[Cite as State v. Levingston, 2017-Ohio-7032.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :   JUDGES:
                                                 :   Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                     :   Hon. John W. Wise, J.
                                                 :   Hon. Craig R. Baldwin, J.
-vs-                                             :
                                                 :
JOSHUA LEVINGSTON                                :   Case No. 17CA6
                                                 :
        Defendant - Appellant                    :   OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Richland County
                                                     Court of Common Pleas, Case No.
                                                     2016-CR-0650




JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    July 31, 2017



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

GARY BISHOP                                          JEFFEREY R. STIFFLER
Prosecuting Attorney                                 Badnell & Dick Co.. L.P.A.
                                                     21 North Walnut Street
By: JOSEPH C. SNYDER                                 Mansfield, Ohio 44902
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 17CA6                                                        2

Baldwin, J.

       {¶1}   Defendant-appellant Joshua Levingston appeals his conviction and

sentence from the Richland County Court of Common Pleas on one count of possession

of drugs. Plaintiff-appellee is the State of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On October 7, 2016, the Richland County Grand Jury indicted appellant on

one count of possession of drugs in violation of R.C. 2925.11(A) and (C)(2)(a), a felony

of the fifth degree. At his arraignment on November 3, 2016, appellant entered a plea of

not guilty to the charge.

       {¶3}   Thereafter, a jury trial commenced on January 5, 2017. At the trial, Brent

Taylor, a Correctional Officer at Richland Correctional Institution, testified that he had

received information that appellant, an inmate, had a narcotic on his person. As a result,

appellant was strip searched by Officer Taylor. During the search, a “packet of some sort

was in the fly of the boxer shorts” that appellant was wearing. Transcript at 142. Officer

Taylor testified that appellant had cut a slit into the fold on the fly of his boxer shorts and

that the contraband was located there. The substance was later tested by the crime lab

and determined to be Buprenorphine (Suboxone). Officer Taylor testified that appellant

also had a piece of paper in his boxer shorts with a series of numbers on it that could be

used for the electronic transfer of money. According to Officer Taylor, appellant later

thanked him after the drugs were found and did not deny ownership of the drugs or claim

that they were planted on him.

       {¶4}   During a taped interview with Ohio State Highway Patrol Trooper Charles

Jackson, who was investigating the case, appellant indicated that he was a drug addict
Richland County, Case No. 17CA6                                                     3


and confessed to hiding the drugs in his boxer shorts. Trooper Jackson testified that

appellant never claimed that the substance was not his or that it was planted on him.

       {¶5}   At the conclusion of the evidence and the end of deliberations, the jury, on

January 6, 2017, found appellant guilty of possession of Buprenorphine. The jury further

found that the Prosecutor proved beyond a reasonable doubt that appellant had a prior

conviction for a drug of abuse offense. As memorialized in a Sentencing Entry filed on

January 6, 2017, appellant was sentenced to 12 months in prison, to be served

consecutively to his other cases.

       {¶6}   Appellant filed a Notice of Appeal on January 17, 2017. On January 19,

2017, appellant filed a pro se Motion for a New Trial pursuant to Crim.R. 33(A), arguing

that he was entitled to a new trial because he was tried before a jury in prison clothes and

shackled throughout the trial. This Court, pursuant to a Judgment Entry filed on February

9, 2017, remanded the matter to the trial court to rule on the pending motion. The trial

court later denied appellant’s motion.

       {¶7}   Appellant now raises the following assignments of error on appeal:

       {¶8}   I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-

APPELLANT’S MOTION TO DISCLOSE THE CONFIDENTIAL INFORMANT.

       {¶9}   II.   THE   TRIAL     COURT    ABUSED      IT’S   (SIC)   DISCRETION        IN

OVERRULING          DEFENDANT-APPELLANT’S           MOTION      TO      CONTINUE        AND,

THEREFORE, ALSO VIOLATED DEFENDANT-APPELLANT’S RIGHT TO A FAIR

TRIAL UNDER THE FIFTH AND SIXTH AMENDMENTS OF THE U.S. CONSTITUTION,

MADE APPLICABLE TO THE STATE OF OHIO BY THE FOURTEENTH AMENDMENT.
Richland County, Case No. 17CA6                                                       4


       {¶10} III. THE DEFENDANT-APPELLANT WAS DEPRIVED [OF] HIS SIXTH

AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL

LEVEL.

       {¶11} IV. THE TRIAL COURT COMMITTED PLAIN ERROR BY PROCEEDING

WITH TRIAL WHILE DEFENDANT-APPELLANT WAS IN PRISON CLOTHING AND

RESTRAINED, THEREBY VIOLATING APPELLANT’S DUE PROCESS RIGHTS TO A

FAIR TRIAL.

       {¶12} V. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT-

APPELLANT’S MOTION FOR A NEW TRIAL.

                                                  I

       {¶13} Appellant, in his first assignment of error, argues that the trial court erred in

overruling his Motion to Disclose the Confidential Informant.

       {¶14} Appellant, on January 3, 2017, filed a “Motion to Disclose Identity of

Confidential Informant.” Appellant, in his motion, specifically sought the name of the

inmate who had had informed the Corrections Officer that appellant had drugs on his

person.

       {¶15} The Supreme Court of Ohio has held that the identity of a confidential

informant must be revealed where his or her testimony is vital to establishing an element

of the crime, or would be helpful or beneficial in preparing a defense to criminal charges.

State v. Williams, 4 Ohio St.3d 74, 446 N.E.2d 779 (1983), syllabus. The burden is on the

defendant to establish the need to learn the informant's identity. State v. Payne, 6th Dist.

Lucas No. L–04–0118, 2005–Ohio–7043, ¶ 41, citing State v. Parsons, 64 Ohio App.3d

63, 69, 580 N.E.2d 800 (4th Dist.1989). However, disclosure is not required “where the
Richland County, Case No. 17CA6                                                       5


informant did not actively participate in the criminal activity, or where the informant's role

is that of a mere tipster.” (Internal citations omitted.) Id.

       {¶16} In the case sub judice, the informant was not an active participant in the

criminal activity involved in this case, but merely acted as a tipster. The inmate merely

informed the Corrections Officer that appellant had a controlled substance on his person.

We find, therefore, that the trial court did not err in denying appellant’s motion.

       {¶17} Appellant’s first assignment of error is, therefore, overruled.

                                                    II

       {¶18} Appellant, in his second assignment of error, contends that the trial court

erred in denying appellant’s motion for a continuance.

       {¶19} “The grant or denial of a continuance is a matter which is entrusted to the

broad, sound discretion of the trial judge.” State v. Unger, 67 Ohio St.2d 65, 67, 423

N.E.2d 1078 (1981). Therefore, an appellate court must not reverse a trial court's decision

to deny a motion for continuance unless it finds that the trial court abused its discretion.

Id. The term “abuse of discretion” implies that the court's attitude is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d

1140 (1983).

       {¶20} Appellant, on January 3, 2017, filed a motion seeking a continuance of the

trial scheduled to commence on January 5, 2017. Appellant, in his motion, indicated that

a continuance was necessary so that he could ascertain the identity of the confidential

informant “in efforts to make a defense to his criminal charge.” The trial court overruled

appellant’s motion in chambers prior to the commencement of trial.
Richland County, Case No. 17CA6                                                     6


       {¶21} Because the trial court, as is stated above, did not err in overruling

appellant’s motion seeking the identification of the name of the “confidential informant”,

there was no reason for a continuance of the trial. We find, therefore, that the trial court

did not abuse its discretion in denying the motion for a continuance.

       {¶22} Appellant’s second assignment of error is, therefore, overruled.

                                                III

       {¶23} Appellant, in his third assignment of error, maintains that he received

ineffective assistance of trial counsel.

       {¶24} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio

adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective

assistance of counsel. First, we must determine whether counsel's assistance was

ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability

of the outcome of the trial is suspect. This requires a showing there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different. Id.

       {¶25} Trial counsel is entitled to a strong presumption all decisions fall within the

wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675,

1998-Ohio-343, 693 N.E.2d 267. In addition, the United States Supreme Court and the
Richland County, Case No. 17CA6                                                     7


Ohio Supreme Court have held a reviewing court “need not determine whether counsel's

performance was deficient before examining the prejudice suffered by the defendant as

a result of the alleged deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland

at 697, 104 S.Ct. 2052.

      {¶26} Appellant initially argues that his trial counsel was ineffective in failing to

prosecute pretrial motions on the record. As is discussed above, prior to trial, appellant

filed a motion seeking the identification of the confidential informant and a motion for a

continuance of the trial. Prior to defense counsel’s opening statement, the following

discussion took place:

      {¶27} MR CORLEY: The two motions we talked about in chambers, whether they

come in after the opening statements - -

      {¶28} THE COURT: We did have a discussion in chambers this morning about

your motion to continue the trial, and also for the revealing of the person who told the

C.O. that the defendant had drugs. I overruled those motions. We will make a more

complete record when the jury is not here, but I’ve overruled both those motions.

      {¶29} MR. CORLEY: Thank you, Your Honor.

      {¶30} Transcript at 117.

      {¶31} A more complete record was never made.

      {¶32} As is stated above, we find that the trial court did not err in denying both

motions. Moreover, assuming, arguendo, that defense counsel was ineffective in failing

to develop the reasons for the denial of the two motions on the record, we cannot say that

appellant was prejudiced since appellant confessed to owning the drugs and never

indicated that the drugs had been planted on him.
Richland County, Case No. 17CA6                                                        8


       {¶33} Appellant also argues that his trial counsel was ineffective in failing to object

to appellant being tried in prison clothing and restraints. Appellant notes that, during voir

dire, his trial counsel pointed out to the jury that appellant was in a prison jumpsuit and

shackled and that it was clear that he had had a run in with the law. Appellant also notes

that a prospective juror, during voir dire, indicated that he would be biased because

appellant was in an orange prison jumpsuit, had tattoos and had prior drug convictions.

       {¶34} In Estelle v. Williams , 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976),

the United States Supreme Court held that the State cannot, consistent with Fourteenth

Amendment Due Process and Equal Protection rights, compel a defendant to stand trial

before a jury while dressed in identifiable prison clothing. However, the failure to object

to the court in regard to being tried in prison clothing serves to negate the presence of

compulsion by the State needed to show a constitutional violation. See Estelle at 512-

513.

       {¶35} There is no evidence in the record that the trial court or the State compelled

appellant to wear a prison jumpsuit and shackles during the trial. Rather, the issue before

this Court is whether the failure of appellant's trial counsel to object to the court regarding

appellant’s prison garb and shackles constitutes deficient performance and, if so, whether

it prejudiced appellant's case. As noted by the court in Estelle at 508, “it is not an

uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting

sympathy from the jury.” We decline to second guess defense counsel’s decision.

Moreover, in view of the overwhelming evidence at trial of appellant’s guilt, we cannot say

that appellant suffered any prejudice.
Richland County, Case No. 17CA6                                                           9


       {¶36} In addition, after the prospective juror made comments about appellant’s

prison jumpsuit, the trial court emphasized to both that juror, who was not seated on the

jury, and the other jurors the importance of remaining impartial and requiring the State to

prove appellant’s guilt beyond a reasonable doubt. Finally, as noted by appellee, “all of

the relevant facts revolving around this case took place in a prison, Even if the Appellant

appeared at trial wearing civilian clothes, the jury would still be very much aware that he

was recently incarcerated in a prison and was likely still so incarcerated.”

       {¶37} Appellant’s third assignment of error is, therefore, overruled.




                                                   IV

       {¶38} Appellant, in his fourth assignment of error, argues that the trial court

committed plain error by proceeding with trial while appellant was in prison clothing and

restrained.

       {¶39} Because trial counsel did not object to appellant being tried in prison attire

or request that appellant be permitted to change into other clothing for trial, we may not

reverse the conviction unless we find plain error. In criminal cases, plain error is governed

by Crim. R. 52(B), which states: “Plain errors or defects affecting substantial rights may

be noticed although they were not brought to the attention of the court.” An alleged error

“does not constitute a plain error ... unless, but for the error, the outcome of the trial clearly

would have been otherwise.” State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804,

paragraph two of the syllabus. The Supreme Court has repeatedly admonished that this

exception to the general rule is to be invoked reluctantly. “Notice of plain error under Crim.
Richland County, Case No. 17CA6                                                            10


R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only

to prevent a manifest miscarriage of justice.” Id. at paragraph three of the syllabus.

       {¶40} In the case sub judice, appellant was not compelled to wear jail clothing

during the trial. In fact, there is no objection to appellant's attire or restraints on the record.

See Estelle, supra. We find no plain error.

       {¶41} Appellant’s fourth assignment of error is, therefore, overruled.

                                                    V

       {¶42} Appellant, in his fifth assignment of error, contends that the trial court erred

in overruling his pro se Motion for a New Trial pursuant to Crim.R. 33(A).

       {¶43} Crim.R. 33 states, in pertinent part, as follows: “(A) Grounds. A new trial

may be granted on motion of the defendant for any of the following causes affecting

materially his substantial rights: Irregularity in the proceedings, or in any order or ruling of

the court, or abuse of discretion by the court, because of which the defendant was

prevented from having a fair trial.”

       {¶44} A motion for a new trial made pursuant to Crim.R. 33 is addressed to the

sound discretion of the trial court and may not be reversed unless we find an abuse of

discretion. State v. Schiebel, 55 Ohio St.3d 71, 75, 564 N.E.2d 54 (1990). An abuse of

discretion implies that the trial court's judgment is arbitrary, unreasonable, or

unconscionable. State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343 (1987).

       {¶45} Appellant filed a pro se motion seeking a new trial pursuant to Crim.R.

33(A), contending that his due process rights were violated when he was tried before a

jury in his prison clothes and shackled throughout the trial proceedings. Appellant, in his

motion, claimed that his trial counsel had purchased civilian clothing for him prior to trial
Richland County, Case No. 17CA6                                                    11


and that he was not permitted to change into the same. He further asserted that he was

denied the effective assistance of trial counsel when his trial counsel failed to object to

proceeding to trial with appellant in prison clothing and shackles.

       {¶46} For the reasons set forth above in our discussion of appellant’s previous

assignments of error, we find that the trial court did not abuse its discretion in denying

appellant’s motion. The trial court’s decision was not arbitrary, unconscionable or

unreasonable.

       {¶47} Appellant’s fifth assignment of error is, therefore, overruled.

       {¶48} Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Gwin, P.J. and

John Wise, J. concur.
