failure to request instruction in Ohio

35 Ohio opinions name it 2 courts 1999–2025 9 in the last five years

The cases below were cited by Ohio courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.

Followed or applied (11)

Case	Followed	Cited
State v. Griffiegreen ohio · 1996 · cited in 13 Ohio opinions naming this issue, 1999–2024 2 sentences 2024"In Ohio, there is a presumption that the failure to request an instruction on a lesser- included offense constitutes a matter of trial strategy and does not by itself establish plain error or the ineffective assistance of counsel." State v. Riley, 2007-Ohio-4409, ¶ 5 (10th Dist.), citing State v. Griffie, 74 Ohio St.3d 332, 333 , 1996-Ohio-71 . 2012State v. Teets, Pickaway App. No. 02CA1, 2002-Ohio-6799 , at ¶26; State v. Clark, Lawrence App. No. 03CA18, 2004-Ohio-3843, at ¶15 , citing State v. Griffie * * *, 74 Ohio St.3d 332 , 658 N.E.2d 764 , 1996-Ohio-71 ; see, also, State v. Riley, Franklin App. No. 06AP-P1091, 2007-Ohio-4409, at ¶5 (holding that, in light of this presumption, the failure to request an instruction on a lesser-included offense does not by itself establish plain error or the ineffective assistance of counsel); and State v. Davis, Summit App. No. 21794, 2004-Ohio-3246, at ¶18 (“Defendant in this case has offered no evi	3	13
State v. Riley, 06ap-1091 (8-28-2007)green ohioctapp · 2007 · cited in 6 Ohio opinions naming this issue, 2008–2024 2 sentences 2024"In Ohio, there is a presumption that the failure to request an instruction on a lesser- included offense constitutes a matter of trial strategy and does not by itself establish plain error or the ineffective assistance of counsel." State v. Riley, 2007-Ohio-4409, ¶ 5 (10th Dist.), citing State v. Griffie, 74 Ohio St.3d 332, 333 , 1996-Ohio-71 . 2022Franklin No. 06AP- 1091, 2007-Ohio-4409, ¶ 5-7 , citing State v. Clayton, 62 Ohio St.2d 45, 47-48 (1980). {¶ 31} In Ohio, there is a presumption that the failure to request an instruction on a lesser-included offense constitutes a matter of trial strategy and does not by itself establish plain error or the ineffective assistance of counsel.	3	6
State v. Claytongreen ohio · 1980 · cited in 3 Ohio opinions naming this issue, 1999–2022 2 sentences 2022Franklin No. 06AP- 1091, 2007-Ohio-4409, ¶ 5-7 , citing State v. Clayton, 62 Ohio St.2d 45, 47-48 (1980). {¶ 31} In Ohio, there is a presumption that the failure to request an instruction on a lesser-included offense constitutes a matter of trial strategy and does not by itself establish plain error or the ineffective assistance of counsel. 2000State v. Griffie (1996), 74 Ohio St.3d 332 , 333 , citing State v. Clayton, supra .	1	3
State v. Davis, Unpublished Decision (6-23-2004)green ohioctapp · 2004 · cited in 3 Ohio opinions naming this issue, 2008–2017 2 sentences 2012State v. Teets, Pickaway App. No. 02CA1, 2002-Ohio-6799 , at ¶26; State v. Clark, Lawrence App. No. 03CA18, 2004-Ohio-3843, at ¶15 , citing State v. Griffie * * , 74 Ohio St.3d 332 , 658 N.E.2d 764 , 1996-Ohio-71 ; see, also, State v. Riley, Franklin App. No. 06AP-P1091, 2007-Ohio-4409, at ¶5 (holding that, in light of this presumption, the failure to request an instruction on a lesser-included offense does not by itself establish plain error or the ineffective assistance of counsel); and State v. Davis, Summit App. No. 21794, 2004-Ohio-3246, at ¶18 (“Defendant in this case has offered no evi 2008*State v. Teets , Pickaway App. No. 02CA1, 2002-Ohio-6799 , at ¶ 26; State v. Clark , Lawrence App. No. 03CA18, 2004-Ohio-3843 , at ¶ 15 , citing State v. Griffie (1996), 74 Ohio St.3d 332 , 1996-Ohio-71 ; see, also, State v. Riley , Franklin App. No. 06AP-P1091, 2007-Ohio-4409 , at ¶ 5 (holding that, in light of this presumption, the failure to request an instruction on a lesser-included offense does not by itself establish plain error or the ineffective assistance of counsel); and State v. Davis , Summit App. No. 21794, 2004-Ohio-3246 , at ¶ 18 ("Defendant in this case has offered no evidence	1	3
State v. Hubbardgreen ohioctapp · 2014 · cited in 1 Ohio opinions naming this issue, 2025–2025 1 sentence 2025Thus, to establish ineffective assistance of trial counsel based on a failure to request an instruction on a lesser-included offense, an “[a]ppellant must [generally] demonstrate that the failure to make the request resulted from a reason other than reasonable trial strategy.” State v. Hubbard, 2014-Ohio-122, ¶ 14 (10th Dist.).	1	1
State v. Jacksongreen ohioctapp · 2016 · cited in 1 Ohio opinions naming this issue, 2024–2024 1 sentence 2024State v. Lewis, 2020-Ohio-5265 , ¶ 51 (8th Dist.), citing State v. Jackson, 2016-Ohio-3278, ¶ 20 (6th Dist.).	1	1
State v. Moodygreen ohioctapp · 2022 · cited in 1 Ohio opinions naming this issue, 2023–2023 1 sentence 2023Butler No. CA2021-05- 052, 2022-Ohio-2529, ¶ 31 , citing State v. Griffie, 74 Ohio St.3d 332, 333 (1996) ("[f]ailure to request instructions on lesser-included offenses is a matter of trial strategy and does not establish ineffective assistance of counsel").	1	1
State v. Davis (Slip Opinion)green ohio · 2020 · cited in 1 Ohio opinions naming this issue, 2022–2022 2 sentences 2022Licking No. 17-CA-55, 2017-Ohio-9445 , ¶ 30-31, rev’d, 159 Ohio St.3d 31 , 2020-Ohio-309, ¶ 17 (rejecting the rationale in Springer and instead relying on the plain language of R.C. 2947.23(C) to hold that “the failure to request a waiver of costs at sentencing is not ineffective assistance of counsel[,]” as an “[a]ppellant is not prejudiced * * * because he is not foreclosed from filing a request at a later time”). 2022Licking No. 17-CA-55, 2017-Ohio-9445 , ¶ 30-31, rev’d, 159 Ohio St.3d 31 , 2020-Ohio-309, ¶ 17 (rejecting the rationale in Springer and instead relying on the plain language of R.C. 2947.23(C) to hold that “the failure to request a waiver of costs at sentencing is not ineffective assistance of counsel[,]” as an “[a]ppellant is not prejudiced * * * because he is not foreclosed from filing a request at a later time”).	1	1
Strickland v. Washingtongreen scotus · 1984 · cited in 1 Ohio opinions naming this issue, 2014–2014 2 sentences 2014Strickland v. Washington, 466 U.S. 668, 687-688, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136 , 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. {¶57} “In Ohio, there is a presumption that the failure to request an instruction on a lesser-included offense constitutes a matter of trial strategy and does not by itself establish plain error or the ineffective assistance of counsel.” State v. Riley, 10th Dist. 2014Strickland v. Washington, 466 U.S. 668, 687-688, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136 , 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. {¶57} “In Ohio, there is a presumption that the failure to request an instruction on a lesser-included offense constitutes a matter of trial strategy and does not by itself establish plain error or the ineffective assistance of counsel.” State v. Riley, 10th Dist.	1	1
State v. Cottrellgreen ohioctapp · 2012 · cited in 1 Ohio opinions naming this issue, 2012–2012 1 sentence 2012See, State v. Cottrell, Fourth Dist. 11CA3241, 11CA3242, 2012-Ohio-4583 , I find the Delaware County, Case No. 12CAA020012 31 corollary failure to object to the instruction, likewise, might be trial strategy as it allows a jury to find a defendant not guilty of the greater indicted offense thereby allowing for the possibility of a lesser punishment on the inferior offense.	1	1
State v. Daviegreen ohio · 1997 · cited in 1 Ohio opinions naming this issue, 2002–2002 1 sentence 2002See State v. Davie (1997), 80 Ohio St.3d 311 , 331 .	1	1

Distinguished, questioned or overruled (0)

Case	Negative	Cited
No negative-treatment citations attached to this issue in Ohio. Read the followed side critically anyway.

Also cited on this issue (20)

Case	Cited	Years
State v. Threatt green ohio · 2006 2 sentences 2023State v. Threatt, 108 Ohio St.3d 277 , 2006-Ohio-905 , 843 N.E.2d 164, ¶ 23 . 2023State v. Threatt, 108 Ohio St.3d 277 , 2006-Ohio-905 , 843 N.E.2d 164, ¶ 23 .	5	2020–2023
State v. Griffie green ohio · 1996 2 sentences 2024"In Ohio, there is a presumption that the failure to request an instruction on a lesser- included offense constitutes a matter of trial strategy and does not by itself establish plain error or the ineffective assistance of counsel." State v. Riley, 2007-Ohio-4409, ¶ 5 (10th Dist.), citing State v. Griffie, 74 Ohio St.3d 332, 333 , 1996-Ohio-71 . 2012State v. Teets, Pickaway App. No. 02CA1, 2002-Ohio-6799 , at ¶26; State v. Clark, Lawrence App. No. 03CA18, 2004-Ohio-3843, at ¶15 , citing State v. Griffie * * *, 74 Ohio St.3d 332 , 658 N.E.2d 764 , 1996-Ohio-71 ; see, also, State v. Riley, Franklin App. No. 06AP-P1091, 2007-Ohio-4409, at ¶5 (holding that, in light of this presumption, the failure to request an instruction on a lesser-included offense does not by itself establish plain error or the ineffective assistance of counsel); and State v. Davis, Summit App. No. 21794, 2004-Ohio-3246, at ¶18 (“Defendant in this case has offered no evi	3	2008–2024
State v. Bradley green ohio · 1989 2 sentences 2014Strickland v. Washington, 466 U.S. 668, 687-688, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136 , 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. {¶57} “In Ohio, there is a presumption that the failure to request an instruction on a lesser-included offense constitutes a matter of trial strategy and does not by itself establish plain error or the ineffective assistance of counsel.” State v. Riley, 10th Dist. 2014Strickland v. Washington, 466 U.S. 668, 687-688, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136 , 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. {¶57} “In Ohio, there is a presumption that the failure to request an instruction on a lesser-included offense constitutes a matter of trial strategy and does not by itself establish plain error or the ineffective assistance of counsel.” State v. Riley, 10th Dist.	2	2014–2015
State v. Clark, Unpublished Decision (7-16-2004) green ohioctapp · 2004 2 sentences 2012State v. Teets, Pickaway App. No. 02CA1, 2002-Ohio-6799 , at ¶26; State v. Clark, Lawrence App. No. 03CA18, 2004-Ohio-3843, at ¶15 , citing State v. Griffie * * , 74 Ohio St.3d 332 , 658 N.E.2d 764 , 1996-Ohio-71 ; see, also, State v. Riley, Franklin App. No. 06AP-P1091, 2007-Ohio-4409, at ¶5 (holding that, in light of this presumption, the failure to request an instruction on a lesser-included offense does not by itself establish plain error or the ineffective assistance of counsel); and State v. Davis, Summit App. No. 21794, 2004-Ohio-3246, at ¶18 (“Defendant in this case has offered no evi 2008*State v. Teets , Pickaway App. No. 02CA1, 2002-Ohio-6799 , at ¶ 26; State v. Clark , Lawrence App. No. 03CA18, 2004-Ohio-3843 , at ¶ 15 , citing State v. Griffie (1996), 74 Ohio St.3d 332 , 1996-Ohio-71 ; see, also, State v. Riley , Franklin App. No. 06AP-P1091, 2007-Ohio-4409 , at ¶ 5 (holding that, in light of this presumption, the failure to request an instruction on a lesser-included offense does not by itself establish plain error or the ineffective assistance of counsel); and State v. Davis , Summit App. No. 21794, 2004-Ohio-3246 , at ¶ 18 ("Defendant in this case has offered no evidence	2	2008–2012
State v. Williford green ohio · 1990 2 sentences 1999State v. Keenan (1998), 81 Ohio St.3d 133 , 151 , citing State v. Williford (1990), 49 Ohio St.3d 247 , 251 . 1999State v. Keenan (1998), 81 Ohio St.3d 133 , 151 , citing State v. Williford (1990), 49 Ohio St.3d 247 , 251 .	2	1999–1999
State v. Keenan green ohio · 1998 2 sentences 1999State v. Keenan (1998), 81 Ohio St.3d 133 , 151 , citing State v. Williford (1990), 49 Ohio St.3d 247 , 251 . 1999State v. Keenan (1998), 81 Ohio St.3d 133 , 151 , citing State v. Williford (1990), 49 Ohio St.3d 247 , 251 .	2	1999–1999
State v. Gipson green ohio · 1998 1 sentence 2021The Supreme Court of Ohio has found that under R.C. 2929.18(B)(1) “the affidavit must be formally filed with the court prior to the filing of a journal entry reflecting the trial court’s sentencing decision.” Gipson, 80 Ohio St.3d at 632 , 1998-Ohio-659 , 687 N.E.2d 750 .	1	2021–2021
State v. Gipson green ohio · 1998 2 sentences 2021The Supreme Court of Ohio has found that under R.C. 2929.18(B)(1) “the affidavit must be formally filed with the court prior to the filing of a journal entry reflecting the trial court’s sentencing decision.” Gipson, 80 Ohio St.3d at 632 , 1998-Ohio-659 , 687 N.E.2d 750 . 2021The Supreme Court of Ohio has found that under R.C. 2929.18(B)(1) “the affidavit must be formally filed with the court prior to the filing of a journal entry reflecting the trial court’s sentencing decision.” Gipson, 80 Ohio St.3d at 632 , 1998-Ohio-659 , 687 N.E.2d 750 .	1	2021–2021
State v. Thomas green ohio · 1988 2 sentences 2019A lesser-included offense charge “is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense.” State v. Thomas, 40 Ohio St.3d 213 , 533 N.E.2d 286 (1988), paragraph two of the syllabus. {¶25} Pursuant to Ohio law, “there is a presumption that the failure to request an instruction on a lesser-included offense constitutes a matter of trial strategy * * ,” as it represents a tactical decision to seek acquittal. 2019A lesser-included offense charge “is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense.” State v. Thomas, 40 Ohio St.3d 213 , 533 N.E.2d 286 (1988), paragraph two of the syllabus. {¶25} Pursuant to Ohio law, “there is a presumption that the failure to request an instruction on a lesser-included offense constitutes a matter of trial strategy * *,” as it represents a tactical decision to seek acquittal.	1	2019–2019
State v. Phillips green ohio · 1995 2 sentences 2019Southam at ¶ 68, quoting State v. Phillips, 74 Ohio St.3d 72, 85 , 656 N.E.2d 643 (1995). {¶ 15} Even assuming appellant could demonstrate deficient performance by trial counsel, based on a failure to request waiver at sentencing, he demonstrates no resulting prejudice. 2019Southam at ¶ 68, quoting State v. Phillips, 74 Ohio St.3d 72, 85 , 656 N.E.2d 643 (1995). {¶ 15} Even assuming appellant could demonstrate deficient performance by trial counsel, based on a failure to request waiver at sentencing, he demonstrates no resulting prejudice.	1	2019–2019
State v. Weddington neutral ohioctapp · 2015 1 sentence 2018Scioto No. 15CA3695, 2015-Ohio-5249 , ¶ 23 and State v. Walker, 4th Dist.	1	2018–2018
State v. Walker green ohioctapp · 2014 1 sentence 2018“As a result, ineffective assistance of trial counsel claims based upon a failure to request a waiver of costs at the time of sentencing have become difficult - if not impossible- to establish.” Id., citing Farnese at ¶ 15; accord State v. Weddington, 4th Dist.	1	2018–2018
State v. Levonyak, 05 Ma 227 (9-21-2007) green ohioctapp · 2007 1 sentence 2017No. 05 MA 227, 2007-Ohio-5044, ¶ 19 , citing State v. Walker, 4th Dist.	1	2017–2017
State v. Hlinovsky green ohioctapp · 2011 1 sentence 2013State v. Griffie, 74 Ohio St.3d 332, 333 , 658 N.E.2d 764 ; State v. Hlinovsky, 7th Dist. no. 09BE19, 2011-Ohio-6421, ¶ 128 .	1	2013–2013
State v. Deem green ohio · 1988 1 sentence 2012The Supreme Court of Ohio held in State v. Deem, 40 Ohio St.3d 205 (1988), paragraph three of the syllabus, that: [a]n offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.	1	2012–2012
State v. Pigg, 24360 (5-6-2009) neutral ohioctapp · 2009 1 sentence 2012No. 24360, 2009-Ohio-2107, ¶ 5 . {¶23} Nonetheless, even assuming that the failure to request the instruction was not trial strategy in this instance, we cannot say the trial court committed plain error.	1	2012–2012
State v. Davis, Unpublished Decision (8-10-2005) green ohioctapp · 2005 1 sentence 2011Id. {¶20} Here, it appears defense counsel was given wide latitude during cross- examination of the accomplice, Frano.	1	2011–2011
State v. Noggle green ohioctapp · 2000 2 sentences 2008State v. Claytor (1991), 61 Ohio St.3d 234 , 240 , 574 N.E.2d 472 ("What appears to have been a tactical decision [not to request the lesser included offense in jury instructions] in this case during the trial cannot now be converted into judicial error."); State v. Noggle , 140 Ohio App.3d 733 , 746 , 2000-Ohio-1927 , 749 N.E.2d 309 ("[W]e note that plain error cannot be used to negate a deliberate, tactical decision by trial counsel."). 2008State v. Claytor (1991), 61 Ohio St.3d 234 , 240 , 574 N.E.2d 472 ("What appears to have been a tactical decision [not to request the lesser included offense in jury instructions] in this case during the trial cannot now be converted into judicial error."); State v. Noggle , 140 Ohio App.3d 733 , 746 , 2000-Ohio-1927 , 749 N.E.2d 309 ("[W]e note that plain error cannot be used to negate a deliberate, tactical decision by trial counsel.").	1	2008–2008
State v. Claytor green ohio · 1991 2 sentences 2008State v. Claytor (1991), 61 Ohio St.3d 234 , 240 , 574 N.E.2d 472 ("What appears to have been a tactical decision [not to request the lesser included offense in jury instructions] in this case during the trial cannot now be converted into judicial error."); State v. Noggle , 140 Ohio App.3d 733 , 746 , 2000-Ohio-1927 , 749 N.E.2d 309 ("[W]e note that plain error cannot be used to negate a deliberate, tactical decision by trial counsel."). 2008State v. Claytor (1991), 61 Ohio St.3d 234 , 240 , 574 N.E.2d 472 ("What appears to have been a tactical decision [not to request the lesser included offense in jury instructions] in this case during the trial cannot now be converted into judicial error."); State v. Noggle , 140 Ohio App.3d 733 , 746 , 2000-Ohio-1927 , 749 N.E.2d 309 ("[W]e note that plain error cannot be used to negate a deliberate, tactical decision by trial counsel.").	1	2008–2008
State v. Brooks green ohio · 1996	1	2001–2001

Statutes the citing opinions construe

OH § Ohio Rev. Code § 2947.23 (9) OH § Ohio Rev. Code § 2901.22 (6) OH § Ohio Rev. Code § 2903.11 (6) OH § Ohio Rev. Code § 2903.02 (5) OH § Ohio Rev. Code § 2925.11 (5) OH § Ohio Rev. Code § 2901.05 (4) OH § Ohio Rev. Code § 2903.01 (4) OH § Ohio Rev. Code § 2911.02 (4) OH § Ohio Rev. Code § 2929.11 (4) OH § Ohio Rev. Code § 2929.12 (4) OH § Ohio Rev. Code § 2947.231 (4) OH § Ohio Rev. Code § 2953.08 (4)

Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.

Where else courts name it

WA 59 (1982–2026) TX 44 (1976–2025) OH 35 (1999–2025) CA 24 (1960–2024) MI 8 (1975–2023) IL 8 (1972–2023) FL 6 (1990–2015) MD 6 (1962–2004) MA 6 (1989–2023) GA 6 (2014–2026) PA 6 (2004–2025) AZ 5 (1965–2022) MO 5 (1986–2024) OK 5 (1997–2018) CO 4 (1998–2025) IN 4 (1997–2019) AR 4 (2001–2007) ND 4 (1988–2003) UT 3 (2017–2025) WI 3 (1978–2005) KY 2 (1977–2021) NJ 2 (1987–2019) AL 2 (1989–1999) TN 2 (1998–2024) MS 2 (1997–1999)

Opinions by the citing court's state. A doctrine retained in one state and abandoned in another shows up here as a year span that stalls.

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