ineffective assistance claim in Ohio

2026This event and entrance into the home had her tacit approval, at a minimum.” He argues that these statements were admitted to prove the truth of the matter; to show that Jaren Duncan did not have prior knowledge of the assault and did not conveniently vacate the home so that her paramour could be assaulted without eyewitnesses. {¶34} To prevail on an ineffective assistance claim, a defendant must show: “(1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel

2026We disagree. {¶ 61} To prevail on an ineffective assistance claim, a defendant must meet the two- prong test set out in Strickland v. Washington, 466 U.S. 668 (1984).

2026“There is no reason for a court deciding an ineffective assistance claim * * * to address both components of the inquiry if the defendant makes an insufficient showing on one.” Bradley, 42 Ohio St.3d at 143 , quoting Strickland, 466 U.S. at 697 .

2024A “failure to satisfy either part of the test set for in Strickland (deficient performance plus prejudice) is fatal to an ineffective assistance claim.” State v. Mick, 2018-Ohio-999, ¶ 21 (6th Dist.), citing Strickland, 466 U.S. at 697 ; Bradley, 42 Ohio St.3d at 143 (additional citation omitted.). {¶ 40} Accordingly, as to appellant’s sole challenge to the judgment based on ineffective assistance of counsel, we find the assignment of error not well-taken. 16.

2018The Ohio Supreme Court reached a similar conclusion about a similar ineffective assistance claim in State v. Madrigal, 87 Ohio St.3d 378 , 721 N.E.2d 52 (2000).

2018The Ohio Supreme Court reached a similar conclusion about a similar ineffective assistance claim in State v. Madrigal, 87 Ohio St.3d 378 , 721 N.E.2d 52 (2000).

2026“It is well established that mere speculation cannot support either the deficient performance or prejudice requirement of an ineffective-assistance claim.” State v. Morgan, 2018-Ohio-3198, ¶ 16 (2d Dist.), citing State v. Short, 2011-Ohio-3641 , ¶ 119 and State v. Perez, 2009-Ohio-6179, ¶ 217 . {¶ 37} As a further matter, Farler’s trial counsel may have chosen to withdraw the first and third branches of the motion because he thought they had little merit and did not want to distract from the stronger Miranda argument.

2025E.g., State v. Guysinger, 2017-Ohio-1167, ¶ 31 (4th Dist.), citing Short, 2011-Ohio-3641, at ¶ 119 (mere speculation cannot support either the deficient-performance or prejudice requirements of an ineffective-assistance claim).

2016Wayne No. 12CA0065, 2013-Ohio-3072, ¶ 4 (“When affidavits or other proof outside the record are necessary to support an ineffective assistance claim, * * * it is not appropriate for consideration on direct appeal.”). {¶45} Next, with respect to Mr. Shank’s claim that his trial counsel was ineffective for failing to file a motion to change venue, Mr. Shank bases his argument on the premise that the trial court was too familiar with the witnesses to guarantee a fair and impartial trial. {¶46} Crim.R. 18(B) provides that “[u]pon the motion of any party or upon its own motion the court may transfe

2014Wayne No. 12CA0065, 2013-Ohio-3072, ¶ 4 (“When affidavits or other proof outside the record are necessary to support an ineffective assistance claim, * * * it is not appropriate for consideration on direct appeal.”). {¶50} In regard to defense counsel’s failure to object to the statements made by the State in closing argument, we note that “[p]arties are granted latitude in closing arguments * * *.” State v. Frazier, 73 Ohio St.3d 323, 341 (1995), quoting State v. Loza, 71 Ohio St.3d 61, 78 (1994).

2024As applied to guilty pleas, the second prong of the ineffective assistance test requires the defendant to “‘show that there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty.’” Xie 62 Ohio St.3d at 524 , quoting Hill v. Lockhart, 474 U.S. 52, 59 , (1985). {¶34} An appellant “must be able to demonstrate that the attorney made errors so serious that he or she was not functioning as ‘counsel’ as guaranteed by the Sixth 9 Case No. 2023-L-112 Amendment, and that he was prejudiced by the deficient performance.” Story at ¶ 49, quoting State v. Batich, 2007-Oh

2020Bradley at paragraph two of the syllabus. {¶ 12} In order to satisfy the “prejudice” element for an ineffective-assistance claim following a guilty plea, “‘the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’” State v. Ketterer, 111 Ohio St.3d 70 , 2006-Ohio-5283 , 855 N.E.2d 48 , ¶ 89, quoting Hill v. Lockhart, 474 U.S. 52, 59 , 106 S.Ct. 366 , 88 L.Ed.2d 6 . 203 (1985).

2026Therefore, “off-the- record events or conversations will not support an ineffective-assistance claim on direct appeal.” State v. Bakos, 2025-Ohio-1272, ¶ 11 (2d Dist.), citing State v. King, 2024-Ohio- 4705, ¶ 10 (2d Dist.); accord State v. Brown, 2025-Ohio-4874, ¶ 9 (2d Dist.). {¶ 41} In this case, any discussion Farler had with his trial counsel about how to plead occurred off the record.

2026It is well established that “off-the-record events or conversations will not support an ineffective-assistance claim on direct appeal.” State v. Bakos, 2025-Ohio-1272, ¶ 11 (2d Dist.), citing State v. King, 2024- Ohio-4705, ¶ 10 (2d Dist.), citing State v. McElrath, 2024-Ohio-2475, ¶ 21 (2d Dist.); accord State v. Brown, 2025-Ohio-4874, ¶ 9 (2d Dist.). “‘[T]he appropriate remedy for allegations of ineffective assistance of counsel is through a petition for post-conviction relief when the allegations require the consideration of facts not appearing in the record.’” (Bracketed text in original.)

2026It is well established that “off-the-record events or conversations will not support an ineffective-assistance claim on direct appeal.” State v. Bakos, 2025-Ohio-1272, ¶ 11 (2d Dist.), citing State v. King, 2024- Ohio-4705, ¶ 10 (2d Dist.), citing State v. McElrath, 2024-Ohio-2475, ¶ 21 (2d Dist.); accord State v. Brown, 2025-Ohio-4874, ¶ 9 (2d Dist.). “‘[T]he appropriate remedy for allegations of ineffective assistance of counsel is through a petition for post-conviction relief when the allegations require the consideration of facts not appearing in the record.’” (Bracketed text in original.)

2025State v. King, 2024-Ohio-4705 , ¶ 10 (2d Dist.), citing State v. McElrath, 2024-Ohio-2475, ¶ 21 (2d Dist.); see also State v. Jordan, 2021-Ohio-2332, ¶ 24 (2d Dist.), citing State v. Qualls, 2015-Ohio-2182 , ¶ 15 (2d Dist.) (“[T]he record does not reveal what discovery defense counsel shared with Jordan or what counsel told him regarding a guilty plea . . .

2022Scioto No. 06CA3102, 2007-Ohio-7221 , citing State v. Roberts, 110 Ohio St.3d 71 , 2005-Ohio-3665 , 850 N.E.2d 1168, ¶ 148 ; State v Monroe, 105 Ohio St.3d 384 , 2005-Ohio- 2282, 827 N.E.2d 285 , ¶ 100; Cowans, 87 Ohio St.3d at 81 ; State v. Keith, 79 Ohio St.3d 514, 536 , 684 N.E.2d 47 (1997) (counsel defers to client’s desire not to present mitigation evidence not ineffective assistance). {¶69} The deficient performance portion of an ineffective assistance claim “is necessarily linked to the practice and expectations of the legal community: ‘The proper measure of attorney performance remains

2022Scioto No. 06CA3102, 2007-Ohio-7221 , citing State v. Roberts, 110 Ohio St.3d 71 , 2005-Ohio-3665 , 850 N.E.2d 1168, ¶ 148 ; State v Monroe, 105 Ohio St.3d 384 , 2005-Ohio- 2282, 827 N.E.2d 285 , ¶ 100; Cowans, 87 Ohio St.3d at 81 ; State v. Keith, 79 Ohio St.3d 514, 536 , 684 N.E.2d 47 (1997) (counsel defers to client’s desire not to present mitigation evidence not ineffective assistance). {¶69} The deficient performance portion of an ineffective assistance claim “is necessarily linked to the practice and expectations of the legal community: ‘The proper measure of attorney performance remains

2026“It is well established that mere speculation cannot support either the deficient performance or prejudice requirement of an ineffective-assistance claim.” State v. Morgan, 2018-Ohio-3198, ¶ 16 (2d Dist.), citing State v. Short, 2011-Ohio-3641 , ¶ 119 and State v. Perez, 2009-Ohio-6179, ¶ 217 . {¶ 37} As a further matter, Farler’s trial counsel may have chosen to withdraw the first and third branches of the motion because he thought they had little merit and did not want to distract from the stronger Miranda argument.

2025Furthermore, “mere speculation cannot support either the deficient performance or prejudice requirement 29 of an ineffective-assistance claim.” State v. Morgan, 2018-Ohio-3198, ¶ 16 (2d Dist.), citing State v. Short, 2011-Ohio-3641, ¶ 119 , and State v. Perez, 2009-Ohio-6179, ¶ 217 . {¶ 88} In this case, Father claims that R.W.’s counsel provided ineffective assistance because counsel did nothing at the permanent custody hearing.

2025Id., citing State v. Smith, 17 Ohio St.3d 98 (1985). {¶ 11} Additionally, off-the-record events or conversations will not support an ineffective-assistance claim on direct appeal.

2022See, e.g., State v. Smith, 17 Ohio St.3d 98, 101 , 477 N.E.2d 1128 (1985), fn. 1 (rejecting an ineffective-assistance claim based on the limited record available in the direct appeal but noting that res judicata would not bar the appellant from presenting additional evidence in a subsequent postconviction proceeding). {¶ 42} It is true that most states do not bar a postconviction ineffective- 12 January Term, 2022 assistance claim even if the claim could have been decided in a direct appeal.

2024State v. Conway, 109 Ohio St.3d 412 , 2006-Ohio-2815 , ¶ 103.

2017Lorain No. 05CA008782, 2006-Ohio-5051, ¶¶ 18-20 (concluding that trial counsel’s decision not to conduct a re-direct examination of his client is a trial tactic that does not give rise to an ineffective assistance claim). {¶35} Berry’s argument as to his trial counsel’s decision not to vigorously cross-examine the victim is also unavailing because the “scope of cross-examination falls within the ambit of trial strategy, and debatable trial tactics do not establish ineffective assistance of counsel.” Id. citing State v. Conway, 109 Ohio St.3d 412 , 2006-Ohio-2815 , ¶ 101.

2024A. The First Factor: {¶30} First, is whether the accused was represented by highly competent counsel. {¶31} In his brief, Appellant asserts that counsel rendered ineffective assistance. {¶32} “[A]n appellant's plea of guilty waives his or her right to assert an ineffective assistance claim unless counsel's errors affected the knowing and voluntary character of the plea.” State v. Green, 2018-Ohio-3536, ¶ 19 (11th Dist.). {¶33} We assess an ineffective assistance of counsel claim, for “‘whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cann

2023Trumbull No. 2017-T-0073, 2018-Ohio-3536, ¶ 19 .

1999The Supreme Court also stated the following in Strickland , 466 U.S. at 697 : "* * * Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. * * * If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. * * *"

1999The Supreme Court also stated the following in Strickland , 466 U.S. at 697 : "* * * Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. * * * If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. * * *"

2021Grissom at ¶ 22. {¶ 62} Furthermore, “[t]he failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel.” State v. Holloway, 38 Ohio St.3d 239, 244 , 527 N.E.2d 831 (1988).

2018State v. Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.”). {¶31} At the outset, we note that “ ‘the failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel.’ ” State v. Fears, 86 Ohio St.3d 329, 347 (1999), quoting State v. Holloway, 38 Ohio St.3d 239, 244 (1988).

2026Strickland v. Washington, 466 U.S. 668, 687-688, 694 (1984); State v. Madrigal, 87 Ohio St.3d 378 , 388-389, 2000-Ohio-448 . {¶ 21} Bullock's brief cites Strickland but does not apply its framework to the facts of this case.

2025Strickland at 697 ; State v. Madrigal, 2000-Ohio-448 , ¶ 10. {¶11} Mascus argues that his trial counsel was ineffective for failing to make a reasonable investigation into mitigation evidence by failing to ask the court to have defense’s own expert appointed to evaluate Mascus for amenability and failing to have a witness testify about the available programs that would benefit Mascus.