

of counsel, Appellant must show counsel's performance fell below an objective standard

of reasonable representation and but for counsel’s error, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668 (1984); State v.

Bradley, 42 Ohio St.3d 136, (1989). In other words, Appellant must show counsel’s

conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied upon as having produced a just result. Id.

{¶11} “Concessions of guilt, in any form, are among the most troublesome actions

a defense counsel can make during representation of a defendant.” State v. Goodwin,

84 Ohio St. 3d 331, 336 (1999). However, claims of concession of guilt, like any action

by counsel a defendant later asserts to constitute ineffective assistance, must be

reviewed under the test established in Strickland. Id. at 336-337. “Concessions of guilt

by defense counsel must be considered on a case-by-case basis. All of the facts,

circumstances, and evidence must be considered.” Id. at 338. When defense counsel

concedes his client's guilt to a charge in an effort to enhance credibility by being candid Stark County, Case No. 2024CA00084 5

and realistic with the jury, such a decision may be construed as tactical or strategic, and

therefore does not constitute ineffective assistance of counsel. Id. at 338–339.

{¶12} Concessions of guilt may be “decisions made as part of a sound trial

strategy to be given deference on review.” State v. Cobb, 2015-Ohio-2752, ¶ 26 (5th

Dist.). This Court held an admission of guilt in order to avoid a more severe sentence

was sound trial strategy:

Appellant's fourth proposed Assignment of Error has no merit.

Having reviewed the entire transcript, this Court concludes that the

concession made by the defense counsel regarding Appellant's guilt was

reasonable in light of the evidence. Appellant admitted to stabbing his son

and causing the death of the thirty-two-month-old child. Counsel's trial

strategy was not to acquit the Appellant, but rather to convince the jury that

they should recommend a life sentence, rather than a death sentence.

Counsel's strategy proved to be successful. Therefore, counsel's admission

of guilt was a reasonable strategic decision and did not constitute deficient

representation. For these reasons, we hereby overrule Appellant's fourth

potential Assignment of Error.

{¶13} State v. Luke, 2004-Ohio-6137, ¶ 31 (5th Dist.).

{¶14} Similarly, in the instant case, counsel’s strategy was not to acquit Appellant,

but to avoid conviction of the felony offense of robbery and it’s attendant repeat violent Stark County, Case No. 2024CA00084 6

offender specification. In this case, as in Luke, counsel’s strategy was successful, and

Appellant was convicted of the misdemeanor offense of theft.

{¶15} Further, Appellant has not demonstrated had counsel not conceded his guilt

to theft and requested a lesser-included offense instruction in accordance with his

testimony, he would have been acquitted of robbery. While some inconsistency existed

between K.G.’s testimony at trial and her prior statement to police, K.G. testified at trial

Appellant pushed her through the door, causing her to fall, and resulting in pain in her

chest for several days. The jury might have found Appellant guilty of robbery, rather than

acquitting him altogether, if only presented with “all-or-nothing” options. We find Appellant

has not demonstrated his trial counsel was ineffective.

{¶16} The first assignment of error is overruled.

II.

{¶17} In his second assignment of error, Appellant argues the trial court erred in

imposing the maximum sentence of 180 days incarceration for theft.

{¶18} Appellant’s argument is based on the sentencing factors set forth in R.C.

However, R.C. 2929.12 applies to felony sentencing. In the instant case,

Appellant was convicted of a misdemeanor offense.

{¶19} Misdemeanor sentencing is generally left to the sound discretion of the trial

court and will not be disturbed upon review if the sentence is within the limits of the

applicable statute. State v. Thadur, 2016-Ohio-417 ¶ 11, citing State v. Smith, 2006-Ohio-

1558 (9th Dist.) ¶ 21. The term “abuse of discretion” connotes more than an error of law

or of judgment; it implies the court's attitude is unreasonable, arbitrary or unconscionable.

State v. Adams, 62 Ohio St.2d 151, 157 (1980). Stark County, Case No. 2024CA00084 7

{¶20} R.C. 2929.21(A) provides:

(A) A court that sentences an offender for a misdemeanor or minor

misdemeanor violation of any provision of the Revised Code, or of any

municipal ordinance that is substantially similar to a misdemeanor or minor

misdemeanor violation of a provision of the Revised Code, shall be guided

by the overriding purposes of misdemeanor sentencing. The overriding

purposes of misdemeanor sentencing are to protect the public from future

crime by the offender and others and to punish the offender. To achieve

those purposes, the sentencing court shall consider the impact of the

offense upon the victim and the need for changing the offender's behavior,

rehabilitating the offender, and making restitution to the victim of the

offense, the public, or the victim and the public.

{¶21} Factors to be considered in misdemeanor sentencing are set forth in R.C.

2929.22(B):

(B)(1) In determining the appropriate sentence for a misdemeanor,

the court shall consider all of the following factors:

(a) The nature and circumstances of the offense or offenses;

(b) Whether the circumstances regarding the offender and the

offense or offenses indicate that the offender has a history of persistent Stark County, Case No. 2024CA00084 8

criminal activity and that the offender's character and condition reveal a

substantial risk that the offender will commit another offense;

(c) Whether the circumstances regarding the offender and the

offense or offenses indicate that the offender's history, character, and

condition reveal a substantial risk that the offender will be a danger to others

and that the offender's conduct has been characterized by a pattern of

repetitive, compulsive, or aggressive behavior with heedless indifference to

the consequences;

(d) Whether the victim's youth, age, disability, or other factor made

the victim particularly vulnerable to the offense or made the impact of the

offense more serious;

(e) Whether the offender is likely to commit future crimes in general,

in addition to the circumstances described in divisions (B)(1)(b) and (c) of

this section;

(f) Whether the offender has an emotional, mental, or physical

condition that is traceable to the offender's service in the armed forces of

the United States and that was a contributing factor in the offender's

commission of the offense or offenses;

(g) The offender's military service record.

(2) In determining the appropriate sentence for a misdemeanor, in

addition to complying with division (B)(1) of this section, the court may

consider any other factors that are relevant to achieving the purposes and

principles of sentencing set forth in section 2929.21 of the Revised Code. Stark County, Case No. 2024CA00084 9

{¶22} In the instant case, the trial court noted at sentencing Appellant had more

than fifty prior petty theft convictions, five prior breaking and entering convictions, and

one prior robbery conviction. We find the trial court did not abuse its discretion in

sentencing Appellant to the maximum term of 180 days incarceration.

{¶23} The second assignment of error is overruled.

{¶24} The judgment of the Stark County Common Pleas Court is affirmed.

By: Hoffman, J. Baldwin, P.J. King, J. concur