[Cite as State v. Wagner, 2015-Ohio-4656.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. Patricia A. Delaney, J.
                         Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :       Case No. 15-COA-014
NYCKOLI J. WAGNER                             :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Ashland County
                                                  Court of Common Pleas, Case No. 14-CRI-
                                                  063

JUDGMENT:                                         Affirmed


DATE OF JUDGMENT ENTRY:                           November 6, 2015


APPEARANCES:



For Plaintiff-Appellee                            For Defendant-Appellant

CHRISTOPHER TUNNELL                               ERIN N. POPLAR
Ashland County Prosecutor                         DANIEL D. MASON
110 Cottage Street, Third Floor                   102 Milan Ave., Ste. 6
Ashland, OH 44805                                 Amherst, OH 44001
Ashland County, Case No. 15-COA-014                                                                       2

Gwin, P.J.

       {¶1}      Defendant-appellant Nyckoli J. Wagner ["Wagner"] appeals the November

12, 2014 Judgment of Conviction and Sentence and the April 2, 2015 Judgment Entry

entered by the Ashland County Court of Common Pleas, which ordered him to pay

restitution in the amount of $53,566.36. Plaintiff-appellee is the State of Ohio.

                                         Facts and Procedural History

       {¶2}      Wagner pled guilty to complicity to aggravated arson, in violation of Ohio

Revised Code Sections 2923.02(A)(2) and 2909.02(A)(2), a felony of the second

degree. The offense involved him and a co-defendant burning to the ground a cabin

belonging to Mr. Ricky Stull and located at 985 County Road 3006, Loudonville, Ohio.1

On November 12, 2014, the Wagner was sentenced to a three (3) year prison term.2

       {¶3}      During the sentencing hearing, Wagner objected to the Stull's property

valuations for purposes of restitution. The trial court scheduled a restitution hearing for

December 29, 2014. (Judgment Entry - Sentencing, filed Nov. 12, 2014 at 2). On

December 19, 2014, the state filed a request for a three-week continuance of the

restitution hearing. The court continued the hearing to January 26, 2015. (Judgment

Entry, filed December 23, 2014). Stull was unable to attend the hearing on January 26,

2015; therefore, the court continued the restitution hearing to March 16, 2015.

(Judgment Entry, filed January 26, 2015 at 1).




         1 A Statement of the Facts underlying Wagner’s original conviction is unnecessary to our

disposition of this appeal. Any facts needed to clarify the issues addressed in Wagner’s assignment of
error shall be contained therein.
       2   Wagner does not appeal the sentencing portion of the trial court's decision. Appellant's Brief at
1.
Ashland County, Case No. 15-COA-014                                                         3


       {¶4}       Stull testified under oath to the identity, value and/or cost to replace

property, including labor and site restoration. An exhibit supporting Stull's testimony was

presented in support of the requested amount of restitution. (See, Sentencing- Victim

Impact Statement; Memorandum of Law (March 13, 2015); State's Exhibit B). At the

restitution hearing, Stull testified as to his valuation of each line item on the previously

submitted list.

       {¶5}       Wagner presented no testimony and did not cross-examine Stull. Instead,

counsel for Wagner argued that the award of restitution must be based upon the fair market

value of the property rather than the cost to replace the items. Therefore, Wagner argued

because no evidence was presented concerning the replacement cost for many of the

items, the court could not order restitution for those items of property (Restitution Hearing,

March 16, 2015 at 31-34).

       {¶6}       By Judgment Entry filed April 2, 2015, the trial court ordered Wagner to pay

restitution in the amount of $53,566.36.

                                           Assignment of Error

       {¶7}       Wagner raises one assignment of error,

       {¶8}       "I. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS WHEN AT THE

RESTITUTION HEARING HIS COUNSEL FAILED TO CROSS EXAMINE THE WITNESS

OR MAKE BASIC OBJECTIONS."

                                                Analysis

       {¶9}       In his sole assignment of error, Wagner argues that he received ineffective

assistance of counsel because his trial counsel failed to cross-examine the witness,
Ashland County, Case No. 15-COA-014                                                        4


failed to make any objections, and failed to call any witnesses during the restitution

hearing.

       {¶10} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122

L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).

       {¶11} Counsel is unconstitutionally ineffective if his performance is both

deficient, meaning his errors are “so serious” that he no longer functions as “counsel,”

and prejudicial, meaning his errors deprive the defendant of a fair trial. Maryland v.

Kulbicki, 577 U.S. __, 2015 WL 5774453(Oct. 5, 2015)(citing Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

       {¶12} Wagner contends that trial counsel was deficient because he did not

attack Stull's method of valuation of the loss and the fact that he did not insure either the

structure or its contents. Further, Wagner points to the lack of receipts or records

showing the valuation. Wagner takes exception to Stull's testimony that he had

$3,800.00 in cash inside the home that was lost to either the fire or theft. Wagner

contends that Stull's' testimony was an inference upon an inference, i.e., that the items

ever existed or existed as described and that his valuations were fair. Such testimony

called for questioning that would undermine the witness' credibility and valuations.
Ashland County, Case No. 15-COA-014                                                     5


      {¶13} “‘The failure to object to error, alone, is not enough to sustain a claim of

ineffective assistance of counsel.’” State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d

136(1999), quoting State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d

831(1988). A defendant must also show that he was materially prejudiced by the failure

to object. Holloway, 38 Ohio St.3d at 244, 527 N.E.2d 831. Accord, State v. Hale, 119

Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶233.

      {¶14} A defendant has no constitutional right to determine trial tactics and

strategy of counsel. State v. Cowans, 87 Ohio St.3d 68, 72, 717 N.E.2d 298 (1999);

State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 150; State v.

Donkers, 170 Ohio App.3d 509, 2007-Ohio-1557, 867 N.E.2d 903,(11th Dist.), ¶183.

Rather, decisions about viable defenses are the exclusive domain of defense counsel

after consulting with the defendant. Id. When there is no demonstration that counsel

failed to research the facts or the law or that counsel was ignorant of a crucial defense,

a reviewing court defers to counsel's judgment in the matter. State v. Clayton, 62 Ohio

St.2d 45, 49, 402 N.E.2d 1189(1980), citing People v. Miller, 7 Cal.3d 562, 573-574,

102 Cal.Rptr. 841, 498 P.2d 1089(1972); State v. Wiley, 10th Dist. Franklin No. 03AP-

340, 2004- Ohio-1008, ¶ 21.

      {¶15} The scope of cross-examination falls within the ambit of trial strategy, and

debatable trial tactics do not establish ineffective assistance of counsel. State v.

Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 45; State v. Campbell,

90 Ohio St.3d 320, 339, 738 N.E.2d 1178(2000). In addition, to fairly assess counsel's

performance, “a court must indulge a strong presumption that counsel's conduct falls
Ashland County, Case No. 15-COA-014                                                      6

within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at

689, 104 S.Ct. 2052, 80 L.Ed.2d 674.

      {¶16} Debatable strategic and tactical decisions may not form the basis of a

claim for ineffective assistance of counsel. State v. Phillips, 74 Ohio St.3d 72, 85, 1995-

Ohio-171. Even if the wisdom of an approach is questionable, “debatable trial tactics” do

not constitute ineffective assistance of counsel. Id. “[P]oor tactics of experienced

counsel, however, even with disastrous result, may hardly be considered lack of due

process * * *.” State v. Clayton, 62 Ohio St.2d 45, 48, 402 N.E.2d 1189(1980)(quoting

United States v. Denno, 313 F.2d 364(2nd Cir. 1963), certiorari denied 372 U.S. 978, 83

S.Ct. 1112, 10 L.Ed.2d 143.

      {¶17} In the case at bar, trial counsel clearly made a decision to attack Stull and

his valuations. This he did by arguing that the state had not presented evidence

concerning the fair market value of the property lost. Counsel noted the state did not

present testimony concerning how Stull arrived at his valuations. (Restitution Hearing,

March 16, 2015 at 33) He further noted the lack of evidence concerning the

replacement value of the items. (Id. at 34). Accordingly, Wagner argued that the

evidence was insufficient upon which to base a valuation for restitution.

      {¶18} Upon review, we are unpersuaded that Wagner suffered demonstrable

prejudice via defense counsel's decision not to cross-examine or object to Stull's

testimony. As the Ohio Supreme Court has observed,

             Although trial counsel’s strategy was questionable, we must defer

      to his judgment. As we stated in State v. Lytle (1976), 48 Ohio St.2d 391,

      396, 358 N.E.2d 623, 627: "We deem it misleading to decide an issue of
Ashland County, Case No. 15-COA-014                                                 7


      competency by using, as a measuring rod, only those criteria defined as

      the best of available practices in the defense field.”(Emphasis sic.) As in

      Lytle, supra, we do not think appellee established that there was a

      substantial violation of any of defense counsel’s essential duties to his

      client. Counsel chose a strategy that proved ineffective, but the fact that

      there was another and better strategy available does not amount to a

      breach of an essential duty to his client.

State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189(1980).

      {¶19} For the foregoing reasons, Wagner's sole assignment of error is overruled.

      {¶20} The judgment of the Ashland County Court of Common Pleas is affirmed.



By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
