[Cite as State v. Gilmore, 2016-Ohio-4697.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103479




                                      STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                         SHANDA HOBSON GILMORE

                                                           DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-15-594817

        BEFORE:          Jones, A.J., McCormack, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: June 30, 2016
ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Kerry A. Sowul
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., A.J.:

       {¶1} Defendant-appellant, Shanda Hobson Gilmore, appeals her robbery, theft, and

carrying concealed weapon convictions.      We affirm.

       {¶2} In 2015, Gilmore was charged with one count each of aggravated robbery,

robbery, and kidnapping, all with firearm specifications; petty theft; carrying a concealed

weapon; and two counts of tampering with evidence.       She was referred for a competency

evaluation and found competent to stand trial.      She entered into a plea agreement and

pleaded guilty to robbery with a one-year firearm specification, petty theft, and carrying a

concealed weapon.     The trial court sentenced her to a total of three years in prison.

       {¶3} The record reflects that Gilmore, a habitual cocaine user, smoked the

synthetic drug K2 and walked into the Shell gas station on South Taylor Road in

Cleveland Heights with a gun.     She walked behind the employee area of the gas station,

took her loaded .38 caliber handgun, and pointed it at an employee of the store.      Gilmore

then took $120 off the counter and fled.    The police arrested Gilmore a short time later.

She was unarmed, but the police found the gun a short distance from the gas station.

       {¶4} Gilmore filed a timely notice of appeal and raises one assignment of error for

our review.    Further facts germane to this appeal will be discussed under the assignment

of error.

       I.   The Appellant was denied effective assistance of counsel in violation of

       Amendments VI and XIV of the United States Constitution and Article I,

       Section 10 of the Ohio Constitution, when counsel failed to file a motion
      for not guilty by reason of insanity and failed to obtain an evaluation for

      sanity at the time of the act in light of the circumstances of the case.

      {¶5} In her sole assignment of error, Gilmore argues that her counsel was

ineffective for failing to set forth the argument that she was not sane at the time she

committed her crime.

      {¶6} In order to substantiate a claim of ineffective assistance of counsel, the

appellant is required to demonstrate that (1) the performance of defense counsel was

seriously flawed and deficient, and (2) the result of the appellant’s trial or legal

proceeding would have been different had defense counsel provided proper

representation. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984), syllabus; State v. Brooks, 25 Ohio St.3d 144, 495 N.E.2d 407 (1986). “Judicial

scrutiny of counsel’s performance is to be highly deferential, and reviewing courts must

refrain from second-guessing the strategic decisions of trial counsel.” State v. Carter,

72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Further, “trial counsel is entitled to a

strong presumption that all decisions fell within the wide range of reasonable,

professional assistance.”   State v. Sallie, 81 Ohio St.3d 673, 675, 693 N.E.2d 267

(1998), citing State v. Thompson, 33 Ohio St.3d 1, 10, 514 N.E.2d 407 (1987).

      {¶7} Gilmore argues that defense counsel was ineffective for failing to pursue a

defense of not guilty by reason of insanity. R.C. 2901.01(A)(14) provides that

      [a] person is “not guilty by reason of insanity” relative to a charge of an
      offense only if the person proves [by a preponderance of the evidence] that
      at the time of the commission of the offense, the person did not know, as a
      result of a severe mental disease or defect, the wrongfulness of the person’s
       acts.

       {¶8} If the “facts and circumstances indicate that a plea of not guilty by reason of

insanity would have had a reasonable probability of success, it is ineffective assistance of

counsel to fail to enter the plea.”      State v. Allen, 8th Dist. Cuyahoga No. 91750,

2009-Ohio-2036, ¶ 23, citing State v. Mangus, 7th Dist. Columbiana No. 07 CO 36,

2008-Ohio-6210.     Where, however, the facts indicate that counsel was pursuing a

reasonable strategy in failing to so plead, or where the likelihood of success for the plea is

low, counsel’s actions will not be determined to be unreasonable.     Id. citing id.

       {¶9} In Allen, the defendant pleaded guilty to aggravated robbery and attempted

escape but claimed on appeal that his counsel had been ineffective, in part, because

counsel failed to realize that the defendant was insane at the time of the act.           The

defendant thought that counsel should have raised that defense because he (Allen) had no

recollection of the offense. This court disagreed, noting that Allen had smoked PCP

prior to committing the offense; therefore, his judgment was impaired. The court found

that defendant failed to provide evidence that he did not understand the wrongfulness of

his actions, any argument that he was not sane at the time of the act was merely

speculative, and he had failed to show evidence that his insanity defense would likely

succeed. Finally, this court noted that the defendant had pleaded guilty to an amended

indictment; thus, the plea was a tactical decision on the part of counsel. Id. at ¶ 26.

       {¶10} In this case, Gilmore claimed at the sentencing hearing that she did not

remember the offense and was “asleep” at the time, but there is nothing in the record to
show that Gilmore did not understand the wrongfulness of her actions. She further

asserts that “had she been in her right mind,” she would not have committed the crime.

But Gilmore, who admitted to being a daily cocaine abuser, also admitted to smoking the

drug K2 prior to committing the offense, and thus, her judgment would have been

impaired at the time she committed the crime.

       {¶11} Moreover, in the presentence investigation report, Gilmore told the

probation department investigator that “she is sorry this offense happened. She wishes

that she never ‘hit’ the K2.          She wishes that the fire would have never started at her

house and that she would have not ‘spazzed out.’”1 Thus, contrary to Gilmore’s claim at

her sentencing hearing, her statement to the probation department investigator indicates

that she did understand the wrongfulness of her actions.

       {¶12} Similar to the defendant in Allen, Gilmore agreed to plead guilty to an

amended indictment; Gilmore was charged with seven counts, including a felony of the

first degree (aggravated robbery), and pleaded guilty to only three of those counts, the

highest being a second-degree felony (robbery).                This court will not second-guess a

tactical decision on the part of trial counsel.

       {¶13} The sole assignment of error is overruled.

       {¶14} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       1
           There is nothing in the record about a fire at Gilmore’s house.
      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., ADMINISTRATIVE JUDGE

TIM McCORMACK, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
