State v. Richardson

2022 Ohio 494

• Court: Ohio Court of Appeals
• Decided: February 18, 2022
• Docket: 2021-CA-43
• Status: Published

Opinion

[Cite as State v. Richardson, 2022-Ohio-494.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2021-CA-43 : v. : Trial Court Case No. 2021-TRC-5488 : ROLAND RICHARDSON : (Criminal Appeal from : Municipal Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 18th day of February, 2022.

MARC T. ROSS, Atty. Reg. No. 0070446, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, 4th Floor, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

AMY E. BAILEY, Atty. Reg. No. 0088397, P.O. Box 188, Englewood, Ohio 45322 Attorney for Defendant-Appellant

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DONOVAN, J.

{¶ 1} Defendant-appellant Roland Richardson appeals from his conviction for one

count of operating a vehicle while under the influence (OVI), in violation of R.C.

4511.19(A)(1)(h). Richardson filed a timely notice of appeal on July 14, 2021.

{¶ 2} Richardson’s appointed appellate counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the

absence of any non-frivolous issues for appellate review. We notified Richardson of the

Anders filing and gave him an opportunity to file a pro se brief. No pro se brief has been

filed, and the time for doing so has expired.

{¶ 3} Under Anders, we must determine, “after a full examination of all the

proceedings,” whether the appeal is “wholly frivolous.” Anders at 744; Penson v. Ohio,

488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). A frivolous appeal is one that

presents issues lacking arguable merit, which means that, “on the facts and law involved,

no responsible contention can be made that [there is] a basis for reversal.” State v.

Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8, citing State v. Pullen, 2d

Dist. Montgomery No. 19232, 2003-Ohio-6078. “If we find that any issue presented or

which an independent analysis reveals is not wholly frivolous, we must appoint different

appellate counsel to represent the defendant.” Id. at ¶ 7, citing Pullen.

{¶ 4} We have conducted our independent review of the record under Penson, and

we agree with appellate counsel that there are no non-frivolous issues for review. As

such, we affirm the trial court’s judgment.

I. Procedural History

{¶ 5} On June 1, 2021, Richardson was charged with one count of OVI, in violation -3-

of R.C. 4511.19(A)(1)(h). On June 2, 2021, counsel was appointed by the trial court to

represent Richardson. The record establishes that the trial court held pretrial hearings

on June 11, 2021, and July 6, 2021. On July 7, 2021, a jury trial was held, and

Richardson was found guilty of the charged offense; the trial court sentenced him to 365

days in jail, with 125 days suspended. The trial court also gave Richardson credit for

time served from his date of arrest, May 31, 2021.

{¶ 6} Richardson appeals from his conviction.

II. Analysis

{¶ 7} Appellate counsel has not specifically assigned any potentially meritorious

errors for our review. However, she contends that, based upon her review of the record,

trial counsel was not ineffective in her representation of Richardson. In support,

appellate counsel points out that trial counsel “made several tactical decisions, most

notably: pursuing a jury trial and not having [Richardson] testify.” Appellant’s Brief, p. 7.

{¶ 8} This court reviews alleged instances of ineffective assistance of trial counsel

under the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State

v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). These cases provide that trial

counsel is entitled to a strong presumption that his or her conduct falls within the wide

range of reasonable assistance. Strickland at 689; Bradley at 142. To reverse a

conviction based on ineffective assistance of counsel, it must be demonstrated that trial

counsel's conduct fell below an objective standard of reasonableness and that his or her

errors were serious enough to create a reasonable probability that, but for the errors, the

result of the trial court proceeding would have been different. Bradley at 142. -4-

{¶ 9} Upon review, we conclude that there is nothing in the record to support a

claim of ineffective assistance of counsel. Trial counsel’s decisions to pursue a jury trial

and not to have Richardson testify were tactical decisions, as appellate counsel has

noted. Debatable strategic and tactical decisions may not form the basis of a claim for

ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy had

been available. State v. Cook, 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992). On the

record before us, there is nothing debatable or unreasonable regarding trial counsel’s

decision to take the matter to trial and/or keep Richardson from testifying.

{¶ 10} Finally, we have conducted an independent review of the record and find

no non-frivolous issues for appeal. We therefore agree with appellate counsel that

Richardson’s appeal is frivolous.

III. Conclusion

{¶ 11} The judgment of the trial court is affirmed.

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TUCKER, P.J. and WELBAUM, J., concur.

Copies sent to:

Marc T. Ross Amy E. Bailey Roland Richardson Hon. Thomas E. Trempe