ineffective assistance of counsel claim in Ohio

2026Ordinarily, to establish an ineffective-assistance-of-counsel claim, a defendant must demonstrate that (1) his or her “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

2026Strickland v. Washington, 466 U.S. 668, 685-686 (1984), citing McMann v. Richardson, 397 U.S. 759 (1970), and Gideon v. Wainwright, 372 U.S. 335 (1963). {¶ 10} To prove an ineffective assistance of counsel claim on appeal, a defendant must show that counsel’s performance fell below an objective standard of reasonable representation and that prejudice resulted from counsel’s deficient performance.

2026We hold that when an indigent defendant makes an ineffective-assistance- of-counsel claim based upon counsel's failure to request a waiver of court costs, a reviewing court must apply the test in State v. Bradley, 42 Ohio St.3d 136, 141-142 , 538 N.E.2d 373 (1989), which adopted the standard that had been announced in Strickland, for determining whether a defendant received ineffective assistance of counsel.

2026We hold that when an indigent defendant makes an ineffective-assistance- of-counsel claim based upon counsel's failure to request a waiver of court costs, a reviewing court must apply the test in State v. Bradley, 42 Ohio St.3d 136, 141-142 , 538 N.E.2d 373 (1989), which adopted the standard that had been announced in Strickland, for determining whether a defendant received ineffective assistance of counsel.

2012Ineffective Assistance of Counsel {¶28} In his second assignment of error, appellant argues that he was denied effective assistance of counsel based on attorney Sims’s acceptance of the appointment -12- despite his heavy workload and his decision to file a motion for extension of time with the federal court without appellant’s consent. {¶29} In order to prevail on an ineffective assistance of counsel claim, a defendant must meet the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); see also State v. Bradley, 42 Ohio St.3d 136 , 538

2012Ineffective Assistance of Counsel {¶28} In his second assignment of error, appellant argues that he was denied effective assistance of counsel based on attorney Sims’s acceptance of the appointment -12- despite his heavy workload and his decision to file a motion for extension of time with the federal court without appellant’s consent. {¶29} In order to prevail on an ineffective assistance of counsel claim, a defendant must meet the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); see also State v. Bradley, 42 Ohio St.3d 136 , 538

2021State v. Phillips, 74 Ohio St.3d 72 , 656 N.E.2d 643 (1995). 5. {¶ 18} Specifically, in support of the ineffective assistance of counsel claim, appellant cites to trial counsel’s decision to decline to call David Scott (“Scott”), to testify as a witness at trial.

2021State v. Phillips, 74 Ohio St.3d 72 , 656 N.E.2d 643 (1995). 5. {¶ 18} Specifically, in support of the ineffective assistance of counsel claim, appellant cites to trial counsel’s decision to decline to call David Scott (“Scott”), to testify as a witness at trial.

2012Ineffective Assistance of Counsel {¶28} In his second assignment of error, appellant argues that he was denied effective assistance of counsel based on attorney Sims’s acceptance of the appointment -12- despite his heavy workload and his decision to file a motion for extension of time with the federal court without appellant’s consent. {¶29} In order to prevail on an ineffective assistance of counsel claim, a defendant must meet the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); see also State v. Bradley, 42 Ohio St.3d 136 , 538

2011Ineffective Assistance of Trial Counsel {¶ 37} In the third assignment of error, Warren argues that his counsel was ineffective for failing to call witnesses that could have bolstered his testimony that he did not have a gun or rob anyone. {¶ 38} In order to prevail on an ineffective assistance of counsel claim, a defendant must meet the two-pronged test enunciated in Strickland v. Washington (1984), 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 ; see, also, State v. Bradley (1989), 42 Ohio St.3d 136 , 538 N.E.2d 373 , certiorari denied (1990), 497 U.S. 1011 , 110 S.Ct. 3258 , 111 L.Ed.2d 768

2026Id., at 689; State v. Clayton, 62 Ohio St.2d 45, 48-49 (1980); State v. Mason, 82 Ohio St.3d 144 , 157- 58 (1998) (stating that an appellate court may not second guess trial counsel’s strategy decisions). {¶29} Mother cannot demonstrate actual prejudice by her counsel’s failure to object to the Magistrate’s decision.

2008See, e.g., State v. Clayton (1980), 62 Ohio St.2d 45 , 49 , certiorari denied (1980), 449 U.S. 879 . {¶ 70} Moreover, when addressing an ineffective assistance of counsel claim, the reviewing court should not consider what, in hindsight, may have been a more appropriate course of action.

2020Id. {¶ 12} The Fifth District, on the other hand, rejected the argument that defense counsel was ineffective for failing to request that the trial court waive Davis’s court costs due to demonstrated indigency, relying solely on the prejudice prong of the ineffective-assistance-of-counsel analysis. 2017-Ohio-9445 at ¶ 31; see also State v. Madrigal, 87 Ohio St.3d 378, 389 , 721 N.E.2d 52 (2000) (“A defendant’s failure to satisfy one prong of the Strickland test negates a court’s need 5 SUPREME COURT OF OHIO to consider the other”).

2020Id. {¶ 12} The Fifth District, on the other hand, rejected the argument that defense counsel was ineffective for failing to request that the trial court waive Davis’s court costs due to demonstrated indigency, relying solely on the prejudice prong of the ineffective-assistance-of-counsel analysis. 2017-Ohio-9445 at ¶ 31; see also State v. Madrigal, 87 Ohio St.3d 378, 389 , 721 N.E.2d 52 (2000) (“A defendant’s failure to satisfy one prong of the Strickland test negates a court’s need 5 SUPREME COURT OF OHIO to consider the other”).

2026E.g., State v. Tabor, 2017-Ohio-8656, ¶ 34 (4th Dist.); State v. Jenkins, 2014-Ohio- 3123, ¶ 22 (4th Dist.); State v. Simmons, 2013-Ohio-2890, ¶ 25 (4th Dist.); State v. Halley, 2012-Ohio-1625, ¶ 25 (4th Dist.); State v. Leonard, 2009-Ohio-6191 , ¶ 68 (4th Dist.); accord State v. Powell, 2012-Ohio-2577, ¶ 86 . {¶54} In the case sub judice, appellant argues that his trial counsel rendered ineffective assistance of counsel when counsel failed to object when appellant entered a plea to an unindicted Major Drug Offender Specification.

2025“As we have repeatedly recognized, speculation is insufficient to demonstrate the prejudice component of an ineffective assistance of counsel claim.” See e.g., State v. Tabor, 2017-Ohio-8656, ¶ 34 (4th Dist.); State v. Jenkins, 2014-Ohio- 3123, ¶ 22 (4th Dist.); State v. Simmons, 2013-Ohio-2890, ¶ 25 (4th Dist.).

2026State v. Morgan, 2017-Ohio-7565 , ¶ 53 (“speculation cannot prove prejudice”); State v. Powell, 2012-Ohio-2577, ¶ 86 (speculative argument cannot be a basis for finding deficient performance under an ineffective assistance of counsel claim).

2024State v. Morgan, 153 Ohio St.3d 196 , 2017-Ohio-7565 , 103 N.E.3d 784, ¶ 53 (“speculation cannot prove prejudice”); State v. Powell, 132 Ohio St.3d 233 , 2012-Ohio-2577 , 91 N.E.2d 865, ¶ 86 (speculative argument cannot be a basis for finding deficient performance under an ineffective assistance of counsel claim). {¶ 37} “A debatable decision involving trial tactics generally does not constitute a deprivation of effective counsel.” State v. Russell, 2d Dist.

2025State v. Blanton, 2022-Ohio-3985, ¶ 2 , citing State v. Perry, 10 Ohio St.2d 175, 180 (1967); State v. Cole, 2 Ohio St.3d 112, 114 (1982) (res judicata precludes relief under a petition for postconviction relief unless the petitioner can demonstrate that the ineffective-assistance-of-counsel claim solely depends on evidence outside of the record).

2025See also Cole, 2 Ohio St.3d at 114 (to merit a hearing on a postconviction ineffective-assistance claim, a petitioner must proffer evidence outside the record that, if believed, would show that counsel was ineffective). {¶53} At the outset, we note that Nixon represented himself on appeal and raised an ineffective assistance of counsel claim.

2023Ross No. 13CA3413, 2014-Ohio-3123, ¶ 31 (“speculation is insufficient to establish the prejudice component of an ineffective assistance of counsel claim.”).

2023Ross No. 13CA3413, 2014-Ohio-3123, ¶ 31 (“speculation is insufficient to establish the prejudice component of an ineffective assistance of counsel claim”).

2026Id., at 689; State v. Clayton, 62 Ohio St.2d 45, 48-49 (1980); State v. Mason, 82 Ohio St.3d 144 , 157- 58 (1998) (stating that an appellate court may not second guess trial counsel’s strategy decisions). {¶29} Mother cannot demonstrate actual prejudice by her counsel’s failure to object to the Magistrate’s decision.

2026Id., at 689; State v. Clayton, 62 Ohio St.2d 45, 48-49 (1980); State v. Mason, 82 Ohio St.3d 144 , 157- 58 (1998) (stating that an appellate court may not second guess trial counsel’s strategy decisions). {¶29} Mother cannot demonstrate actual prejudice by her counsel’s failure to object to the Magistrate’s decision.

2026“In order to prove an ineffective assistance of counsel claim, the appellant must carry the burden of establishing (1) that his or her counsel’s performance was deficient and (2) that this deficient performance prejudiced the defendant.” State v. McWay, 2018-Ohio-3618, ¶ 24 (3d Dist.), quoting Strickland v. Washington, 466 U.S. 668, 687 (1984). {¶21} To establish deficient performance, the appellant must demonstrate that defense “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” State v. Howton, 2017-Ohio-4349, ¶

2026“In order to prove an ineffective assistance of counsel claim, the appellant must carry the burden of -21- Case No. 13-25-13 establishing (1) that his or her counsel’s performance was deficient and (2) that this deficient performance prejudiced the defendant.” State v. McWay, 2018-Ohio-3618, ¶ 24 (3d Dist.), quoting Strickland v. Washington, 466 U.S. 668, 687 (1984). {¶54} To establish deficient performance, the appellant must demonstrate that defense “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” State v. How

2026“In order to prove an ineffective assistance of counsel claim, the appellant must carry the burden of -21- Case No. 13-25-13 establishing (1) that his or her counsel’s performance was deficient and (2) that this deficient performance prejudiced the defendant.” State v. McWay, 2018-Ohio-3618, ¶ 24 (3d Dist.), quoting Strickland v. Washington, 466 U.S. 668, 687 (1984). {¶54} To establish deficient performance, the appellant must demonstrate that defense “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” State v. How

2026“In order to prove an ineffective assistance of counsel claim, the appellant must carry the burden of establishing (1) that his or her counsel’s performance was deficient and (2) that this deficient performance prejudiced the defendant.” State v. McWay, 2018-Ohio-3618, ¶ 24 (3d Dist.), quoting Strickland v. Washington, 466 U.S. 668, 687 (1984). {¶21} To establish deficient performance, the appellant must demonstrate that defense “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” State v. Howton, 2017-Ohio-4349, ¶

2026(Dkt. 11 122, 135, 150)” {¶65} In reviewing an ineffective assistance of counsel claim, the standard we apply is “‘whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’” State v. Story, 2007-Ohio-4959, ¶ 49 (11th Dist.), quoting Strickland v. Washington, 466 U.S. 668, 686 (1984).

2025At the plea hearing, Appellant stated that she was satisfied with her attorney and understood the terms of the plea bargain she was entering. {¶22} In reviewing an ineffective assistance of counsel claim, the standard we apply is “‘whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’” State v. Story, 2007-Ohio-4959, ¶ 49 (11th Dist.), quoting Strickland v. Washington, 466 U.S. 668, 686 (1984).

2026Moreover, “ ‘[a]n appellate court reviewing an ineffective assistance of counsel claim must not scrutinize trial counsel's strategic decision to engage, or not engage, in a particular line of questioning on cross- examination.’ ” State v. Dorsey, 2005-Ohio-2334, ¶ 22 (10th Dist.), quoting In re Brooks, 2004-Ohio-3887 , ¶ 40 Hocking App. No. 24CA6 22 (10th Dist.); see also State v. Allah, 2015-Ohio-5060, ¶ 23 (4th Dist.).

2026Further, “ ‘ “[a]n appellate court reviewing an ineffective assistance of counsel claim No. 23AP-69 32 must not scrutinize trial counsel’s strategic decision to engage, or not engage, in a particular line of questioning on cross-examination.” ’ ” Id., quoting State v. Dorsey, 2005-Ohio- 2334, ¶ 22 (10th Dist.), quoting In re Brooks, 2004-Ohio-3887, ¶ 40 (10th Dist.). {¶ 113} The record indicates defense counsel began cross-examination by asking J.S. about her interests and hobbies.

2026Moreover, when a defendant has entered a guilty plea, “the defendant can prevail on an ineffective assistance of counsel claim only by demonstrating that there is a reasonable probability that, but for counsel’s deficient performance, he would not have pled guilty to the offenses at issue and would have insisted on going to trial.” (Emphasis added.) Wright at ¶ 10 , citing Williams at ¶ 11 , citing State v. Xie, 62 Ohio St.3d 521, 524 (1992), and Hill v. Lockhart, 474 U.S. 52 (1985).

2022The state responded in opposition, stating that it had served defense counsel with discovery on three separate occasions. {¶15} To prevail on an ineffective assistance of counsel claim in the context of a guilty plea, the defendant must show that trial counsel’s performance was deficient and “‘that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty[.]’” State v. Xie, 62 Ohio St.3d 521, 524 , 584 N.E.2d 715 (1992), quoting Hill v. Lockhart, 474 U.S. 52, 59 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985). {¶16} The trial court held that Gaines’ ineffective

2024Carter, 72 Ohio St.3d at 558 , 651 N.E.2d 965 , citing Lockhart v. Fretwell, 506 U.S. 364, 369 , 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993). {¶83} Finally, an ineffective assistance of counsel claim cannot be predicated upon supposition.

2024Carter, 72 Ohio St.3d at 558 , 651 N.E.2d 965 , citing Lockhart v. Fretwell, 506 U.S. 364, 369 , 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993). {¶83} Finally, an ineffective assistance of counsel claim cannot be predicated upon supposition.

2026“In order to prevail on an ineffective-assistance-of-counsel claim, a defendant must prove that counsel’s performance was deficient and that the defendant was prejudiced by counsel’s deficient performance.” State v. Davis, 2020-Ohio-309, ¶ 10 , citing Bradley at 141-142 and Strickland at 687 .

2025Second Claim: Ineffective Assistance of Counsel {¶ 33} “In order to prevail on an ineffective-assistance-of-counsel claim, a defendant must prove that counsel's performance was deficient and that the defendant was prejudiced by counsel's deficient performance.” State v. Davis, 2020-Ohio-309, ¶ 10 , citing State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989); Strickland v. Washington, 466 U.S. 668, 687 (1984).

2026Moreover, when a defendant has entered a guilty plea, “the defendant can prevail on an ineffective assistance of counsel claim only by demonstrating that there is a reasonable probability that, but for counsel’s deficient performance, he would not have pled guilty to the offenses at issue and would have insisted on going to trial.” (Emphasis added.) Wright at ¶ 10 , citing Williams at ¶ 11 , citing State v. Xie, 62 Ohio St.3d 521, 524 (1992), and Hill v. Lockhart, 474 U.S. 52 (1985).

2022The state responded in opposition, stating that it had served defense counsel with discovery on three separate occasions. {¶15} To prevail on an ineffective assistance of counsel claim in the context of a guilty plea, the defendant must show that trial counsel’s performance was deficient and “‘that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty[.]’” State v. Xie, 62 Ohio St.3d 521, 524 , 584 N.E.2d 715 (1992), quoting Hill v. Lockhart, 474 U.S. 52, 59 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985). {¶16} The trial court held that Gaines’ ineffective

2016State v. Nicholas, 66 Ohio St.3d 431, 436 (1993); State v. Thompson, 33 Ohio St.3d 1, 10-11 (1987). {¶ 58} We cannot conclude that trial counsel was ineffective for failing to secure an expert who would testify along the lines suggested by Zehenni.

2008State v. Thompson (1987), 33 Ohio St.3d 1 , 10-11 , 514 N.E.2d 407 . {¶ 24} As to her argument that counsel should have secured an expert to assist the court, Marks relies on State v. Eppinger (2001), 91 Ohio St.3d 158 , 162 , 743 N.E.2d 881 , where the Ohio Supreme Court held that "an expert witness shall be provided to an indigent defendant at an R.C. 2950.09 (B)(1) sexual offender classification hearing if the court determines, within its sound discretion, that such services are reasonably necessary to determine whether the offender is likely to engage in the future in one or more sexually

2026Moreover, “ ‘[a]n appellate court reviewing an ineffective assistance of counsel claim must not scrutinize trial counsel's strategic decision to engage, or not engage, in a particular line of questioning on cross- examination.’ ” State v. Dorsey, 2005-Ohio-2334, ¶ 22 (10th Dist.), quoting In re Brooks, 2004-Ohio-3887 , ¶ 40 Hocking App. No. 24CA6 22 (10th Dist.); see also State v. Allah, 2015-Ohio-5060, ¶ 23 (4th Dist.).

2026Moreover, “ ‘[a]n appellate court reviewing an ineffective assistance of counsel claim must not scrutinize trial counsel's strategic decision to engage, or not engage, in a particular line of questioning on cross- examination.’ ” State v. Dorsey, 2005-Ohio-2334, ¶ 22 (10th Dist.), quoting In re Brooks, 2004-Ohio-3887 , ¶ 40 Hocking App. No. 24CA6 22 (10th Dist.); see also State v. Allah, 2015-Ohio-5060, ¶ 23 (4th Dist.).

2025State v. Gatchel, 2008- Ohio-1029, ¶ 35 (11th Dist.). {¶23} In other words, Anderson “must provide competent, relevant, and material evidence outside of the trial court record in support of a postconviction petition to prevent the claim from being dismissed on res judicata grounds.” Beasley, 2025-Ohio-1599, at ¶ 38 (11th Dist.), citing State v. Lacy, 2020-Ohio-1556, ¶ 26 (11th Dist.). {¶24} In a post-conviction petition wherein a petitioner raises an ineffective assistance of counsel claim, “‘the petitioner bears the initial burden to submit evidentiary documents containing sufficient operativ

2013Therefore, when an ineffective-assistance-of-counsel claim is made, before a hearing is granted, " 'the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness.' " No. 13AP-301 4 (Emphasis added.) Calhoun at 283 , quoting State v. Jackson, 64 Ohio St.2d 107, 112 , syllabus. {¶ 11} Appellant provided the trial court with an affidavit which was attached to his motion for appointment of counsel.