[Cite as State v. Brewer , 2021-Ohio-2289.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

BROWN COUNTY

STATE OF OHIO, Appellee,

- vs -

AMBER BREWER, Appellant. :

:

:

:

:

: CASE NO. CA2020-11-008

O P I N I O N 7/6/2021

CRIMINAL APPEAL FROM BROWN CO UNTY COURT OF COMMON PLEAS Case No. CRI2020-2098

Zachary A. Corbin, Brown County Prosecuting Attorney, Mary McMu llen, 740 Mt. Orab Pike, Suite 1, Georgetown, Ohio 45121, for appellee Peter Galyardt, Assistant Ohio Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, for appellant

HENDRICKSON, J. {¶1} Appellant, Amber Brewer, appeals from her convictions in the Br own County Court of Common Pleas for multiple counts of rape of a child le ss than ten years of age. For the reasons discussed below, we affirm her convictions. {¶2} On June 4, 2020, appellant was indicted on ten counts of rape o f a child less than ten years of age in violation of R.C. 2907.02(A)(1)(b), fe lonies of the first degree. SheBrown CA2020-11-008

- 2 - was further indicted on four counts of endangering children in violation of R.C. 2919.22(B)(5), one count of the illegal use of a minor in a nud ity-oriented material or performance in violation of R.C. 2907.323(A)(1), nine counts of the illegal use of a minor in a nudity-oriented material or performance in violation of R.C. 2907.323(A)(2), five counts of pandering sexually-oriented matter involving a minor in violati on of R.C. 2907.322(A)(1),

and three counts of felonious assault with a sexual motivation specification in violation of R.C. 2903.11(A)(1), all felonies of the second degree. The cha rges arose out of allegations that between January 1, 2019 and May 11, 2020, appellant and he r boyfriend sexually abused three minor females, who were between the ages of four a nd eight, as well as a three-year-old boy. In addition to engaging in oral and penetr ative sex with the minors, during which time sexual toys and other objects were used, appe llant and her boyfriend also videotaped and took photographs of the abuse. The photogr aphs and recordings were then sent back and forth between appellant and her boyfriend fo r the purpose of sexually arousing one another. {¶3} On September 18, 2020, following plea negotiations, appellant e ntered guilty pleas to four counts of rape of a child less than ten years of age in exchange for the remaining 28 offenses being dismissed. After engaging appellan t in a Crim.R. 11(C) plea colloquy, the trial court accepted appellant's guilty plea and found that the plea was knowingly, intelligently, and voluntarily entered. The court p roceeded to sentence appellant to life in prison without the possibility of parole on each rap e count and ran the sentences consecutively to one another. App ellant was also classified as a Tier III sex offender. {¶4} Appellant filed a delayed appeal, raising the following assignm ent of error: {¶5} AMBER BREWER RECEIVED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL [IN VIOLATION OF THE] FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS [OF THE] UN ITED STATES CONSTITUTION, ARTI CLEBrown CA2020-11-008

- 3 - I, SECTIONS 10 AND 16 [OF THE ] OHIO CONSTITUTION, AND UNITED STATES V.

CRONIC , 466 U.S. 648, 104 S.CT. 2039 (1984). {¶6} Appellant argues defense counsel "failed to function in any mea ningful sense as the prosecution's adversary," thereby depriving her of her c onstitutional right to effective representation by counsel. Appellant contends counsel was defi cient for not presenting any mitigation argument at sentencing and for failing to seek a psy chological evaluation to ensure that she was not legally insane at the time of the crime s and that she understood the consequences of entering a guilty plea. Citing United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039 (1984), appellant contends that prejudice should be presumed. {¶7} To prevail on an ineffective assistance of counsel claim, "a de fendant ordinarily must establish both that counsel performed deficient ly and that the defendant was prejudiced by the deficient performance." State v. Spaulding , 151 Ohio St.3d 378, 2016- Ohio-8126, ¶ 56, citing Strickland v. Washington , 466 U.S. 668, 686 and 694, 104 S.Ct. 2052 (1984). The failure to satisfy either the deficiency pron g or the prejudice prong of the

test is fatal to a claim of ineffective assistance of counsel. State v. Madrigal , 87 Ohio St.3d 378, 389 (2000). {¶8} The United States Supreme Court, however, has recognized that s ome circumstances are so likely to prejudice the defendant that no showing of prejudice is

necessary. See Cronic at 659-661. These circumstances include the complete denial o f counsel at a critical stage of the proceeding, the complete fai lure of counsel to subject the prosecution's case to meaningful adversarial testing, counsel's active representation of conflicting interests, and situations where defense counsel was appointed only a few

minutes before trial commenced. State v. Sanders , 92 Ohio St.3d 245, 277 (2001), citing

Cronic at 659-661.Brown CA2020-11-008

- 4 - {¶9} "'Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accuse d can show how specific errors of counsel undermined the reliability of the finding of guilt.'" Id. , quoting Cronic at 659, fn. 26. The United State Supreme Court later emphasized t hat where a defendant is claiming the Cronic presumption of prejudice exception should apply due to counsel 's alleged failure to subject the prosecution's case to meaningful adversarial testing, the

defendant must establish a complete failure

. Bell v. Cone , 535 U.S. 685, 696-697, 122 S.Ct. 1843 (2002). "When we spoke in Cronic of the possibility of presuming prejudice based on an attorney's failure to test the prosecutor's case, w e indicated that the attorney's failure must be complete. We stated, 'if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.'" (Emphasis added). Bell at 696-697, quoting

Cronic at 659. {¶10} Appellant has not established that her trial counsel completely failed to test the prosecution's case. Appellant's trial counsel (1) engaged in discovery, (2) requested a bill of particulars, (3) atten ded pretrial hearings, (4) engage d in plea negotiations with the state to the benefit of appellant, (5) answered all of appellan t's questions regarding the effect of her guilty plea; and (6) was present and participated at the plea and sentencing hearing. Consequently, the case at bar is not one of the extre mely rare situations in which a defendant's trial counsel completely failed to test the prose cution's case. See State v. Guysinger , 4th Dist. Ross No. 15CA3514, 2017-Ohio-1167, ¶ 25 (rejecting a claim that the court should apply Cronic and presume prejudice); State v. Campbell , 8th Dist. Cuyahoga Nos. 100246 and 100247, 2014-Ohio-2181, ¶ 26, fn.12 (finding th at Cronic did not apply).

As the Cronic exception to the general ineffective-assistance-of-counsel test does not apply, appellant must show prejudice in addition to counsel's d eficient performance toBrown CA2020-11-008

- 5 - prevail on her ineffective assistance of counsel claim. See Cronic at 666, fn. 41, citing to Strickland v. Washington , 466 U.S. at 693-696; Guysinger at ¶ 26. {¶11} We now turn to appellant's claims that counsel provided ineffec tive assistance by not seeking a psychological evaluation of appellant and by n ot presenting mitigation evidence at sentencing. In doing so, we note that "[t]rial cou nsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance."

State v. Smith , 12th Dist. Fayette No. CA2006-08-030, 2009-Ohio-197, ¶ 49. " Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel's perspective at the time." State v. Lampley , 12th Dist. Butler No. CA2011-03-046, 2011- Ohio-6349, ¶ 21. {¶12} It is generally recognized that "a trial counsel's failure to s eek a competency evaluation or to pursue an insanity defense is not, per se, ine ffective assistance of counsel."

State v. Smith , 9th Dist. Summit No. 24382, 2009-Ohio-1497, ¶ 10. It is only where the facts and circumstances indicate appellant did not understand t he nature and objective of the proceedings and was incapable of assisting in her defense o r otherwise indicate that a plea of not guilty by reason of insanity would have a reasonabl e probability of success that it is ineffective assistance of counsel to fail to pursue such a defense strategy. Id. ; Lampley at ¶ 20-22. {¶13} In the present case, appellant did not display any indicia of i ncompetency to warrant a competency hearing and there is nothing in the record to indicate she suffered from any form of severe mental disease or defect. While the of fenses appellant committed upon the four minor victims are heinous and unconscionable, the re is nothing in the record to indicate appellant failed to understand or appreciate the na ture of her actions. Moreover, the record indicates appellant was lucid and able to participat e in her defense and case. Accordingly, as the record is devoid of any evidence even remot ely implying appellantBrown CA2020-11-008

- 6 - suffered from incompetency or insanity, her trial counsel's fai lure to request the trial court order a competency evaluation or psychiatric examination does n ot constitute deficient performance. State v. Rodriguez , 12th Dist. Butler No. CA2008-07-162, 2009-Ohio-4460, ¶ 70. {¶14} We further find that counsel's decision not to present mitigati on evidence at sentencing did not amount to ineffective assistance. In genera l, the extent to which counsel presents mitigation evidence at a sentencing hearing is a matte r of trial strategy. State v.

Gleckler , 12th Dist. Clermont No. CA2009-03-021, 2010-Ohio-496, ¶ 14. See also State v. Tinsley , 8th Dist. Cuyahoga No. 105551, 2018-Ohio-278, ¶ 17, citing State v. Cossack , 7th Dist. Mahoning No. 08 MA 161, 2009-Ohio-3327, ¶ 36. "[E]ven de batable trial tactics and strategies do not establish ineffective assistance of counsel." State v. Cunningham , 12th Dist. Butler No. CA2017-03-034, 2018-Ohio-912, ¶ 25. {¶15} The record reflects that appellant elected not to speak on her own behalf at sentencing. Furthermore, when it was time for defense counsel to speak, defense counsel indicated appellant did not wish for counsel to convey anything to the court in mitigation. 1 Even if we assume counsel's failure to offer any mitigating arg uments amounted to a deficient performance under Strickland , we are unable to find that appellant was prejudiced as nothing in record indicates that the trial court would have sentenced appellant any differently than it did had counsel offered mitigating circumst ances. See State v. McIntosh , 12th Dist. Butler Nos. CA2006-03-051, CA2006-10-282, and CA2007 -10-41, 2008-Ohio1. The following discussion occurred at sentencing: THE COURT: Anything that you would like to say, [defense couns el]? [DEFENSE COUNSEL]: I've spoke to my client, Your Honor, and – and she has nothing that she wants me to convey to the Court. THE COURT: [Appellant], anything that you wanted to say? [APPELLANT]: No.Brown CA2020-11-008

- 7 - 5540, ¶ 41-42 (finding no merit to a defendant's ineffective as sistance of counsel claim where trial counsel failed to present any mitigating evidence a t sentencing). {¶16} Appellant has not specifically stated how she was prejudiced. The trial court considered the facts of the case, as admitted by appellant when she pled guilty to the charges, and heard from the victims' families and the prosecuto r. The court noted that the offenses appellant committed were "reprehensible," "horrific," and "shocking to the conscience of th[e] Court." Not only did appellant abuse her p osition of trust by raping and sexually assaulting three young females, but she also abused an other child when the child was asleep and she had the opportunity to be alone with him. A ppellant encouraged her boyfriend to commit violent sexual acts against the children. She then filmed and photographed the abuse and shared the recordings and photograph s with her boyfriend in order to sexually arouse them both. Considering the nature of the charges and the danger appellant poised to the public, nothing indicates that trial co unsel could have done anything differently to change the outcome of sentencing. The penalty o f consecutive life sentences without the possibility of parole was authorized by law and was more than warranted under the circumstances presented by this case. As such, appellant i s unable to show prejudice

and her claim of ineffective assistance of counsel fails. {¶17} Accordingly, for the reasons stated above, we find no merit to appellant's claims of ineffective assistance of counsel. Appellant's sole assignment of error is

overruled. {¶18} Judgment affirmed.

S. POWELL, P.J, and BYRNE, J., concur.