[Cite as State v. Watson,
2025-Ohio-515.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2024-L-026
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
LANCE M. WATSON,
Trial Court No. 2023 CR 000388
Defendant-Appellant.
OPINION
Decided: February 18, 2025
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Eric M. Levy, 55 Public Square, Suite 1600, Cleveland, OH 44113 (For Defendant-Appellant).
EUGENE A. LUCCI, J.
{¶1} Appellant, Lance M. Watson, appeals the judgment of the Lake County
Court of Common Pleas, convicting him, after entering a plea of no contest, on one count
of Felonious Assault on a Peace Officer, a felony of the first degree; one count of
Obstructing Official Business, a felony of the fifth degree; and one count of Resisting
Arrest, a felony of the fourth degree. Watson takes issue with the trial court’s sentence,
the trial court’s denial of his motion to continue, as well as the court’s alleged failure to
advise him he was entitled to an independent expert sanity evaluation where he had
previously entered a plea of not guilty by reason of insanity (“NGRI”). We affirm the
judgments of the trial court.
{¶2} On March 7, 2023, Watson and his girlfriend were in a white SUV when
Watson’s girlfriend contacted the Mentor Police Department for help. Apparently, Watson
was engaging in erratic behavior and had prior mental hospitalizations. Once police
arrived, Watson was near the vehicle and was brandishing a hammer in one hand and a
crescent wrench in the other. Watson was facing the police cruiser, and when an officer
ordered him to drop the implements, he responded, “Just shoot me. I ain’t putting nothing
down.”
{¶3} Watson re-entered the vehicle, with his girlfriend in the driver’s seat, and he
was ordered “out of the car.” The woman exited the vehicle and Watson yelled, “Shut the
door.” An officer opened the driver’s side door and observed Watson with the hammer in
his left hand and a knife in his right hand. The officer then noticed a second knife which
Watson had apparently retrieved and brandished. Watson was ordered to, “Drop it,” but
responded, “Fuck you.” Watson lunged at the officer with both hands, weapons wielded,
and the officer deployed a Taser, striking Watson.
{¶4} A struggle ensued, and another officer assisted in Watson’s arrest. As
Watson was pulled from the vehicle, he dropped both knives. Watson did not cooperate
with officers during the arrest. The officers were ultimately able to control Watson and
place handcuffs on him. Watson stopped physically resisting and, when patted down,
officers found a sheath for one of the knives on his person. The officers recovered the
hammer, crescent wrench, and both knives.
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{¶5} On April 28, 2023, Watson was charged in a three-count indictment. Count
One alleged Felonious Assault on a Peace Officer, in violation of R.C. 2903.11(A)(2), a
felony of the second degree; Count Two, Obstructing Official Business, in violation of R.C.
2921.31(A), a felony of the fifth degree; and Count Three, Resisting Arrest, in violation of
R.C. 2921.33(C)(2), a felony of the fourth degree. Count One was later amended to reflect
the charge was a first-degree felony, not a second-degree felony.
{¶6} Watson entered pleas of “not guilty” and “NGRI.” Watson was deemed not
competent to stand trial and, on May 16, 2023, was ordered to Northcoast Behavioral
Healthcare for evaluation. On October 16, 2023, Watson was found restored to
competency.
{¶7} Later, on January 11, 2024, Watson moved for a continuance of the January
23, 2024 bench trial. In his motion, Watson, through counsel, pointed out that he had
refused two attempts for NGRI evaluations. Apparently, Watson was suspicious that the
evaluating therapists were “agents of the State and had ill intentions.” Accordingly,
counsel sought a continuance of the jury trial to obtain an evaluation for purpose of his
NGRI plea.1
{¶8} The trial court denied the motion for continuance, concluding it had provided
Watson with two separate opportunities to meet with two different experts to obtain an
evaluation. The court pointed out that Watson had refused the evaluation opportunities.
Watson subsequently withdrew his prior pleas of “not guilty” and “NGRI.” He then entered
1. This matter was submitted by way of Lake County’s electronic filing system. Watson’s brief sets forth
various additional factual allegations and statements which this court is unable to corroborate by reference
to the electronic docket. Although the State asserts it is not dissatisfied with Watson’s statement of the
case, we cannot confirm various statements in his discussion of the procedural posture or the factual
recitation. Thus, these points have been omitted from the instant opinion.
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pleas of “no contest” to all charges in the indictment. The court subsequently found him
guilty.
{¶9} Watson was sentenced on Count One to a mandatory, indefinite term of
imprisonment of a minimum of six years and a maximum of nine years. On Count Two,
he was sentenced to a concurrent, non-mandatory 11-month term of imprisonment;
finally, on Count Three, Watson was sentenced to a concurrent, mandatory 17-month
term of imprisonment. He now appeals and raises three assignments of error.
{¶10} His first assignment of error provides:
The trial court erred and entered a sentence contrary to law
when it did not consider a sentence of community control and
where it imposed a mandatory prison sentence on the
felonious assault of a peace officer conviction pursuant to
R.C. 2929.13(F)(6) prejudicing Watson where a non-prison
sanction was not considered and by denying him any future
opportunity to file for judicial release.
{¶11} This court reviews felony sentences pursuant to R.C. 2953.08(G)(2). That
subsection provides, in pertinent part:
The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings
underlying the sentence or modification given by the
sentencing court.
The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may
vacate the sentence and remand the matter to the sentencing
court for resentencing. The appellate court’s standard for
review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the
following:
...
(b) That the sentence is otherwise contrary to law.
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{¶12} Watson argues his mandatory sentence for Felonious Assault on a Peace
Officer is contrary to law pursuant to R.C. 2929.13 and R.C. 2903.11. In particular,
Watson claims that R.C. 2929.13(F)(6) only applies to offenses not set forth in R.C.
2929.13(F)(1) through (4) and that his conviction for Felonious Assault on a Peace Officer
is set forth in R.C. 2929.13(F)(4). In Watson’s view, the court was precluded from
imposing a mandatory sentence under R.C. 2929.13(F)(6) and was required to consider
community control. We do not agree.
{¶13} Watson was convicted of Felonious Assault on a Peace Officer, a felony of
the first degree, in violation of R.C. 2903.11(A)(2). R.C. 2929.13(D)(1) provides that when
sentencing for a first- or second-degree felony, “it is presumed that a prison sentence is
necessary in order to comply with the purposes and principles of sentencing.”
Nevertheless, R.C. 2929.13(D)(2) states that “[n]otwithstanding the presumption . . . the
sentencing court may impose a community control sanction,” but only if the sentencing
court finds that a community control sanction would (1) adequately punish the offender
and protect the public from future crime, and (2) not demean the seriousness of the
offense because the statutory less serious sentencing factors outweigh the more serious
factors. (Emphasis added).
{¶14} R.C. 2929.13(F), which relates to sentencing, also sets forth circumstances
in which the trial court shall impose a mandatory prison term. These circumstances
include convictions for certain types of offenses, such as murder and rape, R.C.
2929.13(F)(1) and (2), and situations in which the statute under which the conviction was
obtained requires the imposition of a mandatory term, such as the requirement of R.C.
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2903.11(D) that a mandatory term be imposed for a felonious assault on a peace officer
involving serious injury, R.C. 2929.13(F)(4). (Emphasis added.).
{¶15} Additionally, R.C. 2929.13(F)(6) provides for the imposition of a mandatory
prison term upon a conviction for a first or second degree felony that is not otherwise set
forth in R.C. 2929.13(F) if the offender previously was convicted of or pleaded guilty to
any first or second degree felony. Id., see also State v. Kinney,
2018-Ohio-404, ¶ 23 (1st
Dist.).
{¶16} The trial court imposed a mandatory sentence on Watson pursuant to R.C.
2929.13(F)(6) because he had previously been convicted of breaking and entering, a
second-degree felony.2
{¶17} Although Watson was convicted of and sentenced on one felony-one count
of Felonious Assault on a Peace Officer, it is undisputed the officer was not physically
injured. The only form of a Felonious-Assault-on-a-Peace-Officer charge that requires a
mandatory term is where the officer suffers serious physical harm. See R.C.
2903.11(D)(1)(b) (“If the victim of the offense is a peace officer or an investigator of the
bureau of criminal identification and investigation, and if the victim suffered serious
physical harm as a result of the commission of the offense, felonious assault is a felony
of the first degree, and the court, pursuant to division (F) of section 2929.13 of the Revised
2. Watson was convicted in Monongalia County, West Virginia, in 2005 of a felony-two breaking and
entering. He was sentenced to one to five years in prison on that conviction. R.C. 2929.13(F)(6), the
mandatory provision under which Watson was sentenced, states a term of imprisonment is mandatory if a
defendant was previously convicted of “any first or second degree felony, or an offense under an existing
or former law of this state, another state, or the United States that is or was substantially equivalent to one
of those offenses.” The West Virginia felony-two conviction is thus “substantially equivalent” to a qualifying
felony-one or felony-two offense in Ohio under subsection (F)(6).
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Code, shall impose as a mandatory prison term one of the definite prison terms prescribed
for a felony of the first degree . . . .”).
{¶18} In our view, the provision under R.C. 2903.11(D)(1)(b), which requires
serious physical harm to the officer, sets forth a specific circumstance where felony-one
Felonious Assault on a Peace Officer requires a mandatory term of imprisonment. This
provision, however, does not preclude the trial court imposing a mandatory prison term
under R.C. 2929.13(F)(6) because that subsection requires a mandatory sentence in an
additional circumstance (where a defendant has been previously convicted of a first- or
second-degree felony). Accordingly, R.C. 2929.13(F)(4) is not inconsistent with R.C.
2929.13(F)(6).
{¶19} Further, in State v. Clark, 2006-Ohio-6068, ¶ 8 (2d Dist.), the appellate court
drew the same decision, observing:
In our view, the legislature’s recognition in the felonious
assault statute of one circumstance in which a mandatory
sentence was appropriate—where a peace officer is seriously
injured, even on a first offense—and its recognition of
additional circumstances under the sentencing statute, such
as for repeat serious offenders[ or offenders who have
committed a prior first- or second-degree felony], does not
create a conflict.
Id., accord, State v. Paskins,
2022-Ohio-4024, ¶ 101-104 (5th Dist.)
{¶20} Accordingly, Watson’s sentence is mandatory under R.C. 2929.13(F)(6)
because he was previously convicted and sentenced for an unrelated second-degree
felony. Thus, under that subsection, the trial court was required to sentence Watson to a
mandatory prison term. In this respect, Watson’s argument lacks merit.
{¶21} Next, Watson argues that the trial court was not authorized to impose a
mandatory sentence upon him under R.C. 2929.13(F) because the indictment failed to
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include any notice of a prior conviction. Watson maintains that, pursuant to the United
States Supreme Court’s holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely
v. Washington,
542 U.S. 296 (2004), and Ring v. Arizona,
536 U.S. 584 (2002), the Sixth
Amendment requires a factor that increases an authorized sentence to be included in an
indictment and submitted to a trier of fact for a determination, beyond a reasonable doubt,
that the State met its burden. Again, we do not agree.
{¶22} In Apprendi, the United States Supreme Court held that, “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (Emphasis added.) Apprendi at 490. Even after Blakely, the court
reiterated its position on prior prison terms as outside the realm of the now-
unconstitutional judicial fact-finding. United States v. Booker,
543 U.S. 220 (2005).
“Accordingly, we reaffirm our holding in Apprendi: Any fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty a jury verdict must be admitted by the defendant or proved
to a jury beyond a reasonable doubt.” (Emphasis added.)
Id. at 244.
{¶23} In Ring, the United States Supreme Court repeated its holding that “[i]f a
State makes an increase in a defendant’s authorized punishment contingent on the
finding of a fact, that fact—no matter how the State labels it—must be found by a jury
beyond a reasonable doubt.” Id. at 602, citing Apprendi at 482-483. Nevertheless, the
Court in Ring did not comment on, let alone overrule, Apprendi and its progeny as they
relate to the fact of a prior conviction.
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{¶24} Indeed, in a salient footnote, the Court in Ring, 536 U.S. at 597, fn. 4,
specifically emphasized that:
Ring’s claim is tightly delineated: He contends only that the
Sixth Amendment required jury findings on the aggravating
circumstances asserted against him. No aggravating
circumstance related to past convictions in his case; Ring
therefore does not challenge Almendarez-Torres v. United
States, 523 U.S. 224, . . . (1998), which held that the fact of a
prior conviction may be found by the judge even if it increases
the statutory maximum sentence.
{¶25} Accordingly, we fail to discern how, as Watson contends, Ring overruled
the Ohio Supreme Court’s holding in State v. Allen, 29 Ohio St.3d 53 (1987), where the
Court determined:
Where the existence of a prior conviction enhances the
penalty for a subsequent offense, but does not elevate the
degree thereof, the prior conviction is not an essential element
of the subsequent offense, and need not be alleged in the
indictment or proved as a matter of fact.
Id. at syllabus. See also State v. Brooke,
2007-Ohio-1533, ¶ 8 (if a prior conviction
transforms the offense by increasing its degree, then it is an essential element required
to be proven by the State; however, if the prior conviction simply enhances the penalty, it
is not).
{¶26} Indeed, in Ring, the court simply determined that fact-finding is
unconstitutional where the trial court can impose death only upon finding of aggravating
circumstances, such findings are the “functional equivalent” of an element of a greater
offense. Id. at 609.
{¶27} In this matter, as discussed above, R.C. 2929.13(F)(1), (2), (3), and (4) did
not apply to Watson. R.C. 2929.13(F)(6) did apply because Watson had previously been
convicted of felony-two breaking and entering. Appellant, accordingly, received a
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mandatory prison term under subsection (F)(6). Because Watson’s prior felony-two
conviction only enhanced the penalty, and not the degree of the charge, the prior
conviction was not an essential element of the offense and was not required to be alleged
in the indictment. See State v. Spaulding, 2017-Ohio-7993, ¶ 35-40 (6th Dist.). Watson’s
contentions to the contrary lack merit.
{¶28} Finally, under his first assignment of error, Watson asserts he was
prejudiced by the trial court sentencing him under the mistaken belief a prison term was
mandatory which caused it not to consider community control sanctions.
{¶29} Pursuant to the foregoing analysis, we conclude Watson’s prison term,
pursuant to the charges to which he pleaded guilty, required a mandatory prison term.
Moreover, Watson’s previous second-degree felony conviction was not an element of the
crime at issue and was not required to be charged in the indictment. With these points in
mind, Watson’s third contention lacks merit. The trial court properly considered all
requisite statutory factors, including those listed in R.C. 2929.11 and R.C. 2929.12, and
did not err in imposing the underlying sentence.
{¶30} Watson’s first assignment of error lacks merit.
{¶31} Watson’s second assigned error provides:
{¶32} “The trial court erred when it failed to advise appellant that he was entitled
to an independent expert sanity evaluation and when it denied a motion to continue trial
so a sanity evaluation could be conducted where appellant had previously entered a plea
of not guilty by reason of insanity.”
{¶33} Under this assignment of error, Watson first argues the trial court abused
its discretion in denying his motion for a continuance. We do not agree.
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{¶34} In its judgment, the trial court determined:
[T]he Defendant was deemed competent to stand trial, the
Court provided the Defendant with two separate opportunities
to meet with two different doctors for purposes of obtaining an
evaluation to assess his mental state at the time of the alleged
offenses. On each occasion, the Defendant refused to meet
with the doctor. This Court is not going to continue to prolong
this case because of the Defendant’s continual refusal to
cooperate.
{¶35} The court accordingly denied Watson’s motion for continuance.
{¶36} A trial court abuses its discretion when its judgment is neither within the
bounds of reason nor consistent with the record before the reviewing court. See, e.g.,
State v. Underwood, 2009-Ohio-2089, ¶ 30 (11th Dist.).
{¶37} “In evaluating a motion for a continuance, ‘[s]everal factors can be
considered: the length of the delay requested, prior continuances, inconvenience, the
reasons for the delay, whether the defendant contributed to the delay, and other relevant
factors.’” State v. Jordan, 2004-Ohio-783, ¶ 45, quoting State v. Landrum,
53 Ohio St.3d
107, 115 (1990).
{¶38} Regarding the above factors, Watson did not specify the length of delay he
was seeking to obtain a potential evaluation in his motion. Although it does not appear
any prior continuance was sought, Watson’s reason for the continuance was to seek a
third opportunity to be examined. As the trial court underscored, it had previously
provided Watson with two opportunities to meet with two separate doctors; each time,
however, Watson refused.
{¶39} Watson cites to State v. Weeks, 1983 WL 2588 (2d Dist. Dec. 14, 1983) for
the proposition that an assurance of cooperation by a defendant can be sufficient for
granting a continuance. While this point may be accurate, and Watson reassured the
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court (via defense counsel) that he would cooperate with any subsequent evaluation, the
trial court was not bound by Watson’s (or counsel’s) alleged assurances. Watson’s
previous (and recent) history of non-cooperation was entitled to some weight and the trial
court was entitled to conclude Watson’s refusals outweighed his purported assurances of
cooperation.
{¶40} In addition, the doctrine of “invited-error” is applicable. We recognize
Watson harbored suspicions of court-appointed expert evaluators; for whatever reason,
he claimed or at the time, believed, the evaluators had bad intentions or were government
operatives that did not have his interests in mind. This, however, does not change the
undisputed facts that Watson, without obvious basis, refused to be evaluated.
“‘The invited error doctrine precludes a litigant from taking advantage of an error that he
himself invited or induced.’” Cronin v. Cronin, 2012-Ohio-5592, ¶ 34 (11th Dist.), quoting
Perko v. Perko,
2003-Ohio-1877, ¶ 23 (11th Dist.). A party who induces error in the trial
court cannot take advantage of such error on appeal. State v. Williams,
2007-Ohio-2699,
¶ 27 (12th Dist.). Here, the trial court ordered Watson’s sanity evaluation, requesting two
separate experts to conduct the same. Watson refused each expert’s attempt.
Consequently, Watson’s actions prevented the evaluation from being completed.
{¶41} The trial court found the self-induced refusals problematic and inconvenient.
As a result, the trial court denied the motion. Given the facts of this case and the trial
court’s justification for denial, we discern no abuse of discretion.
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{¶42} Next, Watson complains the trial court erred in failing to obtain a sanity
evaluation and by not notifying Watson he could obtain an independent sanity evaluation
due to his former plea of NGRI.3
{¶43} R.C. 2945.371(A) provides:
If the issue of a defendant’s competence to stand trial is raised
or if a defendant enters a plea of not guilty by reason of
insanity, the court may order one or more evaluations of the
defendant’s present mental condition or, in the case of a plea
of not guilty by reason of insanity, of the defendant’s mental
condition at the time of the offense charged. An examiner shall
conduct the evaluation and the evaluation may be conducted
through electronic means.
{¶44} The court ordered a competency evaluation, and, after Watson was deemed
competent to stand trial, the trial court referred Watson for a sanity evaluation on two
separate occasions. The trial court therefore met its statutory obligations.
{¶45} Watson further asserts that, under R.C. 2945.371(B), the trial court was
required to advise him he could have an independent expert evaluation. The trial court,
however, was not required to do so in this case. R.C. 2945.371(B) provides:
If the court orders more than one evaluation under division (A)
of this section, the prosecutor and the defendant may
recommend to the court an examiner whom each prefers to
perform one of the evaluations. If a defendant enters a plea of
not guilty by reason of insanity and if the court does not
designate an examiner recommended by the defendant, the
court shall inform the defendant that the defendant may have
independent expert evaluation and that, if the defendant is
unable to obtain independent expert evaluation, it will be
obtained for the defendant at public expense if the defendant
is indigent.
3. We are aware that, generally, a guilty plea forfeits all appealable errors that might have occurred at trial
unless the errors precluded him or her from entering a knowing and voluntary plea. State v. Kelley, 57 Ohio
St.3d 127 (1991), paragraph two of the syllabus. Crim.R. 12(I), which states that “[t]he plea of no
contest does not preclude a defendant from asserting upon appeal that the trial court prejudicially erred in
ruling on a pretrial motion . . . .”
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{¶46} The requirement that a defendant be advised that he or she can obtain an
independent expert relates to situations when more than one evaluation is ordered, the
defendant recommends an examiner after an NGRI plea, and the court does not
designate an examiner recommended by the defendant. Here, the trial court did not err
because, even though two examiners were appointed, each time Watson refused.
Moreover, the record does not indicate Watson recommended an examiner that the court
rejected. R.C. 2945.371(B) is therefore inapplicable.
{¶47} Watson’s second assignment of error lacks merit.
{¶48} Watson’s final assignment of error provides:
{¶49} “Appellant was denied effective assistance of trial counsel in violation of his
right pursuant to the Sixth Amendment to the United States Constitution where counsel
advised appellant to withdraw his plea of not guilty by reason of insanity prior to entering
a plea of no contest.”
{¶50} To prevail on a claim of ineffective assistance of counsel, an appellant must
satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984); see
also State v. Ziefle,
2007-Ohio-5621, ¶ 20 (11th Dist.). As such, appellant must show that
counsel’s performance was deficient and must additionally show prejudice resulting from
the deficient performance. State v. Jackson,
2004-Ohio-2442, ¶ 9 (11th Dist.).
{¶51} Watson contends he received ineffective assistance of counsel because
defense counsel advised him to withdraw his plea of NGRI and enter a plea of “no
contest.” Watson contends that counsel’s advice to withdraw the NGRI plea without a
sanity evaluation pertaining to his mental state at the time of the offense was ineffective
assistance because such an evaluation “would have likely resulted in [Watson] being
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found not sane and an acquittal pursuant to a finding of [NGRI] would have resulted.”
Watson, Appellate Brief, p. 31.
{¶52} Watson sets forth the facts surrounding his arrest and the various
procedural features of the underlying case which eventuated in his plea of no contest.
The thrust of Watson’s argument, however, is based upon his apparent position that
counsel should have more strenuously urged the trial court to grant his motion for
continuance because, had an evaluation been completed, “it is highly likely [Watson]
would have been found [NGRI].” Watson, Appellate Brief, p. 32. There are various flaws
in Watson’s position.
{¶53} First, this court previously noted that Watson neither waived nor forfeited
his argument that the trial court erred in denying his motion to continue because his plea
of “no contest” preserved the argument under Crim.R. 12(l). Still, we maintain that the trial
court’s denial of the motion was within its sound discretion and its justification was not an
abuse of the same.
{¶54} Next, Watson’s argument is fundamentally premised upon counsel’s acts or
omissions; it nevertheless ignores that, regardless of his unfounded suspicions regarding
the nefarious intentions of the previous two professionals with whom Watson refused to
meet, his acts or omissions formed the basis of the request for a continuance. Once the
continuance was denied based upon Watson’s acts or omissions, it is unclear how
counsel’s performance was deficient or how it caused Watson prejudice. We cannot
speculate on findings that did not occur; and, there is no basis to conclude that a finder
of fact would have accepted any such speculative findings.
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{¶55} Finally, even if counsel offered Watson reasonably “questionable” advice,
we cannot deem counsel’s performance deficient for two reasons: (1) The decision was
an arguable matter of strategy, and (2) any substantive communications relating to
counsel’s advisements are privileged and currently dehors the record.
{¶56} It has been consistently held that defense counsel’s advisement whether to
enter a plea is a matter of strategy, which is not second-guessed by the courts. State v.
Caskey, 2010-Ohio-4697, ¶ 31 (11th Dist.) (“The decision to advise a criminal defendant
to enter a guilty plea is a strategic decision.”); State v. Davis,
2018-Ohio-2984, ¶ 31 (6th
Dist.), quoting State v. Moctezuma,
2005-Ohio-5569, ¶ 24 (6th Dist.). (“The decision to
accept a plea agreement is undeniably strategic.”) Even though the instant matter was
resolved by way of a plea of “no contest,” we maintain any advice to enter the plea was
reasonably strategic and afforded Watson an opportunity to challenge the pretrial motion
on appeal. Hence, in this regard, we cannot find counsel’s performance deficient because
it falls within the gamut of strategy and, in this case, afforded Watson the benefit of
challenging the ruling on the pretrial motion in this court.
{¶57} Further, we are not privy to the specific actual basis (let alone the full
rationale) for Watson entering the plea of “no contest.” This is because any
communications between Watson and trial counsel are not part of the record. In this
respect, the proper vehicle for challenging counsel’s advisements which are dehors the
record is a petition for post-conviction relief. “‘A claim is not barred by the operation of
res judicata to the extent a petitioner sets forth competent, relevant, and material
evidence dehors the record.’” State v. Vinson, 2008-Ohio-3059, ¶ 32 (11th Dist.),
quoting State v. Delmonico,
2005-Ohio-2882, ¶ 14 (11th Dist.) (citation omitted).
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{¶58} Under the circumstances, we cannot find that counsel’s performance was
deficient. Without deficient performance, we need not assess the prejudice prong of
Strickland.
{¶59} Watson’s third assignment of error lacks merit.
{¶60} For the reasons discussed in this opinion, the judgment of the Lake County
Court of Common Pleas is affirmed.
ROBERT J. PATTON, P.J.,
JOHN J. EKLUND, J.,
concur.
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