[Cite as State v. Smalley, 2019-Ohio-1572.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HENRY COUNTY 

 

STATE OF OHIO, 

 CASE NO. 7-18-30 

 PLAINTIFF-APPELLEE, 

 v. 

 

WESLEY SMALLEY, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Henry County Common Pleas Court 

Trial Court No. 18 CR 0014 

Judgment Affirmed 

Date of Decision: April 29, 2019 

 

APPEARANCES: 

Sarah R. Anjum for Appellant 

Gwen Howe-Gebers for Appellee 

 
Case No. 7-18-30 

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WILLAMOWSKI, J. 

{¶1} Defendant-appellant Wesley Smalley (“Smalley”) appeals the 

judgment of the Henry County Court of Common Pleas, alleging that he was denied 

his right to the effective assistance of counsel. For the reasons set forth below, the 

judgment of the trial court is affirmed. 

Facts and Procedural History 

{¶2} On February 28, 2018, Smalley was indicted on one count of cruelty to 

a companion animal in violation of R.C. 959.131(C). After a bench trial on August 

21, 2018, the trial court found Smalley guilty. Doc. 57. On October 1, 2018, 

Smalley was sentenced to two years of community control and fourteen days in the 

Correctional Center of Northwest Ohio, being granted work release for the first 

seven days and being subject to GPS/house arrest for the remaining seven days. 

Doc. 64. 

Assignment of Error 

{¶3} Smalley filed his notice of appeal on October 17, 2018. Doc. 68. On 

appeal, he raises the following assignment of error: 

Trial counsel committed ineffective assistance of counsel when it 

failed to make any record of plea negotiations. 

Smalley points to the absence of plea negotiations as evidence that his trial counsel 

was deficient. 

 
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Legal Standard 

{¶4} “Under Ohio law, ‘a properly licensed attorney is presumed to carry out 

his duties in a competent manner.’” State v. Beaver, 3d Dist. Marion No. 9-17-37, 

2018-Ohio-2438, ¶ 26, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9, 1993 

WL 270995 (July 22, 1993). For this reason, the appellant has the burden of proving 

that he or she was denied the right to the effective assistance of counsel. State v. 

Brown, 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, ¶ 42. “In order to prove an 

ineffective assistance of counsel claim, the appellant must carry the burden of 

establishing (1) that his or her counsel’s performance was deficient and (2) that this 

deficient performance prejudiced the defendant.” State v. McWay, 3d Dist. Allen 

No. 1-17-42, 2018-Ohio-3618, ¶ 24, quoting Strickland v. Washington, 466 U.S. 

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

{¶5} In order to establish deficient performance, the appellant must 

demonstrate that trial “counsel made errors so serious that counsel was not 

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 

State v. Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 35, quoting 

Strickland at 687. In order to establish prejudice, “the defendant must show a 

reasonable probability that, but for counsel’s errors, the result of the proceeding 

would have been different.” State v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-

Ohio-2916, ¶ 36, quoting State v. Bibbs, 3d Dist. Hancock No. 5-16-11, 2016-Ohio8396, ¶ 13. If the appellant does not establish one of these two prongs, the appellate 
Case No. 7-18-30 

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court does not need to consider the facts of the case under the other prong of the 

test. State v. Baker, 3d Dist. Allen No. 1-17-61, 2018-Ohio-3431, ¶ 19, citing State 

v. Walker, 2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist.). 

Legal Analysis 

{¶6} In his brief, Smalley argues that his counsel failed to record any plea 

negotiations that may have occurred. Smalley asserts that a plea agreement offer 

would have been “routine” in a case such as this one, possibly suggesting that there 

may have been a plea agreement offer from the State that was not communicated to 

him by his trial counsel. Appellant’s Brief, 8. Smalley then contends that he was 

“likely prejudiced by the lack of plea negotiations.” Appellant’s Brief, 8. 

{¶7} These arguments are entirely speculative. In this case, there is no 

evidence in the record that indicates that the State made a plea offer to Smalley’s 

trial counsel or that the State was even interested in entering into plea negotiations.1

 

We cannot conclude that trial counsel was ineffective for failing to negotiate a plea 

agreement when the appellant has not offered any evidence that such an option was 

even available to his trial counsel. Similarly, we cannot conclude that trial counsel 

was ineffective for failing to preserve a record of plea negotiations when appellant 

has presented no evidence that plea negotiations occurred. 

 

1

 The State, in its brief, represents that the prosecution made no offer of a plea agreement “other than to plead 

to the indictment as charged” because “the offense was a low level felony * * *.” Appellee’s Brief, 7. 
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{¶8} No evidence has been presented on appeal to substantiate the claim that 

Smalley was denied his right to the effective assistance of counsel. Smalley has not, 

in any of his arguments, carried the burden of proving that his trial counsel’s 

performance was deficient. For these reasons, Smalley’s first assignment of error 

is overruled. 

Conclusion 

{¶9} Having found no error prejudicial to the appellant in the particulars 

assigned and argued, the judgment of the Henry County Court of Common Pleas is 

affirmed. 

Judgment Affirmed 

ZIMMERMAN, P.J. and PRESTON, J., concur. 

/hls