State v. Jenkins

[Cite as State v. Jenkins, 2021-Ohio-4100.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. Craig R. Baldwin, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
:
-vs- :
: Case No. CT2021-0001
JOHN JENKINS :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case No.
CR2019-0341

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 19, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD WELCH JAMES ANZELMO
Prosecuting Attorney 446 Howland Drive
By: TAYLOR P. BENNINGTON Gahanna, OH 43230
Assistant Prosecutor
27 North Fifth St., Box 189
Zanesville, OH 43702-0189
[Cite as State v. Jenkins, 2021-Ohio-4100.]

Gwin, J.,

{¶1} Defendant-appellant John A. Jenkins, Jr. [Jenkins”] appeals his conviction

and sentence entered after a negotiated guilty plea in the Muskingum County Court of

Common Pleas.

Facts and Procedural History

{¶2} The following facts were entered into the record in open court during

Jenkins’s September 11, 2019 plea hearing.

{¶3} On Sunday, May 26, 2019, Jenkins spent the day drinking. He obtained

several beers from the State Street Market and he had been drinking enough that day

that he was worried he had forgotten he left some beer out where his grandmother,

Elizabeth Alvarez, who went by Betty, might have seen them. Plea T. at 13.

{¶4} Betty had taken Jenkins in after he was released from prison three years

ago. She did not approve of his drinking. She let him know about it when she discovered

that he was drinking. She had a rule that he was not permitted to drink in the house, but

he would do it anyway and he would hide it from her. On this day the situation was

exacerbated by the fact that he was supervising his three-year-old little brother. His

brother was in his room on the second floor. Jenkins came downstairs to make sure he

had not left beer in the refrigerator. When Betty confronted him, she told Jenkins that he

needed to get a job, he needed to move out of her house, and that it was getting to the

point where she did not want him there anymore. Plea T. at 13-14. The pair got into a

verbal altercation. Jenkins went back upstairs to his brother’s room. Betty came upstairs

to retrieve Jenkins’s three-year-old little brother. Betty told Jenkins that she did not want

him to hurt his brother because he had been drinking. They got into another verbal
Muskingum County, Case No. CT2021-0001 3

argument. Jenkins warned his brother to stay with him and Betty wanting the child to

come sleep in her room. Jenkins stated “I grabbed him from her, take him back up to the

attic, told him to go to sleep. I shut the door. We get into another argument because I

knew there was going to be a problem because she was going to -- she was not going to

leave me alone, and that's when it happened.” Plea T. at 14.

{¶5} The verbal argument continued outside the child's bedroom. Betty was

coming out of the bathroom. Jenkins was coming out of the bedroom. Jenkins punched

Betty, she hit him with a small child's chair that was nearby on the floor. Jenkins knocked

Betty down the stairs.

{¶6} There are two sets of stairs in Betty's house. The stairs he knocked her

down were referred to as the “servants' stairs.” They are steep, made of wood and they

lead into the kitchen with a sharp turn. When Betty got to the bottom, she was very badly

injured.

{¶7} Jenkins followed her down the stairs, and he saw her injuries. She was

wheezing. He knew he had hurt her very badly. Rather than getting her help, he took his

foot and he placed it on her throat as she wheezed, and he pressed down. Jenkins stood

on Betty’s throat eventually having to switch feet until he had suffocated the life out of

Betty Alvarez. Jenkins then went back up to the attic where his three-year-old brother

remained. He retrieved some plastic sheeting and came back downstairs. He wrapped

Betty's body in the plastic, and he drug her body into the garage. He moved her car into

the garage. When Rachel Sipple got back from her work shift that evening, which ended

at 6:30 a.m., the two of them loaded Betty’s body into the trunk of her car. Plea T. at 15.
Muskingum County, Case No. CT2021-0001 4

{¶8} The next morning John's sister, Mandy Jenkins, showed up at the house

looking for Betty’s car as if she had left something inside. The car was not where it was

normally parked. Mandy asked John where was Betty. Jenkins told her Betty was dead.

Mandy did not believe him. Jenkins clarified that there had been an argument, he hit Betty

in the face, and threw her to the ground. He told Mandy that every time Betty tried to get

up from the ground, Betty tried to run for her phone. Jenkins told Mandy he put his foot

on Betty's neck and left it there for ten minutes, and now her body was in the trunk of the

car. According to Mandy, Jenkins told her, “If you weren’t my sister, I would kill you right

now.” Jenkins then gave Mandy his little brother. Mandy took the child away to safety but

did not call the police.

{¶9} Later that day Jenkins and Sipple left for Columbus with Betty in the trunk.

Sipple drove providing transportation and assisted Jenkins in knowing that he had

committed a murder. Jenkins intended to take Betty to a farm somewhere near Columbus

where he had once been invited for a program; however, he could not find it, so they

found an abandoned stretch of roadway and dumped Betty’s body in a water-filled ditch

hoping she would not be found. Plea T. at 16.

{¶10} Later the next day, which would be May 28, 2019, they decided to purchase

a pellet gun and rob a Speedway in Columbus, which was being guarded by a uniformed

Columbus police officer. They were both arrested after the officer shot at them and there

was a chase and a crash. The next day, Mandy Jenkins called the Zanesville Police

Department to report what she knew about Betty.

{¶11} The Zanesville Police Department receiving a report that Betty might have

been the victim of a murder immediately dedicated five detectives and two Ohio Bureau
Muskingum County, Case No. CT2021-0001 5

of Criminal Investigation agents with the task of solving the crime. They discovered blood

which had been cleaned up from the scene of the crime, plastic sheeting, and items

matching described events. Plea T. at 17. When they confronted Jenkins, he immediately

confessed to his actions. Sipple also confessed, albeit less readily.

{¶12} On May 30th of 2019, Jenkins led Columbus and Zanesville police

detectives to Betty’s body so that she could receive a proper burial. Plea T. at 17

{¶13} Jenkins was originally indicted for one count of aggravated murder, an

unclassified felony; one count of tampering with evidence, a felony of the third degree;

and one count of abuse of a corpse, a felony of the fifth degree.

{¶14} On September 11, 2019, Jenkins entered a plea of guilty to one count of

aggravated murder.

{¶15} Jenkins requested a sentence of 20 years to life in prison so that he could

go before the parole board and demonstrate whether he has been rehabilitated and

amenable to parole. (Sent. T. Dec. 16, 2020 at 6). The prosecution requested a sentence

of 30 years to life in prison. (Sent. T. Dec. 16, 2020 at. 4).Jenkins was sentenced to a

mandatory prison term of life in prison without the possibility of parole.

Assignments of Error

{¶16} Jenkins raises three Assignments of Error,

{¶17} “I. JOHN JENKINS DID NOT KNOWINGLY, INTELLIGENTLY AND

VOLUNTARILY PLEAD GUILTY, IN VIOLATION OF HIS DUE PROCESS RIGHTS

UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO

CONSTITUTION.
Muskingum County, Case No. CT2021-0001 6

{¶18} “II. JENKINS SENTENCE OF LIFE IN PRISON WITHOUT PAROLE

VIOLATES THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

{¶19} “III. JENKINS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN

VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

I.

{¶20} In his First Assignment of Error, Jenkins argue claims he did not knowingly,

intelligently, and voluntarily plead guilty because the trial court did not explain the

effect of his guilty plea, in other words, that his guilty plea was a complete admission of

guilt. [Appellant’s Brief at 2-3].

Standard of Appellate Review

{¶21} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and

voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need

only "substantially comply" with the rule when dealing with the non-constitutional

elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d

115(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977).

{¶22} When reviewing a plea’s compliance with Crim.R. 11(C), we apply a de

novo standard of review. State v. Nero, 56 Ohio St.3d 106, 108-109, 564 N.E.2d

474(1990); State v. Lebron, 8th Dist. Cuyahoga No. 108825, 2020-Ohio-1507, ¶9; State

v. Groves, 5th Dist. Fairfield Nos. 2019 CA 00032, 2019 CA 00033, 2019-Ohio-5025,¶7.

Issue for Appellate Review: Whether the record reflects that Jenkins’s negotiated

guilty plea would not have been entered if the trial judge had informed Jenkins orally at
Muskingum County, Case No. CT2021-0001 7

the plea hearing that “[t]he plea of guilty is a complete admission of the defendant's guilt”

in accordance with Crim. R. 11(B)(1).

{¶23} The constitutional rights that the trial court must advise a defendant who

desires to enter a guilty plea are: (1) the right to a jury trial; (2) the right to confrontation

of witnesses against him; (3) the right to compulsory process for obtaining witnesses in

his favor; (4) that the state must prove the defendant’s guilt beyond a reasonable doubt

at trial; and (5) that the defendant cannot be compelled to testify against himself. State

v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 19. If the trial court

fails to strictly comply with these requirements, the defendant’s plea is invalid. Id. at ¶

31.

{¶24} The non-constitutional rights that the defendant must be informed of are:

(1) the nature of the charges; (2) the maximum penalty involved, which includes, if

applicable, an advisement on post-release control; (3) if applicable, that the defendant is

not eligible for probation or the imposition of community control sanctions; and (4) that

after entering a guilty plea or a no contest plea, the court may proceed directly to judgment

and sentencing. Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10-13; State v. Sarkozy, 117 Ohio

St.3d 86, 2008-Ohio-509, 423 N.E.2d 1224, ¶ 19-26, (postrelease control is a non-

constitutional advisement).

{¶25} For the non-constitutional rights, the trial court must substantially comply

with Crim.R. 11’s mandates. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474

(1990). “Substantial compliance means that under the totality of the circumstances the

defendant subjectively understands the implications of his plea and the rights he is

waiving.” Veney at ¶ 15. Furthermore, a defendant who challenges his guilty plea on the
Muskingum County, Case No. CT2021-0001 8

basis that the advisement for the non-constitutional rights did not substantially comply

with Crim.R. 11(C) must also show a prejudicial effect, meaning the plea would not have

been otherwise entered. Veney at ¶ 15; State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d

1163(1977); State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶12,

citing State v. Nero, 56 Ohio St.3d at 107, 564 N.E.2d 474.

{¶26} The information that a guilty plea is a complete admission of guilt, along

with the other information required by Crim.R. 11, ensures that defendants enter pleas

with knowledge of rights that they would forgo and creates a record by which appellate

courts can determine whether pleas are entered voluntarily. See State v. Nero, 56 Ohio

St.3d 106, 107, 564 N.E.2d 474(1990); see, also, State v. Ballard, 66 Ohio St.2d 473,

479–480, 20 O.O.3d 397, 423 N.E.2d 115(1981).

{¶27} Crim.R. 11(B), captioned “Effect of guilty or no contest pleas,” states that a

plea of guilty “is a complete admission of the defendant’s guilt.” The right to be informed

that a guilty plea is a complete admission of guilt is non-constitutional and therefore is

subject to review under a standard of substantial compliance. State v. Griggs, 103 Ohio

St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶12, citing State v. Nero, 56 Ohio St.3d at 107,

564 N.E.2d 474.

{¶28} In the case at bar, before Jenkins entered his negotiated guilty plea in open

court, Jenkins voluntarily signed a form titled “Plea of Guilty.” The form was also signed

by Jenkins’s attorney and the prosecuting attorney. The form was filed with the trial court

on September 11, 2019. [Docket Entry No. 14]. The form informed Jenkins,

By pleading guilty I admit committing the offense and will tell the

Court the facts and circumstances of my guilt...
Muskingum County, Case No. CT2021-0001 9

{¶29} The court received assurances from Jenkins and his counsel that Jenkins

understood the content of the document and the consequences of waiving his rights. Plea

T. at 4-5. The prosecutor set forth the factual basis for Jenkins’s guilty plea. Plea T. at

13-18. Jenkins did not object to the state’s rendition of the facts. Jenkins did not protest

his innocence, nor did Jenkins argue to the trial court that he was guilty of a lesser offense

than aggravated murder. Jenkins entered his plea on September 11, 2019. Jenkins was

sentenced in open court on December 16, 2020. At no time during the four hundred sixty

two days between his plea and his sentencing did Jenkins attempt to withdraw his

negotiated guilty plea.

{¶30} Jenkins does not argue, nor does he demonstrate by reference to the trial

court record, that if the trial court had told him that his plea of guilty was a complete

admission of his guilt, he would not have entered a guilty plea. Thus, Jenkins has failed

to carry his burden to demonstrate that he would not have entered his negotiated guilty

plea if the trial judge had informed him that his plea of guilty was a complete admission

of his guilt.

{¶31} As in Stewart, Nero, and Griggs the record here indicates that Jenkins

understood the rights that he would waive by pleading guilty. The record in the case at

bar demonstrates that Jenkins understood that by entering his guilty plea, he admitted to

committing the crime of aggravated murder. In such circumstances, a court’s failure to

inform the defendant of the effect of his guilty plea as required by Crim.R. 11(B)(1) is

presumed not to be prejudicial. Griggs, 103 Ohio St.3d 85 at ¶19.

{¶32} Accordingly, we hold that Jenkins’s entered a knowing, intelligent and

voluntary guilty plea.
Muskingum County, Case No. CT2021-0001 10

{¶33} Jenkins’s First Assignment of Error is overruled.

II.

{¶34} In his Second Assignment of Error, Jenkins contends the trial court violated

his Eighth Amendment right against cruel and unusual punishment by sentencing him to

life without parole. Specifically, Jenkins argues that the trial court is required to make a

finding on the record that that he is not amenable to rehabilitation before the court can

sentence a defendant to life without the possibility of parole, citing State v. Long , 138

Ohio St.3d 478, 2014- Ohio-849. [Appellant’s Brief at 4-5].

Standard of Appellate Review

{¶35} Jenkins was sentenced under R.C. 2929.03(A)(1)(a), the statutory section

governing sentences for aggravated murder that do not include one or more specifications

relating to aggravating circumstances (i.e., death-penalty specifications). R.C.

2953.08(D)(3) provides that “a sentence imposed for aggravated murder or murder

pursuant to sections 2929.02 to 2020.06 of the Revised Code is not subject to review

under this section.” However, R.C. 2953.08(D)(3) is not the exclusive basis for appealing

a sentence. State v. Patrick, 164 Ohio St.3d 952, 2020-Ohio-6803, 172 N.E.3d 952, ¶ 15.

“Indeed R.C. 2953.02 also provides a right to appeal a judgment or final order to the court

of appeals ‘[i]n a capital case in which a sentence of death is imposed for an offense

committed before January 1, 1995, and in any other criminal case * * *.’ (Emphasis

added.) R.C. 2953.02 also provides, ‘A judgment or final order of the court of appeals

involving a question arising under the Constitution of the United States or of this state

may be appealed to the supreme court as a matter of right.’ The final judgment for

purposes of appeal under R.C. 2953.02 is the sentence.” Patrick at ¶ 16. Therefore, R.C.
Muskingum County, Case No. CT2021-0001 11

2953.08(D)(3) does not preclude an appellate court’s review of a constitutional challenge

to a sentence for aggravated murder or murder. Id. at ¶ 22.

{¶36} Accordingly, Jenkins’s argument centers on an issue of law, not the

discretion of the trial court. “‘When a court’s judgment is based on an erroneous

interpretation of the law, an abuse-of-discretion standard is not appropriate. See

Swartzentruber v. Orrville Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264,

836 N.E.2d 619, ¶ 6; Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-

Ohio-2554, 2008 WL 2572598, ¶ 50.’ Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d

181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13.” State v. Fugate, 117 Ohio St.3d 261,

2008-Ohio-856, 883 N.E.2d 440, ¶6. Because the assignment of error involves the

interpretation of the constitution, which is a question of law, we review the trial court’s

decision de novo. See, Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-

2496, 909 N.E.2d 1237, ¶ 13; Accord, State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-

4010, 998 N.E.2d 401, ¶ 9; Hurt v. Liberty Township, Delaware County, OH, 5th Dist.

Delaware No. 17 CAI 05 0031, 2017-Ohio-7820, ¶ 31.

Issue for Appellate Review: Whether Jenkins’s sentence is so grossly

disproportionate to the offense as to shock the sense of justice in the community.

{¶37} The Eighth Amendment to the United States Constitution prohibits

“[e]xcessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.”

{¶38} Section 9, Article I of the Ohio Constitution sets forth the same restriction:

“Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual

punishments inflicted.”
Muskingum County, Case No. CT2021-0001 12

{¶39} “The Eighth Amendment does not require strict proportionality between

crime and sentence. Rather, it forbids only extreme sentences that are grossly

disproportionate” to the crime. State v. Weitbrecht, 86 Ohio St.3d 368, 373, 715 N.E.2d

167(1999), quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680(1991),

(Kennedy, J., concurring in part and in judgment). A court's proportionality analysis under

the Eighth Amendment should be guided by objective criteria, including (i) the gravity of

the offense and the harshness of the penalty; (ii) the sentences imposed on other

criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the

same crime in other jurisdictions. (Footnotes omitted.)” Solem v. Helm, 463 U.S. 277,

290–292, 103 S.Ct. 3001, 3010–3011, 77 L.Ed.2d 637, 649–650(1983). (Internal

quotation marks omitted).

{¶40} It is well established that sentences do not violate these constitutional

provisions against cruel and unusual punishment unless the sentences are so grossly

disproportionate to the offenses as to shock the sense of justice in the community. State

v. Chaffin, 30 Ohio St.2d 13, 59 O.O.2d 51, 282 N.E.2d 46(1972). Accord, State v.

Blankenship, 145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d 516, ¶32.

{¶41} As a general rule, a sentence that falls within the terms of a valid statute

cannot amount to a cruel and unusual punishment. State v. Stevens, 5th Dist. Stark No.

2017CA00024, 2017-Ohio-8692, ¶ 10, quoting McDougle v. Maxwell, 1 Ohio St.2d 68,

69, 203 N.E.2d 334 (1964).

{¶42} In the case at bar, the facts of the crime read into the record by the

prosecutor establish that Jenkins struck his grandmother and caused her to fall down a

flight of stairs. Upon seeing her injured and incapacitated at the bottom of the stairwell,
Muskingum County, Case No. CT2021-0001 13

Jenkins, instead of calling for help, callously, intentionally and with utter disregard for the

elderly woman sprawled helplessly at his feet, placed his foot upon her neck. As she

writhed in pain, he intentionally and nonchalantly changed feet when the one squeezing

the life out of the helpless woman grew tired. It took Jenkins about ten minutes to squeeze

the life out of Betty. At any point prior, Jenkins could have stopped and summoned help.

He did not. Rather, he wrapped Betty’s body in plastic and dumped it in a water filled ditch

alongside the road. He told Mandy that he would immediately kill her if she were not his

sister. Shortly thereafter he attempted to rob a convenience store and flee the jurisdiction.

{¶43} There is no evidence in the record that the judge acted unreasonably by,

for example, selecting the sentence arbitrarily, basing the sentence on impermissible

factors, failing to consider pertinent factors, or giving an unreasonable amount of weight

to any pertinent factor. We find nothing in the record of Jenkins’s case to suggest that his

sentence was based on an arbitrary distinction that would violate the Due Process Clause

of the Fifth Amendment. State v. Firouzmandi, 5th Dist. Licking App. No. 2006–CA–41,

2006–Ohio–5823, ¶ 43. Jenkins does not challenge his sentence as out of line with other

sentences from this or other jurisdictions, nor does he argue he was not sentenced within

a range permitted by statute.

{¶44} Upon our review of the record, we cannot say Jenkins’s sentence is “so

disproportionate to the offense as to shock the moral sense of the community.” Chaffin,

supra.

{¶45} Jenkin’s reliance upon State v. Long, 138 Ohio St.3d 478, 2014- Ohio-849

is misplaced. Long was convicted as a juvenile and sentenced to life without parole. The

Court in Long noted,
Muskingum County, Case No. CT2021-0001 14

In Miller, the United States Supreme Court began by reviewing its

previous decisions regarding the sentencing of juveniles.

Roper and Graham establish that children are constitutionally

different from adults for purposes of sentencing. Because juveniles have

diminished culpability and greater prospects for reform, we explained, “they

are less deserving of the most severe punishments.” Graham, 560 U.S. at

68, 130 S.Ct. at 2026, 176 L.Ed.2d 825. Those cases relied on three

significant gaps between juveniles and adults. First, children have a “‘lack

of maturity and an underdeveloped sense of responsibility,’ ” leading to

recklessness, impulsivity, and heedless risk-taking. Roper, 543 U.S., at

569, 125 S.Ct. 1183, 161 L.Ed.2d 1. Second, children “are more vulnerable

* * * to negative influences and outside pressures,” including from their

family and peers; they have limited “contro[l] over their own environment”

and lack the ability to extricate themselves from horrific, crime-producing

settings. Ibid. And third, a child’s character is not as “well formed” as an

adult’s; his traits are “less fixed” and his actions less likely to be “evidence

of irretrievabl[e] deprav [ity].” Id., at 570, 125 S.Ct. 1183, 161 L.Ed.2d 1.

Miller, ––– U.S. ––––, 132 S.Ct. at 2464, 183 L.Ed.2d 407.

Long, 138 Ohio St.3d 478 at ¶12.

{¶46} The Supreme Court concluded,

The United States Supreme Court has indicated in Roper, Graham,

and Miller that juveniles who commit criminal offenses are not as culpable

for their acts as adults are and are more amenable to reform. We agreed
Muskingum County, Case No. CT2021-0001 15

with this sentiment in In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967

N.E.2d 729. Miller did not go so far as to bar courts from imposing the

sentence of life without the possibility of parole on a juvenile. Yet because

of the severity of that penalty, and because youth and its attendant

circumstances are strong mitigating factors, that sentence should rarely be

imposed on juveniles. Miller, ––– U.S. ––––, 132 S.Ct. at 2469, 183 L.Ed.2d

407. In this case, the trial court must consider Long’s youth as mitigating

before determining whether aggravating factors outweigh it. We therefore

reverse the judgment of the court of appeals and remand this cause to the

trial court for resentencing.

Long, 138 Ohio St.3d 478 at ¶29.

Jenkins has cited absolutely no authority in support of his contention that a trial

court must make a finding on the record that that he is not amenable to rehabilitation

before the court can sentence an adult offender to life without the possibility of parole.

{¶47} We find the sentence of the trial court is supported by the record and does

not violate the constitutional prohibition against cruel and unusual punishment.

{¶48} Jenkins’s Second Assignment of Error is overruled.

III.

{¶49} In his Third Assignment of Error, Jenkins argues that he was denied

effective assistance of trial counsel because trial counsel failed to present any evidence

to support any mitigating factors such as psychological reports or witness statements in

order to support the trial court’s imposition of a twenty year sentence instead of a life

sentence.
Muskingum County, Case No. CT2021-0001 16

Standard of Appellate Review – Ineffective Assistance of Counsel

{¶50} To prevail on a Sixth Amendment claim alleging ineffective assistance of

counsel, a defendant must show that his counsel’s performance was deficient and that

his counsel’s deficient performance prejudiced him. Strickland v. Washington, 466 U.S.

668, 694 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, a defendant must

show that “counsel’s representation fell below an objective standard of reasonableness.”

Id., at 688, 104 S.Ct. 2052. And to establish prejudice, a defendant must show “that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id., at 694, 104 S.Ct. 2052. Andtus v. Texas,

590 U.S. __, 140 S.Ct. 1875, 1881 (June 15, 2020).

Issue for Appellate Review: Whether there is a reasonable probability that, but

for counsel’s failure to present evidence of mitigating factors the result of the proceeding

would have been different.

{¶51} Jenkins claim that his attorney could have produced expert witnesses,

psychological reports or character witnesses that would have swayed the trial court to

impose a twenty-year sentence is based upon pure speculation.

{¶52} “‘The presentation of mitigating evidence is a matter of trial strategy,’ State

v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 189, even if counsel's

chosen strategy proves unsuccessful, State v. Frazier, 61 Ohio St.3d 247, 255, 574

N.E.2d 483 (1991).” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d

508, ¶ 304.

{¶53} “Debatable trial tactics do not establish ineffective assistance of counsel.”

State v. Hoffner, 102 Ohio St.3d 358, 365, 2004–Ohio–3430(2004), ¶45. Trial counsel’s
Muskingum County, Case No. CT2021-0001 17

failure to request an expert is a “debatable trial tactic,” and does not amount to ineffective

assistance of counsel. See State v. Thompson (1987), 33 Ohio St.3d 1, 9, 514 N.E.2d

407 (trial counsel’s failure to obtain a forensic pathologist to “rebut” the issue of rape was

not ineffective assistance of counsel); State v. Foust, 105 Ohio St.3d 137, 153–154,

2004–Ohio–7006, 823 N.E.2d 836, ¶¶ 97–99 (trial counsel’s failure to request funds for a

DNA expert, an alcohol and substance-abuse expert, a fingerprint expert, and an arson

expert did not amount to ineffective assistance of counsel because appellant’s need for

experts was “highly speculative” and counsel’s choice “to rely on cross-examination” of

prosecution’s expert was a “legitimate tactical decision”); State v. Yarger, 6th Dist. No.

H–97–014, 1998 WL 230648 (May 1, 1998) (trial counsel’s failure to hire an expert

medical doctor to rebut state’s expert witness was not ineffective assistance of trial

counsel); State v. Rutter, 4th Dist. No. 02CA17, 2003–Ohio–373, ¶ 19, 28 (trial counsel’s

failure to hire an accident re-constructionist did not amount to ineffective assistance of

counsel).

{¶54} “In order to obtain a reversal on ineffective assistance of counsel based on

a failure to subpoena a witness, a defendant must demonstrate that the testimony of the

witness would be of significant assistance to the defense.” State v. Reese, 8 Ohio App.3d

202, 203, 456 N.E.2d 1253 (1st Dist. 1982). Accord, State v. Varner, 5th Dist. No.

98CA00016, 1998 WL 667620 (Sept. 14, 1998). We note the record is devoid of a proffer

of the testimony of any purported witnesses. Based upon the status of the record

presently before this Court, we find Jenkins is unable to demonstrate the testimony would

have been of significant assistance to his defense.
Muskingum County, Case No. CT2021-0001 18

{¶55} Jenkins’s counsel did argue that Jenkins’s mother had died shortly before

his crime, that he was relatively young at 28 years old, and that Jenkins had a drinking

problem. Sent. T. at 4-6. Jenkins made a statement to the trial judge during the

sentencing hearing. Sent. T. at 8. Further, the trial court had the benefit of a Pre-Sentence

Investigation report. Sent. T. at 8-9. The trial court received 58 letters from Betty’s family

and friends. Id. at 10.

{¶56} Trial counsel made an argument on Jenkins’s behalf for a lesser sentence.

The fact that the trial court did not agree does not mean that defense counsel was

ineffective in the attempt to obtain a more favorable sentence.

{¶57} Jenkins has failed to show that the presentation of additional evidence

would have resulted in the trial court imposing a lesser sentence. Therefore, Jenkins has

failed to establish that he has been prejudice by trial counsel’s performance.
Muskingum County, Case No. CT2021-0001 19

{¶58} Jenkins’s Third Assignment of Error is overruled.

{¶59} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By Gwin, J.,

Baldwin, P.J., and

Hoffman, J, concur