[Cite as State v. Riggleman, 2016-Ohio-5179.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. Sheila G. Farmer, P.J.
                                                :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellee     :       Hon. William B. Hoffman, J.
                                                :
-vs-                                            :
                                                :       Case No. 16-CA-9
DILLON R. RIGGLEMAN                             :
                                                :
                    Defendant-Appellant         :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Licking County
                                                    Court of Common Pleas, Case No.
                                                    15CR727



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT ENTRY:                             July 29, 2016




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

BRYAN MOORE                                         ANDREW T. SANDERSON
Assistant Prosecuting Attorney                      Burkett & Sanderson, Inc.
20 South Second Street                              73 North Sixth Street
Newark, OH 43055                                    Newark, OH 43055
Licking County, Case No. 16-CA-9                                                       2

Gwin, P.J.

       {¶1}   Appellant Dillon R. Riggleman [“Riggleman”] appeals his conviction and

sentence after a negotiated guilty plea in the Licking County Court of Common Pleas.

                                 Facts and Procedural History

       {¶2}   The statement of the facts provided by the prosecuting attorney, and

presented during the change of plea hearing is as follows,

       As to both counts on February 23rd, 2015, Newark Police Department

       officers were summoned to the Speedway Gas Station on East Main Street

       in Newark, Ohio. A cashier called after observing a male passed out in a

       truck at a pump in the middle of the night. Officers found the defendant,

       Dillon R. Riggleman, alone in the vehicle, sleeping with a smoking pipe in

       one hand and a lighter in the other. They aroused him and although

       exceptionally disoriented at the time and place, he was able to state that he

       had been using Methamphetamine. The pipe was tested and found to be

       positive for Methamphetamine, a Schedule II controlled substance. All of

       this occurring in Licking County, Ohio.

T. at 9-10. Riggleman agreed with these facts. T. at 10. See, also Bill of Particulars,

filed Dec. 4, 2015.

       {¶3}   On January 20, 2016, Riggleman pleaded guilty to one count of Aggravated

Possession of Drugs, a felony of the fifth degree, and one count of Possession of Drug

Paraphernalia, a misdemeanor of the fourth degree. The trial judge sentenced Riggleman

to 6 months in prison and 30 days in jail on each respective count, those sentences
Licking County, Case No. 16-CA-9                                                            3


running concurrent.       Riggleman was credited with days of jail credit towards that

sentence.

                                       Assignment of Error

       {¶4}   Riggleman raises one assignment of error,

       {¶5}   “I. THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL.”

                                        Law and Analysis

       {¶6}   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).

       {¶7}   In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both the deficient performance and prejudice prongs of Strickland and Bradley.

Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251(2009).

       {¶8}   Recently, the United States Supreme Court discussed the prejudice prong

of the Strickland test,

              With respect to prejudice, a challenger must demonstrate “a

       reasonable probability that, but for counsel’s unprofessional errors, the

       result of the proceeding would have been different. A reasonable probability

       is a probability sufficient to undermine confidence in the outcome.” Id., at
Licking County, Case No. 16-CA-9                                                       4


      694, 104 S.Ct. 2052. It is not enough “to show that the errors had some

      conceivable effect on the outcome of the proceeding.” Id., at 693, 104 S.Ct.

      2052. Counsel’s errors must be “so serious as to deprive the defendant of

      a fair trial, a trial whose result is reliable.” Id., at 687, 104 S.Ct. 2052.

             “Surmounting Strickland’s high bar is never an easy task.” Padilla v.

      Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284

      (2010). An ineffective-assistance claim can function as a way to escape

      rules of waiver and forfeiture and raise issues not presented at trial, and so

      the Strickland standard must be applied with scrupulous care, lest “intrusive

      post-trial inquiry” threaten the integrity of the very adversary process the

      right to counsel is meant to serve. Strickland, 466 U.S., at 689–690, 104

      S.Ct. 2052. Even under de novo review, the standard for judging counsel’s

      representation is a most deferential one. Unlike a later reviewing court, the

      attorney observed the relevant proceedings, knew of materials outside the

      record, and interacted with the client, with opposing counsel, and with the

      judge. It is “all too tempting” to “second-guess counsel’s assistance after

      conviction or adverse sentence.” Id., at 689, 104 S.Ct. 2052; see also Bell

      v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002);

      Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180

      (1993). The question is whether an attorney’s representation amounted to

      incompetence under “prevailing professional norms,” not whether it

      deviated from best practices or most common custom. Strickland, 466 U.S.,

      at 690, 104 S.Ct. 2052.
Licking County, Case No. 16-CA-9                                                           5

Harrington v. Richter, __U.S.__, 131 S.Ct. 770, 777-778, 178 L.Ed.2d 624(2011).

      {¶9}   Riggleman contends that his trial counsel was ineffective because he did

not offer mitigating evidence during the change of plea and sentencing hearing.

      {¶10} “Failure to present mitigating evidence * * * does not in itself constitute proof

of ineffective assistance[.]” State v. Hamblin, 37 Ohio St.3d 153, 157, 524 N.E.2d 476,

480(1988). Accord Burger v. Kemp, 483 U.S. 776, 794-796, 107 S.Ct. 3114, 97 L.Ed.2d

638(1987); State v. Coleman, 85 Ohio St.3d 129, 138, 1999-Ohio-258, 707 N.E.2d 476;

State v. Keith, 79 Ohio St.3d 514, 684 N.E.2d 47(1997).

      {¶11} In the case at bar, the trial court stated it had considered the purposes and

principles of sentencing under R.C. 2929.11. T. at 16. During the colloquy, Riggleman

informed the court that he has felonies pending in another county. T. at 16; 20.

      {¶12} In Burger v. Kemp, the Court observed,

             We have decided that “strategic choices made after less than

      complete investigation are reasonable precisely to the extent that

      reasonable professional judgments support the limitations on investigation.”

      Strickland, 466 U.S., at 690–691, 104 S.Ct., at 2066.            Applying this

      standard, we agree with the courts below that counsel’s decision not to

      mount an all-out investigation into petitioner’s background in search of

      mitigating circumstances was supported by reasonable professional

      judgment. It appears that he did interview all potential witnesses who had

      been called to his attention and that there was a reasonable basis for his

      strategic decision that an explanation of petitioner’s history would not have

      minimized the risk of the death penalty. Having made this judgment, he
Licking County, Case No. 16-CA-9                                                         6


      reasonably determined that he need not undertake further investigation to

      locate witnesses who would make statements about Burger’s past.

483 U.S. at 794-795; 107 S.Ct. 3114, 97 L.Ed.2d 638.

      {¶13} In the case at bar, there has been no showing in the record of this case that

any mitigating evidence was in existence or that there were witnesses available whose

testimony would have assisted the defense. Nothing in the record demonstrates that

more mitigation material, if any existed, would have resulted in a lesser sentence. The

failure to prove either prong is fatal. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000–

Ohio–448, 721 N.E.2d 52. Further, at the sentencing hearing and again in the sentencing

entry, the trial court expressly indicated it considered all sentencing factors as required

by law.

      {¶14} Riggleman has not established that “in light of all the circumstances, the

identified acts or omissions [of counsel] were outside the wide range of professionally

competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052, 80 L.Ed.2d 674. He

“has made no showing that the justice of his sentence was rendered unreliable by a

breakdown in the adversary process caused by deficiencies in counsel’s assistance.”

Strickland, at 700, 104 S.Ct. 2052, 80 L.Ed.2d 674. Accord, Burger v. Kemp, 483 U.S. at

795-796, 107 S.Ct. 3114, 97 L.Ed.2d 638.

      {¶15} Riggleman’s sole assignment of error is overruled.
Licking County, Case No. 16-CA-9                                                    7


      {¶16} The judgment of the Licking County Court of Common Pleas is affirmed.



By Gwin, J.,

Farmer, P.J., and

Hoffman, J., concur
