[Cite as State v. Ryther-Collins, 2014-Ohio-3093.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                             JUDGES:
STATE OF OHIO                                        :       Hon. W. Scott Gwin, P.J.
                                                     :       Hon. Sheila G. Farmer, J.
                          Plaintiff-Appellee         :       Hon. Patricia A. Delaney, J.
                                                     :
-vs-                                                 :
                                                     :       Case No. 13-CA-115
DONNA RYTHER-COLLINS                                 :
                                                     :
                     Defendant-Appellant             :       OPINION




CHARACTER OF PROCEEDING:                                 Criminal appeal from the Licking County
                                                         Court of Common Pleas, Case No.
                                                         13CR0182

JUDGMENT:                                                Affirmed




DATE OF JUDGMENT ENTRY:                                  July 10, 2014



APPEARANCES:

For Plaintiff-Appellee                                   For Defendant-Appellant

CHRISTOPHER REAMER                                       ROBERT C. BANNERMAN
Assistant Prosecuting Attorney                           Box 77466
20 S. 2nd St., 4th Floor                                 Columbus, OH 43207-0098
Newark, OH 43055
[Cite as State v. Ryther-Collins, 2014-Ohio-3093.]


Gwin, P.J.

        {¶1}     Defendant-appellant Donna Ryther-Collins [“Ryther-Collins”] appeals her

conviction and sentence after a jury trial in the Licking County Court of Common Pleas

on one count of assault on a peace officer and one count of assault.

                                          Facts and Procedural History

        {¶2}     On March 21, 2013, police were dispatched to the residence of Ryther-

Collins’ daughter Lauren A. Ryther. Ryther-Collins had placed a 9-1-1 call for assistance

reporting that her daughter had struck her. Upon arriving, police met with and attempted

to interview the three persons at the residence, Collins, Lauren and Lauren’s boyfriend,

Douglas Evans.

        {¶3}     Ryther-Collins was going to stay at her daughter’s home while Lauren

attended a three-day driver intervention program. On the date in question, each of the

parties had been drinking. Ryther-Collins and Lauren argued in the kitchen of the home.

The argument became physical and according to Ryther-Collins, Lauren punched her in

the face causing Ryther-Collins to fall and strike her head on the floor. Ryther-Collins

testified that she had a traumatic brain injury in the past and suffers from seizure

disorder.

        {¶4}     Ryther-Collins was treated by paramedics but refused to be transported to

the hospital. She remained in the living room while Lauren and Evans were directed by

officers to the kitchen. While in the living room, officers requested that Ryther-Collins

write out a statement describing what had taken place. The officers noticed an odor of

alcohol, slurred speech and her eyes were glassy. After asking the officers several

questions, Ryther-Collins picked up her drink and proceeded toward the kitchen.
Licking County, Case No. 13-CA-115                                                           3


Fearing a confrontation with Lauren who was being interviewed by an officer in the

kitchen, officers removed the drink from Ryther-Collins hand and attempted to direct

Ryther-Collins back to the living room. At this point, Ryther-Collins became belligerent,

cursing and struggling with the officer. Ryther-Collins was placed under arrest,

handcuffed and taken outside. Ryther-Collins continued to curse, struggle and at one

point kicked a police officer in the face while she was seated in the cruiser. Leg

shackles were placed on her to prevent further kicking.

       {¶5}   Ryther-Collins was subsequently charged with assault on a peace officer

and assault. On May 15, 2013, Ryther-Collins appeared for a bond and determination

hearing as to whether she was to be evaluated as to her competency to stand trial. The

trial court ordered that Ryther-Collins be examined. Subsequently, the trial court found

that Ryther-Collins was competent to stand trial after both the state and defense

stipulated to the examiner’s report finding Ryther-Collins to be competent to stand trial.

       {¶6}   Ryther-Collins testified at trial that she had no memory of the events, or

her memories were spotty due to her having a traumatic brain injury. The state alleged

that Ryther-Collins was merely intoxicated.

       {¶7}   The jury found Ryther-Collins guilty of both counts. On November 22,

2013, Ryther-Collins was sentenced to a five-year period of community control.

                                      Assignment of Error

       {¶8}   Ryther-Collins raises one assignment of error,

       {¶9}   “I.   APPELLANT      WAS     DENIED      THE     RIGHT    TO    EFFECTIVE

ASSISTANCE OF COUNSEL AND WAS PREJUDICED AS A RESULT.”
Licking County, Case No. 13-CA-115                                                         4

                                               Analysis

       {¶10} In her sole assignment of error, Ryther-Collins attacks her counsel for

being constitutionally ineffective for not entering a plea of, and thereafter asserting at

trial a defense of, not guilty by reason of insanity.

       {¶11} The standard for reviewing claims for ineffective assistance of counsel

was set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984). Ohio adopted this standard in the case of State v. Bradley, 42 Ohio St.3d

136, 538 N.E.2d 373(1989). These cases require a two-pronged analysis in reviewing a

claim for ineffective assistance of counsel.

       {¶12} First, we must determine whether counsel's assistance was ineffective;

i.e., whether counsel's performance fell below an objective standard of reasonable

representation and volatile of any of his essential duties to the client.

       {¶13} 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 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.
Licking County, Case No. 13-CA-115                                                     5

             “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.

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

      {¶14} We apply the Strickland test to all claims of ineffective assistance of

counsel, either trial counsel, or appellate counsel. State v. Blacker, 5th Dist. Guernsey

No. 2005-CA-41, 2006-Ohio-5214.
Licking County, Case No. 13-CA-115                                                     6


       {¶15} R.C. 2901.01(A) provides,

              (14) A person is “not guilty by reason of insanity” relative to a

       charge of an offense only if the person proves, in the manner specified in

       section 2901.05 of the Revised Code, that at the time of the commission

       of the offense, the person did not know, as a result of a severe mental

       disease or defect, the wrongfulness of the person’s acts.

       {¶16} The defense of not guilty by reason of insanity [“NGRI”] is an affirmative

defense. R.C. 2901.05.

       {¶17} In the case at bar, the only evidence that Ryther-Collins presented to the

trial court was her testimony and statements about the fact that she suffered a traumatic

brain injury in the past. The only expert or medical evidence contained in the record

before this court was the competency report prepared for the trial court by Kevin J.

Edwards, PhD a psychologist with Netcare Forensic Center dated June 16, 2013. In his

report to the trial court Dr. Edwards notes,

              It is my opinion with a reasonable degree of psychological certainty

       that Ms. Donna R. Ryther-Collins does not have a serious mental illness. It

       is also my opinion, from available information, that Ms. Ryther-Collins was

       never diagnosed with Mental Retardation.

       {¶18} The competency evaluation report reviewed Ryther-Collins medical

reports from the incident in 2009 in which she suffered a “bilateral frontal subarachnoid

hemorrhage.” The report does not indicate that this injury caused “a severe mental

disease or defect.”
Licking County, Case No. 13-CA-115                                                        7


       {¶19} A decision regarding which defense to pursue at trial is a matter of trial

strategy "within the exclusive province of defense counsel to make after consultation

with his client." State v. Murphy, 91 Ohio St.3d 516, 524, 2001-Ohio-0112. This court

can only find that counsel's performance regarding matters of trial strategy is deficient if

counsel's strategy was so "outside the realm of legitimate trial strategy so as 'to make

ordinary counsel scoff.’" State v. Woullard, 158 Ohio App.3d 31, 813 N.E.2d 964, 2004-

Ohio-3395(2nd Dist.), ¶39, quoting State v. Yarber, 102 Ohio App.3d 185, 188, 656

N.E.2d 1322(12th Dist. 1995). Further, the Ohio Supreme Court has recognized that if

counsel, for strategic reasons, decides not to pursue every possible trial strategy,

defendant is not denied effective assistance of counsel. State v. Brown, 38 Ohio St.3d

305, 319, 528 N.E.2d 523(1988). 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. “[S]trategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.

S. at 690, 104 S.Ct. 2052.

       {¶20} Counsel’s decision not to pursue an NGRI defense may have been based

upon the lack of any indication in the competency evaluation that Ryther-Collins had

ever suffered a severe mental disease or defect.
Licking County, Case No. 13-CA-115                                                8


      {¶21} Because counsel’s decision not to pursue an NGRI defense was

reasonable under the circumstances, Ryther-Collins cannot demonstrate that counsel’s

performance was deficient.

      {¶22} Ryther-Collins’ sole assignment of error is overruled.

      {¶23} The judgment of the Licking County Court of Common Pleas is hereby

affirmed.



By Gwin, P.J.,

Farmer, J., and

Delaney, J., concur
