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).

2026To succeed on an ineffective assistance of counsel claim, Estill must show that “(1) trial counsel’s performance was deficient, and (2) the deficient performance deprived [Estill] of a fair trial.” State v. Akins, 2024- Ohio-1491, ¶ 45 (1st Dist.), citing Strickland v. Washington, 466 U.S. 668, 687 (1984).

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.

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.

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 a trial counsel’s strategy decisions).

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.

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.).

2021“To show prejudice, the defendant must show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” State v. Jarrell, 4th Dist. Gallia No. 15CA8, 2017-Ohio-520 , 85 N.E.3d 175, ¶ 48, citing State v. Conway 109 Ohio St.3d 412 , 2006-Ohio-2815 , 848 N.E.2d 810, ¶ 95 . “[S]peculation is insufficient to establish the prejudice component of an ineffective assistance of counsel claim.” State v. Blackburn, 4th Dist. Jackson No. 18CA32020-Ohio-1084, ¶ 37, citing State v. Tabor, 4th Dist. Jackson No. 16CA9, 2017-Ohio-8656, ¶ 34 ; State v. Jenkin

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”).

2023State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 31 (“speculation is insufficient to establish the prejudice component of an ineffective assistance of counsel claim.”).

2023State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 31 (“speculation is insufficient to establish the prejudice component of an ineffective assistance of counsel claim”).

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.).

2021“To show prejudice, the defendant must show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” State v. Jarrell, 4th Dist. Gallia No. 15CA8, 2017-Ohio-520 , 85 N.E.3d 175, ¶ 48, citing State v. Conway 109 Ohio St.3d 412 , 2006-Ohio-2815 , 848 N.E.2d 810, ¶ 95 . “[S]peculation is insufficient to establish the prejudice component of an ineffective assistance of counsel claim.” State v. Blackburn, 4th Dist. Jackson No. 18CA32020-Ohio-1084, ¶ 37, citing State v. Tabor, 4th Dist. Jackson No. 16CA9, 2017-Ohio-8656, ¶ 34 ; State v. Jenkin

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.

2022In our review of an ineffective assistance of counsel claim, “we will not second-guess trial -78- strategy decisions, and ‘a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ” State v. English, 2d Dist. Montgomery No. 26337, 2015- Ohio-1665, ¶ 10, quoting State v. Mason, 82 Ohio St.3d 144, 157-158 , 694 N.E.2d 932 (1998).

2022In our review of an ineffective assistance of counsel claim, “we will not second-guess trial -78- strategy decisions, and ‘a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ” State v. English, 2d Dist. Montgomery No. 26337, 2015- Ohio-1665, ¶ 10, quoting State v. Mason, 82 Ohio St.3d 144, 157-158 , 694 N.E.2d 932 (1998).

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). {¶92} 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 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). {¶27} 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 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). {¶92} 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 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). {¶27} 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, ¶

2026Because of this, Appellant’s assignment of error is not well taken. {¶70} Accordingly, Appellant’s fourth assignment of error is without merit. {¶71} Appellant’s fifth assignment of error states: “APPELANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.” PAGE 15 OF 18 {¶72} Appellant argues that trial counsel was ineffective for two reasons: first, because trial counsel failed to file a timely motion to dismiss for the State’s failure to bring Appellant to trial within the speedy trial limits, and second, because trial counsel failed to file a writ of habeas corpus for excessive bail.

2026This means that we review this issue for plain error and for ineffective assistance of counsel. {¶52} 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).

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.

2021“To show prejudice, the defendant must show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” State v. Jarrell, 4th Dist. Gallia No. 15CA8, 2017-Ohio-520 , 85 N.E.3d 175, ¶ 48, citing State v. Conway 109 Ohio St.3d 412 , 2006-Ohio-2815 , 848 N.E.2d 810, ¶ 95 . “[S]peculation is insufficient to establish the prejudice component of an ineffective assistance of counsel claim.” State v. Blackburn, 4th Dist. Jackson No. 18CA32020-Ohio-1084, ¶ 37, citing State v. Tabor, 4th Dist. Jackson No. 16CA9, 2017-Ohio-8656, ¶ 34 ; State v. Jenkin

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 .

2025“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).

2026Further, “ ‘ “[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.” ’ ” 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.

2026Thus, “[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.” In re Brooks, 2004-Ohio-3887, ¶ 40 (10th Dist.). {¶ 53} Despite the aforementioned case law, assuming, arguendo, that trial counsel’s performance was deficient, appellant cannot establish that he was prejudiced by that performance.

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.

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

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 (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 (10th Dist.); see also State v. Allah, 2015-Ohio-5060, ¶ 23 (4th Dist.).

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