[Cite as State v. Marsh, 2013-Ohio-2949.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ) 

 ) CASE NO. 12 MA 40 

 PLAINTIFF-APPELLEE, ) 

 ) OPINION

 - VS - ) AND

 ) JUDGMENT ENTRY

MICHAEL MARSH, ) 

 ) 

 DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Application for Reopening. 

JUDGMENT: Application for Reopening Denied. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Paul Gains 

 Prosecuting Attorney 

 Attorney Ralph Rivera 

 Assistant Prosecuting Attorney 

 21 West Boardman Street 

 Youngstown, Ohio 44503 

For Defendant-Appellant: Michael Marsh, Pro se 

 #623-088 

 Belmont Correctional Institution 

 P.O. Box 540 

 St. Clairsville, Ohio 43950 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

 Dated: June 19, 2013
[Cite as State v. Marsh, 2013-Ohio-2949.]

PER CURIAM. 

¶{1} Defendant-appellant Michael Marsh was charged with second degree 

felony robbery in violation of R.C. 2911.02(A)(2), which entails inflicting, attempting to 

inflict, or threatening to inflect physical harm on another in attempting or committing a 

theft offense or in fleeing immediately thereafter. He had various prior convictions. 

The state offered to recommend two years in prison if appellant pled as charged. He 

refused the offer and proceeded to a jury trial after which he was found guilty and 

sentenced to six years in prison. 

¶{2} In the direct appeal, appellate counsel urged that trial counsel’s advice 

concerning the plea or chances of winning at trial constituted ineffective assistance of 

counsel. We overruled that argument. State v. Marsh, 7th Dist. No. 12MA40, 2013-

Ohio-757. Appellant has filed a timely application to reopen his appeal under App.R. 

26(B), setting forth two potential assignments of error that he believes appellate 

counsel was ineffective for failing to raise. For the following reasons, the application 

to reopen is denied. 

¶{3} A defendant in a criminal case may apply for reopening of his direct 

appeal based upon a claim of ineffective assistance of counsel. App.R. 26(B)(1). 

The defendant must set forth one or more assignments of error or arguments in 

support of assignments of error that previously were not considered on the merits or 

that were considered on an incomplete record due to appellate counsel's deficient 

performance. App.R. 26(B)(2)(c). An application for reopening shall be granted if 

there is a genuine issue as to whether the defendant was deprived of the effective 

assistance of counsel on appeal. App.R. 26(B)(5). 

¶{4} In determining whether a defendant-appellant has received ineffective 

assistance of appellate counsel, we apply the two-pronged analysis from Strickland v. 

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

performance and prejudice. Thus, the applicant must point to: (1) an error or 

omission in failing to raise the issue now raised that fell below an objective standard 

of reasonableness, and (2) a reasonable probability of success on appeal had that 

error or omission not been made. State v. Were, 120 Ohio St.3d 85, 2008-Ohio-
 - 2 -

5277, 896 N.E.2d 699, ¶ 10-11, citing State v. Sheppard, 91 Ohio St.3d 329, 330, 

744 N.E.2d 770 (2001). In seeking reopening, the appellant bears the burden of 

demonstrating that there is a “genuine issue” as to whether he has a “colorable claim” 

of ineffective assistance of appellate counsel. Id., citing State v. Spivey, 84 Ohio 

St.3d 24, 25, 701 N.E.2d 696 (1998). 

¶{5} Appellate counsel need not raise every possible issue in order to render 

constitutionally effective assistance. State v. Tenace, 109 Ohio St.3d 451, 2006-

Ohio-2987, 849 N.E.2d 1, ¶ 7, citing Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 

3308, 77 L.Ed.2d 987 (1983). Counsel is expected to focus on strong arguments and 

winnow out the weaker ones. State v. Adams, 7th Dist. No. 08MA246, 2012-Ohio2719, ¶ 8-12, citing Jones, 463 U.S. at 751–752 (“Multiplicity hints at lack of 

confidence in any one [argument]”). 

¶{6} As aforementioned, appellate counsel argued that trial counsel 

rendered ineffective assistance of counsel by causing appellant to reject a favorable 

plea bargain offered by the state, urging that he would have accepted a plea 

agreement with a recommendation of two years if counsel would not have caused 

him to believe that that they could win at trial. See Marsh, 7th Dist. No. 12MA40. 

This argument revolved around a recent case from the United States Supreme Court 

where counsel’s erroneous advice resulted in the rejection of a favorable plea 

agreement. See Lafler v. Cooper, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). 

¶{7} In Lafler, the Court held that a defendant has the right to effective 

assistance of counsel in considering whether to accept a plea offered by the 

prosecution and thus the two-part Strickland test applies on review. Id. at 1387. The 

Court rejected the state’s argument that there is no prejudice if the defendant is later 

convicted after a fair trial. Id. at 1385 (deficient performance had been stipulated). 

The Court then agreed that the defendant in that case suffered prejudice and outlined 

certain remedies available on remand. Id. at 1389, 1391. We distinguished Lafler

and found no deficient performance or prejudice regarding the entry of appellant’s 

plea. Marsh, 7th Dist. No. 12MA40 at ¶ 24-29. 

¶{8} One of the issues now raised by appellant in his request to reopen is 

directly contradictory to the arguments presented in support of the assignment of 
 - 3 -

error that was fully briefed in the direct appeal. That is, in his application for 

reopening, appellant contends that appellate counsel should have raised sufficiency 

of the evidence as an assignment of error. He urges that there was insufficient 

evidence that he was the cause of the physical harm suffered by the security guard 

whose hands were scratched and bleeding. 

¶{9} As the assignment of error raised on appeal argued that trial counsel 

rendered ineffective assistance of counsel by advising that the case was possibly 

winnable when it was not, it would have been contradictory to simultaneously argue 

that the evidence was insufficient as a matter of law. Although appellate counsel 

could have briefed the issues in the alternative, he was not required to do so in order 

to avoid rendering deficient performance. If “[m]ultiplicity hints at lack of confidence 

in any one” argument, then wholly contradictory arguments are even less desirable. 

See Adams, 7th Dist. No. 08MA246 at ¶ 8-12, citing Jones, 463 U.S. at 751–752. 

¶{10} Thus, appellate counsel did not render deficient performance by failing 

to raise sufficiency of the evidence. We also conclude a lack of prejudice as 

appellant has failed to demonstrate that had sufficiency been presented as an 

argument in the direct appeal, this court would have reversed his conviction. 

¶{11} Sufficiency of the evidence is a test of adequacy rather than credibility 

or weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 

541 (1997). Whether the evidence is legally sufficient to sustain a verdict is a 

question of law. Id. In reviewing the record for sufficiency, the relevant inquiry is 

whether, after viewing the evidence in a light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements proven beyond a 

reasonable doubt. State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998); 

State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). When evaluating the 

sufficiency of the evidence to prove the elements, circumstantial evidence has the 

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272–

273, 574 N.E.2d 492 (1991). 

¶{12} Appellant focuses his insufficient evidence argument on the security 

guard’s testimony which he believes was contradictory. The security guard testified: 

that appellant scratched the top of his hand while “trying to fight his way to make sure 
 - 4 -

he’s able to leave,” that appellant “was scratching at my arms and my hand to get my 

grip off him,” and that appellant was “trying to get my wrap off of him physically by 

trying to rip my hand off with his, and he ended scratching me with his fingernails and 

trying to use as much force as he can possibly to resist me and to leave out the 

door.” (Tr. 206-207, 222-224). 

¶{13} Appellant believes that the security guard then admitted that he may 

have scratched his hand while pushing appellant into the wall. However, the security 

guard did not testify in this manner. In fact, the security guard testified that he was 

certain that he did not cause the injury to himself in the altercation with appellant. 

(Tr. 207). As we set forth in our prior opinion, the assistant manager testified that he 

saw appellant trying to remove the security guard’s hands, that he did not see the 

actual act of scratching, and that it was possible that the guard’s hands hit the wall 

during the altercation. Marsh, 7th Dist. No. 12MA40 at ¶ 11; (Tr. 238, 247, 249-250). 

¶{14} Because appellant is confusing the security guard’s testimony with the 

assistant manager’s testimony, his argument here is misguided.1

 In viewing the 

evidence in the light most favorable to the prosecution, some rational trier of fact 

could use the security guard’s testimony to find that appellant clawed his hands as he 

was attempting to flee after the theft and that he thus committed robbery. See Goff, 

82 Ohio St.3d at 138. There is no reasonable probability that had appellate counsel 

raised sufficiency, appellant’s conviction would have been reversed. 

¶{15} The other argument raised by appellant in seeking reopening is that 

appellate counsel was ineffective by failing to argue that trial counsel was ineffective 

because he did not request a jury instruction on the lesser included offense of theft 

and that the trial court committed plain error by failing to provide such an instruction. 

He characterizes this as a “deadbang winner” claim. 

 1

In appellant’s statement of facts, but not in the argument section of his application, appellant 

also contends that that the responding police officer committed perjury, claiming that the officer 

testified that appellant was fighting in the parking lot when he arrived. However, appellant is again 

misreading the testimony. The sergeant testified that when he arrived, security had already brought 

appellant back to the office. (Tr. 254). The mention of the parking lot was a reference to the third call 

received by dispatch wherein a bystander reported that there was a fight in the parking lot. (Tr. 253). 

The sergeant never testified that he saw appellant fighting with security in the parking lot. (Tr. 251-

262). 
 - 5 -

¶{16} Initially, we note that part of this argument is based upon the 

misconceptions regarding the security guard’s testimony. As explained above, the 

security guard did not state that the scratches may have been caused by his act of 

pressing appellant into the wall. Rather, he specifically testified that appellant 

scratched him while trying to pry his hands away. 

¶{17} Next, we point out that the failure to request an instruction on a lesser 

included offense is typically considered a matter of trial tactics rather than ineffective 

assistance of counsel. State v. Griffie, 74 Ohio St.3d 332, 333, 658 N.E.2d 764; 

State v. Hlinovsky, 7th Dist. no. 09BE19, 2011-Ohio-6421, ¶ 128. Appellate courts 

are to refrain from second-guessing the strategic decisions counsel made at trial, 

even where counsel's trial strategy was debatable. See, e.g., State v. Myers, 97 

Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 152. 

¶{18} Appellant testified that he admitted he was shoplifting, that he did not 

scratch anyone, and that had he scratched the guard, he would have taken the plea 

bargain. (Tr. 288). The strategy presented during the trial testimony and in opening 

and closing was to admit that appellant committed the theft and hope the jury would 

believe that he did not cause the injury to the security guard. (Tr. 194-195, 300-

301). 

¶{19} The all-or-nothing position is an acceptable trial strategy, and is one the 

defendant inevitably regrets in hindsight when it does not result in acquittal. In 

Griffie, the Ohio Supreme Court specifically upheld an appellate court’s denial of an 

application for reopening that was based upon trial counsel’s failure to request a 

lesser included offense instruction, concluding that the matter was one of trial 

strategy. Griffie, 74 Ohio St.3d at 333 (noting that the record may reveal that counsel 

did not request a certain instruction, but does not reveal why he did not request the 

instruction and thus a court of appeals would have to guess as to why trial counsel 

did not make the request). 

¶{20} Lastly, as the matter is one of trial tactics, it is not plain error for a court 

to fail to sua sponte provide a lesser included offense instruction. State v. Viers, 7th 

Dist. No. 01JE19, 2003-Ohio-3483, ¶ 48. Consequently, appellate counsel was not 
 - 6 -

ineffective for failing to raise this issue on appeal. For all of these reasons, the 

application to reopen is denied. 

Vukovich, J., concurs. 

Donofrio, J., concurs. 

Waite, J., concurs.