State v. Robison
Opinion
[Cite as State v. Robison, 2014-Ohio-321.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : THOMAS ROBISON : Case No. 13-CA-65 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case No. 13CRB01082
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 29, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROLINE J. CLIPPINGER WILLIAM T. CRAMER 40 West Main Street 470 Olde Worthington Road Newark, OH 43055 Suite 200 Westerville, OH 43082 Licking County, Case No. 13-CA-65 2
Farmer, J.
{¶1} On May 31, 2013, appellant, Thomas Robison, was charged with one
count of resisting arrest in violation of R.C. 2921.33, one count of disorderly conduct in
violation of R.C. 2917.11, and one count of criminal trespass in violation of R.C.
2911.21. Said charges arose from an incident between appellant and his neighbor.
{¶2} On June 26, 2013, appellant pled guilty to the resisting and disorderly
counts and the trespass count was dismissed. By journal entries filed same date, the
trial court sentenced appellant to an aggregate term of ninety days in jail.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "APPELLANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF THE STATE AND FEDERAL
CONSTITUTION BECAUSE DEFENSE COUNSEL FAILED TO REQUEST
DISCOVERY REGARDING APPELLANT'S CRIMINAL RECORD."
{¶5} Appellant claims he was denied the effective assistance of trial counsel
because his counsel failed to request discovery regarding his criminal record. We
disagree.
{¶6} The standard this issue must be measured against is set out in State v.
Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant
must establish the following: Licking County, Case No. 13-CA-65 3
2. Counsel's performance will not be deemed ineffective unless and
until counsel's performance is proved to have fallen below an objective
standard of reasonable representation and, in addition, prejudice arises
from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2
O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's
deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the result of
the trial would have been different.
{¶7} Appellant argues he was prejudiced by his trial counsel's failure to request
discovery of his prior criminal record because it significantly impacted his sentence (T.
at 5-6):
THE COURT: Mr. Boeckman you indicate to the Court that your
client has no criminally history.
MR. BOECKMAN: I am repeating what he told me.
THE COURT: Oh.
MR. ROBISON: It is traffic stuff.
THE COURT: Well I have ten pages here.
MR. BOEKMAN: Traffic related matters? Licking County, Case No. 13-CA-65 4
THE COURT: Well most of them are well he has got a lot of traffic
but he has got a lot of criminal history as well.
MR. BOECKMAN: Your Honor as you know the clerk's office
doesn't give us that information any longer and I on most occasions rather
than filing for discovery rely on the information provided me by my
individual client but...
THE COURT: Well I see a 1979 conviction for drunk driving, a 1985
for drunk driving, a 1988 conviction for drunk driving...
MR. BOECKMAN: I think that is accurate. He told me he had three
OVI's Your Honor.
THE COURT: 1991 conviction for drunk driving, a 1992 conviction
for drunk driving, a 1993 conviction for drunk driving, a 1995 conviction for
drunk driving, a 2001 conviction for drunk driving, 2002 felony conviction
for drunk driving in our court across the hall or across the street. Another
conviction felony conviction for drunk driving in Franklin County. I have no
doubt that alcohol was the causing factor in this either.
MR. BOECKMAN: And by way of I guess most individuals
um...conclude that OVI’s are traffic related matters maybe don’t view them
as criminal related matters.
{¶8} Crim.R 16(H) requires the defense to provide reciprocal discovery once
the defense has requested discovery from the state: Licking County, Case No. 13-CA-65 5
(H) Discovery: Right to Copy or Photograph. If the defendant
serves a written demand for discovery or any other pleading seeking
disclosure of evidence on the prosecuting attorney, a reciprocal duty of
disclosure by the defendant arises without further demand by the state.
The defendant shall provide copies or photographs, or permit the
prosecuting attorney to copy or photograph, the following items related to
the particular case indictment, information or complaint, and which are
material to the innocence or alibi of the defendant, or are intended for use
by the defense as evidence at the trial, or were obtained from or belong to
the victim, within the possession of, or reasonably available to the
defendant, except as provided in division (J) of this rule:
(1) All laboratory or hospital reports, books, papers, documents,
photographs, tangible objects, buildings or places;
(2) Results of physical or mental examinations, experiments or
scientific tests;
(3) Any evidence that tends to negate the guilt of the defendant, or
is material to punishment, or tends to support an alibi. However, nothing
in this rule shall be construed to require the defendant to disclose
information that would tend to incriminate that defendant;
(4) All investigative reports, except as provided in division (J) of this
rule; Licking County, Case No. 13-CA-65 6
(5) Any written or recorded statement by a witness in the
defendant’s case-in-chief, or any witness that it reasonably anticipates
calling as a witness in surrebuttal.
{¶9} The failure or the purposeful decision not to request discovery can be a
legitimate trial strategy to cut short giving the state discovery. This court must accord
deference to defense counsel's strategic choices made during trial and "requires us to
eliminate the distorting effect of hindsight." State v. Post, 32 Ohio St.3d 380, 388
(1987).
{¶10} Included in the trial court record is a ten page print-out of appellant's
criminal traffic record which was available for view "prior to the discovery process" per
the Clerk of Courts, Docket Entry No. 4. Appellant was well aware of his criminal record
as evidenced by the mitigation letters filed with the trial court.
{¶11} In addition, appellant entered a "guilty" plea therefore, the argument of
ineffective assistance of counsel is waived unless the ineffective assistance caused the
plea to be involuntary. State v. Bennett, 6th Dist. Wood No. WD-08-005, 2008-Ohio-
5812. There is no indication in this case that appellant would have insisted on a trial
had defense counsel requested discovery on his criminal record.
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