State v. Cunningham ( 2014 )

[Cite as State v. Cunningham, 2014-Ohio-3949.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2013 CA 50
v. : T.C. NO. 12CR734
JAMES B. CUNNINGHAM : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 12th day of September ,
2014.
..........
RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Clark County Prosecutor, 50 E.
Columbia Street, 4th Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
ADAM J. ARNOLD, Atty. Reg. No. 0088791, 703 Liberty Tower, 120 W. Second Street,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
JAMES B. CUNNINGHAM, 1404 Innisfallen Avenue, Springfield, Ohio 45506
Defendant-Appellant
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DONOVAN, J.
[Cite as State v. Cunningham, 2014-Ohio-3949.]
{¶ 1} Appointed counsel for defendant-appellant James B. Cunningham submitted
an appellate brief under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967), alleging that no arguably meritorious issues exist for appeal. After a thorough
review of the record, this Court agrees that the trial court’s proceedings were proper, and we
affirm the trial court’s judgment.
{¶ 2} The record establishes that after a jury trial held on April 2, 2013,
Cunningham was found guilty of one count of domestic violence, a misdemeanor of the first
degree. Cunningham was found not guilty of felonious assault. On April 4, 2013, the trial
court sentenced Cunningham to six months in jail. The trial court issued a judgment entry
of conviction on April 9, 2013.
{¶ 3} Cunningham filed a notice of appeal with this Court on June 4, 2013. On
September 24, 2013, we granted Cunningham’s motion for leave to file a delayed appeal
pursuant to App. R. 5(A). In an entry issued on November 6, 2013, we appointed counsel to
represent Cunningham on appeal.
{¶ 4} On April 7, 2014, appointed counsel representing Cunningham submitted an
Anders brief, alleging that no arguably meritorious issues exist for appeal. By magistrate’s
order of May 20, 2014, we informed Cunningham that his counsel filed an Anders brief and
informed him of the significance of an Anders brief. We invited Cunningham to file a pro
se brief assigning any error for our review within sixty days. Cunningham has not filed
anything with this Court.
{¶ 5} Appointed counsel for Cunningham advances four potential assignments of
error for our review, to wit: 1) Cunningham asserts that his trial counsel, Derek Van Hoose,
was not licensed to practice law when he represented appellant in the proceedings below; 2)
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Cunningham argues that he received ineffective assistance of counsel because his counsel
did not present certain evidence at trial and because counsel personally interviewed the
victim, Amelia Murdock, against appellant’s wishes; 3) Cunningham asserts that the
prosecutor was aware that Murdock made false statements when she testified at trial; and 4)
Cunningham argues that his indictment was defective because he was not originally charged
with domestic violence, but the offense appeared on a later date.
{¶ 6} With respect to his first potential assignment, we note that there is no
evidence that Cunningham’s trial counsel, Attorney Van Hoose, was not licensed to
practice law in the State of Ohio during the time that he represented appellant.1 We further
note that Cunningham’s appellate counsel submitted a Request for Certificate of Good
Standing to the Office of Attorney Services of the Supreme Court of Ohio regarding
Attorney Van Hoose. The documentation establishes that Van Hoose was admitted to the
practice of law in Ohio on November 6, 2012, and is in good standing with the Supreme
Court of Ohio. The documentation indicates that Van Hoose registered as inactive on the
biennium registration date of September 1, 2013. Thus, he was duly licensed to practice
law in the State of Ohio while he represented Cunningham prior to September 1, 2013.
Thus, this potential assignment has no merit.
{¶ 7} In his second potential assignment, Cunningham contends that he received
ineffective assistance when his trial counsel failed to present certain evidence at trial and
because counsel personally interviewed the victim, Amelia Murdock, against appellant’s
1
Technically, this is a matter outside the record. Nevertheless, it is
without arguable merit.
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wishes. A claim of ineffective assistance of trial counsel requires both a showing that trial
counsel’s representation fell below an objective standard of reasonableness, and that the
defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). A reviewing court “must indulge in a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.
at 689. The prejudice prong requires a finding that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different,
with a reasonable probability being “a probability sufficient to undermine confidence in the
outcome.” Id. at 694; see also State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989).
{¶ 8} Upon review, we conclude that Cunningham’s claim that he received
ineffective assistance of counsel is not supported by the record. Specifically, the record
establishes that Attorney Van Hoose sought to admit a letter written by Murdock in which
she recanted her claim of domestic abuse against Cunningham. While the trial court refused
to admit the letter into evidence because it was not disclosed to the State until the day of
trial, it permitted Van Hoose to extensively cross-examine Murdock regarding the contents
of the letter and her recantation. While Van Hoose did not question Murdock regarding
phone calls she allegedly made to police, the decision not to cross-examine her regarding the
calls may have been a tactical one. An appellant is not deprived of effective assistance of
counsel when counsel chooses, for strategic reasons, not to pursue every possible trial tactic.
State v. Brown, 38 Ohio St. 3d 305, 319, 528 N.E.2d 523 (1988). A reviewing court may
not second-guess decisions of counsel which can be considered matters of trial strategy.
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State v. Smith, 17 Ohio St. 3d 98, 477 N.E.2d 1128 (1985). 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).
{¶ 9} Additionally, Van Hoose’s decision to interview Murdock against
Cunningham’s wishes did not amount to ineffective assistance. Van Hoose had a
responsibility to Cunningham to provide the best defense possible, and Murdock’s testimony
was crucial to establishing the events which led to the instant charges. Van Hoose’s
decision to interview Murdock was simply the act of a diligent defense attorney. In fact, it
would have potentially been ineffective assistance if Van Hoose had not attempted to
interview Murdock prior to trial. Thus, based on our review of the record before us, we
conclude there is no merit to Cunningham’s claim that his trial counsel provided ineffective
assistance.
{¶ 10} In his third potential assignment, Cunningham claims that the State was
aware that Murdock was making false statements under oath. Upon review, we conclude
that there is no evidence in the record which supports Cunningham’s claim in this regard,
given the conflicting statements provided by Murdock. Thus, Cunningham’s third
assignment has no arguable merit.
{¶ 11} Finally, Cunningham asserts that when he was initially indicted for felonious
assault, he was not charged with domestic violence. The record, however, establishes that
Cunningham was indicted on October 29, 2012, for one count felonious assault and one
count of domestic violence. Accordingly, we can find no arguable merit to Cunningham’s
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fourth and final potential assignment.
{¶ 12} Additionally, in the performance of our duty, under Anders v. California, to
conduct an independent review of the record, we have found no potential assignments of
error having arguable merit. We conclude that this appeal is wholly frivolous. Therefore,
the judgment of the trial court is Affirmed.
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FAIN, J. and WELBAUM, J., concur.
Copies mailed to:
Ryan A. Saunders
Adam J. Arnold
James B. Cunningham
Hon. Douglas M. Rastatter