State v. Keeton

[Cite as State v. Keeton, 2011-Ohio-5812.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY

STATE OF OHIO :
: Appellate Case No. 2010-CA-24
Plaintiff-Appellee :
: Trial Court Case No. 09-CR-869B
v. :
:
JONATHAN KEETON : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........

OPINION

Rendered on the 10th day of November, 2011.

.........

ANDREW R. PICEK, Atty. Reg. #0082121, Clark County Prosecutor’s Office,
50 East Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio
45501
Attorney for Plaintiff-Appellee

DON BREZINE, Atty. Reg. #0018477, Brezine Law Offices, 188 West Hebble
Avenue, Fairborn, Ohio 45324
Attorney for Defendant-Appellant

.........
 2

HALL, J.

{¶ 1} Defendant-appellant Jonathan Keeton claims that defense counsel

provided him ineffective assistance by failing to move for severance from his

co-defendant, Keith Ramey, whose separate appeal we have already heard, see

State v. Ramey, Clark App. No. 2010 CA 19, 2011-Ohio-1288. Keeton also

claims that counsel’s assistance was ineffective because counsel failed to cross

examine witnesses adequately, failed to present a theory of defense, failed to

move timely for separation of witnesses, and failed to object timely to jury

instructions. We conclude that counsel did not provide Keeton ineffective

assistance. Not moving for severance did not constitute deficient performance,

and none of counsel’s alleged trial failures prejudiced Keeton.

I.

{¶ 2} On October 13, 2009, Keeton and Ramey were jointly indicted on

several felonies–two counts of aggravated robbery (deadly weapon and serious

physical harm), two counts of felonious assault (deadly weapon and serious

physical harm), and one count of breaking and entering. Attached to each of the

robbery and assault counts was a firearm specification. A couple months later, on

December 21, 2009, Keeton and Ramey were jointly indicted on one count of

having a weapon while under disability.
 3

{¶ 3} In our opinion deciding Ramey’s appeal, we set out the following

facts and procedural history:

{¶ 4} “{¶ 3} All of the charges against Ramey and Keeton stem from

incidents which occurred on October 6, 2009, wherein the defendants were

accused of breaking and entering into and stealing from ‘Nasty N8's’ tattoo parlor

located at 805 East Main Street in Springfield, Ohio. The owner of the tattoo

parlor reported that tattoo equipment, ink, a laptop computer, a printer, and cell

phones were missing after the break-in.

{¶ 5} “{¶ 4} Ramey and Keeton were also accused of beating and robbing

an individual named Howard Fannon. The robbery and assault of Fannon also

occurred on October 6, 2009, shortly after Ramey and Keeton were alleged to

have broken into the tattoo parlor. During the assault, Ramey allegedly shocked

Fannon multiple times with a taser while Keeton hit him over the head with the

butt of a handgun before they stole his watch and two gold necklaces. Fannon

immediately called 911 to report the robbery, and Ramey was arrested a short

time later at his home located at 106 N. Greenmount Avenue in Springfield,

Ohio. Keeton was arrested the next day on October 7, 2009, at his father’s house

also located in Springfield. During the course of their investigations, Springfield

police were able to recover almost all of the items alleged to have been stolen by

Ramey and Keeton.
 4

{¶ 6} “{¶ 5} At his arraignment on October 16, 2009, Ramey pled not

guilty to the charges in the indictment. Ramey’s bond was set at $50,000.00.

Ramey did not post bond and, therefore, remained incarcerated pending trial.

Keeton’s bail was also set at $50,000.00 by the trial court, but he posted that

amount on October 30, 2009, and was released from jail until the trial.

{¶ 7} “{¶ 6} * * * The case was [] reassigned to Judge Richard P. Carey of

the Clark County Court of Common Pleas, Probate Division, on November 10,

2009.

{¶ 8} “{¶ 7} On December 10, 2009, co-defendant Keeton filed a motion to

suppress physical evidence seized by police, as well as statements made by

Keeton after his arrest. As previously stated, the State filed a second indictment

on December 21, 2009, charging Ramey and Keeton with having a weapon while

under disability. On December 29, 2009, Keeton filed a supplemental motion to

suppress in which he argued that the photo lineups used by the police to identify

him were inherently suggestive. A hearing was held on Keeton’s motion to

suppress on January 5, 2010. On January 6, 2010, the trial court issued a decision

and entry overruling the motion to suppress in its entirety. The court also set a

date for Ramey and Keeton’s trial on February 1, 2010.

{¶ 9} “{¶ 8} On February 1, 2010, Ramey filed a motion to dismiss for

violation of his right to a speedy trial. After a brief hearing during which the
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court heard arguments from both parties, the court overruled Ramey’s motion.

The trial court also moved the trial date to February 2, 2010 * * *.”

{¶ 10} After a three-day jury trial, where each was represented by separate

counsel, Keeton and Ramey were found guilty of both aggravated robbery

charges, one charge of felonious assault (deadly weapon), and the charge of

having a weapon while under disability. They were found not guilty of the other

two charges. The trial court sentenced Keeton to 13 years in prison.

{¶ 11} Keeton and Ramey appealed. We already considered Ramey’s

appeal;1 now we consider Keeton’s.

II.

{¶ 12} Keeton’s sole assignment of error claims that defense counsel

rendered him ineffective assistance. To establish a claim for ineffective assistance

of counsel a defendant must show two things: (1) “that counsel’s performance

was deficient,” which requires the defendant to show that counsel made serious

errors; and (2) “that the deficient performance prejudiced the defense,” which

“requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.”Strickland v. Washington

1
We reversed and vacated Ramey’s weapons-under-disability conviction on speedy-trial grounds. In all other respects, we affirmed
his conviction.
 6

(1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.

{¶ 13} The standard used to determine whether counsel’s performance was

deficient is that of “reasonably effective assistance.” Id. at 687-688. “[T]he

defendant must show that counsel’s representation fell below an objective

standard of reasonableness.” Id. The defendant specifically “must identify the

acts or omissions of counsel that are alleged not to have been the result of

reasonable professional judgment.” Id. at 690. “[A] court deciding an []

ineffectiveness claim must judge the reasonableness of counsel’s challenged

conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct. * * * The court must then determine whether, in light of all the

circumstances, the identified acts or omissions were outside the wide range of

professionally competent assistance. In making that determination, * * * the court

should recognize that counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Id.

{¶ 14} Yet “[e]ven if a defendant shows that particular errors of counsel

were unreasonable * * *, the defendant must show that they actually had an

adverse effect on the defense.” Id. at 693. Showing merely that the errors “had

some conceivable effect on the outcome” or “impaired the presentation of the

defense” is not enough. Id. Rather, the defendant must show that there is a
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reasonable probability–“a probability sufficient to undermine confidence in the

outcome”–that, but for the errors, the outcome would have been different. Id. at

694. When it is his conviction that the defendant challenges, the reviewing court

must determine “whether there is a reasonable probability that, absent the errors,

the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695.

Absent evidentiary challenges, the court “presume[s] * * * that the judge or jury

acted according to law.” Id. at 694. The court considers all the evidence

presented and “ask[s] if the defendant has met the burden of showing that the

decision reached would reasonably likely have been different absent the errors.”

Id. at 695-696.

{¶ 15} The reviewing court “need not [always] determine whether counsel’s

performance was deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies.” Id. at 697; State v. Loza (1994),

71 Ohio St.3d 61, 83 (citing Strickland). The court may dispose of an

ineffectiveness claim solely based on the defendant’s failure to show sufficient

prejudice. Id.; Loza, at 83. A defendant fails to show prejudice when strong

evidence of guilt was presented and counsel’s alleged errors did not change the

trial’s result. See State v. White, 82 Ohio St.3d 16, 24, 1998-Ohio-363.

{¶ 16} Keeton points to several alleged failures by counsel that he argues

constitute deficient performance that deprived him of a fair trial. We consider
 8

counsel’s alleged failure to move for severance first, then counsel’s alleged trial

failures.

{¶ 17} Not moving to sever defendants

{¶ 18} The issue here is whether counsel made a “serious error” by not

moving to sever Keeton from Ramey, that is, whether it was objectively

unreasonable for counsel not to do so.

{¶ 19} Keeton and Ramey were jointly indicted, see Crim.R. 8(B), and

jointly indicted defendants are tried together unless the trial court severs them.

See R.C. 2945.13. The court must sever them if joinder is prejudical. See Crim.R.

14. Concerning joinder of defendants under the federal joinder rule,

Fed.R.Crim.P 14, the U.S. Supreme Court has said that properly joined

defendants should be severed “only if there is a serious risk that a joint trial

would compromise a specific trial right of one of the defendants, or prevent the

jury from making a reliable judgment about guilt or innocence.” Zafiro v. U.S.

(1993), 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317. Keeton fails to

convince us that joinder prejudiced him in any of the three ways he cites.

{¶ 20} Keeton first says that joinder shortened the time that counsel had to

prepare for trial. Keeton posted bond; Ramey did not. Consequently, under the

speedy-trial statute, the state had 270 days after arrest to bring Keeton to trial but

had to bring Ramey to trial within 90 days. See R.C. 2945.71(C)(2). Ramey and
 9

Keeton were arrested within a day of each other. The trial actually began almost

four months after their arrest. (This still complied with the speedy-trial statute

because certain events tolled the 90-day time period for all but Ramey’s weapons

charge. See R.C. 2945.72.)

{¶ 21} Keeton cites no authority supporting the proposition that four

months’ preparation time is inherently prejudicial, and none of the things he cites

suggests that counsel was unprepared. Rather, the record suggests just the

opposite. On the eve of trial, during a conference with the trial judge, an attorney

from counsel’s office asked for a continuance due to the shortage of attorneys in

the firm’s office. (A case that the small firm expected to settle that week did not

settle.) The defense attorney never suggested that counsel was unprepared. On

the contrary, when the judge queried the attending attorney whether anyone in

counsel’s office was prepared to go forward with the trial, the attorney indicated

that attorney Matt Barbato was prepared for trial. (Status Conf. Tr. 2-3).

{¶ 22} Keeton next says that joinder prejudiced him because he had to be

tried before a probate-court judge. Keeton alleges that, because of the judge’s

lack of criminal-trial experience, when counsel failed to move for separation of

witnesses the judge failed to separate the witnesses sua sponte, and failed to

timely instruct the jury about a defendant’s right not to testify. Hindsight cannot

be the sole grounds for an ineffective assistance claim. Furthermore, nothing in
 10

the record supports the defendant’s argument of the trial court’s inability or

inadequacy.

{¶ 23} Finally, Keeton says that being tried with a black co-defendant

prejudiced him. Keeton asserts in his brief that “[b]eing a Black Defendant in

Clark County, Ohio almost definitely means you will be convicted; thus, it stands

to reason that a White guy who is tried with a Black guy will also be convicted

where it is depicted in the courtroom that the two are friends. Therefore, the

White Defendant’s only chance for a fair trial is to separate himself from the

Black co-defendant.”

{¶ 24} The state points out that the above assertion is demonstratively

untrue: the jury found Ramey not guilty of two charges. Moreover there is simply

no evidence in the record or elsewhere to support the defendant’s argument.

{¶ 25} We note too that Ramey, in his appeal, also claimed ineffective

assistance of (separate) counsel based on his counsel’s not moving to sever him

from Keeton, albeit for a different reason.2 Rejecting the claim, we concluded

that Ramey failed to show that counsel’s moving for severance would have

changed the trial’s outcome. “The charges in both indictments involved Ramey

and Keeton acting in concert with each other,” we said. “There is nothing in the

2
Ramey argued that he was prejudiced by the joinder because Keeton’s motion to suppress extended the time that the state had to
bring him to trial.
 11

record which establishes that joinder of the defendants’ case was prejudicial to

either Ramey or Keeton.” Ramey, at ¶61.

{¶ 26} We see nothing objectively unreasonable about counsel not moving

to sever Keeton from Ramey. Counsel’s performance in this respect was not

deficient, so Keeton’s ineffectiveness claim based on this conduct must fail.

{¶ 27} B. Conduct during trial

{¶ 28} Here we consider primarily whether the trial conduct that Keeton

cites prejudiced him.

{¶ 29} Keeton says that counsel ineffectively cross examined certain

witnesses by failing to pursue logical inconsistencies and questions of

truthfulness raised by their testimony. But “decisions regarding

cross-examination are within trial counsel’s discretion and cannot form the basis

for a claim of ineffective assistance of counsel.”State v. Nevins, Montgomery

App. No. 24070, 2011-Ohio-389, at ¶53 (defendant asserted that he was afforded

ineffective assistance when his counsel failed to cross-examine a witness about a

factual discrepancy between his testimony at the suppression hearing and his

testimony at trial); see State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, at

¶54 (“The extent and scope of cross-examination clearly fall within the ambit of

trial strategy, and debatable trial tactics do not constitute lack of effective

assistance of counsel.”) (Citation omitted.). Moreover, Keeton fails to show that
 12

effective cross examination would have changed the jury’s verdict. Keeton also

points to counsel’s failure to timely object to jury instructions that did not include

an instruction about his right not to testify in his own defense. But the jury did

receive this instruction before it began deliberating. After counsel belatedly

brought the issue to the court’s attention, the court immediately instructed the

jury. Since no evidence suggests that the jury did not follow this instruction, we

presume that it did. And Keeton fails to show that, had the instruction been given

earlier, the jury would have found him not guilty. See State v. Payton (1997), 124

Ohio App.3d 552, 561 (concluding the same where the defendant argued that

counsel was ineffective for failing to request a jury instruction that the exercise of

his Fifth Amendment privilege against self-incrimination must not be construed

against him). Finally, Keeton says that counsel did not present a theory of the

case and points to counsel’s failure to timely move for separation of witnesses.

Keeton fails to show that the jury likely would have found him not guilty had

counsel’s conduct in these two respects been different.

{¶ 30} Most of Keeton’s assertions regarding counsel’s trial conduct are

broad and conclusory. Such assertions are insufficient to establish ineffective

assistance of counsel. State v. Jackson (1980), 64 Ohio St.2d 107, 111.

Ultimately, none of the cited conduct amounts to prejudicial error because the

key evidence of Keeton’s guilt was indisputable. We cited it in our opinion
 13

deciding Ramey’s appeal. Ramey challenged the sufficiency and manifest weight

of the evidence supporting his convictions–which are the same as Keeton’s

convictions and based on much of the same evidence. Rejecting Ramey’s

evidentiary challenges, we cited the testimony of two eyewitnesses, whose

testimony also implicated Keeton:

{¶ 31} “{¶ 70} After a thorough review of the record, we find that the State

adduced sufficient evidence at trial to support Ramey’s convictions for

aggravated robbery and felonious assault. Daniel Miller and Amber Miller

testified that they observed Ramey, along with Keeton, chase Fannon down. They

also testified that Ramey was in possession of a taser, and Keeton had a handgun.

Once Ramey caught up with Fannon, he stunned him repeatedly with a taser, and

robbed him of his jewelry. Daniel Miller testified that during the assault he also

observed Keeton strike Fannon with the butt of the handgun. * * * [T]here was

sufficient evidence to find Ramey guilty of aggravated robbery with the firearm

specification and felonious assault.

{¶ 32} “{¶ 71} Lastly, Ramey’s conviction is also not against the manifest

weight of the evidence. The credibility of the witnesses and the weight to be

given their testimony are matters for the jury to resolve. Ramey testified on his

own behalf, and he simply maintained that he approached Fannon on the street to

ask him about food stamps he had allegedly stolen from Ramey. Ramey testified
 14

that Fannon pulled out a knife and attacked him and Keeton. Ramey testified that

he was simply defending himself from Fannon. The jury did not lose its way

simply because it chose to believe the State’s witnesses, namely Daniel Miller

and Amber Miller, that Ramey and Keeton were the aggressors. Having reviewed

the entire record, we cannot clearly find that the evidence weighs heavily against

a conviction, or that a manifest miscarriage of justice has occurred.” (Emphasis

added.).

{¶ 33} Given the evidence, we conclude that, absent any of counsel’s trial

conduct cited by Keeton, there is no reasonable probability that the outcome of

the trial would have differed. See State v. Reynolds, 148 Ohio App.3d 578,

2002-Ohio-3811, at ¶73 (concluding that defendant failed to show any prejudice

resulting from counsel’s decision not to move for an acquittal based on the

court’s earlier review of the defendant’s challenges to the sufficiency and weight

of the evidence where it found that “the evidence presented by the state was more

than sufficient to sustain [the defendant’s] conviction”). Because Keeton fails to

show that any of counsel’s trial conduct prejudiced him, his ineffectiveness claim

based on the conduct must fail. Keeton fails to establish his claim that counsel

rendered him ineffective assistance. Therefore his sole assignment of error is

overruled.

{¶ 34} The judgment of the trial court is affirmed.
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DONOVAN and FROELICH, JJ., concur.

Copies mailed to:

Andrew R. Picek
Don Brezine
Hon. Richard P. Carey