State v. Jenkins ( 2021 )

[Cite as State v. Jenkins, 2021-Ohio-4100.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Craig R. Baldwin, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
:
-vs- :
: Case No. CT2021-0001
JOHN JENKINS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case No.
CR2019-0341
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 19, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD WELCH JAMES ANZELMO
Prosecuting Attorney 446 Howland Drive
By: TAYLOR P. BENNINGTON Gahanna, OH 43230
Assistant Prosecutor
27 North Fifth St., Box 189
Zanesville, OH 43702-0189
[Cite as State v. Jenkins, 2021-Ohio-4100.]
Gwin, J.,
{¶1} Defendant-appellant John A. Jenkins, Jr. [Jenkins”] appeals his conviction
and sentence entered after a negotiated guilty plea in the Muskingum County Court of
Common Pleas.
Facts and Procedural History
{¶2} The following facts were entered into the record in open court during
Jenkins’s September 11, 2019 plea hearing.
{¶3} On Sunday, May 26, 2019, Jenkins spent the day drinking. He obtained
several beers from the State Street Market and he had been drinking enough that day
that he was worried he had forgotten he left some beer out where his grandmother,
Elizabeth Alvarez, who went by Betty, might have seen them. Plea T. at 13.
{¶4} Betty had taken Jenkins in after he was released from prison three years
ago. She did not approve of his drinking. She let him know about it when she discovered
that he was drinking. She had a rule that he was not permitted to drink in the house, but
he would do it anyway and he would hide it from her. On this day the situation was
exacerbated by the fact that he was supervising his three-year-old little brother. His
brother was in his room on the second floor. Jenkins came downstairs to make sure he
had not left beer in the refrigerator. When Betty confronted him, she told Jenkins that he
needed to get a job, he needed to move out of her house, and that it was getting to the
point where she did not want him there anymore. Plea T. at 13-14. The pair got into a
verbal altercation. Jenkins went back upstairs to his brother’s room. Betty came upstairs
to retrieve Jenkins’s three-year-old little brother. Betty told Jenkins that she did not want
him to hurt his brother because he had been drinking. They got into another verbal
Muskingum County, Case No. CT2021-0001 3
argument. Jenkins warned his brother to stay with him and Betty wanting the child to
come sleep in her room. Jenkins stated “I grabbed him from her, take him back up to the
attic, told him to go to sleep. I shut the door. We get into another argument because I
knew there was going to be a problem because she was going to -- she was not going to
leave me alone, and that's when it happened.” Plea T. at 14.
{¶5} The verbal argument continued outside the child's bedroom. Betty was
coming out of the bathroom. Jenkins was coming out of the bedroom. Jenkins punched
Betty, she hit him with a small child's chair that was nearby on the floor. Jenkins knocked
Betty down the stairs.
{¶6} There are two sets of stairs in Betty's house. The stairs he knocked her
down were referred to as the “servants' stairs.” They are steep, made of wood and they
lead into the kitchen with a sharp turn. When Betty got to the bottom, she was very badly
injured.
{¶7} Jenkins followed her down the stairs, and he saw her injuries. She was
wheezing. He knew he had hurt her very badly. Rather than getting her help, he took his
foot and he placed it on her throat as she wheezed, and he pressed down. Jenkins stood
on Betty’s throat eventually having to switch feet until he had suffocated the life out of
Betty Alvarez. Jenkins then went back up to the attic where his three-year-old brother
remained. He retrieved some plastic sheeting and came back downstairs. He wrapped
Betty's body in the plastic, and he drug her body into the garage. He moved her car into
the garage. When Rachel Sipple got back from her work shift that evening, which ended
at 6:30 a.m., the two of them loaded Betty’s body into the trunk of her car. Plea T. at 15.
Muskingum County, Case No. CT2021-0001 4
{¶8} The next morning John's sister, Mandy Jenkins, showed up at the house
looking for Betty’s car as if she had left something inside. The car was not where it was
normally parked. Mandy asked John where was Betty. Jenkins told her Betty was dead.
Mandy did not believe him. Jenkins clarified that there had been an argument, he hit Betty
in the face, and threw her to the ground. He told Mandy that every time Betty tried to get
up from the ground, Betty tried to run for her phone. Jenkins told Mandy he put his foot
on Betty's neck and left it there for ten minutes, and now her body was in the trunk of the
car. According to Mandy, Jenkins told her, “If you weren’t my sister, I would kill you right
now.” Jenkins then gave Mandy his little brother. Mandy took the child away to safety but
did not call the police.
{¶9} Later that day Jenkins and Sipple left for Columbus with Betty in the trunk.
Sipple drove providing transportation and assisted Jenkins in knowing that he had
committed a murder. Jenkins intended to take Betty to a farm somewhere near Columbus
where he had once been invited for a program; however, he could not find it, so they
found an abandoned stretch of roadway and dumped Betty’s body in a water-filled ditch
hoping she would not be found. Plea T. at 16.
{¶10} Later the next day, which would be May 28, 2019, they decided to purchase
a pellet gun and rob a Speedway in Columbus, which was being guarded by a uniformed
Columbus police officer. They were both arrested after the officer shot at them and there
was a chase and a crash. The next day, Mandy Jenkins called the Zanesville Police
Department to report what she knew about Betty.
{¶11} The Zanesville Police Department receiving a report that Betty might have
been the victim of a murder immediately dedicated five detectives and two Ohio Bureau
Muskingum County, Case No. CT2021-0001 5
of Criminal Investigation agents with the task of solving the crime. They discovered blood
which had been cleaned up from the scene of the crime, plastic sheeting, and items
matching described events. Plea T. at 17. When they confronted Jenkins, he immediately
confessed to his actions. Sipple also confessed, albeit less readily.
{¶12} On May 30th of 2019, Jenkins led Columbus and Zanesville police
detectives to Betty’s body so that she could receive a proper burial. Plea T. at 17
{¶13} Jenkins was originally indicted for one count of aggravated murder, an
unclassified felony; one count of tampering with evidence, a felony of the third degree;
and one count of abuse of a corpse, a felony of the fifth degree.
{¶14} On September 11, 2019, Jenkins entered a plea of guilty to one count of
aggravated murder.
{¶15} Jenkins requested a sentence of 20 years to life in prison so that he could
go before the parole board and demonstrate whether he has been rehabilitated and
amenable to parole. (Sent. T. Dec. 16, 2020 at 6). The prosecution requested a sentence
of 30 years to life in prison. (Sent. T. Dec. 16, 2020 at. 4).Jenkins was sentenced to a
mandatory prison term of life in prison without the possibility of parole.
Assignments of Error
{¶16} Jenkins raises three Assignments of Error,
{¶17} “I. JOHN JENKINS DID NOT KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY PLEAD GUILTY, IN VIOLATION OF HIS DUE PROCESS RIGHTS
UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO
CONSTITUTION.
Muskingum County, Case No. CT2021-0001 6
{¶18} “II. JENKINS SENTENCE OF LIFE IN PRISON WITHOUT PAROLE
VIOLATES THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
{¶19} “III. JENKINS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN
VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
I.
{¶20} In his First Assignment of Error, Jenkins argue claims he did not knowingly,
intelligently, and voluntarily plead guilty because the trial court did not explain the
effect of his guilty plea, in other words, that his guilty plea was a complete admission of
guilt. [Appellant’s Brief at 2-3].
Standard of Appellate Review
{¶21} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and
voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need
only "substantially comply" with the rule when dealing with the non-constitutional
elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d
115(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977).
{¶22} When reviewing a plea’s compliance with Crim.R. 11(C), we apply a de
novo standard of review. State v. Nero, 56 Ohio St.3d 106, 108-109, 564 N.E.2d
474(1990); State v. Lebron, 8th Dist. Cuyahoga No. 108825, 2020-Ohio-1507, ¶9; State
v. Groves, 5th Dist. Fairfield Nos. 2019 CA 00032, 2019 CA 00033, 2019-Ohio-5025,¶7.
Issue for Appellate Review: Whether the record reflects that Jenkins’s negotiated
guilty plea would not have been entered if the trial judge had informed Jenkins orally at
Muskingum County, Case No. CT2021-0001 7
the plea hearing that “[t]he plea of guilty is a complete admission of the defendant's guilt”
in accordance with Crim. R. 11(B)(1).
{¶23} The constitutional rights that the trial court must advise a defendant who
desires to enter a guilty plea are: (1) the right to a jury trial; (2) the right to confrontation
of witnesses against him; (3) the right to compulsory process for obtaining witnesses in
his favor; (4) that the state must prove the defendant’s guilt beyond a reasonable doubt
at trial; and (5) that the defendant cannot be compelled to testify against himself. State
v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 19. If the trial court
fails to strictly comply with these requirements, the defendant’s plea is invalid. Id. at ¶
31.
{¶24} The non-constitutional rights that the defendant must be informed of are:
(1) the nature of the charges; (2) the maximum penalty involved, which includes, if
applicable, an advisement on post-release control; (3) if applicable, that the defendant is
not eligible for probation or the imposition of community control sanctions; and (4) that
after entering a guilty plea or a no contest plea, the court may proceed directly to judgment
and sentencing. Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10-13; State v. Sarkozy, 117 Ohio
St.3d 86, 2008-Ohio-509, 423 N.E.2d 1224, ¶ 19-26, (postrelease control is a non-
constitutional advisement).
{¶25} For the non-constitutional rights, the trial court must substantially comply
with Crim.R. 11’s mandates. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474(1990). “Substantial compliance means that under the totality of the circumstances the
defendant subjectively understands the implications of his plea and the rights he is
waiving.” Veney at ¶ 15. Furthermore, a defendant who challenges his guilty plea on the
Muskingum County, Case No. CT2021-0001 8
basis that the advisement for the non-constitutional rights did not substantially comply
with Crim.R. 11(C) must also show a prejudicial effect, meaning the plea would not have
been otherwise entered. Veney at ¶ 15; State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d
1163(1977); State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶12,
citing State v. Nero, 56 Ohio St.3d at 107, 564 N.E.2d 474.
{¶26} The information that a guilty plea is a complete admission of guilt, along
with the other information required by Crim.R. 11, ensures that defendants enter pleas
with knowledge of rights that they would forgo and creates a record by which appellate
courts can determine whether pleas are entered voluntarily. See State v. Nero, 56 Ohio
St.3d 106, 107, 564 N.E.2d 474(1990); see, also, State v. Ballard, 66 Ohio St.2d 473,
479–480, 20 O.O.3d 397, 423 N.E.2d 115(1981).
{¶27} Crim.R. 11(B), captioned “Effect of guilty or no contest pleas,” states that a
plea of guilty “is a complete admission of the defendant’s guilt.” The right to be informed
that a guilty plea is a complete admission of guilt is non-constitutional and therefore is
subject to review under a standard of substantial compliance. State v. Griggs, 103 Ohio
St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶12, citing State v. Nero, 56 Ohio St.3d at 107,
564 N.E.2d 474.
{¶28} In the case at bar, before Jenkins entered his negotiated guilty plea in open
court, Jenkins voluntarily signed a form titled “Plea of Guilty.” The form was also signed
by Jenkins’s attorney and the prosecuting attorney. The form was filed with the trial court
on September 11, 2019. [Docket Entry No. 14]. The form informed Jenkins,
By pleading guilty I admit committing the offense and will tell the
Court the facts and circumstances of my guilt...
Muskingum County, Case No. CT2021-0001 9
{¶29} The court received assurances from Jenkins and his counsel that Jenkins
understood the content of the document and the consequences of waiving his rights. Plea
T. at 4-5. The prosecutor set forth the factual basis for Jenkins’s guilty plea. Plea T. at
13-18. Jenkins did not object to the state’s rendition of the facts. Jenkins did not protest
his innocence, nor did Jenkins argue to the trial court that he was guilty of a lesser offense
than aggravated murder. Jenkins entered his plea on September 11, 2019. Jenkins was
sentenced in open court on December 16, 2020. At no time during the four hundred sixty
two days between his plea and his sentencing did Jenkins attempt to withdraw his
negotiated guilty plea.
{¶30} Jenkins does not argue, nor does he demonstrate by reference to the trial
court record, that if the trial court had told him that his plea of guilty was a complete
admission of his guilt, he would not have entered a guilty plea. Thus, Jenkins has failed
to carry his burden to demonstrate that he would not have entered his negotiated guilty
plea if the trial judge had informed him that his plea of guilty was a complete admission
of his guilt.
{¶31} As in Stewart, Nero, and Griggs the record here indicates that Jenkins
understood the rights that he would waive by pleading guilty. The record in the case at
bar demonstrates that Jenkins understood that by entering his guilty plea, he admitted to
committing the crime of aggravated murder. In such circumstances, a court’s failure to
inform the defendant of the effect of his guilty plea as required by Crim.R. 11(B)(1) is
presumed not to be prejudicial. Griggs, 103 Ohio St.3d 85 at ¶19.
{¶32} Accordingly, we hold that Jenkins’s entered a knowing, intelligent and
voluntary guilty plea.
Muskingum County, Case No. CT2021-0001 10
{¶33} Jenkins’s First Assignment of Error is overruled.
II.
{¶34} In his Second Assignment of Error, Jenkins contends the trial court violated
his Eighth Amendment right against cruel and unusual punishment by sentencing him to
life without parole. Specifically, Jenkins argues that the trial court is required to make a
finding on the record that that he is not amenable to rehabilitation before the court can
sentence a defendant to life without the possibility of parole, citing State v. Long , 138
Ohio St.3d 478, 2014- Ohio-849. [Appellant’s Brief at 4-5].
Standard of Appellate Review
{¶35} Jenkins was sentenced under R.C. 2929.03(A)(1)(a), the statutory section
governing sentences for aggravated murder that do not include one or more specifications
relating to aggravating circumstances (i.e., death-penalty specifications). R.C.
2953.08(D)(3) provides that “a sentence imposed for aggravated murder or murder
pursuant to sections 2929.02 to 2020.06 of the Revised Code is not subject to review
under this section.” However, R.C. 2953.08(D)(3) is not the exclusive basis for appealing
a sentence. State v. Patrick, 164 Ohio St.3d 952, 2020-Ohio-6803, 172 N.E.3d 952, ¶ 15.
“Indeed R.C. 2953.02 also provides a right to appeal a judgment or final order to the court
of appeals ‘[i]n a capital case in which a sentence of death is imposed for an offense
committed before January 1, 1995, and in any other criminal case * * *.’ (Emphasis
added.) R.C. 2953.02 also provides, ‘A judgment or final order of the court of appeals
involving a question arising under the Constitution of the United States or of this state
may be appealed to the supreme court as a matter of right.’ The final judgment for
purposes of appeal under R.C. 2953.02 is the sentence.” Patrick at ¶ 16. Therefore, R.C.
Muskingum County, Case No. CT2021-0001 11
2953.08(D)(3) does not preclude an appellate court’s review of a constitutional challenge
to a sentence for aggravated murder or murder. Id. at ¶ 22.
{¶36} Accordingly, Jenkins’s argument centers on an issue of law, not the
discretion of the trial court. “‘When a court’s judgment is based on an erroneous
interpretation of the law, an abuse-of-discretion standard is not appropriate. See
Swartzentruber v. Orrville Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264,
836 N.E.2d 619, ¶ 6; Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-
Ohio-2554, 2008 WL 2572598, ¶ 50.’ Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d
181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13.” State v. Fugate, 117 Ohio St.3d 261,
2008-Ohio-856, 883 N.E.2d 440, ¶6. Because the assignment of error involves the
interpretation of the constitution, which is a question of law, we review the trial court’s
decision de novo. See, Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-
2496, 909 N.E.2d 1237, ¶ 13; Accord, State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-
4010, 998 N.E.2d 401, ¶ 9; Hurt v. Liberty Township, Delaware County, OH, 5th Dist.
Delaware No. 17 CAI 05 0031, 2017-Ohio-7820, ¶ 31.
Issue for Appellate Review: Whether Jenkins’s sentence is so grossly
disproportionate to the offense as to shock the sense of justice in the community.
{¶37} The Eighth Amendment to the United States Constitution prohibits
“[e]xcessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.”
{¶38} Section 9, Article I of the Ohio Constitution sets forth the same restriction:
“Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual
punishments inflicted.”
Muskingum County, Case No. CT2021-0001 12
{¶39} “The Eighth Amendment does not require strict proportionality between
crime and sentence. Rather, it forbids only extreme sentences that are grossly
disproportionate” to the crime. State v. Weitbrecht, 86 Ohio St.3d 368, 373, 715 N.E.2d
167(1999), quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680(1991),
(Kennedy, J., concurring in part and in judgment). A court's proportionality analysis under
the Eighth Amendment should be guided by objective criteria, including (i) the gravity of
the offense and the harshness of the penalty; (ii) the sentences imposed on other
criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the
same crime in other jurisdictions. (Footnotes omitted.)” Solem v. Helm, 463 U.S. 277,
290–292, 103 S.Ct. 3001, 3010–3011, 77 L.Ed.2d 637, 649–650(1983). (Internal
quotation marks omitted).
{¶40} It is well established that sentences do not violate these constitutional
provisions against cruel and unusual punishment unless the sentences are so grossly
disproportionate to the offenses as to shock the sense of justice in the community. State
v. Chaffin, 30 Ohio St.2d 13, 59 O.O.2d 51, 282 N.E.2d 46(1972). Accord, State v.
Blankenship, 145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d 516, ¶32.
{¶41} As a general rule, a sentence that falls within the terms of a valid statute
cannot amount to a cruel and unusual punishment. State v. Stevens, 5th Dist. Stark No.
2017CA00024, 2017-Ohio-8692, ¶ 10, quoting McDougle v. Maxwell, 1 Ohio St.2d 68,
69, 203 N.E.2d 334 (1964).
{¶42} In the case at bar, the facts of the crime read into the record by the
prosecutor establish that Jenkins struck his grandmother and caused her to fall down a
flight of stairs. Upon seeing her injured and incapacitated at the bottom of the stairwell,
Muskingum County, Case No. CT2021-0001 13
Jenkins, instead of calling for help, callously, intentionally and with utter disregard for the
elderly woman sprawled helplessly at his feet, placed his foot upon her neck. As she
writhed in pain, he intentionally and nonchalantly changed feet when the one squeezing
the life out of the helpless woman grew tired. It took Jenkins about ten minutes to squeeze
the life out of Betty. At any point prior, Jenkins could have stopped and summoned help.
He did not. Rather, he wrapped Betty’s body in plastic and dumped it in a water filled ditch
alongside the road. He told Mandy that he would immediately kill her if she were not his
sister. Shortly thereafter he attempted to rob a convenience store and flee the jurisdiction.
{¶43} There is no evidence in the record that the judge acted unreasonably by,
for example, selecting the sentence arbitrarily, basing the sentence on impermissible
factors, failing to consider pertinent factors, or giving an unreasonable amount of weight
to any pertinent factor. We find nothing in the record of Jenkins’s case to suggest that his
sentence was based on an arbitrary distinction that would violate the Due Process Clause
of the Fifth Amendment. State v. Firouzmandi, 5th Dist. Licking App. No. 2006–CA–41,
2006–Ohio–5823, ¶ 43. Jenkins does not challenge his sentence as out of line with other
sentences from this or other jurisdictions, nor does he argue he was not sentenced within
a range permitted by statute.
{¶44} Upon our review of the record, we cannot say Jenkins’s sentence is “so
disproportionate to the offense as to shock the moral sense of the community.” Chaffin,
supra.
{¶45} Jenkin’s reliance upon State v. Long, 138 Ohio St.3d 478, 2014- Ohio-849
is misplaced. Long was convicted as a juvenile and sentenced to life without parole. The
Court in Long noted,
Muskingum County, Case No. CT2021-0001 14
In Miller, the United States Supreme Court began by reviewing its
previous decisions regarding the sentencing of juveniles.
Roper and Graham establish that children are constitutionally
different from adults for purposes of sentencing. Because juveniles have
diminished culpability and greater prospects for reform, we explained, “they
are less deserving of the most severe punishments.” Graham, 560 U.S. at
68, 130 S.Ct. at 2026, 176 L.Ed.2d 825. Those cases relied on three
significant gaps between juveniles and adults. First, children have a “‘lack
of maturity and an underdeveloped sense of responsibility,’ ” leading to
recklessness, impulsivity, and heedless risk-taking. Roper, 543 U.S., at
569, 125 S.Ct. 1183, 161 L.Ed.2d 1. Second, children “are more vulnerable
* * * to negative influences and outside pressures,” including from their
family and peers; they have limited “contro[l] over their own environment”
and lack the ability to extricate themselves from horrific, crime-producing
settings. Ibid. And third, a child’s character is not as “well formed” as an
adult’s; his traits are “less fixed” and his actions less likely to be “evidence
of irretrievabl[e] deprav [ity].” Id., at 570, 125 S.Ct. 1183, 161 L.Ed.2d 1.
Miller, ––– U.S. ––––, 132 S.Ct. at 2464, 183 L.Ed.2d 407.
Long, 138 Ohio St.3d 478 at ¶12.
{¶46} The Supreme Court concluded,
The United States Supreme Court has indicated in Roper, Graham,
and Miller that juveniles who commit criminal offenses are not as culpable
for their acts as adults are and are more amenable to reform. We agreed
Muskingum County, Case No. CT2021-0001 15
with this sentiment in In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967
N.E.2d 729. Miller did not go so far as to bar courts from imposing the
sentence of life without the possibility of parole on a juvenile. Yet because
of the severity of that penalty, and because youth and its attendant
circumstances are strong mitigating factors, that sentence should rarely be
imposed on juveniles. Miller, ––– U.S. ––––, 132 S.Ct. at 2469, 183 L.Ed.2d
407. In this case, the trial court must consider Long’s youth as mitigating
before determining whether aggravating factors outweigh it. We therefore
reverse the judgment of the court of appeals and remand this cause to the
trial court for resentencing.
Long, 138 Ohio St.3d 478 at ¶29.
Jenkins has cited absolutely no authority in support of his contention that a trial
court must make a finding on the record that that he is not amenable to rehabilitation
before the court can sentence an adult offender to life without the possibility of parole.
{¶47} We find the sentence of the trial court is supported by the record and does
not violate the constitutional prohibition against cruel and unusual punishment.
{¶48} Jenkins’s Second Assignment of Error is overruled.
III.
{¶49} In his Third Assignment of Error, Jenkins argues that he was denied
effective assistance of trial counsel because trial counsel failed to present any evidence
to support any mitigating factors such as psychological reports or witness statements in
order to support the trial court’s imposition of a twenty year sentence instead of a life
sentence.
Muskingum County, Case No. CT2021-0001 16
Standard of Appellate Review – Ineffective Assistance of Counsel
{¶50} To prevail on a Sixth Amendment claim alleging ineffective assistance of
counsel, a defendant must show that his counsel’s performance was deficient and that
his counsel’s deficient performance prejudiced him. Strickland v. Washington, 466 U.S.
668, 694 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, a defendant must
show that “counsel’s representation fell below an objective standard of reasonableness.”
Id., at 688, 104 S.Ct. 2052. And to establish prejudice, a defendant must show “that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id., at 694, 104 S.Ct. 2052. Andtus v. Texas,
590 U.S. __, 140 S.Ct. 1875, 1881 (June 15, 2020).
Issue for Appellate Review: Whether there is a reasonable probability that, but
for counsel’s failure to present evidence of mitigating factors the result of the proceeding
would have been different.
{¶51} Jenkins claim that his attorney could have produced expert witnesses,
psychological reports or character witnesses that would have swayed the trial court to
impose a twenty-year sentence is based upon pure speculation.
{¶52} “‘The presentation of mitigating evidence is a matter of trial strategy,’ State
v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 189, even if counsel's
chosen strategy proves unsuccessful, State v. Frazier, 61 Ohio St.3d 247, 255, 574
N.E.2d 483 (1991).” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d
508, ¶ 304.
{¶53} “Debatable trial tactics do not establish ineffective assistance of counsel.”
State v. Hoffner, 102 Ohio St.3d 358, 365, 2004–Ohio–3430(2004), ¶45. Trial counsel’s
Muskingum County, Case No. CT2021-0001 17
failure to request an expert is a “debatable trial tactic,” and does not amount to ineffective
assistance of counsel. See State v. Thompson (1987), 33 Ohio St.3d 1, 9, 514 N.E.2d
407 (trial counsel’s failure to obtain a forensic pathologist to “rebut” the issue of rape was
not ineffective assistance of counsel); State v. Foust, 105 Ohio St.3d 137, 153–154,
2004–Ohio–7006, 823 N.E.2d 836, ¶¶ 97–99 (trial counsel’s failure to request funds for a
DNA expert, an alcohol and substance-abuse expert, a fingerprint expert, and an arson
expert did not amount to ineffective assistance of counsel because appellant’s need for
experts was “highly speculative” and counsel’s choice “to rely on cross-examination” of
prosecution’s expert was a “legitimate tactical decision”); State v. Yarger, 6th Dist. No.
H–97–014, 1998 WL 230648 (May 1, 1998) (trial counsel’s failure to hire an expert
medical doctor to rebut state’s expert witness was not ineffective assistance of trial
counsel); State v. Rutter, 4th Dist. No. 02CA17, 2003–Ohio–373, ¶ 19, 28 (trial counsel’s
failure to hire an accident re-constructionist did not amount to ineffective assistance of
counsel).
{¶54} “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. Reese, 8 Ohio App.3d
202, 203, 456 N.E.2d 1253 (1st Dist. 1982). Accord, State v. Varner, 5th Dist. No.
98CA00016, 1998 WL 667620 (Sept. 14, 1998). We note the record is devoid of a proffer
of the testimony of any purported witnesses. Based upon the status of the record
presently before this Court, we find Jenkins is unable to demonstrate the testimony would
have been of significant assistance to his defense.
Muskingum County, Case No. CT2021-0001 18
{¶55} Jenkins’s counsel did argue that Jenkins’s mother had died shortly before
his crime, that he was relatively young at 28 years old, and that Jenkins had a drinking
problem. Sent. T. at 4-6. Jenkins made a statement to the trial judge during the
sentencing hearing. Sent. T. at 8. Further, the trial court had the benefit of a Pre-Sentence
Investigation report. Sent. T. at 8-9. The trial court received 58 letters from Betty’s family
and friends. Id. at 10.
{¶56} Trial counsel made an argument on Jenkins’s behalf for a lesser sentence.
The fact that the trial court did not agree does not mean that defense counsel was
ineffective in the attempt to obtain a more favorable sentence.
{¶57} Jenkins has failed to show that the presentation of additional evidence
would have resulted in the trial court imposing a lesser sentence. Therefore, Jenkins has
failed to establish that he has been prejudice by trial counsel’s performance.
Muskingum County, Case No. CT2021-0001 19
{¶58} Jenkins’s Third Assignment of Error is overruled.
{¶59} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By Gwin, J.,
Baldwin, P.J., and
Hoffman, J, concur