State v. Gatewood

2023 Ohio 3497

• Court: Ohio Court of Appeals
• Decided: September 29, 2023
• Docket: C-220616
• Status: Published

Opinion

[Cite as State v. Gatewood, 2023-Ohio-3497.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-220616 TRIAL NO. B-1803186 Plaintiff-Appellee, :

vs. : O P I N I O N.

RASHAWN GATEWOOD, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 29, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher, William R. Gallagher and Elizabeth Conkin, for Defendant- Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

KINSLEY, Judge.

{¶1} Defendant-appellant Rashawn Gatewood appeals the judgment of the

Hamilton County Court of Common Pleas denying his R.C. 2953.21 petition for

postconviction relief. For the following reasons, we affirm the court’s judgment.

Factual and Procedural History

{¶2} In November 2019, following a jury trial, Rashawn Gatewood was

convicted of felonious assault with an accompanying gun specification and having

weapons while under disability. The weapons disability stemmed from an

adjudication against Gatewood in juvenile court in 1999 for felonious assault.

Following Gatewood’s 2019 convictions, he was sentenced to an aggregate six-year

prison term.

{¶3} At trial, with respect to the felonious-assault offense, Gatewood claimed

self-defense. Relevant to that affirmative defense, Gatewood testified that he and his

girlfriend went to Dontay Jackson’s home after learning that Jackson had reportedly

inappropriately touched Gatewood’s daughter. Gatewood requested that Jackson

walk outside to discuss the matter. Gatewood testified that after Jackson denied

knowing Gatewood’s daughter, Gatewood threatened to call the police. At this point,

Jackson became angry and reached behind his back and lunged towards Gatewood.

Believing Jackson had a weapon, Gatewood fired his gun and shot Jackson in the leg.

Jackson did not have a weapon. At the time, Gatewood had a concealed-carry permit

issued by the state of Virginia.

{¶4} With respect to the charge for having a weapon while under disability

(“weapons charge”), Gatewood did not stipulate at trial that he had a 1999 juvenile

adjudication for the commission of an offense that if committed by an adult would

have constituted felonious assault. Instead, at trial, he argued that he had been

charged with felonious assault as a juvenile but had admitted to and was adjudicated

delinquent of a lesser offense. Therefore, he maintained that he was not under a

2 OHIO FIRST DISTRICT COURT OF APPEALS

disability. To prove the disability, the state introduced the juvenile complaint that

charged Gatewood with felonious assault as well as the judgment entry indicating that

Gatewood changed his plea to “admit” and was adjudicated delinquent. Notably, the

judgment entry did not state the offense Gatewood admitted.

{¶5} We affirmed Gatewood’s 2019 convictions on direct appeal, overruling

challenges to the admission of certain evidence, including the two firearms and a

bullet-proof vest found in his car, and a challenge to the manifest weight of the

evidence with respect to self-defense. State v. Gatewood, 2021-Ohio-3325, 177 N.E.3d

693 (1st Dist.), appeal not accepted, 165 Ohio St.3d 1495, 2021-Ohio-4515, 178 N.E.3d

533.

{¶6} In February 2021, Gatewood timely filed his R.C. 2953.21 petition for

postconviction relief, asserting an ineffective-assistance-of-counsel claim based on his

trial counsel’s failure to advise him that he could have tried his weapons charge to the

bench instead of the jury. Gatewood argues that this failure prejudiced him because if

he had had the option of trying his charge to the bench, then the jury would not have

learned of his 1999 juvenile adjudication, which Gatewood believes caused the jury to

reject his claim of self-defense and find him guilty of felonious assault. In support of

his petition, Gatewood submitted his affidavit as well as that of his girlfriend, both of

which stated that trial counsel had failed to inform Gatewood that he had a right to

have his weapons charge tried to the bench.

{¶7} The common pleas court denied the petition without a hearing. In its

findings of fact and conclusions of law, the court found that Gatewood had not

demonstrated ineffective assistance of counsel because the decision to try the weapons

charge to the jury was trial strategy, that trial counsel had not waived any of

Gatewood’s fundamental rights, and that even if counsel’s performance was deficient,

it did not prejudice Gatewood. The court then concluded that Gatewood did not

3 OHIO FIRST DISTRICT COURT OF APPEALS

demonstrate grounds for postconviction relief because he could not demonstrate but

for counsel’s alleged error, the outcome of the trial would have been different. In the

alternative, the court also concluded that Gatewood’s postconviction claim was barred

by res judicata.

No Substantive Grounds for Relief

{¶8} In his single assignment of error, Gatewood argues that the trial court

abused its discretion in denying his petition for postconviction relief without

conducting a hearing.

{¶9} To prevail on a postconviction claim, the petitioner must demonstrate a

denial or infringement of his rights in the proceedings resulting in his conviction that

rendered the conviction void or voidable under the state or federal constitution. R.C.

2953.21(A)(1). The petitioner bears the initial burden of demonstrating, through the

petition, the supporting affidavits, and the files and records of the case, “substantive

grounds for relief.” R.C. 2953.21(C). A postconviction claim is subject to dismissal

without a hearing if the petitioner has failed to submit with his petition evidentiary

material setting forth sufficient operative facts to demonstrate substantive grounds for

relief. Id.; State v. Pankey, 68 Ohio St.2d 58, 58-59, 428 N.E.2d 413 (1981); State v.

Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980), syllabus. Conversely, the court

must “proceed to a prompt hearing on the issues” if “the petition and the files and

records of the case show the petitioner is not entitled to relief.” R.C. 2953.21(F).

{¶10} To prevail on a postconviction claim of ineffective assistance of counsel,

the petitioner must demonstrate (1) that counsel’s performance fell an objective

standard of reasonableness, and (2) that counsel’s deficient performance prejudiced

him. Strickland v. Washington, 466 U.S. 668, 694, 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

4 OHIO FIRST DISTRICT COURT OF APPEALS

prejudice, the petitioner must demonstrate that but for counsel’s deficient

performance, there is a reasonable probability that the result of the trial would have

been different. See Strickland at 687; Bradley at 141-142. The failure to make an

adequate showing on either prong is fatal to an ineffective-assistance-of-counsel

claim. See Strickland at 697; State v. Daniels, 2018-Ohio-1701, 111 N.E.3d 708, ¶ 24

(1st Dist.). Courts must refrain from second-guessing strategic decisions of trial

counsel. State v. Sallie, 81 Ohio St.3d 673, 674, 693 N.E.2d 267 (1998). The United

States Supreme Court has recognized that “there are countless ways to provide

effective assistance in any given case. Even the best criminal defense attorneys would

not defend a particular client in the same way.” Strickland at 689. Therefore, the

appellant must overcome a strong presumption that, under the circumstances, the

challenged action is considered sound trial strategy, rather than conduct constituting

ineffective assistance of counsel. Sallie at 674.

{¶11} Generally, the decision whether to try a case to a judge or a jury is a trial-

strategy decision. Daniels at ¶ 25, citing State v. Feltha, 1st Dist. Hamilton No. C-

160574, 2017-Ohio-8640, ¶ 7; State v. Hanks, 10th Dist. Franklin No. 99AP-1289,

2000 Ohio App. LEXIS 5025, 11-12 (Oct. 31, 2000) (“[T]he decision by appellant’s trial

counsel to have a jury trial on the weapon under disability charge constitutes trial

strategy.”) Gatewood, citing to Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160

L.Ed.2d 565 (2004), argues that because the decision of whether to waive a jury, or to

invoke his right to a jury trial, is such a fundamental choice, his trial counsel was

required to advise him of his options in that respect. Specifically, he argues that his

counsel was required to advise him that he had the right to try his weapons charge to

the bench. But Nixon only held that “the defendant * * * has the ultimate authority to

determine whether to plead guilty, waive a jury, testify in his or her own behalf, or

take an appeal.” (Emphasis added.) (Citations omitted.) Id. at 187. Trial counsel did

not waive Gatewood’s right to a jury trial; instead, Gatewood exercised that right.

5 OHIO FIRST DISTRICT COURT OF APPEALS

Contrary to Gatewood’s argument, he does not have a constitutional right to have his

case tried to the bench, and therefore, his counsel was not deficient for failing to advise

him that he could try his case in that manner.

{¶12} Further, a decision was made by Gatewood and his counsel to try his

weapons charge to the jury, and we may not second-guess former counsel’s trial

strategy. Sallie at 674. Gatewood, in his reply to the state’s opposition to his petition,

attached an email from his former trial counsel, arguing that the decision to try the

case to the jury was not strategic. We note that this email was not properly

authenticated, but regardless, that email does not show that Gatewood’s decision to

try his weapons charge to the jury was not trial strategy. Assuming the email came

from Gatewood’s trial counsel, he stated his rationale for pursuing a jury trial on the

weapons charge. Simply because Gatewood’s appellate counsel disagrees with trial

counsel’s strategic approach at trial does not mean it was not trial strategy.

{¶13} Gatewood also advances an argument that his trial counsel was unaware

of the option to bifurcate the weapons charge and the felonious-assault charge by

trying the latter to the jury and the former to the bench. He argues that trial counsel’s

advice to him was deficient based on counsel’s lack of knowledge in this area. But we

note that the email Gatewood submitted from trial counsel does not reveal any such

lack of knowledge. Rather, the email merely offers an explanation for trying the

weapons charge to the jury. It was defense counsel’s perspective that Gatewood had

not in fact admitted to a disabling offense in the 1999 juvenile court case, and his plan

was to raise that issue to the jury. This resounds of strategy, not lack of knowledge.

{¶14} Based on the record before us, Gatewood has not demonstrated that his

trial counsel’s performance was constitutionally deficient. But even if it had been,

Gatewood cannot demonstrate that he was prejudiced by his trial counsel’s

performance.

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶15} Gatewood offers no evidence, other than his conclusion, that he was

prejudiced by his counsel’s failure to advise him that he could try his weapons charge

to the bench. He cannot show, on this record, that the jury’s knowledge of his prior

adjudication was the basis for the jury finding him guilty of felonious assault and

rejecting his claim of self-defense. The trial court instructed the jury that it could not

consider Gatewood’s prior adjudication for any purpose other than to show that he

was under a disability and that the prior adjudication could not be used to prove his

character or that he acted in conformity with that character. We presume that a jury

follows a trial court’s instructions. State v. Bey, 85 Ohio St.3d 487, 491, 709 N.E.2d

484 (1999). Given the instruction to the jury and the evidence of Gatewood’s guilt in

the trial record (he admitted going to the victim’s home, confronting the victim,

threatening the victim, and, when the victim became agitated, shooting the victim),

Gatewood has not demonstrated prejudice. See State v. Crockett, 12th Dist. Fayette

No. CA2014-08-018, 2015-Ohio-1765, ¶ 41 (trial counsel was not ineffective for failing

to try the weapons charge separately given the evidence of guilt and the trial court’s

instruction that a prior conviction could not be used as proof of defendant’s character).

{¶16} Because Gatewood did not demonstrate substantive grounds for relief,

we overrule his single assignment of error, and affirm the common pleas court’s

judgment.

Judgment affirmed.

WINKLER, P.J., and BOCK, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.