Cleveland v. Thompson , 2015 Ohio 412 ( 2015 )

[Cite as Cleveland v. Thompson, 2015-Ohio-412.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101038
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
RAMON THOMPSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2013 CRB 037971
BEFORE: E.T. Gallagher, J., Jones, P.J., and Keough, J.
RELEASED AND JOURNALIZED: February 5, 2015
ATTORNEY FOR APPELLANT
Joseph E. Feighan, III
14516 Detroit Avenue
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
Law Director
City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114-1077
BY: Victor R. Perez
Chief City Prosecuting Attorney
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Ramon Thompson (“Thompson”), appeals his conviction for
domestic violence. Finding no merit to the appeal, we affirm.
{¶2} On December 8, 2013, Thompson was arrested after an argument with Tiffany
Baldwin (“Baldwin”) turned physical. Thompson was charged with domestic violence, in
violation of R.C. 2919.25. On December 11, 2013, Thompson pleaded not guilty.
{¶3} On January 8, 2014, the case proceeded to a bench trial. Baldwin testified that on
December 8, 2013, Thompson and her mother, Julia Carter (“Carter”), began arguing. Both
Baldwin and Thompson lived in Carter’s home. Baldwin became involved in the argument when
Thompson “got in her face.” The situation escalated when Thompson kicked Baldwin, twice in
the shin and once in the stomach. Baldwin was pregnant at the time and alleged that Thompson
was aware of the pregnancy.
{¶4} After being found guilty by the bench, on January 22, 2014, the day of his sentencing
hearing, Thompson filed a motion for a new trial, contending irregularity and misconduct had
occurred in his trial. Specifically, he argued that Baldwin had prevented Carter from being
subpoenaed for trial.
{¶5} The trial court addressed Thompson’s motion prior to his sentencing hearing, in open
court and on the record. Thompson’s counsel informed the court that he had replaced his
colleague, Thompson’s initial public defender, on the eve of trial. In support of the motion,
counsel argued he had not prepared for the trial, had not reviewed Thompson’s file until the night
before the trial, and, although the record indicates that the initial public defender assigned to
Thompson did seek discovery from the prosecutor, counsel never reviewed it. Counsel also
alleged that after the trial, Thompson informed him that Carter had not been subpoenaed and that
he had wanted her to testify.
{¶6} The trial court denied Thompson’s motion, pointing out that had counsel been so
unprepared he could have brought that to the court’s attention prior to trial and sought a
continuance. The trial court proceeded with sentencing. Thompson was sentenced to 180 days
in jail, with 45 days credit for time served and 135 days suspended, as well as one year of
probation.
{¶7} Thompson now appeals, arguing in his sole assignment of error that he was denied
his right to effective assistance of counsel based on his attorney’s failure to move the court for a
continuance of the trial.
{¶8} To substantiate a claim of ineffective assistance of counsel, a defendant must
demonstrate that (1) the performance of defense counsel was seriously flawed and deficient, and
(2) the result of defendant’s trial or legal proceeding would have been different had defense
counsel provided proper representation. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984); State v. Brooks, 25 Ohio St. 3d 144, 495 N.E.2d 407 (1986). In State v.
Bradley, the Ohio Supreme Court truncated this standard, holding that reviewing courts need not
examine counsel’s performance if the defendant fails to prove the second prong of prejudicial
effect. State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989). “The object of an
ineffectiveness claim is not to grade counsel’s performance.” Id. at 143.
{¶9} Thompson argues he was denied effective assistance of counsel when counsel failed
to move for a continuance of the trial based on his lack of preparedness for trial. Thompson
argues counsel was unprepared since he was not familiar with the case and because he failed to
subpoena Carter as a defense witness.
{¶10} Regarding counsel’s lack of preparation, the record indicates that Thompson was
initially represented by a different public defender, although the record is unclear as to when the
transfer of the case file from one public defender to another occurred. Furthermore, the transcript
reveals that counsel told the court he was prepared to proceed with the bench trial on the morning
of January 8, 2013. (Tr. 2.) Having reviewed the record, we note that counsel waived an
opening statement but adequately cross-examined the only prosecution witness, Baldwin.
Despite his post-trial admission of being unprepared for trial, defense counsel admitted to the
court that he could have sought a continuance on the trial date but chose not to. Vague
allegations of being unprepared are insufficient to show that Thompson was prejudiced and that
the outcome of the trial would have been different had counsel been “prepared.” See Cleveland
v. Graham, 8th Dist. Cuyahoga No. 100394, 2014-Ohio-3413, ¶ 10.
{¶11} In addition, Thompson argues his counsel was ineffective for failing to seek a
continuance of the trial in order to subpoena Carter. “In order to obtain a reversal on ineffective
assistance of counsel based on a failure to subpoena a witness, a defendant must demonstrate that
the testimony of the witness would be of significant assistance to the defense.” State v. Varner,
5th Dist. Stark No. 98CA00016, 1998 Ohio App. LEXIS 4707 (Sept. 14, 1998), quoting State v.
Reese, 8 Ohio App. 3d 202, 203, 456 N.E.2d 1253 (1st Dist.1982). Thompson fails to proffer
what Carter would testify to had she testified for the defense. Thus, Thompson has failed to
demonstrate how the outcome of the trial would have been different if his counsel had subpoenaed
Carter.
{¶12} Therefore, based on the record and our “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance,” we find Thompson is unable to
demonstrate how his counsel’s performance rose to the level of ineffectiveness. Bradley, 42
Ohio St. 3d at 142, 538 N.E.2d 373. It is evident from the record that Thompson was afforded a
fair trial and that substantial justice was done. See State v. Hester, 45 Ohio St. 2d 71, 341 N.E.2d
304 (1976), paragraph four of the syllabus; Graham, 8th Dist. Cuyahoga No. 100394,
2014-Ohio-3413.
{¶13} Thus, Thompson’s sole assignment of error is overruled.
{¶14} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland
Municipal Court to carry this judgment into execution. The defendant’s conviction having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR