State v. Nelson (2017)

We determined above that Officer Smith’s testimony was properly admitted; as such, objecting would have been a futile act. “[T]he failure to do a futile act cannot be the basis for a claim of ineffective assistance of counsel, nor could such a failure be prejudicial.” State v. Nelson, 2017-Ohio-5568, ¶ 77 (8th Dist.), citing State v. Knox, 2013-Ohio-1662, ¶ 20 (8th Dist.), citing State v. Ford, 2007-Ohio- 5722, ¶ 9 (8th Dist.).

Further, with respect to Holmes’s ineffective-assistance claim, as discussed above, “‘“the failure to do a futile act cannot be the basis for a claim of ineffective assistance of counsel, nor could such a failure be prejudicial.”’” Thompson, 2024-Ohio-5910, at ¶ 7 (8th Dist.), quoting Nelson, 2017-Ohio-5568, at ¶ 79, quoting Knox, 2013-Ohio-1662, at ¶ 20 (8th Dist.), citing Ford, 2007-Ohio- 5722, at ¶ 9 (8th Dist.).

Thus, we cannot find that the record contains any evidence that would have justified the filing of a motion to suppress, and filing such a motion would have been futile. “[T]he failure to do a futile act cannot be the basis for a claim of ineffective assistance of counsel, nor could such a failure be prejudicial.” State v. Nelson, 2017-Ohio-5568, ¶ 79 (8th Dist.), citing State v. Knox, 2013-Ohio-1662, ¶ 20 (8th Dist.), citing State v. Ford, 2007-Ohio-5722, ¶ 9 (8th Dist.).

Nelson, 2017-Ohio-5568 , 93 N.E.3d 472, at ¶ 81 (8th Dist.); Nitsche at ¶ 53; Vanderhorst at ¶ 10.

However, the trial court imposed consecutive sentences on firearm specifications instead of the underlying convictions. “‘A specification is a sentencing enhancement, not a separate criminal offense.’” State v. Nelson, 2017-Ohio-5568 , 93 N.E.3d 472, ¶ 85 (8th Dist.), quoting State v. James, 2015-Ohio-4987 , 53 N.E.3d 770 , ¶ 47 (8th Dist.).

See, e.g., State v. Nelson, 2017-Ohio-5568 , 93 N.E.3d 472, ¶ 45 (8th Dist.) (where this court affirmed a defendant’s conviction for having weapons while under a disability where no GSR was found on the defendant, but a witness testified that the defendant pointed a gun at him).

See State v. Nelson, 2017-Ohio-5568 , 93 N.E.3d 472, ¶ 72 (8th Dist.).

See also State v. Nelson, 2017-Ohio-5568 , 93 N.E.3d 472, ¶ 58 (8th Dist.). {¶49} Based on our findings as to appellant’s sufficiency challenge, we similarly find that appellant’s convictions were not against the manifest weight of the evidence. {¶50} Accordingly, appellant’s third assignment of error is overruled.

See State v. Nelson, 2017-Ohio-5568 , 93 N.E.3d 472, ¶ 58 (8th Dist.).

See State v. Nelson, 2017-Ohio-5568 , 93 N.E.3d 472, ¶ 58 (8th Dist.). {¶79} For all of the foregoing reasons, appellant’s third assignment of error is overruled.

See State v. Nelson, 2017-Ohio-5568, ¶ 58 (8th Dist.).