[Cite as State v. Harris, 2019-Ohio-813.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                         Court of Appeals No. E-18-013

        Appellee                                      Trial Court No. 2017 CR 0217

v.

Ron Harris                                            DECISION AND JUDGMENT

        Appellant                                     Decided: March 8, 2019

                                               *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Anthony A. Battista III, Assistant Prosecuting Attorney,
        for appellee.

        Russell V. Leffler, for appellant.

                                               *****

        ZMUDA, J.
                                            I. Introduction

        {¶ 1} Appellant, Ron Harris, appeals the judgment of the Erie County Court of

Common Pleas, sentencing him to 16 months in prison after he pleaded guilty to one

count of aggravated assault.
                         A. Facts and Procedural Background

       {¶ 2} On April 12, 2017, appellant was indicted on one count of trespass in

violation of R.C. 2911.12(B), a felony of the fourth degree. One month later, appellant

was indicted in a separate case and charged with three counts of aggravated burglary in

violation of R.C. 2911.11(A)(1), felonies of the first degree, three counts of aggravated

burglary in violation of R.C. 2911.11(A)(2), felonies of the first degree, one count of

aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the first degree, one

count of felonious assault in violation of R.C. 2911.01(A)(1), a felony of the first degree,

one count of petty theft in violation of R.C. 2913.02(A)(1), a misdemeanor of the first

degree, and three counts of assault in violation of R.C. 2903.13(A), misdemeanors of the

first degree.

       {¶ 3} The foregoing charges stemmed from two incidents in which appellant broke

into two separate residences. During one of the break-ins, appellant forced his way into

the home, pushed the homeowner to the floor, grabbed a knife, and attacked two other

individuals that were in the home, punching one of the individuals in the face and stealing

her wallet before fleeing on bicycle.

       {¶ 4} Following the filing of the indictments in this case, appellant entered pleas

of not guilty, and the matter proceeded through discovery. Subsequently, appellant

reached an agreement with the state that required him to enter a guilty plea to an amended

charge of aggravated assault in violation of R.C. 2903.12, a felony of the fourth degree.




2.
In exchange for appellant’s plea, the state agreed to dismiss all of the remaining charges,

thereby reducing appellant’s potential prison time from 81.5 years to 18 months.

       {¶ 5} At the conclusion of the ensuing plea hearing, appellant entered a plea of

guilty to the amended charge of aggravated assault, which was accepted by the trial court.

A presentence investigation report was ordered, which revealed appellant’s extensive

criminal history, including convictions for attempted burglary, burglary, trafficking in

cocaine, four counts of forgery, carrying a concealed weapon, and two counts of robbery.

       {¶ 6} At sentencing, the state remained silent per the terms of the negotiated plea

agreement. In mitigation, appellant’s counsel offered the following:

              Just briefly, I think we all see this periodically that somebody who’s

       been constantly in and out of custody for various reasons for years, and

       years, and years, sometimes at some point they get to the point where

       they’re tired, they don’t want to do it anymore, and they turn it around. So

       I think – I think Mr. Harris is at that point.

              His statement, which wasn’t actually a version of the events, but –

       and it’s pretty much what he just told you, I’m ready to put all this behind

       me and live a quiet life with my children. Thank you. I mean, I think that

       sums it up, and I’m not going to say anything else.

       {¶ 7} Upon consideration of the presentence investigation report and the

statements made by appellant’s counsel in mitigation, the court ordered appellant to serve

16 months in prison. Appellant’s timely appeal followed.




3.
                                  B. Assignment of Error

       {¶ 8} On appeal, appellant assigns the following error for our review:

              Trial counsel was not competent in the sentencing process depriving

       appellant of the representation guaranteed by the Sixth Amendment.

                                         II. Analysis

       {¶ 9} In appellant’s sole assignment of error, he argues that his trial counsel was

ineffective for failing to more forcefully advocate on his behalf during mitigation.

              A convicted defendant’s claim that counsel’s assistance was so

       defective as to require reversal of a conviction * * * has two components.

       First, the defendant must show that counsel’s performance was deficient.

       This requires showing that counsel made errors so serious that counsel was

       not functioning as the “counsel” guaranteed the defendant by the Sixth

       Amendment. Second, the defendant must show that the deficient

       performance prejudiced the defense. This requires showing that counsel’s

       errors were so serious as to deprive the defendant of a fair trial, a trial

       whose result is reliable. Unless a defendant makes both showings, it cannot

       be said that the conviction * * * resulted from a breakdown in the adversary

       process that renders the result unreliable. Strickland v. Washington, 466

       U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶ 10} Here, appellant argues that trial counsel failed to present all of the facts

relevant to securing a favorable sentence during mitigation. In so doing, appellant




4.
divorces counsel’s performance during mitigation from counsel’s performance during

other stages of the proceeding. Contrary to appellant’s assertion of incompetence,

counsel’s performance in this case resulted in a plea agreement that reduced appellant’s

maximum potential sentence by approximately 80 years, and secured the state’s silence

during sentencing. Had the state been permitted to speak at sentencing, it is likely the

state would have emphasized appellant’s extensive criminal record in an attempt to

secure the maximum sentence of 18 months.

       {¶ 11} Although counsel’s statement in mitigation was brief, the presentation of

mitigating evidence is a matter of trial strategy. State v. Were, 118 Ohio St.3d 448, 2008-

Ohio-2762, ¶ 241, 890 N.E.2d 263. In general, trial tactics and strategies do not

constitute a denial of effective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45,

402 N.E.2d 1189 (1980). When considering counsel’s performance in its totality, we find

that trial counsel’s tactical decision as to what information to present to the court during

mitigation was not deficient. In instances in which the defendant’s criminal history is as

extensive as appellant’s, sometimes it is better to say nothing more than what was said by

counsel in this case.

       {¶ 12} Even if counsel’s performance at sentencing could be considered deficient,

appellant has not demonstrated that he was prejudiced as a result. In his brief, appellant

asserts that his counsel should have presented the following facts during mitigation:

(1) the crime occurred over two years prior to sentencing, (2) appellant was imprisoned

during the interim and had committed no new offenses, and (3) appellant’s criminal




5.
behavior was attributable to his mental health problem and homelessness. Although

appellant articulated these facts, he fails to show how such facts would have resulted in a

lesser sentence. Moreover, appellant acknowledges that the presentence investigation

report that was considered by the court includes these facts.

       {¶ 13} Because appellant has not demonstrated that his counsel was deficient or

that any deficiency operated to his prejudice, we find no merit to his argument that trial

counsel provided ineffective assistance. Accordingly, appellant’s assignment of error is

not well-taken.

                                     III. Conclusion

       {¶ 14} In light of the foregoing, the judgment of the Erie County Court of

Common Pleas is affirmed. Costs of this appeal are assessed to appellant pursuant to

App.R. 24.

                                                                        Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J.                               _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Gene A. Zmuda, J.                                           JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.



6.
