[Cite as State v. Penland, 2018-Ohio-336.]
                          STATE OF OHIO, COLUMBIANA COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 16 CO 0027
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
SUSAN R. PENLAND                              )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Columbiana County,
                                                   Ohio
                                                   Case No. 15 CR 190

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Robert Herron
                                                   Columbiana County Prosecutor
                                                   Atty. John E. Gamble
                                                   Assistant Prosecuting Attorney
                                                   105 South Market Street
                                                   Lisbon, Ohio 44432

For Defendant-Appellant:                           Atty. Colleen Hall-Dailey
                                                   323 East Main Street
                                                   Alliance, Ohio 44601


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
                                                   Dated: January 26, 2018
[Cite as State v. Penland, 2018-Ohio-336.]
WAITE, J.


        {¶1}     Appellant Susan R. Penland appeals an August 19, 2016 decision of

the Columbiana County Common Pleas Court, following bench trial.             Appellant

argues that her trial counsel was ineffective in presenting her insanity defense. For

the reasons that follow, Appellant’s arguments are without merit and the judgment of

the trial court is affirmed.

                                  Factual and Procedural History

        {¶2}     On May 3, 2015, Appellant walked into a Lisbon Family Dollar store

around closing time. At first, Appellant acted as if she was buying a package of Jello,

but then pulled a gun, later determined to be a toy, from her waistband. She ordered

the employee at the register to call a second employee, who was in the back of the

store, up to the register. She ordered the two employees not to look at her face and

forced them to lay down on their stomachs. At some point, she directed one of the

employees to open the safe and place the money in a Family Dollar bag. She then

tied one of the employee’s hands together with a shoelace.            However, while

Appellant was tying the other employee’s hands, the first employee managed to

break free and began choking Appellant.

        {¶3}     During the struggle, the second employee ran to a nearby store and

called the police. Appellant attempted to fake her death during the struggle in an

attempt to free herself and later pleaded with the employee to let her go. When

police arrived, Appellant had become unconscious and was rushed to the hospital.

At the hospital, she claimed to have no memory of the evening’s events.
                                                                                     -2-

       {¶4}    Appellant was indicted on one count of robbery, a felony of the third

degree in violation of R.C. 2911.02(A)(3); one count of safecracking, a felony of the

fourth degree in violation of R.C. 2911.31(A); and two counts of kidnapping, a felony

of the first degree in violation of R.C. 2905.01(A)(2).

       {¶5}    The case was tried to the judge. At trial, defense counsel stipulated to

the elements of the charged offenses. Instead of contesting Appellant’s actions,

counsel asserted that Appellant was not guilty by reason of insanity.          Counsel

introduced a report and testimony from Doctor Thomas Gazney, who opined that

Appellant suffered from a mood disorder and dissociative disorder. Dr. Gazney also

believed that Appellant was bipolar, but could not diagnose the disorder with

certainty.    Dr. Gazney testified that Appellant’s manic episodes caused poor

judgment and bizarre behavior, and that people with dissociative disorder exhibit

unusual behavior and often have no recollection of such behavior.            The state

introduced a report from an expert witness who concluded that Appellant did suffer

from a mental illness, but had the ability to appreciate the wrongfulness of her

actions.

       {¶6}    On June 2, 2016, the trial court convicted Appellant on all charges after

finding that her mental illness did not rise to the level of insanity. On August 19,

2016, Appellant was sentenced to two years of incarceration on the robbery

conviction, one year for safecracking, and six years on each kidnapping conviction.

The sentences were ordered to run concurrently for a total of six years of

incarceration. Appellant was credited with 468 days of jail time served. Appellant’s
                                                                                     -3-

first notice of appeal in this matter was dismissed as untimely. Appellant later filed a

motion for a delayed appeal which was granted.

                          ASSIGNMENT OF ERROR NO. 1

      APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

      COUNSEL AS A RESULT OF HER TRIAL COUNSEL'S TACTICS

      THROUGHOUT THE ENTIRE CASE, BUT PARTICULARLY WHEN HE

      STIPULATED THAT HIS CLIENT COMMITTED THE CRIME AND

      ONLY PRESENTED EVIDENCE OF HIS CLIENT'S MENTAL DISEASE

      OR DEFECT.

                          ASSIGNMENT OF ERROR NO. 2

      THE COURT ERRED IN FINDING THAT THE DEFENSE HAD NOT

      MET IT'S BURDEN OF PROOF OF THE AFFIRMATIVE DEFENSE OF

      NOT GUILTY BY REASON OF INSANITY DUE TO THE INEFFECTIVE

      ASSISTANCE OF COUNSEL IN FAILING TO REQUIRE THE STATE

      TO PRESENT THE TESTIMONY OF THE ALLEGED VICTIMS LIVE

      AND SUBJECT TO CROSS EXAMINATION.

                          ASSIGNMENT OF ERROR NO. 3

      DEFENSE COUNSEL WAS INEFFECTIVE WHEN HE ADVISED THE

      DEFENDANT THAT SHE WAS ELIGIBLE FOR THE 80% RULE,

      EARLY RELEASE, WHEN IN FACT SHE WAS CONVICTED OF

      KIDNAPPING AND NEVER ELIGIBLE.
                                                                                       -4-

       {¶7}    The test for ineffective assistance of counsel is two-part: whether trial

counsel's performance was deficient and, if so, whether such deficiency resulted in

prejudice.    State v. White, 7th Dist. No. 13 JE 33, 2014-Ohio-4153, ¶ 18, citing

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

State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107.

       {¶8}    To demonstrate deficient performance, an appellant must show that

counsel's performance fell below an objective standard of reasonable representation.

State v. Ludt, 7th Dist. No. 09 MA 107, 2009-Ohio-2214, ¶ 3, citing Strickland, supra.

There must be “a reasonable probability that, but for counsel's errors, the result of the

proceeding would have been different.” Lyons v. Schandel, 7th Dist. No. 14 CA 898,

2015-Ohio-3960, ¶ 13, citing Strickland, supra.

       {¶9}    Appellant first argues that trial counsel’s decision to stipulate to the

elements of the offense and rely solely on the affirmative defense of insanity

constituted deficient performance. Appellant urges that once the decision to proceed

to trial is made, counsel is required to force the state to meet its burden of proof as to

each charged offense.

       {¶10} In response, the state argues that Appellant never denied she

committed the crimes.      Instead, she claimed from the outset that she did not

remember the incident. The state urges that the police arrived at the scene and

found Appellant lying on the floor unconscious. Additionally, the physical evidence at

the scene tended to corroborate the witnesses’ statements. Based on this record,

the state contends that an insanity defense was the only defense available to
                                                                                     -5-

Appellant. Even so, the state points out that Appellant has not argued or shown that,

but for counsel’s decision, the result at trial would have been different.

       {¶11} Trial counsel’s 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. Brown, 7th Dist. No. 03 MA 231, 2005-Ohio-

4502, ¶ 13, citing State v. Murphy, 91 Ohio St.3d 516, 524, 747 N.E.2d 765 (2001).

A reviewing court can only find counsel's performance regarding matters of trial

strategy deficient if counsel's strategy was so “outside the realm of legitimate trial

strategy so as ‘to make ordinary counsel scoff.’ ” Brown at ¶ 13, citing State v.

Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 39 (2d Dist.);

State v. Yarber, 102 Ohio App.3d 185, 188, 656 N.E.2d 1322 (12th Dist.1995).

       {¶12} The record supports the state’s contention that Appellant did not have

any option other than an insanity defense. The evidence supporting the elements of

the charged offenses was overwhelming. Appellant was found at the scene of the

crime lying unconscious after an obvious struggle. The police located the plastic gun

used to facilitate the robbery, the shoelaces used to tie the victims’ hands, and the

gloves worn by Appellant. According to the victims, Appellant put gloves on during

the robbery apparently to avoid leaving fingerprints on the safe. Also found at the

scene was the hooded sweatshirt and hat that were used by Appellant in an attempt

to conceal her identity.

       {¶13} Importantly, Appellant never asserted her innocence to investigators.

Instead, she claimed that she had no recollection of the incident. Appellant has a
                                                                                   -6-

documented history of mental illness. Her history, combined with her statement to

police that she had no recollection of the incident, supports counsel’s strategy to

raise an insanity defense instead of attempting to contest the charges.        As the

evidence against Appellant was overwhelming and she has a documented history of

mental illness, it cannot be said that counsel’s defense was outside the realm of

legitimate trial strategy.

        {¶14} Appellant next argues that counsel’s failure to force the state to prove

its case beyond a reasonable doubt and failure to force the victims to testify

demonstrates that counsel’s performance was deficient. Again, the evidence against

Appellant was significant. Both victims told investigators that Appellant entered the

store wearing a hooded sweatshirt, a hat, and gloves. At some point, she pulled a

gun out of her waistband and ordered them to open the safe. Appellant tied one

victim’s hands together with a shoelace.     One victim escaped her restraints and

began choking Appellant from behind while the other victim escaped and summoned

help.   When the police arrived, they found Appellant unconscious, lying on the

ground. There is no other logical explanation for Appellant’s presence at the scene,

the open safe, the gun, and the shoelaces.         As Appellant claims to have no

recollection of the evening’s events, she could not have aided in providing some

other, innocent, explanation.

        {¶15} As to the victims, it is unlikely that their testimony would have helped

Appellant. The victims provided detailed statements supporting the state’s theory

that Appellant had the ability to appreciate the wrongfulness of her actions. The
                                                                                       -7-

victims’ statements demonstrated that Appellant had prepared for the robbery by

possessing what appeared to be a gun, shoelaces to bind the victims’ hands, gloves

to avoid leaving fingerprints, a hoodie to cover parts of her face, and by arriving at the

store just prior to closing. There is nothing to suggest that Appellant did not know

what she was doing.

       {¶16} While Appellant argues that it is possible that one of the victims may

have provided testimony to assist in her defense, this is pure speculation. It is just as

likely that the victims’ testimony would have damaged Appellant’s defense.

Additionally, Appellant stated at sentencing that “[t]he victims could testify that it

rained inside that store that night, and I couldn’t and wouldn’t be able to refute that.”

(8/19/16 Sentencing Hrg., p. 20.) As Appellant had no memory of the incident, it is

questionable how effective cross-examination of the victims would have been.

       {¶17} Appellant also claims that counsel was ineffective for erroneously

informing her that she was eligible for early release. However, this claim is wholly

unsupported. There is nothing in this record to suggest that anyone, including trial

counsel, informed Appellant that she was eligible for early release.

       {¶18} Tellingly, Appellant acknowledges that she has not argued or

demonstrated that, but for trial counsel’s deficient performance, the result of her trial

would have been different. Appellant argues that she is unable to meet this burden,

because she cannot predict what witnesses would have said at trial regarding her

behavior. The Strickland standard requires that an appellant meet both prongs of the

test. As Appellant is unable to do so, she cannot satisfy the Strickland requirements.
                                                                                        -8-

       {¶19} Accordingly, Appellant’s first, second, and third assignments of error

are without merit and are overruled.

                                       Conclusion

       {¶20} Appellant argues that her trial counsel was ineffective in limiting her

defense to only an argument involving her lack of sanity. She urges that counsel was

required to attack the state’s case in its entirety and force the state to prove all of the

elements of the crimes with which she was charged. The record is devoid of any

evidence that trial counsel was ineffective. Further, Appellant has not argued or

demonstrated that, but for the alleged deficient performance, the result would have

been different.    Accordingly, Appellant’s arguments are without merit and the

judgment of the trial court is affirmed.


Donofrio, J., concurs.

Robb, P.J., concurs.
