State v. Thompson

[Cite as State v. Thompson, 

.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                Plaintiff-Appellee,              :
                                                          No. 113671
                                                 :
                v.
                                                 :
TORRY THOMPSON,
                                                 :
                Defendant-Appellant.


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: December 19, 2024


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-22-668512-A


                                           Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Mason P. McCarthy, Assistant Prosecuting
                Attorney, for appellee.

                Mary Elaine Hall, for appellant.


EMANUELLA D. GROVES, J.:

               Defendant-appellant, Torry Thompson (“Thompson”), entered a

negotiated plea and was sentenced to eight years in prison on a felonious-assault

count and 12-months on having weapons while under disability (“HWUD”) count,
which were to be served consecutively. The trial court also imposed a prior and

consecutive one-year mandatory prison sentence for a firearm specification

associated with the felonious assault base charge for a total stated definite prison

term of ten years. Thompson now appeals and requests a new trial or modification

of his consecutive sentences. For the reasons that follow, we affirm.

Procedural History and Facts

            On May 9, 2022, Thompson was indicted on two counts of felonious

assault, a felony of the second degree, in violation of R.C. 2903.11(A)(1) and (A)(2),

respectively. These counts contained one-year, 18-month, three-year, and 54-

month firearm specifications as well as notices of prior conviction and repeat violent

offender specifications. Additionally, Thompson was indicted on one count of

having weapons while under disability, a felony of the third degree, in violation of

R.C. 2923.13(A)(2). This count carried with it one-year and 18-month firearm

specifications. On January 17, 2024, Thompson pleaded guilty to one count of

felonious assault, a felony of the second degree, in violation of R.C. 2903.11(A)(1),

with a one-year firearm specification pursuant to 2941.141(A); and one count of

having weapons while under disability. The parties agreed to a sentencing range of

five to ten years. The trial court sentenced Thompson to ten years, which included

two, one-year consecutive sentences. The trial court made no mention of the Reagan

Tokes tail and did not impose an indefinite sentence.

            On February 27, 2024, Thompson appealed and raised the following

assignments of error.
      Assignment of Error No. 1

      [Defense counsel] rendered ineffective assistance of counsel to
      [Thompson], in violation of the Sixth Amendment, the due process
      clause of the Fourteenth Amendment to the U.S. Constitution and in
      violation Article I Section 10 and the due course of law clause of Article
      I Section 16 to the Ohio Constitution, when [they] failed to provide
      expert testimony and a report on Firearms and Toolmark Testimony.

      Assignment of Error No. 2

      [Defense counsel] rendered ineffective assistance of counsel to
      [Thompson], in violation of the Sixth and Fourteenth Amendments to
      the U.S. Constitution, and in violation of Article I Section 10 to the Ohio
      Constitution, when [they] failed to withdraw from the negotiated plea
      agreement pursuant to Crim.R. 32.1, before the trial court sentenced
      [Thompson] and when they failed to inform him that he was being
      sentenced for [felonious assault, a second-degree felony,] and another
      felony, HWUD, under the Reagan Tokes Law [pursuant to] R.C.
      2929.14(A)(2)(a) and 2929.144, which rendered [Thompson]’s guilty
      pleas “unintelligent, unknowing[,] and involuntary.”

      Assignment of Error No. 3

      The trial court below committed plain error when [it] failed to inform
      [Thompson] of the R.C. 2929.19(B)(2)(c) notifications, that he was
      being sentenced for [felonious assault, a second-degree felony,] and
      HWUD, another felony, under the Reagan Tokes Law [pursuant to]
      R.C. 2929.14(A)(2)(a) and 2929.144 at the sentencing hearing before
      [it] accepted his guilty pleas, and in the journal entry dated [January
      30, 2024], which rendered [Thompson’s] guilty pleas “unintelligent,
      unknowing[,] and involuntary.”

Law and Analysis

             For ease of discussion, we will address both allegations of ineffective

assistance of counsel jointly.    Thompson argues that he was deprived of his

constitutional right to effective assistance of counsel. Thompson contends that his

defense counsel was deficient for failing to (1) secure an expert witness, (2) withdraw
from the negotiated plea agreement, and (3) object or clarify the record during the

sentencing hearing.

             “To establish a claim of ineffective assistance of counsel, [Thompson]

must demonstrate that (1) his counsel was deficient in some aspect of his

representation and (2) there is a reasonable probability that, were it not for counsel’s

errors, the result of the trial would have been different.” In re S.A., 2019-Ohio-

4782,   ¶ 46, citing Strickland v. Washington, 

(1984). Thus, ‘“the failure to make a showing of either deficient performance or

prejudice defeats a claim of ineffective assistance of counsel.’” 

 quoting State v.

Davenport, 

 (8th Dist.), citing 

.

             Courts considering whether an attorney’s performance fell below an

objective standard of reasonableness “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional

assistance.” 

. A defendant establishes prejudice by showing that

“there exists a reasonable probability that, but for counsel’s error, the result of the

proceeding would have been different.” State v. Davis, 

.

             Trial counsel’s questionable trial strategies do not establish ineffective

assistance of counsel. State v. Butts, 

 (8th Dist.), quoting State

v. Snyder, 

, ¶ 32 (5th Dist.), quoting State v. Hoffner, 2004-Ohio-

3430, ¶ 45. “Trial counsel’s failure to request an expert is a ‘debatable trial tactic,’

and does not amount to ineffective assistance of counsel.” 

 quoting State v.

Synder, 

. Moreover, ‘“[t]he failure to do a futile act cannot be the
basis for a claim of ineffective assistance of counsel, nor could such a failure be

prejudicial.’” State v. Nelson, 

, quoting State v. Knox, 2013-

Ohio-1662, ¶ 20 (8th Dist.), citing State v. Ford, 

 (8th Dist.).

             Here, Thompson alleges that he received ineffective assistance of

counsel because his attorney failed to provide expert testimony, although defense

counsel did file a motion in limine to exclude the State’s expert witness and report

on firearms and toolmark testimony. Thompson avers that there was a reasonable

probability that an expert would have aided in his defense. However, Thompson did

not proceed to trial; rather, he entered a negotiated plea. Thompson fails to

demonstrate how a defense expert would have changed this outcome.

             Thompson also alleges he received ineffective assistance of counsel

because his attorney failed to withdraw his plea, object, or clarify the record when

the trial court did not advise Thompson that he was being sentenced under a

qualifying felony subject to the Reagan Tokes Law. Notably, the trial court did not

impose an indefinite sentence by including a Reagan Tokes tail. Thus, Thompson

again fails to demonstrate how defense counsel’s conduct was deficient and how the

outcome would have been different.

              Having failed to demonstrate the requirements to prevail in an

ineffective-assistance-of-counsel claim, Thompson’s first and second assignments

of error are overruled.

             In Thompson’s third assignment of error, Thompson alleges that the

trial court committed plain error when it failed to provide Reagan Tokes Law
advisements during the sentencing hearing. Thompson claims that this plain error

affected his substantial rights.

              The party asserting plain error under Crim.R. 52(B) must show that

(1) an error occurred, (2) the error was plain, and (3) the error affected his

substantial rights. State v. Bond, 

, citing State v. Wilks, 2018-

Ohio-1562, ¶ 52, and Crim.R. 52(B). The Ohio Supreme Court has interpreted the

third “prejudice” prong of the rule to mean that the trial court’s error must have

affected the outcome of the trial. 

 citing State v. Barnes, 

(2002). “[C]orrecting a plain error may be done only in ‘exceptional circumstances

to prevent a manifest miscarriage justice.’” Id. at ¶ 18, quoting State v. Long, 

 (1978), paragraph three of the syllabus.

              Here, Thompson fails to demonstrate that a substantial right was

affected when the trial court failed to provide Reagan Tokes advisements. Nor is

this an exceptional circumstance where correction is required to prevent a manifest

injustice; indeed, the trial court did not impose a Reagan Tokes tail to Thompson’s

sentence. Consequently, Thompson’s third assignment of error is overruled and his

conviction is affirmed.

              Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.          The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EMANUELLA D. GROVES, JUDGE

MICHELLE J. SHEEHAN, P.J., and
WILLIAM A. KLATT, J.,* CONCUR

(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of
Appeals.)