State v. Chaney

[Cite as State v. Chaney, 2023-Ohio-8.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. Earle E. Wise, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2021 CA 00139
STEVEN CHANEY :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 2021
CR 983

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 4, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE AARON KOVALCHIK
Stark County Prosecutor 116 Cleveland Ave. N.W., Ste 808
BY: LISA A. NEMES Canton, OH 44702
Assistant Prosecutor
110 Central Plaza South, Ste. 510
Canton, OH 44702
Stark County, Case No. 2021 CA 00139 2

Gwin, J.,

{¶1} Defendant-appellant Steven Ray Chaney [“Chaney”] appeals his

convictions and sentences after a jury trial in the Stark County Court of Common Pleas.

Facts and Procedural History

{¶2} On June 2, 2021, Chaney was indicted on the charges of: (1) Aggravated

Robbery, in violation of R.C. 2911.01(A)(1)(c) a felony of the first degree, with a three-

year firearm specification in violation of R.C. 2941.145(A); (2) Aggravated Burglary, in

violation of R.C. 2911.11(A)(2)(B); a felony of the first degree with a three-year firearm

specification in violation of R.C. 2941.145(A); (3) Grand Theft When the Property is a

Firearm or Dangerous Ordnance, in violation of R.C. 2913.02(A)(1)(A)(3)(B)(4); a felony

of the third degree; (4) Theft, a felony of the fifth degree in violation of R.C. 2913.02

(A)(1)(A)(3)(B)(2); (5) Attempted Grand Theft of a Motor Vehicle, a felony of the fifth

degree in violation of R.C. 2923.02/2913.02(A)(1)(B)(5); and (6) Attempted Grand Theft

of a Motor Vehicle, a felony of the fifth degree in violation of R.C.

2923.02/2913.02(A)(1)(B)(5).

{¶3} Chaney pled not guilty by reason of insanity and a Motion for Competency

Evaluation was filed on June 9, 2021. A Competency Hearing was held on September 8,

2021. Both parties stipulated to the Psycho-Diagnostic evaluation finding that Chaney

was Competent, and the Motion for Not Guilty by Reason of Insanity was Withdrawn on

September 8, 2021.

{¶4} A jury trial began on October 25, 2021.
Stark County, Case No. 2021 CA 00139 3

{¶5} Around 11:00 p.m. on May 2, 2021, Chad Garn arrived home. Garn parked

his motorcycle, a 2017 Harley-Davidson Street Glide, in the garage, closed the garage

door, and went inside the house to cook dinner. Garn turned on the television, ate his

dinner, and then fell asleep on the couch in his living room.

{¶6} At approximately 2:00 a.m., Garn was awakened by a man pointing a gun

at him and screaming, "Get up, go start your motorcycle." 2T. at 11.1 Garn noticed that

the intruder was wearing his black Harley-Davidson motorcycle jacket. The man stayed

behind Garn while forcing him outside at gunpoint. Although it was still dark outside, the

television was on in the living room, lights were on in both the kitchen and garage, and

there was a streetlight. Id. 13-14; 27-28. Although Garn had parked the motorcycle in

his garage the night before, he observed the motorcycle had been pushed down the

driveway and out to the road. Id. at 15-16. Chaney told Garn to start the motorcycle for

him so he could go. Id. at 15.

{¶7} When Garn was about halfway down the driveway, he realized he would

need the key fob to start the motorcycle due to the bike’s security system. 2T. at 15-16.

Garn testified that he turned around to return to the house to get the fob, when he heard

a click from the gun. Realizing that there were “[n]o bullets in the gun, [a] dry fire,” Garn

went after Chaney. Id. at 16. Chaney started to run. Garn pursued him; however, he

lost him. Garn then went home and called 9-1-1.

{¶8} After the police arrived, Garn checked his property for missing items. He

found that his credit cards, a Glock .45 caliber handgun, and a bag of change were

missing. Garn also testified that a pair of binoculars were missing. Garn testified that the

For clarity, the jury trial transcript will be referred to as, “__T.__,” signifying the volume and the
1

page number.
Stark County, Case No. 2021 CA 00139 4

Glock, change, and credit cards were initially on his kitchen table. The bag of change

was later found in Garn's motorcycle bag in his garage. Garn found a jacket and a

flashlight that did not belong to him in his garage. Garn testified that he never touched

these items.

{¶9} Upon inspecting his other vehicle, a Ford F-250 crew cab pickup truck, Garn

discovered a screwdriver had been driven into the ignition in an effort to start it. The

screwdriver destroyed the ignition, rendering the truck inoperable.

{¶10} Police received several phone calls, but one informant advised police that

the perpetrator of the crimes at Garn's home could be found asleep at a table in a house

on Eleanor Avenue. The caller was aware of the black Harley-Davidson jacket taken

during the incident. 2T. at 76. Officers went to the house on Eleanor and, with consent

to search, went inside. Id. at 78. Chaney's mother, father or step-father, and his brother

were present at the time. Id. at 87. Chaney awoke and ran out the back door as officers

entered the house. 2T. at 78. Officers apprehended Chaney on the porch. Id. Inside the

house on Eleanor, officers recovered the stolen Harley-Davidson jacket along with Garn's

credit cards in the jacket pocket. Id. at 79. In the basement, officers found the stolen

Glock .45 handgun. Id. at 81.

{¶11} During the trial, Garn testified that the man who he alleged entered his home

was Chaney. Garn further testified that the police showed him a picture on the officer’s

phone and ask him, “Is this the guy?” 2T. at 37;47. Neither the state nor the defense was

aware of this identification from the picture. 2T. at 31. Garn testified that he was never

shown any other photos of Chaney or anyone else.
Stark County, Case No. 2021 CA 00139 5

{¶12} Defense counsel objected that neither the photograph, nor the fact of

pretrial photographic identification were ever disclosed through discovery. 2T. at 31. The

trial judge permitted defense counsel to question Garn regarding the circumstances of

the photographic identification outside the presence of the jury. 2T. at 35. Garn testified

the officer showed him the photo around an hour to an hour and a half after the event.

Garn stated that it was never discussed with the officer how he got the photograph, but it

looked like a picture from a Ring doorbell camera. 2T. at 37. The trial court overruled

Chaney’s motion for a mistrial.

{¶13} Andrew Sawin, a DNA analyst in forensic science at BCI, testified as an

expert witness at trial regarding DNA analysis. Sawin testified concerning DNA collected

and tested taken from the jacket and flashlight that did not belong to Garn that was

recovered from Garn’s garage after the incident.

{¶14} Sawin concluded Chaney's DNA standard was consistent with the DNA

from one of the two major contributor DNA profiles from the jacket. 2T. at 116. The

findings in Sawin’s report indicate Chaney is included in the major DNA component.

Sawin concluded that, in a group of one million random, unrelated people, only one

person in that group could expect to be included. Chaney was also included with the

major contributor of the DNA profile recovered from the flashlight. Sawin reported the

estimated frequency of an individual being included in this mixture as one in 600 billion

unrelated individuals. No latent fingerprints were found on any of the items according to

a report authored by Rachel Keaton, a latent print examiner at BCI. 2T. at 130-132.

{¶15} Following deliberations, the jury returned verdicts finding Chaney guilty on

all counts and attendant specifications as charged in the indictment. After the sentencing
Stark County, Case No. 2021 CA 00139 6

hearing, the trial court journalized the judgment of conviction on November 3, 2021, with

two subsequent nunc pro tunc entries. The trial court sentenced Chaney to six years in

prison on the aggravated robbery, along with three years on the accompanying firearm

specification, and merged one count of attempted grand theft of a motor vehicle into the

aggravated robbery count. As to the aggravated burglary, the court sentenced Chaney

to six years in prison, plus three years on the accompanying firearm specification, and

merged the following into the aggravated burglary charge: grand theft of a firearm, theft,

and the remaining count of attempted grand theft of a motor vehicle. The court ordered

Chaney to serve all sentences consecutively, serving each of the three-year sentences

on the firearm specifications consecutively and prior to the six-year sentence on count

one and the six-year sentence on count two. Accordingly, Chaney received an aggregate

sentence of an indefinite mandatory minimum prison term of eighteen years up to a

maximum prison term of twenty-one years in prison.

Assignments of Error

{¶16} Chaney raises four Assignments of Error,

{¶17} “I. APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL, AS

THE IDENTIFICATION PROCESS WAS UNRELIABLE, RESULTING IN A

SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION AND A TAINTED IN COURT

IDENTIFICATION OF APPELLANT.

{¶18} “II. THE TRIAL COURT ERRED IN FAILING TO PROPERLY REMEDY

THE INCLUSION OF IDENTIFICATION EVIDENCE INTO THE TRIAL THAT WAS NOT

DISCLOSED THROUGH DISCOVERY.
Stark County, Case No. 2021 CA 00139 7

{¶19} “III. APPELLANT'S COUNSEL WAS INEFFECTIVE WITH REGARDS TO

PLEA NEGOTIATIONS, RESULTING IN APPELLANT BEING PREJUDICED BY

RECEIVING A SIGNIFICANTLY HIGHER SENTENCE THAN HE WOULD HAVE

OTHERWISE R E C E I V E D .

{¶20} “IV. APPELLANT'S CONVICTIONS OF THE CHARGES AGAINST HIM

WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

I.

{¶21} In his First Assignment of Error, Chaney contends that he was denied due

process of law and a fair trial because Garn’s in-court identification was unreliable.

Chaney claims that Garn’s in court identification was tainted as a result of the police

conducting an unduly suggestive pretrial photographic identification.

Standard of Appellate Review

{¶22} The Ohio Supreme Court has set forth our standard of review,

In general, “‘a constitutional error does not automatically require

reversal of a conviction.’” Weaver v. Massachusetts, ––– U.S. ––––, 137

S.Ct. 1899, 1907, 198 L.Ed.2d 420 (2017), quoting Fulminante at 306, 499

U.S. 279, 310, 111 S.Ct. 1246. For purposes of determining whether a

conviction should be reversed, the Supreme Court has divided

constitutional errors into two classes: “trial errors,” which are reviewable for

harmless error, and “structural errors,” which are per se cause for reversal.

State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 9,

citing Fulminante at 306-312, 111 S.Ct. 1246, and State v. Esparza, 74

Ohio St.3d 660, 661, 660 N.E.2d 1194 (1996). Most constitutional errors
Stark County, Case No. 2021 CA 00139 8

are trial errors. United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126

S.Ct. 2557, 165 L.Ed.2d 409 (2006). Trial errors occur during “‘presentation

of the case to the jury’ and their effect may ‘be quantitatively assessed in

the context of other evidence presented in order to determine whether [they

were] harmless beyond a reasonable doubt.’” (Brackets sic.) Id., quoting

Fulminante at 307-308, 499 U.S. 279, 310, 111 S.Ct. 1246. A constitutional

trial error is harmless when the state demonstrates “‘beyond a reasonable

doubt that the error complained of did not contribute to the verdict

obtained.’” Weaver at ––––, 137 S.Ct. at 1907, quoting Chapman v.

California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

State v. Montgomery, Slip Op. 2022-Ohio-2211, ¶25 (June 30, 2022).

{¶23} The state “bears the burden of demonstrating that the error did not affect

the substantial rights of the defendant.” State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-

297, 802 N.E.2d 643, ¶ 15. Whether the defendant’s substantial rights were affected

depends on whether the error was prejudicial, i.e., whether it affected the outcome of the

trial. State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7. An

appellate court is required to reverse the conviction when the state is unable to meet its

burden. Perry at ¶ 15. See, also, State v. West, Slip Op. No. 2020-0978, 2022-Ohio-

1556, ¶ 22.

Pretrial police identification procedure

{¶24} Introducing as evidence the results of an unduly suggestive police

identification procedure may violate a defendant’s right to due process and require a trial

court to suppress that evidence. See Foster v. California, 394 U.S. 440, 89 S.Ct. 1127,
Stark County, Case No. 2021 CA 00139 9

22 L.Ed.2d 402 (1969) (finding that due process required the exclusion of an eyewitness

identification obtained through a procedure making identification of the defendant

inevitable). Due process concerns arise, however, only when (1) the identification

procedure is arranged by law enforcement officials, (2) the procedure is unnecessarily

suggestive, and (3) the procedure creates a substantial likelihood of misidentification.

See Perry v. New Hampshire, 565 U.S. 228, 132 S.Ct. 716, 724, 181 L.Ed.2d 694 (2012).

Moreover, even when police use an unduly suggestive procedure, due process does not

necessarily require the suppression of the resulting identification. Manson v. Brathwaite,

432 U.S. 98, 112–13, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). “Where the ‘indicators of [a

witness’] ability to make an accurate identification’ are ‘outweighed by the corrupting

effect’ of law enforcement suggestion, the identification should be suppressed.

Otherwise, the evidence (if admissible in all other respects) should be submitted to the

jury.” Id. (citations omitted). See, also, State v. Mitchell, 5th Dist., Stark No.

2013CA00030, 2013–Ohio–3696, ¶ 21, 22.

Issue for appellate review: Whether Chaney’s substantial rights were affected by

Garn’s in-court identification of him as the intruder

{¶25} In Ohio, R.C. 2933.83, Minimum requirements for live lineup or photo lineup

procedures, suggests a preference for the double blind and sequential method as

opposed to the traditional “six pack” array method for photo arrays. The statute provides,

in part,

(6) “Folder system” means a system for conducting a photo lineup

that satisfies all of the following:
Stark County, Case No. 2021 CA 00139 10

(a) The investigating officer uses one “suspect photograph” that

resembles the description of the suspected perpetrator of the offense

provided by the eyewitness, five “filler photographs” of persons not

suspected of the offense that match the description of the suspected

perpetrator but do not cause the suspect photograph to unduly stand out,

four “blank photographs” that contain no images of any person, and ten

empty folders.

(b) The investigating officer places one “filler photograph” into one of

the empty folders and numbers it as folder 1.

(c) The administrator places the “suspect photograph” and the other

four “filler photographs” into five other empty folders, shuffles the five folders

so that the administrator is unaware of which folder contains the “suspect

photograph,” and numbers the five shuffled folders as folders 2 through 6.

(d) The administrator places the four “blank photographs” in the four

remaining empty folders and numbers these folders as folders 7 through 10,

and these folders serve as “dummy folders.”

(e) The administrator provides instructions to the eyewitness as to

the lineup procedure and informs the eyewitness that a photograph of the

alleged perpetrator of the offense may or may not be included in the

photographs the eyewitness is about to see and that the administrator does

not know which, if any, of the folders contains the photograph of the alleged

perpetrator. The administrator also shall instruct the eyewitness that the

administrator does not want to view any of the photographs and will not view
Stark County, Case No. 2021 CA 00139 11

any of the photographs and that the eyewitness may not show the

administrator any of the photographs. The administrator shall inform the

eyewitness that if the eyewitness identifies a photograph as being the

person the eyewitness saw the eyewitness shall identify the photograph

only by the number of the photograph’s corresponding folder.

(f) The administrator hands each of the ten folders to the eyewitness

individually without looking at the photograph in the folder. Each time the

eyewitness has viewed a folder, the eyewitness indicates whether the

photograph is of the person the eyewitness saw, indicates the degree of the

eyewitness’s confidence in this identification, and returns the folder and the

photograph it contains to the administrator.

(g) The administrator follows the procedures specified in this division

for a second viewing if the eyewitness requests to view each of the folders

a second time, handing them to the eyewitness in the same order as during

the first viewing; the eyewitness is not permitted to have more than two

viewings of the folders; and the administrator preserves the order of the

folders and the photographs they contain in a facedown position in order to

document the steps specified in division (A)(6)(h) of this section.

(h) The administrator documents and records the results of the

procedure described in divisions (A)(6)(a) to (f) of this section before the

eyewitness views each of the folders a second time and before the

administrator views any photograph that the eyewitness identifies as being

of the person the eyewitness saw. The documentation and record includes
Stark County, Case No. 2021 CA 00139 12

the date, time, and location of the lineup procedure; the name of the

administrator; the names of all of the individuals present during the lineup;

the number of photographs shown to the eyewitness; copies of each

photograph shown to the eyewitness; the order in which the folders were

presented to the witness; the source of each photograph that was used in

the procedure; a statement of the eyewitness’s confidence in the

eyewitness’s own words as to the certainty of the eyewitness’s identification

of the photographs as being of the person the eyewitness saw that is taken

immediately upon the reaction of the eyewitness to viewing the photograph;

and any additional information the administrator considers pertinent to the

lineup procedure. If the eyewitness views each of the folders a second time,

the administrator shall document and record the statement of the

eyewitness’s confidence in the eyewitness’s own words as to the certainty

of the eyewitness’s identification of a photograph as being of the person the

eyewitness saw and document that the identification was made during a

second viewing of each of the folders by the eyewitness.

(i) The administrator shall not say anything to the eyewitness or give

any oral or nonverbal cues as to whether or not the eyewitness identified

the “suspect photograph” until the administrator documents and records the

results of the procedure described in divisions (A)(6)(a) to (g) of this section

and the photo lineup has concluded.

See, State v. Qirat, 5th Dist. Licking No. 14-CA-72, 2015-Ohio-863, ¶31.
Stark County, Case No. 2021 CA 00139 13

{¶26} When a police agency uses the double-blind method, a photo array is

shown by a neutral officer without knowledge of who the targeted suspect is so that the

officer cannot subconsciously or unintentionally communicate to the witness which photo

should be selected. The sequential-presentation method uses single photos of the

suspect and other individuals, rather than the traditional “six-pack” array. State v.

Monford, 190 Ohio App.3d 35, 2010–Ohio–4732, 940 N.E.2d 634, ¶ 51–54(10th Dist.).

{¶27} A photo lineup is unduly suggestive if it “steers the witness to one suspect,

independent of the witnesses’ honest recollection.” State v. Adams, 144 Ohio St.3d 429,

2015-Ohio-3954, 45 N.E.3d 127, ¶ 208. Identifications arising from single-photograph

displays may be viewed in general with suspicion, see Simmons v. United States, 390

U.S. 377, 383, 88 S.Ct., at 967, 19 L.Ed.2d 1247(1968). Manson v. Brathwaite, 432 U.S.

98, 116, 53 L.Ed.2d 140, 97 S.Ct. 2243, 2254 (1977).

{¶28} In the case at bar, Garn was shown a single photograph on an officer’s

cellular telephone which was apparently produced from a doorbell surveillance camera in

the neighborhood. One can hardly find a more suggestive identification procedure than

the police showing the victim a single photograph and asking the victim, “Is this the guy.”

2T. at 30; 43; 47. Clearly, the police did not use the statutorily accepted procedure for

identification as set forth in R.C. 2933.83. The question therefore becomes whether

Garn’s in-court identification of Chaney was tainted by the improper pre-trial identification

procedure used by the Hartville Police Department in this case.

{¶29} If the defendant demonstrates the pretrial identification was unduly

suggestive, “the court must then consider whether the identification, viewed under the

totality of the circumstances, was reliable despite the suggestive procedure.” State v.
Stark County, Case No. 2021 CA 00139 14

Dewberry, 2d Dist. Montgomery No. 27434, 2020-Ohio-691, ¶ 73. Reliability is the

linchpin in determining admissibility. “So long as the identification possesses sufficient

aspects of reliability, there is no violation of due process.” State v. Sherls, 2d Dist.

Montgomery No. 18599, 2002 WL 254144, *3 (Feb. 22, 2002). In this situation, we turn

to application of the test set forth by the U.S. Supreme Court in Neil v. Biggers, 409 U.S.

188, 199–200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) to determine whether the witness

was unlikely to have misidentified the defendant. Factors that affect reliability and,

therefore, admissibility, include:

“* * * the opportunity of the witness to view the criminal at the time of

the crime, the witness' degree of attention, the accuracy of the witness' prior

description of the criminal, the level of certainty demonstrated by the

witness at the confrontation, and the length of time between the crime and

the confrontation.” Neil v. Biggers (1972), 409 U.S. 188, 199, 93 S.Ct. 375,

382, 34 L.Ed.2d 401. Thus, although the identification procedure is

suggestive, so long as the challenged identification itself is reliable, it is

admissible. Manson, supra, 432 U.S. at 109, 97 S.Ct. at 2250, 53 L.Ed.2d

at 151.

State v. Moody, 55 Ohio St.2d 64, 67, 377 N.E.2d 1008 (1978). Against these factors is

to be weighed the corrupting effect of the suggestive identification itself. Mason, 432 U.S.

at 114, 97 S.Ct. 2243, 53 L.Ed.2d 140.

The opportunity of the witness to view the criminal at the time of the crime

{¶30} Garn was awakened by an intruder. 2T. at 12. He was able to recall what

the intruder was wearing, which was Garn’s motorcycle jacket. Id. Garn testified that he
Stark County, Case No. 2021 CA 00139 15

was able to look at Cheney “a couple times” because Garn kept turning around. Id. at 13.

The light was on inside the garage as the intruder forced him outside. 2T. at 13; 28. He

walked from his house halfway down the driveway when he realized he needed the key

fob in order to start the motorcycle as the intruder was demanding he do. Id. at 16. The

streetlights were on outside. 2T. at 28. When he heard the gun click, he turned and ran

toward his assailant. Id. at 16-17. Garn identified Chaney immediately when shown the

picture one to one- and one-half hours after the incident. 2T. at 30; 35. At least five

minutes elapsed from the time he was awakened to the time the intruder ran off. 2T. at

27.

The witness' degree of attention

{¶31} Garn was able to recall what the intruder was wearing and the fact that he

had a gun. However, Garn did not realize that it was Garn’s gun that the intruder held.

2T. at 27. Garn remembered hearing the gun click. The area where the events occurred

was lit.

The accuracy of the witness' prior description of the criminal

{¶32} No testimony was presented at trial that Garn had given a description of his

assailant to the police.

The level of certainty demonstrated by the witness at the confrontation

{¶33} Garn identified Chaney immediately when shown the picture one to one-

and one-half hours after the incident. 2T. at 30; 35. Garn did not hesitate in his in-court

identification of Chaney as his assailant. 2T. at 14. There was no dispute at trial that the

photograph shown to Garn by the police was of Chaney.
Stark County, Case No. 2021 CA 00139 16

The length of time between the crime and the confrontation

{¶34} The photographic identification occurred within one hour to one- and one-

half hours after the incident. The in-court identification took place nearly 6 months after

the incident.

Conclusion

{¶35} In reviewing the circumstances surrounding the identification of Chaney in

this case, we are not convinced that there was “a very substantial likelihood of irreparable

misidentification.” Simons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d

1247(1968). Garn had a direct line of sight to Chaney throughout the ordeal. The area

was sufficiently lit. The ordeal lasted approximately five minutes giving Garn sufficient

time to observe his assailant. Nothing in the record suggests that Garn’s in court

identification of Chaney as his assailant, or Garn’s testimony, was based upon or

influenced by the photographic identification. We conclude that Garn was unlikely to have

misidentified Chaney. See Neil v. Biggers, 409 U.S. 188, 199–200, 93 S.Ct. 375, 34

L.Ed.2d 401 (1972).

{¶36} Based upon the entire record before us, we conclude that any error in the

admission of the photographic identification testimony did not affect the substantial rights

of Chaney and was harmless beyond a reasonable doubt.

{¶37} Chaney’s First Assignment of Error is overruled.

II.

{¶38} In his Second Assignment of Error, Chaney contends that the trial court

should have granted a continuance when evidence that a photographic identification was
Stark County, Case No. 2021 CA 00139 17

conducted by the police came to light for the first time during the state’s examination of

Garn. [Appellant’s brief at 17 - 18].

Standard of Appellate Review.

{¶39} Crim.R. 52 distinguishes between errors to which the defendant objected at

trial and errors to which the defendant failed to object at trial. See State v. Perry, 101

Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 14. If the error is one to which the

defendant objected at trial, an appellate court reviews the error under the Crim.R. 52(A)

harmless-error standard and “the government bears the burden of demonstrating that the

error did not affect the substantial rights of the defendant.” (Emphasis sic.) Id. at ¶ 15. If

the error is one to which the defendant failed to object at trial, an appellate court reviews

the error under the Crim.R. 52(B) plain-error standard and “the defendant bears the

burden of demonstrating that a plain error affected his substantial rights.” (Emphasis sic.)

Id. at ¶ 14.

{¶40} In the case at bar, Chaney’s trial attorney never requested a continuance.

We find that Chaney has forfeited all but plain error because his attorney failed to request

a continuance.

Issue for appellate review: Whether the trial court abused its discretion by not

sua sponte granting a continuance

{¶41} Chaney does not elucidate what evidence he would have presented had he

been given a continuance. In view of the admissibility of Garn’s identification testimony

as we have explained in our disposition of Chaney’s First Assignment of Error, and further,

in light of the overwhelming evidence presented at trial to support his guilt, Chaney has
Stark County, Case No. 2021 CA 00139 18

failed in his burden to demonstrate that his substantial rights were violated by the trial

court’s failure to sua sponte grant him a continuance.

{¶42} Chaney’s Second Assignment of Error is overruled.

III.

{¶43} In his Third Assignment of Error, Chaney argues that his trial counsel was

ineffective during plea negotiations by failing to ensure he fully understood the plea offer

and the consequences of not accepting the offer. As a result, Chaney contends, he was

prejudiced by receiving a sentence that was much higher than offered during plea

negotiations.

Standard of Appellate Review

{¶44} Defendants have a constitutional right to effective assistance of counsel

during plea negotiations. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d

203 (1985). The two-prong ineffective assistance of counsel analysis that the Supreme

Court announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984), applies to claims that counsel’s performance was constitutionally deficient

during plea negotiations. Hill, 474 U.S. at 58, 106 S.Ct. 366, 88 L.Ed.2d 203. A petitioner

who claims that he was denied effective assistance of counsel with regard to whether or

not to plead guilty must prove that (1) counsel rendered constitutionally deficient

performance, and (2) there is a reasonable probability that but for counsel’s deficient

performance, the petitioner would have pled guilty. Magana v. Hofbauer, 263 F.3d 542,

547-48 (6th Cir.2001) (citing Turner v. Tennessee, 858 F.2d 1201, 1206 (6th Cir.1988)).

“A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. See, Missouri
Stark County, Case No. 2021 CA 00139 19

v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) and Lafler v. Cooper, 566

U.S. 156, 132 S.Ct. 1376, 182 L.Ed. 398 (2012).

{¶45} In Frye, defense counsel allowed a plea offer to expire without

communicating the offer to the defendant resulting in the defendant accepting a later offer

that was less favorable. Frye, at 1404. The Court held that “defense counsel has the

duty to communicate formal offers from the prosecution to accept a plea....” 132 S.Ct. at

1408. Given this duty, the Court emphasized that the right to effective assistance of

counsel extends to the negotiation and consideration of plea offers that have been

rejected or have lapsed. Id. at 1407–08.

{¶46} In Lafler, a favorable plea offer was reported to the client and rejected on

the advice of counsel, who advised the defendant that the state could not prove intent

because the victim was shot below the waist, even though the defendant shot the victim

three times and missed her head once. The defendant took the case to trial and was

convicted, after which he received a sentence more than three times higher than the plea

offer. Notably, in an earlier communication with the trial court, the defendant had admitted

guilt and expressed a willingness to accept the plea offer.

{¶47} In Lafler, the Court reiterated that the Sixth Amendment requires effective

assistance not just at trial but at all critical stages of a criminal proceeding, including plea

bargaining. 132 S.Ct. at 1384. In order to prevail on a claim of ineffective assistance of

counsel when counsel’s ineffective advice led to the rejection of a plea offer, the Court

held that “a defendant must show that but for the ineffective advice, there is a reasonable

probability that [1] the plea offer would have been presented to the court ...; [2] the court

would have accepted [the plea];” and (3) the defendant was convicted of a more serious
Stark County, Case No. 2021 CA 00139 20

offense or received a less favorable sentence than he would have received under the

terms of the offer. Id. at 1385.

{¶48} However, defense counsel’s deficient performance was stipulated in Lafler.

Id. at 1383, 1391. The issue of deficient performance was not before the Court and was

specifically not addressed. Id. at 1384, 1391. In fact, the Court declared, “an erroneous

strategic prediction about the outcome of a trial is not necessarily deficient performance.”

Id. at 1391.

{¶49} An attorney’s failure to convey a plea offer satisfies the first prong of

Strickland. Griffin v. United States, 330 F.3d 733, 737 (6th Cir.2003). Further, a

substantial disparity between the plea offer and the potential sentence exposure

constitutes

[S]trong evidence of a reasonable probability that a properly advised

defendant would have accepted a guilty plea offer, despite earlier

protestations of innocence. See Magana v. Hofbauer, 263 F.3d 542, 552-

53 (6th Cir.2001) (finding the difference between a ten- and twenty-year

sentence significant); United States v. Day, 969 F.2d 39 (3d Cir.1992)

(finding ineffective assistance of counsel when trial counsel mistakenly

described the penalties at trial as ten years rather than the twenty-two years

the defendant received at sentencing, and where a plea offer of five years

had been made); United States v. Gordon, 156 F.3d 376, 377-81 (2d

Cir.1998) (holding that the wide disparity between the ten-year sentence

recommended by the plea agreement and the seventeen-and-a-half years
Stark County, Case No. 2021 CA 00139 21

the defendant did receive was objective evidence that a plea would have

been accepted).

Turns v. United States, S.D. Ohio No. 2:04-CV-769, CRIM 2:99-CR-104(1), 2005 WL

1847209 (Aug. 2, 2005) citing Smith v. United States, 348 F.3d 545, 552 (6th Cir.2003);

and Griffin v. United States, 330 F.3d 733, 739 (evidentiary hearing warranted to

determine whether defendant would have pleaded guilty where attorney failed to convey

plea offer of five years and defendant sentenced to 156 months.)

The trial court informed Chaney of the state’s plea offers in open court.

{¶50} In the case at bar, the trial judge in open court with Chaney participating via

video feed from the Stark County Jail and his attorney present in the courtroom, explained

each charge and the potential sentences for each charge. T. FPT/Offer, Oct. 21, 2021 at

5-9. The trial judge explained the two plea offers. Id. at 9-10. The trial judge asked

Chaney if he had any questions concerning the potential penalties associated with the

charges, to which Chaney responded “No, ma’am. Id. at 12. The trial judge next asked

Chaney if he had any questions about the plea offers, to which he again responded, “No,

ma’am.” Id. The trial judge then asked Chaney if there was anything the he would like to

tell her, to which Chaney replied, in part, that he had received the offers and had gone

over it all. Id. at 13.

{¶51} Chaney insisted that because no DNA or fingerprints were found in May,

but that DNA has now been found on the flashlight he would be exonerated, in spite of

the trial judge’s advising him that it would not exonerate him. Id. at 23 - 26.

{¶52} The court finally stated to Chaney:
Stark County, Case No. 2021 CA 00139 22

All right. Well, your refusal to accept anybody's explanation other

than yours, I think, concludes our discussion today. If you change * * * your

mind about the offer, let me know. Or let your [attorney] know. Otherwise,

we will see you [for trial] on Monday. Okay?

Id. at 25-26. Chaney confirmed that they would proceed to trial by replying, "Yes, you

will." Id. at 26.

{¶53} The morning of trial, the court noted on the record that the state's offers

placed on the record on October 21, 2021 as well as Chaney's counteroffer of October

22, 2021 had all been rejected. 1T. 8 -102. The court inquired of the state, Chaney's trial

counsel, and Chaney himself to confirm there was nothing more with respect to the offers

or regarding resolution before trial began. Id. at 9-10.

Chaney rejected the state’s offer

{¶54} Unlike Frye, the evidence does not support the conclusion that an offer was

made that defense counsel did not relay to the defendant. In the case at bar, the trial

judge explained the two offers to Chaney on the record.

{¶55} Unlike, Lafler, the record does not support that a favorable plea offer was

reported to the client and rejected on the advice of counsel. In the case at bar, the record

makes clear that it was Chaney’s decision to end the discussions with his attorney and

proceed to trial. Chaney makes no argument that his attorney advised him to reject either

of the state’s two plea offers. There is no evidence in the record that indicates there was

anything more his attorney could have done to have changed Chaney’s mind to accept

the plea.

2 There is no description in the record concerning the specifics of Chaney’s counteroffer of October
22, 2021.
Stark County, Case No. 2021 CA 00139 23

{¶56} In the case at bar, nothing in the record suggests that Chaney would have

pled guilty had his trial attorney done more to explain the plea offer to him. “Although

Crim.R. 11 places an obligation on the court to inform a defendant that a guilty plea waives

certain constitutional rights, the court has no duty to inform a defendant of the

consequences of rejecting a plea.” State v. Valiente-Mendoza, 6th Dist. Wood No. WD-

16-067, 2018-Ohio-3090, ¶ 47. Likewise, counsel is neither obligated nor permitted to

force a defendant to accept a plea offer against the defendant’s will. In Florida v. Nixon,

the United State Supreme Court made the following observation,

A defendant, this Court affirmed, has “the ultimate authority” to

determine “whether to plead guilty, waive a jury, testify in his or her own

behalf, or take an appeal.” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct.

3308, 77 L.Ed.2d 987 (1983); Wainwright v. Sykes, 433 U.S. 72, 93, n. 1,

97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C. J., concurring).

Concerning those decisions, an attorney must both consult with the

defendant and obtain consent to the recommended course of action.

***

While a guilty plea may be tactically advantageous for the defendant,

[Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)],

at 240, 89 S.Ct. 1709, the plea is not simply a strategic choice; it is “itself a

conviction,” id., at 242, 89 S.Ct. 1709, and the high stakes for the defendant

require “the utmost solicitude,” id., at 243, 89 S.Ct. 1709. Accordingly,

counsel lacks authority to consent to a guilty plea on a client’s behalf,

Brookhart v. Janis, 384 U.S. 1, 6-7, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966);
Stark County, Case No. 2021 CA 00139 24

moreover, a defendant’s tacit acquiescence in the decision to plead is

insufficient to render the plea valid, Boykin, 395 U.S., at 242, 89 S.Ct. 1709.

534 U.S. 175, 187-188, 125 S.Ct. 551, 160 L.Ed.2d 565(2004).

{¶57} Chaney does not allege that counsel advised him to reject a favorable plea

offer, but only that counsel did not try hard enough to convince him to accept the

government’s offer. This does not render counsel’s performance constitutionally

ineffective.

{¶58} Accordingly, the record contains no credible evidence to prove that

Chaney’s trial attorney was constitutionally ineffective in her representation of Chaney

during the plea negotiation process.

{¶59} Chaney’s Third Assignment of Error is overruled.

IV.

{¶60} In his Fourth Assignment of Error, Chaney maintains that his convictions

are against the manifest weight of the evidence.

Standard of Appellate Review

{¶61} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,

678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as

stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).

{¶62} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, supra, 78 Ohio St.3d at 386-387, 678 N.E.2d 541(1997), State v.
Stark County, Case No. 2021 CA 00139 25

Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶83. When a court of

appeals reverses a judgment of a trial court on the basis that the verdict is against the

weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with

the fact finder’s resolution of the conflicting testimony. Thompkins at 387, 678 N.E.2d

541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652(1982)

(quotation marks omitted); State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865

N.E.2d 1244, ¶25, citing Thompkins.

{¶63} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “‘the jury clearly lost

its way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.

1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional

case in which the evidence weighs heavily against the conviction.” Id.

Issue for Appellate Review: Whether the jury clearly lost their way and created

such a manifest miscarriage of justice that the conviction must be reversed and a new

trial ordered.

{¶64} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon

the foregoing and the entire record in this matter we find Chaney’s convictions are not

against the sufficiency or the manifest weight of the evidence. To the contrary, the jury
Stark County, Case No. 2021 CA 00139 26

appears to have fairly and impartially decided the matters before them. The jury heard

the witnesses, evaluated the evidence, and was convinced of Chaney’s guilt.

{¶65} Upon review of the entire record, weighing the evidence and all reasonable

inferences as a thirteenth juror, including considering the credibility of witnesses, we

cannot reach the conclusion that the trier of facts lost its way and created a manifest

miscarriage of justice. We do not find the jury erred when it found Chaney guilty. Taken

as a whole, the testimony and record contains ample evidence of Chaney’s responsibility

for all of the alleged crimes. The fact that the jury chose to believe the testimony of the

victim does not, in and of itself, render his convictions against the manifest weight of the

evidence. While Chaney is certainly free to argue that his brother could have committed

the crimes, and that the eyewitness identification was unreliable, on a full review of the

record we cannot say that the jury clearly lost its way or created a manifest injustice by

choosing to believe the testimony.

{¶66} The state presented testimony and evidence from which the jury could have

found all the essential elements of the offenses proven beyond a reasonable doubt. The

fact that the state may have relied on circumstantial evidence in proving Chaney’s guilt

does not make his convictions any less sound.

{¶67} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crimes for which Chaney was convicted.
Stark County, Case No. 2021 CA 00139 27

{¶68} Chaney’s Fourth Assignment of Error is overruled.

{¶69} The judgment of the Stark County Court of Common Pleas is affirmed.

By Gwin, J.,

Wise, Earle, P.J., and

Baldwin, J., concur