State v. Gilmore

[Cite as State v. Gilmore, 2016-Ohio-4697.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103479
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SHANDA HOBSON GILMORE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-594817
BEFORE: Jones, A.J., McCormack, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: June 30, 2016
ATTORNEY FOR APPELLANT
Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kerry A. Sowul
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., A.J.:
{¶1} Defendant-appellant, Shanda Hobson Gilmore, appeals her robbery, theft, and
carrying concealed weapon convictions. We affirm.
{¶2} In 2015, Gilmore was charged with one count each of aggravated robbery,
robbery, and kidnapping, all with firearm specifications; petty theft; carrying a concealed
weapon; and two counts of tampering with evidence. She was referred for a competency
evaluation and found competent to stand trial. She entered into a plea agreement and
pleaded guilty to robbery with a one-year firearm specification, petty theft, and carrying a
concealed weapon. The trial court sentenced her to a total of three years in prison.
{¶3} The record reflects that Gilmore, a habitual cocaine user, smoked the
synthetic drug K2 and walked into the Shell gas station on South Taylor Road in
Cleveland Heights with a gun. She walked behind the employee area of the gas station,
took her loaded .38 caliber handgun, and pointed it at an employee of the store. Gilmore
then took $120 off the counter and fled. The police arrested Gilmore a short time later.
She was unarmed, but the police found the gun a short distance from the gas station.
{¶4} Gilmore filed a timely notice of appeal and raises one assignment of error for
our review. Further facts germane to this appeal will be discussed under the assignment
of error.
I. The Appellant was denied effective assistance of counsel in violation of
Amendments VI and XIV of the United States Constitution and Article I,
Section 10 of the Ohio Constitution, when counsel failed to file a motion
for not guilty by reason of insanity and failed to obtain an evaluation for
sanity at the time of the act in light of the circumstances of the case.
{¶5} In her sole assignment of error, Gilmore argues that her counsel was
ineffective for failing to set forth the argument that she was not sane at the time she
committed her crime.
{¶6} In order to substantiate a claim of ineffective assistance of counsel, the
appellant is required to demonstrate that (1) the performance of defense counsel was
seriously flawed and deficient, and (2) the result of the appellant’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), syllabus; State v. Brooks, 25 Ohio St.3d 144, 495 N.E.2d 407 (1986). “Judicial
scrutiny of counsel’s performance is to be highly deferential, and reviewing courts must
refrain from second-guessing the strategic decisions of trial counsel.” State v. Carter,
72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Further, “trial counsel is entitled to a
strong presumption that all decisions fell within the wide range of reasonable,
professional assistance.” State v. Sallie, 81 Ohio St.3d 673, 675, 693 N.E.2d 267(1998), citing State v. Thompson, 33 Ohio St.3d 1, 10, 514 N.E.2d 407 (1987).
{¶7} Gilmore argues that defense counsel was ineffective for failing to pursue a
defense of not guilty by reason of insanity. R.C. 2901.01(A)(14) provides that
[a] person is “not guilty by reason of insanity” relative to a charge of an
offense only if the person proves [by a preponderance of the evidence] that
at the time of the commission of the offense, the person did not know, as a
result of a severe mental disease or defect, the wrongfulness of the person’s
acts.
{¶8} If the “facts and circumstances indicate that a plea of not guilty by reason of
insanity would have had a reasonable probability of success, it is ineffective assistance of
counsel to fail to enter the plea.” State v. Allen, 8th Dist. Cuyahoga No. 91750,
2009-Ohio-2036, ¶ 23, citing State v. Mangus, 7th Dist. Columbiana No. 07 CO 36,
2008-Ohio-6210. Where, however, the facts indicate that counsel was pursuing a
reasonable strategy in failing to so plead, or where the likelihood of success for the plea is
low, counsel’s actions will not be determined to be unreasonable. Id. citing id.{¶9} In Allen, the defendant pleaded guilty to aggravated robbery and attempted
escape but claimed on appeal that his counsel had been ineffective, in part, because
counsel failed to realize that the defendant was insane at the time of the act. The
defendant thought that counsel should have raised that defense because he (Allen) had no
recollection of the offense. This court disagreed, noting that Allen had smoked PCP
prior to committing the offense; therefore, his judgment was impaired. The court found
that defendant failed to provide evidence that he did not understand the wrongfulness of
his actions, any argument that he was not sane at the time of the act was merely
speculative, and he had failed to show evidence that his insanity defense would likely
succeed. Finally, this court noted that the defendant had pleaded guilty to an amended
indictment; thus, the plea was a tactical decision on the part of counsel. Id. at ¶ 26.
{¶10} In this case, Gilmore claimed at the sentencing hearing that she did not
remember the offense and was “asleep” at the time, but there is nothing in the record to
show that Gilmore did not understand the wrongfulness of her actions. She further
asserts that “had she been in her right mind,” she would not have committed the crime.
But Gilmore, who admitted to being a daily cocaine abuser, also admitted to smoking the
drug K2 prior to committing the offense, and thus, her judgment would have been
impaired at the time she committed the crime.
{¶11} Moreover, in the presentence investigation report, Gilmore told the
probation department investigator that “she is sorry this offense happened. She wishes
that she never ‘hit’ the K2. She wishes that the fire would have never started at her
house and that she would have not ‘spazzed out.’”1 Thus, contrary to Gilmore’s claim at
her sentencing hearing, her statement to the probation department investigator indicates
that she did understand the wrongfulness of her actions.
{¶12} Similar to the defendant in Allen, Gilmore agreed to plead guilty to an
amended indictment; Gilmore was charged with seven counts, including a felony of the
first degree (aggravated robbery), and pleaded guilty to only three of those counts, the
highest being a second-degree felony (robbery). This court will not second-guess a
tactical decision on the part of trial counsel.
{¶13} The sole assignment of error is overruled.
{¶14} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
1
There is nothing in the record about a fire at Gilmore’s house.
It is ordered that a special mandate issue out of this court directing the common
pleas 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.
LARRY A. JONES, SR., ADMINISTRATIVE JUDGE
TIM McCORMACK, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR