[Cite as State v. Robison, 2014-Ohio-321.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. John W. Wise, J.
-vs-                                         :
                                             :
THOMAS ROBISON                               :       Case No. 13-CA-65
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Municipal Court,
                                                     Case No. 13CRB01082



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    January 29, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CAROLINE J. CLIPPINGER                               WILLIAM T. CRAMER
40 West Main Street                                  470 Olde Worthington Road
Newark, OH 43055                                     Suite 200
                                                     Westerville, OH 43082
Licking County, Case No. 13-CA-65                                                       2

Farmer, J.

       {¶1}   On May 31, 2013, appellant, Thomas Robison, was charged with one

count of resisting arrest in violation of R.C. 2921.33, one count of disorderly conduct in

violation of R.C. 2917.11, and one count of criminal trespass in violation of R.C.

2911.21. Said charges arose from an incident between appellant and his neighbor.

       {¶2}   On June 26, 2013, appellant pled guilty to the resisting and disorderly

counts and the trespass count was dismissed. By journal entries filed same date, the

trial court sentenced appellant to an aggregate term of ninety days in jail.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶4}   "APPELLANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE

ASSISTANCE OF COUNSEL IN VIOLATION OF THE STATE AND FEDERAL

CONSTITUTION        BECAUSE       DEFENSE        COUNSEL       FAILED     TO   REQUEST

DISCOVERY REGARDING APPELLANT'S CRIMINAL RECORD."

                                             I

       {¶5}   Appellant claims he was denied the effective assistance of trial counsel

because his counsel failed to request discovery regarding his criminal record. We

disagree.

       {¶6}   The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:
Licking County, Case No. 13-CA-65                                                       3


              2. Counsel's performance will not be deemed ineffective unless and

       until counsel's performance is proved to have fallen below an objective

       standard of reasonable representation and, in addition, prejudice arises

       from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

       O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

       668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

              3. To show that a defendant has been prejudiced by counsel's

       deficient performance, the defendant must prove that there exists a

       reasonable probability that, were it not for counsel's errors, the result of

       the trial would have been different.



       {¶7}   Appellant argues he was prejudiced by his trial counsel's failure to request

discovery of his prior criminal record because it significantly impacted his sentence (T.

at 5-6):



              THE COURT: Mr. Boeckman you indicate to the Court that your

       client has no criminally history.

              MR. BOECKMAN: I am repeating what he told me.

              THE COURT: Oh.

              MR. ROBISON: It is traffic stuff.

              THE COURT: Well I have ten pages here.

              MR. BOEKMAN: Traffic related matters?
Licking County, Case No. 13-CA-65                                                     4


             THE COURT: Well most of them are well he has got a lot of traffic

      but he has got a lot of criminal history as well.

             MR. BOECKMAN: Your Honor as you know the clerk's office

      doesn't give us that information any longer and I on most occasions rather

      than filing for discovery rely on the information provided me by my

      individual client but...

             THE COURT: Well I see a 1979 conviction for drunk driving, a 1985

      for drunk driving, a 1988 conviction for drunk driving...

             MR. BOECKMAN: I think that is accurate. He told me he had three

      OVI's Your Honor.

             THE COURT: 1991 conviction for drunk driving, a 1992 conviction

      for drunk driving, a 1993 conviction for drunk driving, a 1995 conviction for

      drunk driving, a 2001 conviction for drunk driving, 2002 felony conviction

      for drunk driving in our court across the hall or across the street. Another

      conviction felony conviction for drunk driving in Franklin County. I have no

      doubt that alcohol was the causing factor in this either.

             MR. BOECKMAN: And by way of I guess most individuals

      um...conclude that OVI’s are traffic related matters maybe don’t view them

      as criminal related matters.



      {¶8}   Crim.R 16(H) requires the defense to provide reciprocal discovery once

the defense has requested discovery from the state:
Licking County, Case No. 13-CA-65                                                         5


              (H) Discovery: Right to Copy or Photograph. If the defendant

      serves a written demand for discovery or any other pleading seeking

      disclosure of evidence on the prosecuting attorney, a reciprocal duty of

      disclosure by the defendant arises without further demand by the state.

      The defendant shall provide copies or photographs, or permit the

      prosecuting attorney to copy or photograph, the following items related to

      the particular case indictment, information or complaint, and which are

      material to the innocence or alibi of the defendant, or are intended for use

      by the defense as evidence at the trial, or were obtained from or belong to

      the victim, within the possession of, or reasonably available to the

      defendant, except as provided in division (J) of this rule:

              (1) All laboratory or hospital reports, books, papers, documents,

      photographs, tangible objects, buildings or places;

              (2) Results of physical or mental examinations, experiments or

      scientific tests;

              (3) Any evidence that tends to negate the guilt of the defendant, or

      is material to punishment, or tends to support an alibi. However, nothing

      in this rule shall be construed to require the defendant to disclose

      information that would tend to incriminate that defendant;

              (4) All investigative reports, except as provided in division (J) of this

      rule;
Licking County, Case No. 13-CA-65                                                      6


              (5) Any written or recorded statement by a witness in the

       defendant’s case-in-chief, or any witness that it reasonably anticipates

       calling as a witness in surrebuttal.



       {¶9}   The failure or the purposeful decision not to request discovery can be a

legitimate trial strategy to cut short giving the state discovery. This court must accord

deference to defense counsel's strategic choices made during trial and "requires us to

eliminate the distorting effect of hindsight." State v. Post, 32 Ohio St.3d 380, 388

(1987).

       {¶10} Included in the trial court record is a ten page print-out of appellant's

criminal traffic record which was available for view "prior to the discovery process" per

the Clerk of Courts, Docket Entry No. 4. Appellant was well aware of his criminal record

as evidenced by the mitigation letters filed with the trial court.

       {¶11} In addition, appellant entered a "guilty" plea therefore, the argument of

ineffective assistance of counsel is waived unless the ineffective assistance caused the

plea to be involuntary. State v. Bennett, 6th Dist. Wood No. WD-08-005, 2008-Ohio-

5812. There is no indication in this case that appellant would have insisted on a trial

had defense counsel requested discovery on his criminal record.

       {¶12} Upon review, we find no evidence of prejudice or that the result of the

case would have been different.

       {¶13} The sole assignment of error is denied.
Licking County, Case No. 13-CA-65                                              7


      {¶14} The judgment of the Municipal Court of Licking County, Ohio is hereby

affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




SGF/sg 121
