[Cite as State v. McWay, 2018-Ohio-3618.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO, CASE NO. 1-17-42 PLAINTIFF-APPELLEE,
v.
ROSS M. MCWAY, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court Trial Court No. CR20170036
Judgment Affirmed
Date of Decision: September 10, 2018
APPEARANCES:
Nikki Trautman Baszynski for Appellant
Jana E. Emerick for Appellee Case No. 1-17-42
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Ross M. McWay (“McWay”) appeals the
judgment of the Allen County Court of Common Pleas, alleging (1) that the trial
court erred in denying his motion for a mistrial; (2) that his conviction for
aggravated murder was against the manifest weight of the evidence; and (3) that he
was denied his right to the effective assistance of counsel. For the reasons set forth
below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} McWay had been in a relationship with Wendy Jeffers (“Jeffers”) for
about one year as of January, 2017. Tr. 261, 364-365. In 2016, McWay was
incarcerated, awaiting a trial scheduled on a charge not related to this present case.
Tr. 249. An inmate incarcerated with McWay, Casey Smith (“Smith”), later
testified at trial that Jeffers visited McWay at the jail on January 1, 2017, and broke
up with him. Tr. 244. Smith also testified that, after McWay had this conversation
with Jeffers, McWay told him that he was going to kill Jeffers when he was released
from prison by “chok[ing] her out” and that he was “going to wear a sleeve on his
arm so no DNA would show * * *.” Tr. 243-244. Two other inmates—Tyler
Bradford (“Bradford”) and Anthony Lehman (“Lehman”)—testified at trial that
they heard McWay make these statements to Smith. Tr. 293-294, 354.
{¶3} On January 13, 2017, McWay was released from jail after he was tried
and acquitted of the charge against him. Tr. 367. IC, Jeffers’s son, testified at trial
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that he saw McWay on his mom’s property on the evening of January 13, 2017. Tr.
262. The next day, on January 14, 2017, IC went to spend the night at his cousin’s
house. Tr. 264. He testified at trial that his mom was home alone Saturday evening.
Tr. 268. Around 9:00 P.M. on January 14, 2017, Jeffers texted IC and indicated that
McWay was coming to her house to pick up some clothing. Tr. 264. Jeffers asked
IC where the clothes were, and IC called Jeffers to tell her where the clothes had
been stored. Tr. 264.
{¶4} On January 15, 2017, Genevieve Dunlap, a communications officer
with the Lima Police Department, received a call at work in which the caller
requested a welfare check on Jeffers. Tr. 210-211. The caller worked with Jeffers
and indicated that Jeffers had not been at work. Tr. 211. In response to this call,
Patrolmen Cory Noftz (“Noftz”) and Chad Kunkleman (“Kunkleman”) were
dispatched to Jeffers’s home in Lima, Ohio. Tr. 223. After attempting to make
contact with Jeffers, Noftz and Kunkleman entered Jeffers’s home and found
Jeffers’s body in her bathroom. Tr. 223, 224. Her body was slumped over the side
of her bathtub with her back facing the bathroom door. Tr. 225. An identification
officer for the Lima Police Department, Michael Carman (“Carman”), testified at
trial that Jeffers’s body was leaning over the side of the tub; that the tub was not
filled with water; and that her hair was wet. Tr. 314. Jeffers’s shorts were bunched
up as though she was pulled to the edge of the bathtub. Tr. 372. Carman also
testified that the house did not show any signs of forced entry. Tr. 316.
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{¶5} After the patrolmen had secured the area, Kunkleman was approached
outside the house by IC, who had just been notified of his mother’s death. Tr. 264,
266. IC indicated to Kunkleman that McWay had gone to Jeffers’s house on the
night of Saturday, January 14, 2017, in order to get some of his clothes from Jeffers.
Tr. 238, 264. Danielle Holland (“Holland”) was interviewed by the police as she
was acquainted with McWay. Ex. 46. She told Detective Steve Stechschulte
(“Detective Stechschulte”) that McWay spent the night of January 14, 2017, with
her at a friend’s house. Tr. 347. Holland then told Detective Stechschulte that
McWay left at around midnight on Saturday night and returned to the house roughly
three hours later. Ex. 46. Tr. 394, 400. At trial, Holland testified that she could not
recall these details but did eventually admit that McWay left the house they were
staying at late at night on January 14, 2017, and returned several hours later. Tr.
348.
{¶6} On January 18, 2017, an autopsy was performed by Dr. Diane Scala-
Barnett (“Dr. Scala-Barnett”) on Jeffers. Tr. 378. The autopsy revealed that Jeffers
died of strangulation. Ex. 44. Tr. 453. Jeffers also had bruises on her chin, right
eye, right hand, left elbow, lower legs, and lip. Ex. 43. Jeffers’s hyoid bone was
fractured, indicating that there was “lateral compression—side to side compression”
across her throat. Tr. 441. On January 19, 2017, McWay sat down for an interview
with Detective Stechschulte (“Detective Stechschulte”). Tr. 387. Ex. 46. During
this interview, McWay stated the following:
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McWay: I couldn’t get outta there. I just, I wanted to go but I didn’t want to go but like I said, things weren’t goin’ nowhere. The conversation, it wasn’t like the one the night before when it was all lovey dovey and yeah, yeah, yeah. There was never no decisions, so. We just kept goin’ back and forth a little bit with words, harsh words, but just “you cheated on me. You ripped my soul out. I loved you more than any other guy. I left my family to be with you. You made me look like an a**.” Then we sat back down on the couch. She tried to get back up; she grabbed me again, so I just put my hands around her throat. I was tellin’ her I’m going to leave. I just didn’t realize the strength that I had in it. And then she just kind of fell over a little bit, like halfway and was just looking at me.
***
Detective Stechschulte: So what did you do next?
McWay: I was callin’ her name and telling her to wake up. I didn’t mean for things to go this way. It wasn’t supposed to go that way. It wasn’t supposed to go that way.
It was an accident. I just, I—I didn’t, I didn’t know the strength I was puttin’ on her and—and when she passed out and wouldn’t respond I was just like f***, f***, f***.
Ex. 46. An edited version of this interview was admitted at trial. Ex. 46.
{¶7} Shortly after Jeffers’s body was found, three inmates, who had been in
jail with McWay in January of 2017, got in contact with Detective Stechschulte.
Tr. 251. All three of these inmates—Smith, Lehman, and Bradford—told Detective
Stechschulte that McWay said he was going to strangle Jeffers when he was released
from jail. Tr. 244, 293-294, 354. On January 27, 2017, McWay was charged with
one count of aggravated murder in violation of R.C. 2903.01(A). Doc. 1. After his
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trial, on August 31, 2017, the jury found McWay guilty of one count of aggravated
murder in violation of R.C. 2903.01(A). Doc. 95. He was sentenced on the same
day. Tr. 453. Appellant filed his notice of appeal on October 2, 2017. Doc. 106.
On appeal, appellant raises the following assignments of error:
First Assignment of Error
The trial court erred when it denied Ross M. McWay’s request for a mistrial.
Second Assignment of Error
Ross M. McWay’s aggravated-murder conviction was against the manifest weight of the evidence.
Third Assignment of Error
Trial counsel rendered ineffective assistance at sentencing.
{¶8} In his first assignment of error, McWay argues that the trial court erred
in denying his motion for a mistrial. The basis of this motion was an allegedly
prejudicial statement made by a witness for the State.
Legal Standard
{¶9} “Mistrials are necessary ‘only when the ends of justice so require and a
fair trial is no longer possible.’” State v. Welch, 3d Dist. Wyandot No. 16-06-02,
2006-Ohio-6684, ¶ 9, quoting State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-
5084, 854 N.E.2d 1038, at ¶ 131. “[A] mistrial should not be ordered merely
because some error or irregularity had intervened.” State v. Carter, 3d Dist. Allen
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No. 1-15-62, 2017-Ohio-1233, ¶ 71. “The decision regarding whether to declare a
mistrial is left within the discretion of the trial court.” State v. Beaver, 3d Dist.
Marion No. 9-17-37, 2018-Ohio-2438, ¶ 21.
{¶10} “Thus, a trial court’s decision to deny a motion for a mistrial will not
be reversed absent an abuse of discretion.” State v. Randle, --- N.E.3d ---, 2018-
Ohio-207, ¶ 29 (3d Dist.). “An abuse of discretion is more than an error of
judgment; rather, it implies that the trial court’s decision was unreasonable,
arbitrary, or capricious.” State v. Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-
4349, ¶ 23, quoting Heilman v. Heilman, 3d Dist. Hardin No. 6-12-08, 2012-Ohio-
5133, ¶ 14. “When applying the abuse of discretion standard, a reviewing court is
not free to merely substitute its judgment for that of the trial court.” State v.
Thompson, 2017-Ohio-792, 83 N.E.3d 1108, ¶ 11 (3d Dist.), quoting In re Jane Doe
1, 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991).
Legal Analysis
{¶11} McWay argues that a statement Smith made during his testimony was
grounds for a mistrial. This is the portion of Smith’s testimony that was identified
by McWay on appeal:
[Prosecutor]: And why did he say he was going to use—and maybe you said it and I didn’t hear—why did he say he was going to cover up his arm?
[Smith]: Because he already had a body and he didn’t want—
[Prosecutor]: Because what?
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[Smith]: He already had a body on his case. He already had a body.
[Defense Counsel]: Objection, your Honor. Can we approach?
Tr. 246. At this point, the Defense made a motion for a mistrial, which the trial
court overruled. Tr. 247-248. McWay argues on appeal that this was a prejudicial
reference to his prior conviction for manslaughter.
{¶12} However, the content of this statement was seemingly ambiguous as
is seen by the fact that the prosecutor did not understand the meaning of Smith’s
words. Further, at a sidebar, the prosecutor stated that she did not intend to elicit
this statement from Smith and that Smith was not told to make this statement. At
the request of the Defense, the trial court then issued the following curative
instruction:
[Trial Court]: Ladies and gentlemen of the jury, I’m going to instruct you to disregard the response to the last question. When I say disregard it, that means you cannot consider the response to the last question. There has been some discussion about the defendant, Mr. McWay, being in jail with this witness and that he had a trial. He was acquitted after that trial of the offense for which he was charged in that case. But disregard the response to the last question.
Tr. 249.1 “[I]f the trial court issues curative instructions regarding a comment
mentioning the silence of the defendant, we presume that the jury adhered to the
1 In the latter half of this curative instruction, the trial judge was referring to the January 2017 trial in which McWay was acquitted of criminal charges. The jurors were aware that McWay was in jail awaiting trial in January of 2017 because Smith, Bradford, and Lehman testified about conversations that they had with McWay while incarcerated. The jurors were unaware of what the charges were against McWay in the January 2017 trial, adding another layer of ambiguity to Smith’s allegedly prejudicial statement.
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trial court’s instructions.” State v. McDowell, 3d Dist. Hancock No. 5-17-01, 2017-
Ohio-9249, ¶ 21. McWay’s arguments on appeal have not given us a reason to
dispense with this presumption. We also do not find any indications in the record
that the trial court abused its discretion in denying McWay’s motion for a mistrial.
For these reasons, McWay’s first assignment of error is overruled.
{¶13} In his second assignment of error, McWay argues that his conviction
is against the manifest weight of the evidence. Specifically, he challenges the jury’s
finding of purposefulness, which is a required element of aggravated murder,
because the evidence for this element came from three inmates.
{¶14} “When ‘deciding whether a conviction is against the manifest weight
of the evidence, an appellate court determines whether the state has appropriately
carried its burden of persuasion.’” State v. Brown, 3d Dist. Hancock No. 5-17-19,
2018-Ohio-899, ¶ 8, quoting State v. Blanton, 121 Ohio App.3d 162, 169, 699
N.E.2d 136 (3d Dist.1997). “In a manifest weight analysis, ‘the appellate court sits
as a ‘thirteenth juror’ * * *.” State v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-
Ohio-2916, ¶ 17, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d
541 (1997). Appellate courts “must review the entire record, weigh the evidence
and all of the reasonable inferences, consider the credibility of witnesses, and
determine whether in resolving conflicts in the evidence, the factfinder ‘clearly lost
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its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.’” State v. Brentlinger, 2017-Ohio-2588, 90
N.E.3d 200, ¶ 36 (3d Dist.), quoting Thompkins at 387.
{¶15} “A reviewing court must, however, allow the trier of fact appropriate
discretion on matters relating to the weight of the evidence and the credibility of the
witnesses.” State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86, ¶38 (3d Dist.),
quoting State v. Coleman, 3d Dist. Allen No. 1-13-53, 2014-Ohio-5320, ¶ 7. “[I]t
is well established that the * * * credibility of the witnesses [is] primarily a matter
for the trier of fact.” State v. Gervin, 2016-Ohio-8399, 79 N.E.3d 59, ¶ 142 (3d
Dist.), quoting State v. Clark, 101 Ohio App.3d 389, 409, 655 N.E.2d 795 (8th
Dist.1995). “Only in exceptional cases, where the evidence ‘weighs heavily against
the conviction,’ should an appellate court overturn the trial court’s judgment.” State
v. Little, 2016-Ohio-8398, 78 N.E.3d 323, ¶ 27 (3d Dist.), quoting State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.
{¶16} In this case, McWay was charged with aggravated murder in violation
of R.C. 2903.01(A). In order to prove this crime, the prosecution had to show that
McWay “[1] purposely, [2] and with prior calculation and design, [3] cause[d] the
death of another.” R.C. 2903.01(A).
The phrase ‘prior calculation and design’ by its own terms suggests advance reasoning to formulate the purpose to kill. Evidence of an act committed on the spur of the moment or after momentary consideration is not evidence of a premeditated
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decision or a studied consideration of the method and the means to cause a death.
State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 18.
We traditionally consider three factors in determining whether a defendant acted with prior calculation and design: “(1) Did the accused and victim know each other, and if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder weapon or murder site? and (3) Was the act drawn out or ‘an almost instantaneous eruption of events?’”
Id. at ¶ 20, quoting State v. Taylor, 78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997).
However, “there is no ‘bright-line test that emphatically distinguishes between the
presence or absence of “prior calculation and design.” Instead, each case turns on
the particular facts and evidence presented at trial.’” Id. at ¶ 19, quoting Taylor at
20.
{¶17} At trial, the State called three inmates, who were incarcerated with
McWay prior to McWay’s release from jail in January of 2017, as witnesses. First,
Smith testified that he, on January 1, 2017, was sitting next to McWay during
visitation when Jeffers came to speak with McWay. Tr. 252. Smith testified that
he overheard McWay say, “Are you serious? You’re breaking up with me?” Tr.
244, 253. He then said he heard McWay say, “It’s over.” Tr. 253. Smith testified
that, later, McWay told him that, “My woman’s [Jeffers] cheating on me.” Tr. 243.
McWay continued, saying, “So, when I get out I’m going to kill her. If I can’t have
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her, nobody can have her.” Tr. 243. McWay reportedly said that he was going to
“choke her out” while “wear[ing] a sleeve over her arm” because McWay believed
this would help him to avoid leaving DNA evidence at the scene. Tr. 243. On cross-
examination, Smith stated that he was in prison for kidnapping and that he entered
into a plea agreement in March 2017. Tr. 250. He also stated that he was not offered
anything in exchange for his testimony against McWay. Tr. 249.
{¶18} Second, Lehman testified at trial that he also was in the county jail
while McWay was awaiting his trial in January of 2017. Tr. 292. McWay indicated
that another prisoner told him that “[McWay’s] girl [Jeffers] had all types of dudes
pulling up at her house and going in and out.” Tr. 293. Lehman then testified that
McWay then said that
he’s getting out and nobody knows he’s getting out but his brother, and his brother is picking him up, and if he catches that bitch cheating that he was going to fuck her up. He had told— told us how he was going to put a sleeve on and choke her out.
Tr. 293. He then testified that McWay said he had “to put a sleeve on so you don’t
get none of your hairs, nothing from you, on to the person you’re choking out.” Tr.
293-294. Lehman admitted at trial that he was in prison for robbery. Tr. 290. He
also had other felony convictions, including corrupting another with drugs and theft
of property. Tr. 290. He stated that he was not offered anything during plea
negotiations in exchange for his testimony against McWay. Tr. 291.
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{¶19} Third, Bradford then testified that he was in the county jail in January
of 2017. While McWay was talking to Smith, Bradford was walking to the
restroom. He testified that he overheard McWay say that “he was going to kill that
girl and wear something long-sleeved on his arm.” Tr. 355. He also testified that
McWay said “he was going to wear something to protect his hair or something.”
Tr. 356. Bradford admitted that he was incarcerated for felonious assault and also
had a felony “cocaine charge” on his record. Tr. 356. He also testified that he did
not have any preferential treatment in exchange for his testimony. Tr. 357.
{¶20} McWay, on the other hand, made statements to Detective Stechschulte
that indicated Jeffers’s death was accidental. Ex. 46. During the interview, the
following relevant statements were made:
Detective Stechschulte: first of all, was it—was it an accident? I mean it wasn’t one of these ‘if I can’t have you, no one’s gonna have you’ type things, right?
McWay: No.
Detective Stechschulte: How many times did you hit her?
McWay: I didn’t hit her none.
Detective Stechschulte: This [gesturing to his face] was all beat up dude.
McWay: I had to defend from all the pushin’ because after we went into the living room—the pushin’ just kept going on. And all I would do is this—like this [gesturing]. Just pushin’ her back
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up off me, pushin’ her back up off me. So finally I just kind of threw her on the couch like.
Detective Stechschulte: Then what happened?
McWay: And she came at me again and I just put my hand up like this and went around her neck and I shoved her on the couch. She said, “now you’re goin’ to put your hands on me.” I said, “you’re not lettin’ me leave. What do you want me to do? If we’re not goin to be together, I’m not goin’ to stay here.”
McWay: I couldn’t get outta there. I just, I wanted to go but I didn’t want to go but like I said, things weren’t goin’ nowhere. The conversation, it wasn’t like the one the night before when it was all lovey dovey and yeah, yeah, yeah. There was never no decisions, so. We just kept goin’ back and forth a little bit with words, harsh words, but just “you cheated on me. You ripped my soul out. I loved you more than any other guy. I left my family to be with you. You made me look like an a**.” Then we sat back down on the couch. She tried to get back up; she grabbed me again, so I just put my hands around her throat. I was tellin’ her I’m going to leave. I just didn’t realize the strength that I had in it. And then she just kind of fell over a little bit, like halfway and was just looking at me.
Detective Stechschulte: And she was dead then? Or was she still alive at that point gasping for air?
McWay: Then she was goin’ out of it. I don’t know.
Detective Stechschulte: Did she die on that couch? Yeah?
McWay: [Nods affirmatively]
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Detective Stechschulte: How long do you think you guys sat or you sat in the living room thinkin’ what to do before you moved her?
McWay: Probably fifteen minutes. I don’t know. I didn’t want to leave her there, but I didn’t know what to do.
Detective Stechschulte: What gave you the idea to do what you did—how you left it? Sure that was the only way of possibly making it look like it wasn’t a murder? Yeah?
McWay: I didn’t murder her.
Detective Stechschulte: Well, I know, but they were going to look at it and see it that way, you know.
McWay: It was an accident. I just, I—I didn’t, I didn’t know the strength I was puttin’ on her and—and when she passed out and wouldn’t respond I was just like f***, f***, f***. ***
Detective Stechschulte: And then the autopsy also showed that she got grabbed up around her neck, which is close to what you were sayin, but not like this [gestures as though he was strangling someone from the front]. It was like this [gestures as though he is strangling someone from behind].
McWay: I was never behind her at any point.
Detective Stechschulte: Okay. All right. And that could be right. I don’t know. I don’t know that. But the one thing that was conclusive and for sure is that she didn’t sit in that front room for 15 minutes. She was still gaspin for f****** air when her face went down into the water. Because not only was her *** bone broken from extreme pressure to her throat—she was gonna die from that most likely, all right. But for good measure you put her face down into the water. Whether it was the toilet water or the bath water, I don’t know. It was one of them. And she was still gaspin at that point. She sucked water up into her nasal cavity. The only way that water can get up into that nasal cavity is before she’s dead. Post mortem it doesn’t end up there.
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McWay: She wasn’t responding to me. I don’t know.
Detective Stechschulte: Well, she wasn’t dead yet.
Ex. 46.
{¶21} Dr. Scala-Barnett testified that Jeffers died of strangulation from a
lateral compression across her throat. Tr. 450, 453. She agreed that this finding
“would be consistent with somebody taking an arm and putting it around someone.”
Tr. 451. Dr. Scala-Barnett testified that a person with this type of compression on
his or her throat would be unconscious after roughly thirty seconds and would expire
after roughly three to five minutes. Tr. 451. She stated that she was able to
determine, from the autopsy, that Jeffers’s bodily injuries occurred before her death
and that Jeffers died shortly after her hyoid was fractured. Tr. 453. Towards the
end of her testimony, Dr. Scala-Barnett stated that Jeffers had some water in her
sphenoid sinus, indicating that Jeffers was “submerged at some point.” Tr. 452.
She stated that this water would not have entered this area of the sinus passively and
would likely have to be an agonal—near death—breath or a compression from
placing Jeffers over the side of the bathtub that was filled with water. Tr. 452.
{¶22} The testimonies of Smith, Lehman, and Bradford indicate that McWay
discussed his intent to strangle Jeffers after his release from prison. McWay’s
version of Jeffers’s final moments contradicts these accounts. However, the
evidence from the autopsy was inconsistent with McWay’s account—McWay
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asserted that he “was never behind her at any point.” Ex. 46. Tr. 450, 453. The
jurors were free, as the finders of fact, to believe or disbelieve the testimony of
Smith, Lehman, and Bradford. State v. Caldwell, 79 Ohio App.3d 667, 679, 607
N.E.2d 1096 (1992) (holding “the jury is free to believe all, part or none of the
testimony of each witness who appears before it.”). Further, we do not find evidence
in the record that suggests the jurors lost their way and returned a verdict against the
manifest weight of the evidence. For these reasons, his second assignment of error
is overruled.
{¶23} In his third assignment of error, McWay alleges he did not receive the
effective assistance of counsel that is guaranteed by the Sixth Amendment. In
support of this contention, McWay points to (1) the decision of his trial counsel not
to request a presentence investigation and (2) the decision not to present mitigating
factors at McWay’s sentencing hearing.
{¶24} “Under Ohio law, ‘a properly licensed attorney is presumed to carry
out his duties in a competent manner.’” State v. Beaver, 3d Dist. Marion No. 9-17-
37, 2018-Ohio-2438, ¶ 26, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9, 1993
WL 270995 (July 22, 1993). In order to prove an ineffective assistance of counsel
claim, the appellant must carry the burden of establishing (1) that his or her
counsel’s performance was deficient and (2) that this deficient performance
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prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). If the petitioner cannot prove one of these elements,
“it [is] unnecessary for a court to consider the other prong of the test.” State v.
Walker, 2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist.). The first prong “requires
showing that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” State v. Gondor, 112
Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 61. “Tactical or strategic trial
decisions, even if unsuccessful, do not generally constitute ineffective assistance.”
State v. Pellegrini, 3d Dist. Allen No. 1-12-30, 2013-Ohio-141, ¶ 40. Appellate
courts are to examine the record to determine whether the defendant had a fair
proceeding under the circumstances and whether substantial justice was done. State
v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragraph four of the syllabus.
{¶25} Presentence Investigation: On appeal, McWay argues that his trial
counsel’s failure to order a new presentence investigation was objectively
unreasonable. However, the trial court did have a presentence investigation that
was compiled after McWay was found guilty of voluntary manslaughter in 2002.
Tr. 543-544, 547. McWay then served a thirteen-year prison sentence for that crime.
Tr. 544. After his release, he was charged with another crime and spent the last ten
months of 2016 incarcerated while he awaited trial in January of 2017. Tr. 547. He
was then acquitted and released on January 13, 2017. Tr. 544. Within thirty-six
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hours of McWay’s release, Jeffers was murdered. Tr. 544. McWay was then
incarcerated again. Tr. 544.
{¶26} Thus, at sentencing, McWay’s trial counsel stated:
Your Honor, I guess first of all I should acknowledge for the record that prior to coming up for sentencing we had discussed briefly that the Court has a prior pre-sentence investigation report from the 2002 case. I believe it was this Court that that case was in front of back in 2002. I was counsel for that case. From that time of conviction until just very recently obviously my client was incarcerated on that charge and then he had at least ten months between—well, ten months of the time that he had been out he was incarcerated on the charge that he was acquitted of in January. I don’t believe it’s necessary, based upon that, that the Court need to order any sort of other pre-sentence investigation report. The Court has enough of the history, I think, in front of it. I believe also during the course of my client’s incarceration for the Voluntary Manslaughter with gun specification I believe that several times on his behalf I filed motions for judicial release, which were not granted, but my understanding is the Court, during those times, has at least a summary of institutional behavior, at least that probably would have been given to the Court sometime. We don’t have anything really to add or subtract to those documents. They are what they are. My client’s record is my client’s record.
Tr. 548. On appeal, McWay wants us to assume that a presentence investigation
would have had a favorable impact on his sentence. However, trial counsel stated
that he had represented McWay’s multiple times over sixteen years. Tr. 548. At
the sentencing hearing, McWay’s trial counsel explained the rationale behind his
decision not to request a new presentence investigation. For these reasons, we find
that, under the facts of this case, the decision not to request a new presentence
investigation for this defendant does not amount to a deficient performance. See
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State v. Melendez, 6th Dist. Wood No. WD-07-052, 2008-Ohio-3839, ¶ 15 (holding
“that failure to request a presentence investigation report does not constitute
ineffective assistance of counsel.”); State v. Palmer, 7th Dist. Jefferson No. 04-JE-
41, 2006-Ohio-749, ¶ 105.
{¶27} Mitigating Information: “The presentation of mitigating evidence is a
matter of trial strategy.” State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840
N.E.2d 151, ¶ 225. “The decision to forgo the presentation of additional mitigating
evidence does not itself constitute proof of ineffective assistance of counsel.” State
v. Keith, 79 Ohio St.3d 514, 536, 684 N.E.2d 47 (1997). Further, “strategic choices
made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Hand at ¶ 225, quoting Wiggins v. Smith, 539 U.S. 510,
521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). On appeal, McWay argues that his
trial counsel’s investigation into potential mitigating factors was inadequate because
no mitigation evidence was presented at sentencing. However, the absence of
mitigating evidence does not, in itself, establish that trial counsel’s investigation
was inadequate. McWay expects us to presume that mitigating factors would
certainly have been uncovered by an adequate investigation. These arguments are
speculative as McWay has not demonstrated, with facts in the record, that mitigating
evidence exists or that trial counsel’s investigation was inadequate. Further, we do
not see any indication in the record that trial counsel failed to investigate mitigating
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factors adequately or that trial counsel’s performance was deficient in this regard.
State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 244.
{¶28} From the record, we do not see evidence that supports McWay’s
contention that his trial counsel’s performance was deficient. We do, however, see
evidence that trial counsel’s decisions were matters that fell within the ambit of trial
strategy and were arguably reasonable. Thus, McWay has not carried the burden of
establishing that he did not receive the effective assistance of counsel at sentencing.
For these reasons, appellant’s third assignment of error is overruled.
Conclusion
{¶29} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Allen County Court of Common Pleas is
affirmed.
ZIMMERMAN and SHAW, J.J., concur.
/hls
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