[Cite as Toledo v. Deiley, 2015-Ohio-462.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio/City of Toledo                           Court of Appeals No. L-14-1021

        Appellee                                       Trial Court No. CRB-13-07061

v.

Kenneth Deiley                                         DECISION AND JUDGMENT

        Appellant                                      Decided: February 6, 2015

                                                *****

        David Toska, City of Toledo Chief Prosecutor, and Henry Schaefer,
        Assistant Prosecutor, for appellee.

        Tim A. Dugan, for appellant.

                                                *****

        YARBROUGH, P.J.

                                             I. Introduction

        {¶ 1} This is an appeal from a decision of the Toledo Municipal Court, finding

appellant, Kenneth Deiley, guilty of assault, and placing him on probation in lieu of a

suspended six-month jail sentence. For the following reasons, we affirm.
                         A. Facts and Procedural Background

       {¶ 2} On April 30, 2013, a complaint was filed in the Toledo Municipal Court,

charging appellant with one count of assault in violation of Toledo Municipal Code

537.03(a), a misdemeanor of the first degree, and one count of disorderly conduct in

violation of Toledo Municipal Code 509.03(a)(1), a minor misdemeanor. The charges

stemmed from an altercation involving appellant that occurred during the early morning

hours of April 30, 2013. At around midnight on that date, Jon Cottrell overheard a group

of people yelling outside of his East Toledo home. Upon further investigation, Cottrell

determined that a crowd was gathered in the street in front of his house, surrounding

appellant’s automobile, which was parked in the street. Appellant was inside the vehicle

at the time. According to Cottrell, the crowd was unhappy with appellant because he

would not leave them alone.

       {¶ 3} Eventually, Cottrell reprimanded the crowd, and instructed everyone to

disburse. Most of the crowd complied. However, appellant, his girlfriend, Tammy Wahl,

and Wahl’s “boyfriend for the night,” T.J., refused to leave. An argument ensued,

culminating in Wahl attempting to strike appellant with a baseball bat while standing on

the sidewalk adjacent to Cottrell’s property. Fortunately, T.J. stepped in front of Wahl,

preventing her from striking Cottrell. Cottrell was then able to retrieve the bat and place

it on his porch out of Wahl’s reach.

       {¶ 4} After the argument concluded, Wahl walked into a nearby alley with T.J.

Appellant exited his vehicle, and followed Wahl into the alley, where the two were heard




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arguing. As the argument escalated, appellant grabbed Wahl by the shirt collar and arm,

and began dragging her towards his vehicle. According to Cottrell, Wahl was “kicking

and screaming and yelling at the top of her lungs.” In an attempt to prevent Wahl’s

abduction, Cottrell walked up to the driver’s side of appellant’s vehicle, reached into the

cabin through the open window, and turned the keys into the “off” position, removing

them and dropping them on the driver seat.

       {¶ 5} At this point, appellant approached Cottrell and demanded his keys. As

appellant approached, Cottrell detected an odor of alcohol on appellant’s breath.

Moreover, prior to disbursing the crowd, Cottrell overheard individuals suggesting that

appellant had a firearm in the vehicle. Consequently, Cottrell refused to allow appellant

to access his vehicle. Instead, Cottrell informed appellant that he would have to wait for

the police to arrive. Upset at Cottrell’s refusal to comply with his demand, appellant

grabbed Cottrell by the wrist and began trying to twist Cottrell’s wrist, asserting that he

was a police officer and that Cottrell was under arrest. After grabbing Cottrell’s wrist,

appellant attempted to enter his vehicle. However, Cottrell shut the door on appellant,

pinching him between the door and the body of the vehicle.

       {¶ 6} At this time, Wahl approached Cottrell and attempted to choke him and bite

him. Cottrell eluded Wahl. However, Wahl lunged back at Cottrell, at which point he hit

her in the face, causing her to fall to the ground. In response, appellant punched Cottrell

through the open car door window, freeing himself from between the vehicle and the




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door. A fight ensued, which was subsequently broken up by police officers when they

arrived on the scene.

       {¶ 7} Ultimately, appellant was arrested and charged with assault and disorderly

conduct. Following a trial to the bench, appellant was found guilty of assault and not

guilty of disorderly conduct. The trial court imposed a six-month jail sentence.

However, the court ordered the jail sentence suspended, and placed appellant on

probation. Appellant’s timely notice of appeal followed the trial court’s decision.

                                B. Assignments of Error

       {¶ 8} On appeal, appellant asserts the following assignments of error:

              1. The City presented legally insufficient evidence to sustain

       Appellant’s conviction for Assault.

              2. Appellant’s conviction fell against the manifest weight of the

       evidence.

              3. Appellant received ineffective assistance of counsel.

              4. The Trial Court’s sentence was contrary to law for being more

       than the maximum sentence for a misdemeanor of the first degree.

                                        II. Analysis

                             A. Sufficiency of the Evidence

       {¶ 9} In his first assignment of error, appellant argues that the city of Toledo failed

to introduce sufficient evidence to support his conviction.




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       {¶ 10} When examining the sufficiency of the evidence, we must determine

whether the evidence admitted at trial, “if believed, would convince the average mind of

the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.”

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus,

citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.E.2d 560 (1979); see also

State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). Therefore, “[t]he verdict

will not be disturbed unless the appellate court finds that reasonable minds could not

reach the conclusion reached by the trier-of-fact.” State v. Dennis, 79 Ohio St.3d 421,

430, 683 N.E.2d 1096 (1997), citing Jenks at paragraph two of the syllabus.

       {¶ 11} In this case, appellant was convicted of assault in violation of Toledo

Municipal Code 537.03(a), which provides: “No person shall knowingly cause or

attempt to cause physical harm to another.” Appellant does not contest that appellee

offered evidence on each of the elements of assault set forth in Toledo Municipal Code

537.03(a). Rather, appellant asserts that “the evidence from the City’s own witness

establishes the elements of self-defense.”

       {¶ 12} Relevant to appellant’s argument, we have previously stated that “appellate

review for sufficiency does not encompass the strength or merits of defenses.” State v.

White, 988 N.E.2d 595, 2013-Ohio-51, ¶ 90 (6th Dist.); see also State v. Hancock, 108

Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032 (finding that a review for sufficiency of




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the evidence does not apply to affirmative defenses). Because appellant’s argument

focuses on the affirmative defense of self-defense, which appellant had the burden of

establishing, we find no merit to his contention that appellee failed to offer sufficient

evidence to support the conviction. See State v. Vasquez, 10th Dist. Franklin No. 13AP-

366, 2014-Ohio-224, ¶ 52 (“Defendant’s challenge to the sufficiency of the evidence

insofar as it invokes self-defense * * * is inappropriate.”).

       {¶ 13} Accordingly, appellant’s first assignment of error is not well-taken.

                                    B. Manifest Weight

       {¶ 14} In his second assignment of error, appellant argues that his conviction was

against the manifest weight of the evidence.

       {¶ 15} When reviewing a manifest weight claim,

              [t]he court, reviewing the entire record, weighs the evidence and all

       reasonable inferences, considers the credibility of witnesses and determines

       whether in resolving conflicts in the evidence, the jury clearly lost its way

       and created such a manifest miscarriage of justice that the conviction must

       be reversed and a new trial ordered. The discretionary power to grant a

       new trial should be exercised only in the exceptional case in which the

       evidence weighs heavily against the conviction. State v. Lang, 129 Ohio

       St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting State v.

       Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).




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       {¶ 16} Here, appellant asserts that the evidence weighed heavily in his favor in

that the elements of self-defense were established by Cottrell’s testimony. Appellee, for

its part, contends that appellant was the aggressor in this case, citing Cottrell’s testimony

that appellant was in the process of abducting Wahl when Cottrell intervened.

       {¶ 17} Having reviewed the record in this case, we do not find that the elements of

self-defense were established by Cottrell’s testimony. On the contrary, the record

establishes that Cottrell only confronted appellant after appellant started dragging Wahl

toward his car by the shirt collar and arm. Notably, Wahl was screaming and attempting

to free herself at the time. Moreover, appellant initiated the physical altercation when he

twisted Cottrell’s wrist in an effort “arrest” him. Given the facts of this case, we find that

appellant’s conviction was not against the manifest weight of the evidence.

       {¶ 18} Accordingly, appellant’s second assignment of error is not well-taken.

                            C. Ineffective Assistance of Counsel

       {¶ 19} In appellant’s third assignment of error, he argues that his counsel was

ineffective for failing to solicit his testimony at trial.

       {¶ 20} To support a claim for ineffective assistance of counsel, appellant must

satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, he must show that counsel’s performance

fell below an objective standard of reasonableness, and a reasonable probability exists

that, but for counsel’s error, the result of the proceedings would have been different. Id.

at 687-688, 694.




7.
       {¶ 21} “The decision whether to call a defendant as a witness falls within the

purview of trial tactics.” State v. Adkins, 144 Ohio App.3d 633, 646, 761 N.E.2d 94

(12th Dist.2001). Even if the wisdom of an approach is debatable, debatable trial tactics

do not constitute ineffective assistance of counsel. State v. Phillips, 74 Ohio St.3d 72, 85,

656 N.E.2d 643 (1995). Moreover, “failure to call a witness will not substantiate a claim

for ineffective assistance of counsel unless prejudice is shown.” State v. Beesler, 11th

Dist. No. 2002-A-0001, 2003-Ohio-2815, ¶ 13.

       {¶ 22} Here, the record before this court contains no indication that trial counsel

prohibited appellant from testifying. Indeed, we have stated that a criminal defendant’s

decision to testify is one for the defendant to make, not trial counsel. See State v. Turner,

6th Dist. Wood No. WD-11-025, 2012-Ohio-3863, ¶ 45. While counsel may have

encouraged appellant not to testify in this case for strategic reasons, we find no evidence

to support a finding that such advice was unreasonable. Further, appellant has failed to

demonstrate that the outcome of the proceeding was impacted by his failure to testify.

Thus, we find that appellant was not deprived of effective assistance of counsel.

       {¶ 23} Accordingly, appellant’s third assignment of error is not well-taken.

                                D. Imposition of Sentence

       {¶ 24} In his fourth and final assignment of error, appellant contends that the trial

court erred in ordering him to serve a six-month jail sentence where the maximum

penalty for a misdemeanor of the first degree under R.C. 2929.24(A)(1) is 180 days.

Appellee concedes appellant’s argument and requests that we remand this action for




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resentencing. We disagree with both parties concerning the trial court’s imposition of

sentence.

       {¶ 25} Notably, the relevant statute in this case is not R.C. 2929.24(A)(1), which

governs sentencing for misdemeanor violations under the Ohio Revised Code and

provides for a maximum jail sentence of 180 days for misdemeanors of the first degree.

Here, appellant was found guilty of assault under the Toledo Municipal Code. Penalties

for misdemeanors under the Toledo Municipal Code are governed by Toledo Municipal

Code 501.99. Under that section, the maximum term of imprisonment for a misdemeanor

of the first degree is six months. Thus, the trial court did not err in its imposition of a six-

month jail term.

       {¶ 26} Accordingly, appellant’s fourth assignment of error is not well-taken.

                                       III. Conclusion

       {¶ 27} In light of the foregoing, the judgment of the Toledo Municipal Court is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                           Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




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                                                                     State v. Deiley
                                                                     C.A. No. L-14-1021




Thomas J. Osowik, J.                          _______________________________
                                                          JUDGE
Stephen A. Yarbrough, P.J.
                                              _______________________________
James D. Jensen, J.                                       JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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