[Cite as State v. Cascarelli, 2014-Ohio-5403.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO                                    )   CASE NO. 13 MA 145
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )
VS.                                              )   OPINION
                                                 )
ANGELA CASCARELLI                                )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                            Criminal Appeal from the Court of
                                                     Common Pleas of Mahoning County,
                                                     Ohio
                                                     Case No. 10 CR 666

JUDGMENT:                                            Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                              Atty. Paul J. Gains
                                                     Mahoning County Prosecutor
                                                     Atty. Ralph M. Rivera
                                                     Assistant Prosecuting Attorney
                                                     21 West Boardman Street, 6th Floor
                                                     Youngstown, Ohio 44503

For Defendant-Appellant:                             Atty. A. Ross Douglass
                                                     860 Boardman-Canfield Road
                                                     Suite. 204
                                                     Youngstown, Ohio 44512


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                     Dated: December 3, 2014
[Cite as State v. Cascarelli, 2014-Ohio-5403.]
WAITE, J.


        {¶1}     Appellant Angela Cascarelli appeals the Mahoning County Common

Pleas Court’s decision to reinstate her sentence for aggravated robbery. Appellant

argues that defense counsel’s performance reflected ignorance of her substance

abuse problems and that due to this ignorance counsel failed to request that she be

evaluated for alternative sanctions such as placement at a drug treatment facility.

The transcripts of the probation violation and sentencing hearings directly contradict

Appellant’s arguments. Appellant’s assignment of error is without merit and the trial

court judgment is affirmed.

                                                 Case History

        {¶2}     In 2010 Appellant pleaded guilty to aggravated robbery, a violation of

R.C. 2911.02(A)(3)(B), a third degree felony.                   She was originally sentenced to a

three-year term of incarceration. On August 15, 2011 Appellant was granted judicial

release pursuant to R.C. 2929.20 and was placed under community control sanctions

for three years. In 2013, Appellant pleaded guilty to possession of heroin. Based on

that new conviction, she was also cited for a probation violation. On August 16,

2013, the court held a probation violation hearing. During the hearing the trial court

discussed with Appellant her violation of the terms of her community control

sanctions, her criminal history including two robbery convictions, and listened to her

statements concerning the progress she made in counseling during the period of her

judicial release.       The trial court then revoked Appellant’s community control and

reimposed the remainder of her original sentence. This appeal followed.

                                     ASSIGNMENT OF ERROR
                                                                                   -2-

       APPELLANT WAS DENIED HER RIGHT TO DUE PROCESS AND OF

       ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND

       FOURTEENTH        AMENDMENTS         OF     THE    UNITED      STATES

       CONSTITUTION AND OHIO CONSTITUTION SINCE HER COUNSEL

       PROVIDED INEFFECTIVE ASSISTANCE.

       {¶3}   Appellant contends that defense counsel’s ignorance of her history of

addiction and illegal drug use resulted in ineffective assistance of counsel at the

probation revocation hearing.    To prevail on a claim of ineffective assistance of

counsel, Appellant must show not only that counsel's performance was deficient, but

also that she was prejudiced by that deficiency. Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674, (1984); see also State v. Williams, 99 Ohio

St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶107. “Deficient performance” means

performance falling below an objective standard of reasonable representation.

Strickland at 687-688. “Prejudice,” in this context, means a reasonable probability

that but for counsel's errors, the result of the proceeding would have been different.

Id. at 694.

       {¶4}   The United States Supreme Court originally explained in Strickland that

an “ineffectiveness claim * * * is an attack on the fundamental fairness of the

proceeding whose result is challenged” * * * “the ultimate focus of inquiry must be on

the fundamental fairness of the proceeding whose result is being challenged.”

Strickland, supra, at 697 and 670.     A defendant’s burden when challenging the

effectiveness of counsel is to demonstrate that some action or inaction by counsel

operated to undermine or call into question the integrity of the process that resulted
                                                                                   -3-

in conviction. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E. 2d 905 (1999).

When evaluating the performance of counsel, a court “must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” State v. Wesson, 137 Ohio St.3d, 2013-Ohio-4575, 999

N.E.2d 557, ¶81.     “Judicial scrutiny of counsel’s performance must be highly

deferential, and a fair assessment of attorney performance requires that every effort

be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland at 669. “It is all too tempting for a

defendant to second-guess counsel’s assistance after conviction or adverse

sentence, and it is all too easy for a court, examining counsel’s defense after it has

proved unsuccessful, to conclude that a particular act or omission of counsel was

unreasonable.” Id. at 689.

      {¶5}   Appellant complains that she was not assessed for placement at

Community Corrections Association or any other treatment facility to deal with her

addiction issues. She blames counsel for this alleged failure. Contrary to Appellant’s

arguments, the record of the sentencing hearing reflects a lengthy description by

counsel as to the “drug and alcohol issues and emotional and mental issues” that his

client had taken positive steps to address, including her participation in counseling

and in the Turning Point program. (Sentencing Tr., p. 7.) Counsel also argued that

returning Appellant to prison would hinder her positive progress and that she should

be allowed to build on the changes she had made. (Sentencing Tr., p. 8.) The

quotation from the probation revocation transcript Appellant cites as evidence of
                                                                                    -4-

defense counsel’s ignorance of her history of substance abuse is truncated and

misleading. The transcript reveals that during the probation violation hearing defense

counsel specifically acknowledged that he was aware of other substance abuses,

and he specifically requested “treatment options, if the court would consider them,

there’s structure at Community Corrections.” (Probation Violation Hrg., p. 6.)

       {¶6}   This record directly contradicts Appellant’s representations concerning

counsel's alleged ignorance of her drug use problems and does not reflect any

substandard performance by counsel.         Defense counsel advocated alternative

sanctions for Appellant throughout both the original sentencing and the probation

violation proceedings. Counsel’s statement that he was surprised with Appellant’s

involvement with heroin, when viewed in the context of all statements made during

the probation violation hearing, appears to be a strategy designed to focus the court’s

attention on the addiction issue that underlies her criminal behavior and redirect the

court toward treatment options. It is impossible to conclude from these transcripts

that defense counsel’s statement was anything other than a strategic decision within

the range of choices defense counsel is required to make on behalf of his client.

See, e.g. State v. Maguire, 7th Dist. No. 08 MA 188, 2009-Ohio-4393, ¶20, “[t]actical

or strategic trial decisions, even if unsuccessful, do not generally constitute

ineffective assistance.”

       {¶7}   While counsel may advocate for any sentence or diversion, there is no

objective requirement that defense counsel request a particular sanction or present

arguments in a specific manner. At sentencing, the trial court has “full discretion to

impose a prison sentence within the statutory range.” State v. Foster, 109 Ohio St.3d
                                                                                      -5-

1, 30, 2006-Ohio-856, ¶100.      The trial court’s broad discretion means that any

connection between the actions or inactions of counsel at sentencing or probation

violation hearings and the specific sentence imposed or reinstated is tenuous at best.

In this instance Appellant’s arguments do not accurately reflect defense counsel’s

performance or establish a connection between counsel’s performance and some

prejudice to Appellant. Nothing in this record supports a conclusion that defense

counsel’s advocacy was ineffective. Appellant’s assignment of error is without merit

and is overruled.

                                      Conclusion

      {¶8}   The transcripts of the probation violation and sentencing hearings

reflect defense counsel’s knowledge of Appellant’s history of drug use.         Counsel

specifically requested alternative sanctions and explained to the court why such

sanctions were preferable to incarceration. Appellant did not provide evidence of

prejudice resulting from any act or omission by defense counsel.              Appellant’s

argument is not persuasive and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

DeGenaro, P.J., concurs.
