[Cite as State v. Howell, 2016-Ohio-760.]



                            STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )           CASE NO. 15 MA 0055
V.                                               )
                                                 )                  OPINION
ANTHONY HOWELL,                                  )
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Youngstown
                                                 Municipal Court of Mahoning County,
                                                 Ohio
                                                 Case No. 14 CRB 2197Y

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Attorney Jeff Moliterno
                                                 Assistant Prosecutor
                                                 Youngstown City Prosecutor Office
                                                 26 South Phelps Street, 4th Floor
                                                 Youngstown, Ohio 44503

For Defendant-Appellant                          Attorney Edward Czopur
                                                 DeGenova & Yarwood, Ltd.
                                                 42 North Phelps Street
                                                 Youngstown, Ohio 44503


JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                 Dated: February 23, 2016
[Cite as State v. Howell, 2016-Ohio-760.]
DONOFRIO, P.J.

        {¶1}     Defendant-appellant Anthony Howell appeals from his conviction and
sentence entered in the Youngstown Municipal Court for domestic violence following
a bench trial.
        {¶2}     Howell and S.F., who have an infant child together, got into an
argument on September 5, 2014. The argument turned physical resulting in Howell
hitting S.F. in the head. S.F. went to the Youngstown Police Department to report the
incident and a detective took photographs of her.          She later provided a written
statement.
        {¶3}     Following the filing of a criminal complaint for first-degree-misdemeanor
domestic violence in violation of R.C. 2919.25(A), which included S.F.’s signature,
Howell was arrested on December 29, 2014. The case was filed in Youngstown
Municipal Court under case no. 14CRB02197Y. The next day, on December 30,
2014, Howell appeared in court and entered a plea of not guilty. The docket contains
a notation that Howell did not waive his right to a speedy trial. It also reflects that the
court set bond at $2,500 and issued an order that Howell have no contact with the
victim. The court set the case for pretrial on January 5, 2015.
        {¶4}     Meanwhile, three days later on January 2, 2015, Howell posted the
required $2,500 bond. Howell appeared without counsel at the pretrial hearing on
January 5, 2015, and indicated to the trial court that he would be hiring counsel.
        {¶5}     On January 12, 2015, the State filed a motion to revoke bond. The
State alleged that on January 10, 2015, Youngstown police responded to a call
regarding a fight. Howell got into a physical altercation with a different woman, J.H.
She too is a mother to two of his young children. He hit her with a bat and broke out
a window of her car with the bat while the children were in the backseat. Officers
later stopped Howell driving S.F.’s car with her in it and arrested him for domestic
violence and criminal damaging/endangering in connection with his assault on J.H.
That case was filed in Youngstown Municipal Court under case no. 15CRB00028Y
and was appealed separately to this court under case no. 15 MA 34.
        {¶6}     In an entry dated January 13, 2015, the trial court revoked Howell’s
                                                                                   -2-


bond due to his contact with S.F. and remanded him to jail. The court appointed
counsel for Howell on January 14, 2015, and set the matter for a bond forfeiture
hearing and trial for January 21, 2015.
       {¶7}   Howell appeared with counsel on January 21, 2015, the date initially set
for the bond forfeiture hearing and trial. At Howell’s request, the trial court reset the
trial for January 29, 2015. As for the bond forfeiture aspect of that hearing, the
docket reflects that after the court inquired of the victim, the court lifted the no contact
order and set bond at $3,500.
       {¶8}   Meanwhile, Howell posted a $3,500 bond on January 22, 2015, and
was released from jail.
       {¶9}   The date set for trial arrived on January 29, 2015. That same day,
Howell’s appointed trial counsel filed a jury demand. The trial court ruled that the jury
demand was untimely and the case proceeded to a bench trial. The State presented
the testimony of the victim, S.F., and Detective Sergeant Hileman, who handled the
investigation and filed the report. Howell testified on his own behalf, attempting to
present an alibi defense, alleging that he was at his “other kid’s mother’s house,”
referring to J.H., at the time of the alleged incident with S.F. Following all of the
testimony, the trial court found Howell guilty of domestic violence.
       {¶10} The trial court then directed the parties’ attention towards setting a date
for sentencing. In response, the State indicated that Howell had been under house
arrest at S.F.’s house and asked that the house arrest be terminated since S.F.
herself had called police just the night before to have him removed following another
altercation. S.F. addressed the court and said that it was not Howell’s fault. The
court then proceeded to revoke Howell’s house arrest and forfeit his bond. Howell
pleaded with S.F. to tell the court that he did not hurt her at which point the court
found Howell in contempt and had him removed from the courtroom.
       {¶11} The trial court conducted sentencing on February 24, 2015, for both of
Howell’s cases: case no. 14CRB02197Y involving victim S.F. and case no.
15CRB00028Y involving victim J.H. For the present case involving victim S.F., the
                                                                                -3-


court sentenced Howell to 180 days in jail and a $250 fine plus court costs. For the
case involving victim J.H., the court sentenced Howell to 3 years of intensive
probation. As indicated, Howell appealed that decision to this court under case no.
15 MA 34, which remains pending.
        {¶12} In the present case concerning the victim S.F., following the allowance
of a delayed appeal, this court entered a stay of Howell’s jail sentence on April 21,
2015.
        {¶13} Howell’s sole assignment of error states:

               Appellant was denied the effective assistance of trial counsel,
        pursuant to the Sixth Amendment to the United States Constitution and
        Article I, Section 10 of the Ohio Constitution, thereby depriving him of a
        fair trial and requiring remand.

        {¶14} Howell argues that he was denied the effective assistance of trial
counsel because counsel did not prepare for trial.           While Howell’s appointed
appellate counsel acknowledges that trial counsel filed a jury demand, although late,
he highlights the absence of any other pretrial motions, pleadings, or notices filed by
trial counsel as ineffectiveness.      Concerning the trial itself, Howell argues that
counsel continued to be ineffective by not making either an opening statement or
closing argument, attempting to present an alibi defense without notice thereof or call
the alibi witness (J.H.), and by not cross-examining one of the two witnesses
presented by the State, the investigating officer.
        {¶15} In order to prove ineffective assistance of counsel, an appellant must
satisfy a two-prong test.        First, the appellant must establish that counsel’s
performance was deficient, and second, the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph
two of the syllabus.      Even if counsel’s performance is considered deficient, a
conviction cannot be reversed absent a determination that appellant was prejudiced.
                                                                                 -4-


State v. Dickinson, 7th Dist. No. 03 CO 52, 2004-Ohio-6373, ¶ 13, citing Bradley, 42
Ohio St.3d at 142, 538 N.E.2d 373. To show that he has been prejudiced by trial
counsel’s deficient performance, appellant must prove that there is a reasonable
probability that but for counsel’s serious error, the result of the trial would have been
different. Id., citing State v. Baker, 7th Dist. No. 03 CO 24, 2003-Ohio-7008, ¶ 13;
State v. Keith, 79 Ohio St.3d 514, 534, 684 N.E.2d 47 (1997).
       {¶16} A court deciding an ineffective assistance claim does not need to
“approach the inquiry in the same order or even to address both components of the
inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S.
at 697, 104 S.Ct. 2052, 80 L.Ed.2d 674. Further, the appellant must affirmatively
prove the alleged prejudice occurred. Id. at 693, 104 S.Ct. 2052, 80 L.Ed.2d 674.
Otherwise, any act or omission of counsel would satisfy the test. Id.
       {¶17} The appellant bears the burden of proof on the issue of counsel’s
effectiveness, and in Ohio, a licensed attorney is presumed competent. State v.
Carter, 7th Dist. No. 2000-CO-32, 2001 WL 741571 (June 29, 2001) citing State v.
Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). Furthermore, “strategic or
tactical decisions will not form a basis for a claim of ineffective assistance of
counsel.” Dickinson at ¶ 11, citing State v. Clayton, 62 Ohio St.2d 45, 48-49, 402
N.E.2d 1189 (1980).
       {¶18} In Dickinson, this court stated “[e]ffectiveness is, ‘not defined in terms of
the best available practice, but rather should be viewed in terms of the choices made
by counsel.’” Id. at ¶ 12, quoting State v. Wilkins, 64 Ohio St.2d 382, 390, 415 N.E.2d
303 (1980). This court urged that the reasonableness of the attorney’s decisions
must be assessed at the time the decisions are made, and not at the time of
assessment. Id., citing Wilkins, 64 Ohio St.2d at 390, 415 N.E.2d 303.
       {¶19} Howell attempts to liken his case to that in State v. Blair, 171 Ohio
App.3d 702, 2007-Ohio-986, 872 N.E.2d 986 (2d Dist.). In that case, a local public
defender was appointed to represent the defendant one month prior to trial. The
public defender did not file any motions on the defendant’s behalf, filed an untimely
                                                                               -5-


demand for a jury trial, and did not file a notice of alibi, which was the defendant’s
apparent best defense to the charge. The trial court found defendant guilty following
a bench trial.   On review, the Second District found that the deficiencies of trial
counsel were such that prejudice was presumed.
      {¶20} Howell’s reliance on Blair is misplaced. The only factual similarities
between the present case and Blair concern the jury demand and the alibi defense.
However, what sets Blair most apart from Howell’s case is that the pretrial
deficiencies in Blair were compounded by the absence of any defense at all.
Notably, the Second District observed that defense counsel had “stated
unequivocally that he was not prepared to go to trial and that he believed his lack of
preparation would constitute ineffective assistance of counsel.” Id. at ¶ 14.
Specifically, defense counsel told the court, “I’m not prepared to ask any questions of
any witnesses nor present any evidence whatsoever and I believe that constitutes
ineffective assistance of counsel.” Id. at ¶ 15.      Defense counsel requested a
continuance which the trial court denied, and counsel then proceeded to sit silently
through the entire trial without presenting any defense whatsoever. Id. at ¶ 16.
      {¶21} Contrary to the defense counsel in Blair, Howell’s trial counsel here
never indicated that she was not prepared to go to trial. Also, in Blair, the public
defender did not ask any questions of any of the witnesses. He sat silently through
the trial without presenting any defense whatsoever.        In contrast, Howell’s trial
counsel here did ask questions of the witnesses. She cross-examined the victim and
questioned Howell when he took the stand.
      {¶22} In evaluating the alleged pretrial deficiencies under the facts and
circumstances of this case, we decline to characterize the assistance of Howell’s trial
counsel as ineffective.   For example, Howell argues that his trial counsel was
ineffective for not giving an opening statement or closing argument.          Howell’s
argument ignores the nature of the proceedings in this case.         The case was a
relatively uncomplicated misdemeanor case, involving only three witnesses, and tried
to the bench in a municipal court.
                                                                                  -6-


       {¶23} Even in significantly more complex cases, a trial counsel’s decision not
to give an opening statement or closing argument has been viewed as reasonable
assistance. For example, State v. Bradley, 42 Ohio St.3d 136, 144, 538 N.E.2d 373
(1989) was a death penalty case where the defendant’s trial counsel did not give an
opening statement or closing argument in the guilt phase of the trial. There the Ohio
Supreme Court opined: “Given, however, the ‘strong presumption’ that counsel’s
performance constituted reasonable assistance, counsel’s actions must be viewed as
tactical decisions and do not rise to the level of ineffective assistance.” Id. at 144, 538
N.E.2d 373.
       {¶24} As for Howell’s argument that his counsel was ineffective for not filing a
Crim.R. 29 motion for acquittal, this court has stated: “Counsel has no duty to make
fruitless motions. A motion for acquittal deals with sufficiency of the evidence and the
test is thus whether the state set forth adequate evidence so that a reasonable
person could find the elements proven beyond a reasonable doubt.” State v.
Stragisher, 7th Dist. No. 03-CO-13, 2004-Ohio-6797, ¶ 76. In this instance, S.F.
testified unequivocally (albeit reluctantly) that she and Howell were living together
and were in a relationship, and that he had struck her in the head. Thus, the State
presented sufficient evidence on which a reasonable person could have found Howell
guilty of domestic violence. Consequently, Howell’s counsel was not ineffective for
failing to make such a motion.
       {¶25} Lastly, we give some consideration to the assistance of Howell’s trial
counsel viewed in the context of the relatively small time frame within which she had
to prepare. It appears as though Howell did not disclose his indigency or did not
become indigent until the bond revocation hearing held on January 13, 2015. That
same day, the trial court filed a judgment entry noting that Howell had appeared
without counsel and then filed a judgment entry the next day appointing him counsel.
Howell’s appointed appellate counsel acknowledges that, with the trial set for January
29, 2015, Howell’s appointed trial counsel had only 14 days to prepare. However,
contrary to statements made by Howell’s appointed appellate counsel and the State
                                                                               -7-


in their appellate briefs in this appeal, Howell did not sign a waiver of speedy-trial
rights. The January 21, 2015 judgment entry resetting the case for trial on January
29, 2015, contains a time waiver section. However, the provision for waiving the
statutory time limits for trial is checked then crossed out, and does not contain the
signatures of Howell or his counsel in the spaces provided. Thus, based on the
record that is before us, it is quite apparent that Howell did not waive his right to a
speedy trial and, in fact, wanted a speedy trial. Consequently, to the extent that this
may somehow be viewed as ineffective assistance on the part of Howell’s trial
counsel, such error was invited by Howell himself.
      {¶26} Accordingly, Howell’s sole assignment of error is without merit.
      {¶27} The judgment of the trial court is affirmed.

Waite, J., concurs.

Robb, J., concurs.
