[Cite as State v. Kingsley, 2016-Ohio-592.]


                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 103055



                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                       KENNETH D. KINGSLEY

                                                         DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-14-590907-A

        BEFORE:          Stewart, J., E.A. Gallagher, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: February 18, 2016
ATTORNEY FOR APPELLANT

James J. Hofelich
614 W. Superior Avenue, Suite 1310
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

John D. Kirkland
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} Defendant-appellant Kenneth Kingsley pleaded guilty to a single count of attempted

felonious assault, a third-degree felony.     In anticipation of sentencing, the court referred

Kingsley to the court psychiatric clinic for a report on the “psychiatric factors in the crime” for

purposes of mitigation of sentence. At sentencing, defense counsel noted that the psychiatric

clinic did not prepare a report as instructed, but told the court that the probation department

referenced Kingsley’s mental health and substance abuse issues in a “very detailed” presentence

investigation report. The court told counsel that it did not believe that a psychiatric clinic

evaluation would contain more detail than the presentence investigation report. Defense counsel

agreed and assented to going forward with sentencing. The court sentenced Kingsley to a

maximum term of 36 months in prison. Kingsley’s sole assignment of error on appeal is that

defense counsel was ineffective for waiving a psychiatric clinic report.

       {¶2} A defendant claiming ineffective assistance of counsel bears the burden of

establishing two elements: (1) that trial counsel’s performance fell below objective standards for

reasonably effective representation, and (2) that counsel’s deficiency prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶3} To satisfy the first element of the Strickland test, appellant must direct the court to

specific acts or omissions by his counsel. Id. at 690. We consider whether, in light of all the

circumstances, counsel’s performance was outside the wide range of professionally competent

assistance. Id. Our assessment of counsel’s performance is “highly deferential” so we indulge

in “a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance * * *.” Id. at 689.
       {¶4} To satisfy the second Strickland element, the defendant must show that there is a

reasonable probability that, but for counsel’s errors, the result of the proceedings would have

been different. Id. at 694. A “reasonable probability” is defined as one that is “sufficient to

undermine confidence in an outcome.” Id.

       {¶5} Because the test for ineffective assistance of counsel requires the defendant to

establish both elements of the Strickland test, State v. Santana, 90 Ohio St.3d 513, 515,

2001-Ohio-7, 739 N.E.2d 798, we can decide this appeal based on Kingsley’s failure to establish

that there is a reasonable probability that, but for counsel’s errors, the result of the proceedings

would have been different.

       {¶6} Kingsley’s argument on appeal is that had the court’s psychiatric clinic prepared a

report as ordered, the report would have documented his current mental health status (as opposed

to his past mental history detailed in the presentence investigation report) and he would not have

received the maximum sentence on a third-degree felony. Not only is that conclusion pure

speculation, it is not based on any facts in the record — without knowing what the psychiatric

clinic had to say about his current mental health, Kingsley has no basis for arguing that he would

have received a lighter sentence had a report been prepared.

       {¶7} What is more, nothing in the record proves that Kingsley had mental health issues at

the time of sentencing that would have moved the court to leniency. Defense counsel told the

court Kingsley was not receiving mental health services at the time of this offense. And while

the presentence investigation report documented Kingsley’s assertion that he had been diagnosed

with bipolar disorder, depression, and attention deficit hyperactive disorder, the presentence

investigation report showed that Kingsley last received treatment for mental health issues

approximately seven years ago.
       {¶8} Apart from the record failing to show that Kingsley suffered from mental health

issues that would have mitigated his sentence, the record shows that the length of sentence was a

product of an extensive criminal history and pervasive substance abuse. Kingsley’s record was

heavy with domestic violence and disorderly conduct, with one of the domestic violence

convictions involving a pregnant woman. The court found that the victim of the offense for

which Kingsley pleaded guilty in the current case suffered serious physical and psychological

harm as a result of his offense. The court also found that Kingsley committed his offenses while

on community control. With these factors before it, the court stated:

       it looks as though no judge has ever given this defendant a sentence, to teach him
       there are ramifications for negative behavior. Almost every judge he’s been in
       front of put him on probation, let him violate the probation, and then gave him a
       nominal jail sentence. That’s going to change here today.

       {¶9} While it is true that Kingsley had never received a prison term, there is no basis in

the record to conclude that Kingsley would have received a lighter sentence had defense counsel

not waived a report in mitigation. The assignment of error is overruled.

       {¶10} Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

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

Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, JUDGE
EILEEN A. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR
