State v. Saur
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[Cite as State v. Saur, 2013-Ohio-1674.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio,
:
Plaintiff-Appellee,
:
No. 10AP-1195
v.
:
(C.P.C. No. 10CR-03-1932)
Ronald L. Saur,
:
(REGULAR CALENDAR)
Defendant-Appellant.
:
D E C I S I O N
Rendered on April 25, 2013
Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
for appellee.
Ronald L. Saur, pro se.
ON APPLICATION FOR REOPENING
CONNOR, J.
{¶ 1}
Defendant-appellant, Ronald L. Saur ("defendant"), has filed a pro se
application, pursuant to App.R. 26(B), seeking to reopen his appeal resolved in this
court's decision in State v. Saur, 10th Dist. No. 10AP-1195, 2011-Ohio-6662. Plaintiffappellee, the State of Ohio ("State"), filed a memorandum in opposition to defendant's
application. Because defendant's application fails to present a genuine issue that he was
deprived of the effective assistance of appellate counsel, we deny his application to
reopen.
{¶ 2} On March 26, 2010, defendant was indicted on charges of kidnapping,
felonious assault, and domestic violence. On October 18, 2010, defendant entered a plea
of guilty to felonious assault. Pursuant to the plea agreement, the other two offenses
No. 10AP-1195
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were dismissed. At the plea hearing, the State set forth its factual basis for the plea.
According to the facts set forth at the plea hearing, at approximately 2:00 a.m. on
March 17, 2010, defendant's wife, Laurie Kresting-Saur ("Laurie"), called the police due
to an argument with defendant. The police responded, but because there had been no
actual violence at that time, the police did not arrest anyone and only arranged for
appellant to leave the apartment.
A short time later, appellant returned to the
apartment and became violent. Appellant threw a cell phone at Laurie and hit her in the
mouth. During a two-hour period of time, appellant struck Laurie repeatedly. He
forced her to take a shower and tied her up on the bed to stop her from running away.
{¶ 3} Laurie was eventually able to free herself, so she ran into the hallway.
Defendant followed her and dragged her back into the apartment by her hair.
A
neighbor heard her screams in the hallway and called 911. Once she was inside the
apartment again, appellant threw Laurie on the floor of the bedroom, sat on her chest,
and held her down, covering her mouth and nose with his hand while choking her and
stating he was going to kill her. When the police arrived they arrested defendant and
took Laurie to Grant Hospital, where Laurie remained for several days due to the
severity of her injuries.
{¶ 4} At the plea hearing, the trial court engaged in a plea colloquy with
defendant and accepted defendant's guilty plea.
The court ordered a presentence
investigation.
{¶ 5} At the sentencing hearing, a victim witness assistant read a statement from
Laurie into the record. Defense counsel presented the court with mitigating evidence,
and defendant personally addressed the court. The trial court sentenced defendant to
an eight year prison term, the maximum prison sentence possible for a second degree
felony felonious assault charge, explaining "[t]hat woman took a hell of a beating that
night. That's why you got the maximum sentence." (Nov. 29, 2010, Tr. 16.)
{¶ 6} In his direct appeal, defendant, through counsel, raised two assignments
of error. He argued that his sentence was contrary to law and that his trial counsel
rendered ineffective assistance of counsel.
Defendant asserted his sentence was
contrary to law for the following reasons: (1) the trial court violated the conservation of
resources principle set forth in R.C. 2929.13(A), (2) the trial court erred in making a
No. 10AP-1195
3
factual finding that the offense at issue was "the worst form of the offense" following the
Supreme Court of Ohio's severance of the sentencing statutes in State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, (3) the sentence violated principles of consistency and
proportionality, (4) the trial court failed to properly consider or weigh the factors in R.C.
2929.12 and put too much emphasis on the victim's injuries, and (5) the trial court
abused its discretion in failing to waive the costs in the action. Defendant alleged his
trial counsel was ineffective in failing to object to the court's sentence on the various
grounds outlined above. In a decision rendered on December 22, 2011, this court
overruled defendant's assignments of error and affirmed the judgment of the Franklin
County Court of Common Pleas.
{¶ 7} On January 25, 2012, defendant filed a handwritten document with this
court, consisting of an affidavit and a memorandum in support. Defendant averred that
the statements in the affidavit were made "in support of [defendant's] application to
reopen in Accordance with Appellate Rule 26(B)." On February 1, 2013, this court
issued a judgment entry construing defendant's January 25, 2012 filing as an App.R.
26(B) motion and ordering the clerk to note the docket accordingly.1 On February 7,
2013, the State filed a motion for leave to file a memorandum opposing defendant's
application, which we granted.
{¶ 8} App.R. 26(B) allows applications to reopen an appeal from a judgment of
conviction and sentence based upon a claim of ineffective assistance of appellate
counsel. App.R. 26(B)(1) provides that an application for reopening shall be filed within
90 days from the journalization of the appellate judgment. Here, defendant has filed a
timely application.
{¶ 9} An application for reopening must set forth "[o]ne or more assignments of
error or arguments in support of assignments of error that previously were not
considered on the merits in the case by any appellate court or that were considered on
an incomplete record because of appellate counsel's deficient representation." App.R.
26(B)(2)(c). The application must also contain a sworn statement setting forth the basis
1 This court's journal entry mistakenly referred to defendant's January 25, 2012 filing as being filed on
January 25, 2013.
No. 10AP-1195
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of the claim alleging that appellate counsel's representation was deficient and the
manner in which the deficiency prejudiced the outcome of the appeal.
App.R.
26(B)(2)(d). The application "shall be granted if there is a genuine issue as to whether
the applicant was deprived of the effective assistance of counsel on appeal." App.R.
26(B)(5).
{¶ 10} To prevail on an application to reopen, defendant must make "a colorable
claim" of ineffective assistance of appellate counsel under the standard established in
Strickland v. Washington, 466 U.S. 668 (1984). See State v. Lee, 10th Dist. No. 06AP226, 2007-Ohio-1594, ¶ 2, citing State v. Sanders, 75 Ohio St.3d 607 (1996). Under
Strickland, defendant must demonstrate the following: (1) counsel was deficient in
failing to raise the issues defendant now presents, and (2) defendant had a reasonable
probability of success if the issue had been presented on appeal. Lee at ¶ 2, citing State
v. Timmons, 10th Dist. No. 04AP-840, 2005-Ohio-3991.
{¶ 11} An appellate attorney has wide latitude and the discretion to decide which
issues and arguments will prove most useful on appeal. Furthermore, appellate counsel
is not required to argue assignments of error that are meritless. Lee at ¶ 3, citing State
v. Lowe, 8th Dist. No. 82997, 2005-Ohio-5986, ¶ 17.
{¶ 12} Defendant's application alleging his appellate counsel was ineffective lacks
clear assignments of error. Defendant's affidavit contains the following averments:
[1.] My appellate counsel was ineffective for failing to
properly research and argue on appeal: I was denied due
process by the trial court by not being properly addressed
personally. I was never told the nature or elements of my
charge.
[2.] I was substantially prejudiced because these errors were
not raised and could have resulted in receiving a new trial
and could have been brought to light and supported.
[3.] Appellates [sic] counsel failure to raise these facts on
appeal constitutes ineffective assistance of counsel.
[4.] Appellates [sic] counsel failure to recognize ineffective
assistance of trial counsel constitutes ineffective [sic] of
counsel.
No. 10AP-1195
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{¶ 13} Based upon our reading of defendant's application, he appears to assert
that his appellate counsel was ineffective by failing to raise the following assignments of
error on appeal: (1) defendant's guilty plea was involuntary because the trial court did
not ascertain during the plea colloquy whether defendant understood the nature of the
charge, and (2) defendant's trial counsel was ineffective in failing to inform defendant
about the inferior offense of aggravated assault.
I. NATURE OF THE CHARGES
{¶ 14} Defendant asserts that he did not knowingly enter his guilty plea because
he "did not possess a full understanding of the law in relation to the facts." (Application
to Reopen, 1.) Defendant claims the trial court, in violation of Crim.R. 11(C)(2)(a), did
not address him "personally to determine that the defendant [was] making the plea
voluntarily and knowingly with an understanding of the nature of the charges and the
maximum penalty involved." (Application to Reopen, 4.)
{¶ 15} The record does not support defendant's contentions. Pursuant to Crim.R.
11(C)(2), a court may not accept a guilty plea in a felony case without first addressing the
defendant personally and doing the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges
and of the maximum penalty involved, and if applicable, that
the defendant is not eligible for probation or for the
imposition of community control sanctions at the sentencing
hearing.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is
waiving the rights to jury trial, to confront witnesses against
him or her, to have compulsory process for obtaining
witnesses in the defendant's favor, and to require the state to
prove the defendant's guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify
against himself or herself.
No. 10AP-1195
6
{¶ 16} "The mandate that the defendant must be informed of the nature of the
charges is a non-constitutional right." State v. Smith, 10th Dist. No. 10AP-143, 2010Ohio-4744, ¶ 14. For the non-constitutional rights in Crim.R. 11, the trial court must
substantially comply with the mandates of Crim.R. 11. Id., citing State v. Nero, 56 Ohio
St.3d 106, 108 (1990). " 'Substantial compliance' means that, under the totality of the
circumstances the defendant subjectively understands the implications of his plea and
the rights he is waiving." Id., quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio5200, ¶ 15, citing Nero at 108. Furthermore, a defendant who challenges his guilty plea
on the basis that the advisement for the non-constitutional rights did not substantially
comply with Crim.R. 11(C)(2)(a) must also show a prejudicial effect, meaning the plea
would not have been otherwise entered. Id.
{¶ 17} Here, defendant asserts the trial court erred in accepting his plea without
addressing him personally to determine if he understood the nature of the charges and
the maximum penalty involved. "However, Crim.R. 11(C)(2)(a) does not require a trial
court to provide a detailed explanation of the elements of the charges against a
defendant." Smith at ¶ 16, citing State v. Fitzpatrick, 102 Ohio St.3d 331, 2004-Ohio3167, ¶ 56-57, citing Henderson v. Morgan, 426 U.S. 637 (1976). As a general rule, this
court has determined that a guilty plea is made with an understanding of the nature of
the charges when: (1) a defendant is addressed in court and informs the court that he
understands what he is pleading guilty to, (2) his signed guilty plea states that he has
reviewed the law and the facts with his counsel, and (3) counsel advises the court that he
has reviewed the facts and the law with his client and that his client has read the plea
form. State v. Dingess, 10th Dist. No. 02AP-150, 2002-Ohio-6450, ¶ 45 (finding the
defendant's "guilty pleas were knowingly, voluntarily and intelligently made" where the
defendant "signed the plea forms, and his counsel informed the trial court that counsel
fulfilled his obligations of representing appellant pursuant to the guilty plea forms").
{¶ 18} The transcript of the plea hearing demonstrates that the trial court
engaged in a proper Crim.R. 11 plea colloquy with defendant. At the beginning of the
hearing, the State noted that defendant was changing his plea from not guilty to "guilty
to Count 1 of the indictment, Felonious Assault, a felony of the second degree, in
violation of Revised Code Section 2903.11. The maximum prison term is eight years."
No. 10AP-1195
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(Oct. 18, 2010, Tr. 2.) Defendant stated he understood that he was pleading guilty to
felonious assault, and that in exchange for his plea the State would nolle prosequi the
kidnapping and domestic violence charges. The court informed defendant that "the
maximum penalty" for second degree felony felonious assault was "eight years in the
penitentiary and a fine not to exceed $15,000." (Oct. 18, 2010, Tr. 4.) Accordingly, the
court properly instructed defendant regarding the maximum penalty.
{¶ 19} The court further noted it had before it defendant's signed guilty plea
form. The court asked defendant "Did you go over the document with [your attorney]
Mr. Hunt before you signed it?" (Oct. 18, 2010, Tr. 3.) Defendant responded "Yes, sir."
(Oct. 18, 2010, Tr. 3.) After reviewing with defendant the various sanctions which
might accompany his plea, including the mandatory term of post-release control, and
reviewing the constitutional rights listed in Crim.R. 11(C)(2)(c), the court inquired:
The Court: Mr. Hunt, you've had an opportunity to review the form with
your client. Do you feel he is knowingly, intelligently, and voluntarily
proceeding?
Mr. Hunt: Absolutely.
The Court: Do you feel this plea arrangement's in his best interest?
Mr. Hunt: Yes, Your Honor.
The Court: Have you discharged your duties pursuant to the Ohio Criminal
Rules in representing you client?
Mr. Hunt: I have, Your Honor.
The Court: Are you satisfied with his representation?
The Defendant: Yes, sir.
The Court: Has he answered all your questions?
The Defendant: Yes, sir.
The Court: Done you a good job?
The Defendant: Excellent.
(Oct. 18, 2010, Tr. 11.)
No. 10AP-1195
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{¶ 20} The court accepted defendant's guilty plea, noting:
The Court: I'll find the Defendant knowingly, intelligently
entered a plea with a full understanding of the various
consequences, including the maximum penalty.
I'll further find Mr. Saur and I had a discussion on the
record. I was very pleased. He was very attentive. He
appeared to understand his rights and knowingly and
voluntarily gave them up.
Is that correct, Mr. Saur?
The Defendant: That's correct, sir.
(Oct. 18, 2010, Tr. 14.)
{¶ 21} Based on the foregoing, it is apparent the trial court substantially complied
with Crim.R. 11(C)(2). Although the court did not specifically ask defendant if he
understood the nature of the offense, defendant informed the court that he understood
he was pleading guilty to felonious assault, defendant's signed guilty plea form stated
that defendant had reviewed the facts and law of his case with his attorney, and
defendant's attorney informed the court that he had reviewed the plea form with
defendant and that he had discharged his duties pursuant to the Ohio Criminal Rules.
Accordingly, defendant's appellate counsel was not deficient in failing to raise an
assignment of error based on the trial court's failure to inform defendant of the nature
of the offense, as defendant has failed to establish a reasonable probability of success on
such a claim. See also Smith at ¶ 17 (finding where "the written plea was signed by
appellant and his attorney and indicated that appellant had reviewed the facts and law
of his case with his counsel," that statement in the plea form "combined with appellant's
answers to the court's questions and the recitations at the plea hearing establishe[d] that
appellant understood the nature of the attempted felonious assault offense").
{¶ 22} The record reveals that the trial court properly advised defendant
pursuant to Crim.R. 11 at the sentencing hearing.
Accordingly, defendant has not
presented a colorable claim of ineffective assistance of appellate counsel regarding the
No. 10AP-1195
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trial court's failure to advise defendant of the nature of the charges against him pursuant
to Crim.R. 11(C)(2)(a).
II. AGGRAVATED ASSAULT
{¶ 23} Defendant asserts "that his version of the facts supported an affirmative
defense of aggravated assault R.C. 2903.12 a fourth degree felony," and alleges that had
he "known the essential elements of the charges against him he would have gone to trial
believing that a jury would have found him guilty of F-4 aggravated assault."
(Application to Reopen, 1, 7.) Defendant contends his trial counsel's performance was
deficient because "trial counsel only presented the elements of felonious assault to his
client and never presented to him the mitigating factor of provocation," thus leading
defendant "to believe there was no effective defense." (Application to Reopen, 12.)
{¶ 24} Defendant pled guilty to felonious assault, which prohibits any person
from knowingly causing serious physical harm to another. R.C. 2903.11. Aggravated
assault prohibits any person from knowingly causing serious physical harm to another,
"while under the influence of sudden passion or in a sudden fit of rage, either of which is
brought on by serious provocation occasioned by the victim that is reasonably sufficient
to incite the person into using deadly force." R.C. 2903.12. A conviction for felonious
assault is a felony of the second degree, and carries a maximum prison sentence of eight
years. A conviction for aggravated assault is a felony of the fourth degree, and the
maximum prison sentence is 18 months. R.C. 2929.14.
{¶ 25} At the sentencing hearing, defendant's trial counsel presented facts in
mitigation. Defense counsel noted that:
Mr. Saur's has always maintained that he in no way ever
even attempted to or came close to tying her up or
kidnapping her in any form or fashion. * * * [T]his was an
event that took place over a period of time after they had
gotten into a verbal argument, that she had a large
commercial stapler and was hitting him over the head with
it.
Again does that give him the right to punch her in the face?
Probably not, or we would not have pled.
(Nov. 29, 2010, Tr. 7-8.)
No. 10AP-1195
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{¶ 26} Defendant asserts that, because Laurie hit him on the head with a
commercial stapler, the element of serious provocation was present in this case.
Defendant contends that, after the trial court became aware of defendant's version of the
facts at the sentencing hearing, "[i]t was incumbent of the trial court to invalidate the
plea and inform the defendant of the elements of the statute to which he was arguing,
aggravated assault because of the serious provocation." (Application to Reopen, 1-2.)
However, absent a motion to vacate his plea, pursuant to Crim.R. 32.1, the trial court
could not sua sponte vacate defendant's guilty plea. See State v. Millhouse, 8th Dist. No.
79910, 2002-Ohio-2255, ¶ 27 (noting that "the Rules of Criminal Procedure reveals no
provisions which would suggest that a trial court should sua sponte vacate a guilty plea
once it has been accepted").
{¶ 27} Defendant asserts that his guilty plea was not "made knowingly or
voluntarily" as the trial court failed to make defendant "aware [of] the nature of the
charge or the essential elements * * * of provocation" during the plea colloquy.
(Application to Reopen, 14.)
However, defendant cites to nothing to support his
contention that the trial court had an obligation to inform defendant during the plea
colloquy about the elements of an offense to which defendant was not pleading guilty.
Compare State v. Jefferson, 8th Dist. No. 95949, 2011-Ohio-4951, ¶ 4, 8 (where the
defendant asserted error because the trial court did not inform him "of the effect and
potential consequences of his guilty pleas" relative to other charges pending against the
defendant, the appellate court concluded the trial court "had no responsibility to explain
to Jefferson the potential effect of guilty pleas in subsequent potential cases").
{¶ 28} Defendant's main contention that his trial counsel was ineffective in failing
to inform defendant of the elements of aggravated assault would require evidence of
conversations between defendant and his counsel from outside the record. "When
allegations of ineffective assistance of counsel hinge on facts not appearing in the
record, the proper remedy is a petition for post-conviction relief rather than a direct
appeal." State v. Davis, 10th Dist. No. 05AP-193, 2006-Ohio-193, ¶ 19. Even so, the
following statements from counsel at the sentencing hearing strongly indicate that
counsel discussed potential defenses and potential lesser included or inferior offenses
with defendant before defendant decided to plead guilty to felonious assault:
No. 10AP-1195
11
And we spent a lot of time going over whether we were going
to try this case or not as to what our possible defenses were,
and the Court properly inquired about that at the plea.
However, with that said, after viewing the same photographs
that the Court's going to and has viewed, after going over
both case law and the statute itself regarding felonious
assault, my client made, what I believe to be, a very informed
decision, was very patient about what, you know, the best
advice would be for him rather than jumping to conclusions
that this wasn't a felonious assault or, you know, it may be
something less than that. He studied every piece of
information the State provided and also all the case law and,
again, statutory law that I provided him regarding felonious
assault, and he made an informed decision that he believed
at trial the jury would, in fact, find him guilty of a felonious
assault, and that's why he plead to it.
(Emphasis added.) (Nov. 29, 2010, Tr. 8-9.)
{¶ 29} Moreover, the facts contained in the record before us do not demonstrate
that defendant would have been entitled to an instruction on aggravated assault had he
gone to trial. The offense of aggravated assault is an inferior degree of felonious assault
because its elements are identical to or contained within the offense of felonious assault,
coupled with the additional presence of one or both mitigating circumstances of sudden
passion or a sudden fit of rage brought on by serious provocation occasioned by the
victim. See State v. Stewart, 10th Dist. No. 10AP-526, 2011-Ohio-466, ¶ 7, citing State
v. Logan, 10th Dist. No. 08AP-881, 2009-Ohio-2899, fn.1, citing State v. Deem, 40 Ohio
St.3d 205 (1988). In other words, aggravated assault is the same conduct as felonious
assault but its nature and penalty are mitigated by provocation. Stewart at ¶ 7, citing
State v. Scott, 10th Dist. No. 00AP-868 (Mar. 27, 2001).
{¶ 30} Although aggravated assault is an inferior offense of felonious assault,
rather than a lesser-included offense, the Supreme Court of Ohio held in Deem that, in a
trial for felonious assault, where the defendant presents sufficient evidence of serious
provocation, an instruction on aggravated assault must be given. Stewart at ¶ 8, citing
Deem at 211. The test for whether the trial court should instruct the jury on aggravated
assault when the defendant is charged with felonious assault is the same test applied
when an instruction on a lesser-included offense is sought.
Id., citing State v.
No. 10AP-1195
12
McClendon, 2d Dist. No. 23558, 2010-Ohio-4757, ¶ 18, citing State v. Shane, 63 Ohio
St.3d 630 (1992). The instruction must be given when the evidence presented at trial
would reasonably support both an acquittal on the charged crime of felonious assault
and a conviction for aggravated assault. Stewart at ¶ 8. Thus, a jury instruction should
be given for an inferior offense, if under any reasonable view of the evidence, and when
all of the evidence is construed in a light most favorable to the defendant, a reasonable
jury could find that the defendant had established by a preponderance of the evidence
the existence of one or both of the mitigating circumstances. Id., citing State v. Rhodes,
63 Ohio St.3d 613, 617-18 (1992).
{¶ 31} Serious provocation under R.C. 2903.12 means provocation "reasonably
sufficient to bring on extreme stress and * * * reasonably sufficient to incite or to arouse
the defendant into using deadly force." Deem at paragraph five of the syllabus,
approving State v. Mabry, 5 Ohio App.3d 13 (8th Dist.1982). The provocation must be
"sufficient to arouse the passions of an ordinary person beyond the power of his or her
control." Shane at 635. To determine whether the defendant presented sufficient
evidence to warrant an instruction on the inferior offense of aggravated assault, "an
objective standard must be applied to determine whether the alleged provocation is
reasonably sufficient to bring on a sudden passion or fit of rage." State v. Mack, 82
Ohio St.3d 198, 201 (1998). If this objective standard is met, the inquiry shifts to a
subjective standard, to determine whether the defendant in the particular case
" 'actually was under the influence of sudden passion or in a sudden fit of rage.' " Id.,
quoting Shane at 634-35.
{¶ 32} Here the facts in the record do not support serious provocation. The facts
demonstrate the following events: defendant and Laurie had a verbal argument in their
apartment, the police arrived and arranged for defendant to leave the apartment,
defendant attempted to drive away from the apartment but could not because the car
did not have gas in it, defendant went back inside the apartment where the verbal
altercation continued and escalated into a physical altercation. During the physical
altercation defendant struck Laurie repeatedly, dragged her by her hair, and sat on top
of her trying to choke her. At some point during these events, Laurie struck defendant
with a commercial stapler.
No. 10AP-1195
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{¶ 33} Although defendant asserts the element of serious provocation was
present in this case, the facts do not indicate that Laurie started the physical altercation
by striking defendant with the stapler. See State v. Kehoe, 133 Ohio App.3d 591, 610-11
(12th Dist.1999), citing Shane at 637 (noting that, because the provocation discussed in
R.C. 2903.12 "must be occasioned by the victim," the evidence was insufficient to
establish serious provocation where the facts indicated that defendant instigated the
shoot-out with police, either by firing his weapon first or brandishing his weapon first).
Moreover, to the extent the record indicates that a verbal argument preceded the
physical argument between defendant and Laurie, "words alone generally do not
constitute reasonably sufficient provocation to incite the use of deadly force." State v.
Glass, 10th Dist. No. 04AP-140, 2004-Ohio-5843, ¶ 21, citing Shane. Finally, even if the
facts did indicate that Laurie started the physical altercation by striking defendant with
the stapler, it is questionable whether such conduct would constitute serious
provocation sufficient to incite defendant to severely beat Laurie for two hours.
Compare Deem at 211 (noting that "[t]he only evidence presented at trial of provocation
of appellee Deem by the victim was the historically stormy relationship between the two
and the alleged 'bumping' of Deem's car by the victim with her car," neither of which
"was reasonably sufficient, as a matter of law, to incite or arouse appellee into
repeatedly stabbing the victim, particularly given the time for reflection between the
'bumping' and the stabbing").
{¶ 34} Accordingly, because the record before us does not present facts to support
the serious provocation element of aggravated assault, defendant has not demonstrated
a reasonable probability of success on a claim of ineffective assistance of counsel based
on trial counsel's alleged failure to inform defendant about the inferior offense of
aggravated assault. Even if defendant's trial counsel had informed defendant about
aggravated assault, and defendant had gone to trial, there is no indication that the trial
court would have instructed the jury on aggravated assault. Moreover, because the
claim of ineffective assistance of counsel based on trial counsel's failure to communicate
the existence of an inferior offense to his client would necessarily require evidence from
outside the record, appellate counsel cannot be considered deficient for failing to raise a
meritless assignment of error. Lee at ¶ 3
No. 10AP-1195
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III. CONCLUSION
{¶ 35} Based on the foregoing, we find defendant has failed to establish a genuine
issue demonstrating that he was deprived of the effective assistance of counsel and that
he suffered prejudice as a result of appellate counsel's performance. Consequently, we
find defendant's proposed assignments of error to be without merit.
Because
defendant's arguments fail to establish a colorable claim of ineffective assistance of
counsel, we deny defendant's application for reopening.
Application for reopening denied.
BRYANT and TYACK, JJ., concur.
_________________
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