State v. Smalley ( 2019 )

[Cite as State v. Smalley, 2019-Ohio-1572.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
STATE OF OHIO,
CASE NO. 7-18-30
PLAINTIFF-APPELLEE,
v.
WESLEY SMALLEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Henry County Common Pleas Court
Trial Court No. 18 CR 0014
Judgment Affirmed
Date of Decision: April 29, 2019
APPEARANCES:
Sarah R. Anjum for Appellant
Gwen Howe-Gebers for Appellee
Case No. 7-18-30
WILLAMOWSKI, J.
{¶1} Defendant-appellant Wesley Smalley (“Smalley”) appeals the
judgment of the Henry County Court of Common Pleas, alleging that he was denied
his right to the effective assistance of counsel. For the reasons set forth below, the
judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On February 28, 2018, Smalley was indicted on one count of cruelty to
a companion animal in violation of R.C. 959.131(C). After a bench trial on August
21, 2018, the trial court found Smalley guilty. Doc. 57. On October 1, 2018,
Smalley was sentenced to two years of community control and fourteen days in the
Correctional Center of Northwest Ohio, being granted work release for the first
seven days and being subject to GPS/house arrest for the remaining seven days.
Doc. 64.
Assignment of Error
{¶3} Smalley filed his notice of appeal on October 17, 2018. Doc. 68. On
appeal, he raises the following assignment of error:
Trial counsel committed ineffective assistance of counsel when it
failed to make any record of plea negotiations.
Smalley points to the absence of plea negotiations as evidence that his trial counsel
was deficient.
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Legal Standard
{¶4} “Under Ohio law, ‘a properly licensed attorney is presumed to carry out
his duties in a competent manner.’” State v. Beaver, 3d Dist. Marion No. 9-17-37,
2018-Ohio-2438, ¶ 26, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9, 1993
WL 270995 (July 22, 1993). For this reason, the appellant has the burden of proving
that he or she was denied the right to the effective assistance of counsel. State v.
Brown, 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, ¶ 42. “In order to prove an
ineffective assistance of counsel claim, the appellant must carry the burden of
establishing (1) that his or her counsel’s performance was deficient and (2) that this
deficient performance prejudiced the defendant.” State v. McWay, 3d Dist. Allen
No. 1-17-42, 2018-Ohio-3618, ¶ 24, quoting Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶5} In order to establish deficient performance, the appellant must
demonstrate that trial “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
State v. Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 35, quoting
Strickland at 687. In order to establish prejudice, “the defendant must show a
reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different.” State v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-
Ohio-2916, ¶ 36, quoting State v. Bibbs, 3d Dist. Hancock No. 5-16-11, 2016-Ohio-
8396, ¶ 13. If the appellant does not establish one of these two prongs, the appellate
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court does not need to consider the facts of the case under the other prong of the
test. State v. Baker, 3d Dist. Allen No. 1-17-61, 2018-Ohio-3431, ¶ 19, citing State
v. Walker, 2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist.).
Legal Analysis
{¶6} In his brief, Smalley argues that his counsel failed to record any plea
negotiations that may have occurred. Smalley asserts that a plea agreement offer
would have been “routine” in a case such as this one, possibly suggesting that there
may have been a plea agreement offer from the State that was not communicated to
him by his trial counsel. Appellant’s Brief, 8. Smalley then contends that he was
“likely prejudiced by the lack of plea negotiations.” Appellant’s Brief, 8.
{¶7} These arguments are entirely speculative. In this case, there is no
evidence in the record that indicates that the State made a plea offer to Smalley’s
trial counsel or that the State was even interested in entering into plea negotiations.1
We cannot conclude that trial counsel was ineffective for failing to negotiate a plea
agreement when the appellant has not offered any evidence that such an option was
even available to his trial counsel. Similarly, we cannot conclude that trial counsel
was ineffective for failing to preserve a record of plea negotiations when appellant
has presented no evidence that plea negotiations occurred.
1
The State, in its brief, represents that the prosecution made no offer of a plea agreement “other than to plead
to the indictment as charged” because “the offense was a low level felony * * *.” Appellee’s Brief, 7.
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{¶8} No evidence has been presented on appeal to substantiate the claim that
Smalley was denied his right to the effective assistance of counsel. Smalley has not,
in any of his arguments, carried the burden of proving that his trial counsel’s
performance was deficient. For these reasons, Smalley’s first assignment of error
is overruled.
Conclusion
{¶9} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Henry County Court of Common Pleas is
affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and PRESTON, J., concur.
/hls
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