[Cite as State v. Marsh, 2013-Ohio-757.]

                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT


STATE OF OHIO,                                   )    CASE NO.    12 MA 40
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )
VS.                                              )    OPINION
                                                 )
MICHAEL MARSH,                                   )
                                                 )
        DEFENDANT-APPELLANT.                     )


CHARACTER OF PROCEEDINGS:                             Criminal Appeal from Common Pleas
                                                      Court, Case No. 11CR1333.


JUDGMENT:                                             Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                               Attorney Paul Gains
                                                      Prosecuting Attorney
                                                      Attorney Ralph Rivera
                                                      Assistant Prosecuting Attorney
                                                      21 West Boardman Street, 6th Floor
                                                      Youngstown, Ohio 44503

For Defendant-Appellant:                              Attorney Jay Blackstone
                                                      P.O. Box 3412
                                                      Youngstown, Ohio 44513


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                      Dated: March 1, 2013
[Cite as State v. Marsh, 2013-Ohio-757.]
VUKOVICH, J.


        {¶1}     Defendant-appellant Michael Marsh appeals from his robbery conviction
entered in the Mahoning County Common Pleas Court. Multiple times prior to trial,
the state offered to recommend two years in prison if appellant pled guilty to the
charged robbery. Appellant rejected the plea, was convicted as charged by a jury,
and was sentenced by the court to six years in prison. Appellant urges that defense
counsel rendered ineffective assistance of counsel at the plea bargaining stage by
advising him that the case was “possibly winnable.” For the following reasons, the
judgment of the trial court is affirmed.
                                   STATEMENT OF THE CASE
        {¶2}     On December 3, 2011, appellant shoplifted from Walmart in Austintown.
In the process of apprehending appellant, Walmart’s asset protection associate got
scratched on the hand.            Appellant was indicted for robbery, in violation of R.C.
2911.02(A)(2), which provides, “No person, in attempting or committing a theft
offense or in fleeing immediately after the attempt or offense, shall * ** Inflict, attempt
to inflict, or threaten to inflict physical harm on another.” The offense was a second
degree felony, which carries a sentence of two, three, four, five, six, seven, or eight
years. R.C. 2911.02(B); R.C. 2929.14(A)(2).
        {¶3}     Pretrials were held on January 13 and February 22, 2012. At both
pretrials and for a third time just minutes before jury selection, the state offered the
same plea deal: plead guilty as charged, and the state would recommend a minimum
sentence of two years. (Tr. 8). The defendant rejected the plea deal each time.
When the state placed this offer on the record, appellant’s court-appointed defense
counsel noted that he reviewed the matter with appellant, but appellant wished to
proceed to trial. Defense counsel also disclosed that he showed the jury instructions
to appellant. (Tr. 9). Notably, the jury instructions explained, in accordance with R.C.
2901.01(A)(3), that the physical harm inflicted or attempted in a robbery includes any
injury regardless of its gravity or duration. (Tr. 316).
        {¶4}     The trial court ensured appellant was aware of the terms of the plea
offer and that it was appellant’s desire to reject the proposal. (Tr. 9). Counsel then
                                                                                       -2-

argued two motions in limine that he had filed two days prior. One motion asked to
exclude appellant’s prior convictions from evidence if he chose to testify. It was
revealed that within the past ten years, appellant had prior felony convictions
involving drug trafficking, carrying a concealed weapon, and illegal processing of
drug documents. He also had a number of misdemeanor theft convictions and a
falsification conviction. (Tr. 10, 13). The court ruled that the state could question
appellant about his prior convictions if appellant took the stand. (Tr. 18).
       {¶5}   Before calling the potential jurors down, the court stated to defense
counsel, “I would suggest you have some more discussion with your client.” (Tr. 28).
After a brief recess, defense counsel advised the court that his client had requested
new counsel. The court voiced that trial was scheduled to start. The court also said
that it was aware of the work defense counsel had performed for the defendant and
praised the plea proposal obtained for the defendant. (Tr. 28).
       {¶6}   The defendant stated that he had been trying to avoid seeking new
counsel, that he had wanted to give counsel a chance, but he had a few reasons for
wanting to terminate counsel. First, he claimed that counsel called his friend and
asked if the friend would be picking appellant up for court; as appellant was in jail,
appellant opined that the call to his friend made no sense. In addition, appellant said,
“yesterday he spoke to me in confidence and he really convinced me that he was
going to work hard on my case and try to win my case and he made me believe that
he believed he was going to win the case. All of a sudden, I’m hearing a different
story now. He was supposed to contact somebody to work on the case. Three
strikes.” (Tr. 29). Appellant said that if the court granted new counsel, he had a
friend who would “possibly” retain an attorney for him if he wrote to him. (Tr. 30).
       {¶7}   Defense counsel responded to each claim. First, he stated that he did
not call appellant’s friend about picking appellant up as he knew appellant had been
in jail since his arrest. He explained that a friend of appellant’s said that he would be
providing clothes to appellant to wear in court, but since that never happened,
defense counsel had to provide the clothing for appellant. With regards to appellant’s
comment about working hard on the case, counsel stated that he told appellant, “if it
                                                                                        -3-

goes to a jury trial, I’ll give it my best.” (Tr. 30). Counsel then noted that part of being
a defense attorney is to make sure the client very clearly understands the risks
involved. (Tr. 30-31). Counsel stated that he explained the risks to appellant. (Tr.
31). As for the third comment, counsel explained that appellant wanted his friend to
enlarge the footage from the surveillance camera. Counsel called the friend, but the
friend said that his camcorder could only enlarge footage that he shot with the
camera and not someone else’s footage. (Tr. 31).
       {¶8}   The court denied appellant’s motion for new counsel, voicing that
defense counsel “is a very, very competent lawyer.”            The court stated that in
reviewing the file, the motions filed, and the arguments heard, it was obvious that
defense counsel did his job. The court opined that since appellant had been to
prison more than once in the past, appellant was lucky to have been offered a plea
wherein the state recommended a minimum sentence. “That certainly doesn’t speak
of somebody -- of a lawyer that didn’t do his job.           If anything, you should be
complimenting him for getting that proposal.” (Tr. 32). The defendant then opined
that the plea was obtained because the evidence was weak, voicing disbelief that
many people go to prison for the crime he committed. (Tr. 32).
       {¶9}   The case was then tried to a jury. The state presented the testimony of
Walmart’s asset protection associate (hereinafter “the employee”), an assistant
manager at Walmart, and the responding police officer. The employee testified that
he was patrolling the store in plainclothes when he saw appellant, who was not
permitted to be in the store, opening merchandise containing a box cutter. (Tr. 201-
203). Appellant loaded a blade into the cutter and put it in his pocket. (Tr. 202). He
then went to another section of the store and stuffed three rain parkas and two
ponchos into his jacket and pants. (Tr. 202, 212).
       {¶10} The employee had already pointed appellant out to his manager, who
then took up a post at the front door of the store.          (Tr. 202-203, 238).     When
appellant began to exit the store with the merchandise, the manager told appellant
that he wanted to ask him some questions. (Tr. 205, 238). Appellant started to flee.
The manager tried to grab appellant’s arm, but appellant was able to bat his arm
                                                                                      -4-

away. (Tr. 205). The employee than grabbed appellant in a bear hug in order to
keep him upright and held him against a wall for one minute. (Tr. 206, 221, 223).
The employee testified that appellant struggled with him. He said that appellant
scratched his hand in trying to pry it from his shoulders. (Tr. 206). Appellant then
stopped resisting and walked to the office to await the police.
       {¶11} A photograph of the employee’s red and flushed face was introduced to
emphasize that a struggle took place as opposed to appellant peacefully
surrendering. State’s Exhibit 1.    Other photographs were introduced showing the
bleeding scratches on the employee’s hand. State’s Exhibit 2 and 3. The employee
testified that he still had scars on his hand from the scratches. (Tr. 212). The
manager and the police officer confirmed that the employee’s hand was scratched
and that he was bleeding. (Tr. 242, 261). The manager also confirmed that appellant
initially resisted and tried to get the employee’s hands off of him. It was elicited,
however, that the manager did not actually see the scratching occur, and he
conceded that it was possible that the employee’s hand got scratched when he
pushed appellant into the wall. (Tr. 238, 247, 250). The police officer testified that he
found the box cutter when he searched appellant’s pocket and that appellant was
belligerent. (Tr. 255-26).
       {¶12} The defense played the video footage from the surveillance camera,
which was shot from fairly far away. The defendant then decided to testify. Defense
counsel disclosed that this was against his advice and that appellant was very
insistent about testifying. He explained to the defendant that his prior convictions
would be used against him. (Tr. 268). The defendant then testified about the three
prior felonies and the five or six other theft convictions. (Tr. 271). The defendant
revealed that he pled guilty in every case and that he did not take these cases to trial
because he was not going to lie. (Tr. 271-272). He also testified that he has a drug
problem.
       {¶13} The defendant’s version of the events is that he remained calm and did
not struggle when the employee grabbed him and their momentum slammed them
into the wall.   (Tr. 275).   He denied that he scratched the employee’s hand,
                                                                                       -5-

explaining that his arms were being held. (Tr. 278). In opening and closing, counsel
pointed out that if you tackle someone against a wall with your hands around their
shoulders, you are going to get scraped. (Tr. 195, 302).
          {¶14} The jury deliberated for 38 minutes and returned a guilty verdict. On
March 6, 2010, trial court sentenced appellant to six years in prison. Appellant filed a
timely notice of appeal.
                                ASSIGNMENT OF ERROR
          {¶15} Appellant’s sole assignment of error provides:
          {¶16} “Appellant’s right to counsel under the Sixth Amendment to the U.S.
Constitution was violated as a result of the ineffective assistance of his counsel,
which caused the Appellant to reject a favorable plea bargain offered by the
prosecution, thereby resulting in a guilty verdict and sentence to a term of years
much longer than was offered by the prosecution.”
          {¶17} Appellant states that the evidence against him was overwhelming and
incontrovertible and thus it was deficient performance for counsel to advise appellant
that the case was “possibly winnable.”          He urges that outcome determinative
prejudice     existed   because    he   would   have   accepted    the   plea   with   the
recommendation of a two-year sentence if counsel would not have erroneously
caused appellant to believe that they could win at trial. Appellant posits that a new
United States Supreme Court case is dispositive of this issue, Lafler v. Cooper, 132
S.Ct. 1376, 182 L.Ed. 398 (2012).
          {¶18} The state responds that the record does not support appellant’s
contentions. The state posits that Lafler is distinguishable. The state alternatively
states that even if counsel made such a statement and even if it constituted deficient
performance, there was no prejudice because the trial court was free to reject the
state’s recommendation. Appellant replies that the latter contention is contrary to
Lafler.
          {¶19} In Lafler, a favorable plea offer was reported to the client and rejected
on the advice of counsel, who advised the defendant that the state could not prove
intent because the victim was shot below the waist, even though the defendant shot
                                                                                        -6-

the victim three times and missed her head once. The defendant took the case to
trial and was convicted, after which he received a sentence more than three times
higher than the plea offer. Notably, in an earlier communication with the trial court,
the defendant had admitted guilt and expressed a willingness to accept the plea
offer.
         {¶20} In a post-conviction hearing before the state trial court, the defendant
argued that his counsel’s advice constituted ineffective assistance of counsel. The
state court rejected his claim. The federal district court then granted the defendant
habeas relief and ordered specific performance of the plea agreement. The Sixth
Circuit affirmed, finding that counsel provided deficient performance by informing his
client of an incorrect legal rule and finding that the defendant suffered prejudice
because he lost an opportunity to plead guilty and receive the lower sentence
offered.
         {¶21} The Supreme Court began by emphasizing that the Sixth Amendment
right to counsel extends to the plea bargaining process. Id. at 1384.            If a plea
bargain is offered, the defendant has the right to effective assistance of counsel in
considering whether to accept it. Id. at 1387. Thus, the two-part Strickland test
applies, requiring a showing of deficient performance and prejudice. Id. at 384-138,
citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 203
(1985).
         {¶22} The defendant must show that but for the ineffective advice of counsel,
there is a reasonable probability that the plea offer would have been presented to the
court, that the court would have accepted its terms, and that the conviction or
sentence imposed would have been less severe than that actually imposed upon the
defendant. Id. at 1385. The Court agreed with the defendant and rejected the state’s
position that there is no prejudice if the defendant is later convicted after a fair trial.
Id.
         {¶23} The Court did not, however, agree with the specific performance
remedy imposed by the lower court. The Court stated that if the rejection of the plea
resulted in a greater sentence, the trial court should conduct an evidentiary hearing
                                                                                                     -7-

to determine if the defendant showed a reasonable probability that but for counsel’s
deficient advice, he would have accepted the plea. If the showing is made, the court
can exercise its discretion to determine if the defendant should receive the sentence
offered in the plea, the sentence he received after trial, or something in between. Id.
at 1389. If the plea dealt with convictions on lesser offenses, then resentencing
alone may not address the injury, in which case the remedy is for the prosecution to
reoffer the plea and the judge to then exercise his discretion in deciding whether to
vacate the conviction from trial and accept the plea or leave the conviction
undisturbed. Id. at 1389, 1391.1
        {¶24} However, as the state points out, counsel’s deficient performance was
stipulated in Lafler. Id. at 1383, 1391. The issue of deficient performance was not
before the Court and was specifically not addressed. Id. at 1384, 1391. In fact, the
Court declared, “an erroneous strategic prediction about the outcome of a trial is not
necessarily deficient performance.” Id. at 1391. Here, there is no stipulation that
defense counsel said the case was “possibly winnable” as appellant now claims, and
there is no stipulation that such a statement would constitute deficient performance.
In fact, it is undisputed that appellant received correct legal advice in the form of the
jury instructions further discussed infra. Thus, Lafler is in fact distinguishable from
the case before us.
        {¶25} Lafler is also distinguishable as it arose from a post-conviction
proceeding where the defendant stated that he would have pled guilty but for
counsel’s advice. To the contrary, the case before us arose from the direct appeal
after trial where the record does not show that the defendant would have pled guilty
but for counsel’s advice. In fact, the record shows appellant again rejecting the plea
even after he claimed that counsel was no longer confident that they could win.



        1
          Appellant’s brief seems to suggest that the second remedy would apply here. See
Appellant’s Brief at 11, citing Lafler at 1391. However, the plea offer appellant rejected called for him
to plead guilty to the same robbery that he was eventually convicted of. His only allegation of
prejudice here could be the greater sentence. Thus, it is the first remedy that would be applicable
herein if we were to get that far.
                                                                                     -8-

        {¶26} Specifically, appellant claimed to the trial court on the record prior to
trial that counsel previously made him believe that they could win the case but that
counsel was now telling him “a different story.” Defense counsel clarified that he told
appellant he would give his best if the case went to trial and insisted that he advised
appellant of the risks of trial. Counsel placed on the record the fact that he showed
appellant the jury instructions, which provided that robbery is established by the
infliction or attempted infliction of any physical harm in fleeing a theft no matter how
insignificant of an injury. Counsel stated that even after showing these instructions to
appellant, appellant wished to proceed.
        {¶27} It was clear from the record that counsel thoroughly investigated the
case.    He filed motions in limine that discussed details of the case, he called
appellant’s friend to request technical assistance on appellant’s behalf, and it was
defense counsel who provided the state with the store’s video footage. After three
rejections of the plea, the trial court had counsel discuss the offer further with
appellant, clearly implying that appellant would be wise to accept the plea. Counsel
tried to convince appellant, but this merely resulted in appellant seeking new counsel.
The trial court heard all of appellant’s complaints about counsel, heard counsel’s
responses, and did not find appellant’s contentions to hold weight.
        {¶28} Even if counsel did tell appellant the case was “possibly winnable,” this
would not constitute deficient performance. Such a statement is not equivalent to
definitely winnable or even likely winnable. As counsel urged at trial, if a security
guard decides to tackle a shoplifter against a wall and his hands get scratched
against the wall, a jury may be convinced that it was not the defendant who inflicted
the physical harm. That is, the jury could have been convinced that appellant did not
struggle and that the employee’s hand scratch was not inflicted by appellant but
resulted from the momentum of slamming a person’s back into a cement wall while
holding that person’s shoulders. And, “an erroneous strategic prediction about the
outcome of a trial is not necessarily deficient performance.” Id. at 1391.
        {¶29} In any event, appellant was advised prior to trial that his case was not
strong and that acceptance of the plea was advisable. Appellant essentially admitted
                                                                                      -9-

on the record that counsel recently advised him that a trial was not likely to end well.
The plea offer still existed at that time. The trial court advised him how favorable the
plea was under the circumstances of the case. Even after all of this, appellant still
rejected the plea, insisted that the proof against him was weak, and even testified
that the employee looked “high” in the photograph (which the state introduced to
show the employee’s face after the struggle). Thus, he cannot say that he would
have accepted the deal if counsel had not allegedly stated at one time that the case
was possibly winnable. In accordance, this assignment of error is overruled.
      {¶30} For the foregoing reasons, the judgment of the trial court is affirmed.

Donofrio, J., concurs.
Waite, J., concurs.
