[Cite as State v. Hall, 2013-Ohio-5856.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsHARRY P. HALL JR. 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. William B. Hoffman, J. 

: Hon. Patricia A. Delaney, J. 

: 

: 

: Case No. 13 CAA 03 0043 

: 13 CAA 03 0044 

: 13 CAA 03 0045 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal appeal from the Delaware County 

Court of Common Pleas, Case 

Nos.11CRI080452,11CRI090470, & 

11CRI010031 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: December 30, 2013 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

CAROL HAMILTON O’BRIEN TODD WORKMAN 

BRIAN WALTER Box 687 

Delaware County Prosecutor’s Office Delaware, OH 43015 

140 North Sandusky Street 

Delaware, OH 43015 
[Cite as State v. Hall, 2013-Ohio-5856.]

Gwin, P.J. 

{¶1} Defendant-appellant Harry P. Hall, Jr. appeals from the April 25, 2013 

Judgment Entry of the Delaware County Court of Common Pleas overruling his 

Amended Motion to Vacate Conviction under R.C. 2953.21. Plaintiff-appellee is the 

State of Ohio. 

Facts and Procedural History 

{¶2} In February of 2012, a jury convicted Hall of one count of Aggravated 

Menacing, four counts of Menacing, and eight counts of Violating a Protection Order 

pursuant to three separate indictments. 

{¶3} On February 22, 2013, this Court upheld Hall's convictions and sentences. 

State v. Hall, 5th Dist. Delaware Nos. 12CAA030017, 12CAA030018, 12CAA030019, 

2013-Ohio-660 [“Hall I”]. 

{¶4} On November 7, 2012, Hall pro se filed his post-conviction petition 

pursuant to R.C. 2953.21. By Judgment Entry filed March 5, 2013, counsel was 

appointed to represent Hall on his post conviction relief petition. Counsel filed an 

amended petition for post conviction relief on March 11, 2013. 

{¶5} On April 16, 2013, the trial court held an oral hearing on Hall's petition for 

post conviction relief. 

{¶6} At the hearing, Hall maintained that he was denied effective assistance of 

trial counsel because 1). His trial attorney met with him only two days before the jury 

trial; 2). Trial counsel failed to subpoena witnesses; 3). Trial counsel did not discuss the 

case with Hall nor obtained physical evidence necessary for his defense; 4). Trial 

counsel did not provide Hall a copy of the discovery filed in Hall’s cases until two days 
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045 3 

before trial; and 5). Hall claims he was under the influence of medications at the time he 

met with trial counsel and during the jury trial and was unable to participate fully and 

understand the proceedings.1 Hall further offered evidence of an alleged plea 

negotiation that he contends was not relayed to him by trial counsel.2

 By Judgment 

Entry filed April 25, 2013, the trial court denied the petition. 

Assignments of Error 

{¶7} Hall raises the following assignment of error, 

{¶8} “I. THE DEFENDANT'S RIGHT TO THE EFFECTIVE ASSISTANCE OF 

COUNSEL GUARANTEED UNDER SECTION 16, ARTICLE I OF THE OHIO 

CONSTITUTION, AND SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED 

STATES CONSTITUTION WAS VIOLATED BY TRIAL COUNSEL'S FAILURE TO 

DISCLOSE A PROFFERED PLEA AGREEMENT, FAILURE TO ADEQUATELY KEEP 

DEFENDANT APPRISED OF HIS CASE, AND FAILURE TO ADEQUATELY PREPARE 

FOR TRIAL.” 

I. 

{¶9} In his sole assignment of error, Hall argues that the trial court erred in 

dismissing his petition based on ineffective assistance of counsel. Specifically, Hall 

argues that trial counsel was ineffective for failing to inform Hall of a plea offer, failed to 

keep Hall adequately informed about his case, and failed to provide Hall with copies of 

discovery until two days before trial. 

 1 Hall has neither briefed nor argued this ground in the present appeal. See, App.R. 12(A)(2); 

App.R.16 (A)(7); State v. Norman, 5th Dist. Guernsey No. 2010-CA-22, 2011-Ohio-596, ¶29; State v. 

Untied, 5th Dist. Muskingum No. CT20060005, 2007 WL 1122731, ¶141. 

2

 This ground was not raised in his petition for post conviction relief or amend petition for post 

conviction relief. Rather, this contention was raised in Hall’s “Motion for Modification of Sentence and 

Reduction” filed March 13, 2013. The trial court denied this motion by Judgment Entry filed March 18, 

2013. 
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045 4 

{¶10} A post conviction petition is a special statutory proceeding governed by 

R.C. 2953.21. This statute provides in section (A)(1) that “[a]ny person who has been 

convicted of a criminal offense or adjudicated a delinquent child and who claims that 

there was such a denial or infringement of the person's rights as to render the judgment 

void or voidable under the Ohio Constitution or the Constitution of the United States 

may file a petition * * *.” See, also, State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 

(1967), paragraph four of the syllabus. 

{¶11} When the trial court has conducted an evidentiary hearing relative to an 

appellant's post conviction petition, a reviewing court should not overrule its findings if 

they are supported by competent and credible evidence. State v. Gondor, 112 Ohio 

St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58, accord State v. White, 118 Ohio St.3d 

12, 2008–Ohio–1623, 885 N.E.2d 905, ¶ 45; State v. Mitchell, 53 Ohio App.3d 117, 119, 

559 N.E.2d 1370 (8th Dist.1988). The weight to be given to the evidence and the 

credibility of the witnesses are issues for the trier of fact. As the court in Gondor held, 

the judge presiding “at a post conviction hearing is in a totally different position from the 

appellate judges. The post conviction judge sees and hears the live post conviction 

witnesses, and he or she is therefore in a much better position to weigh their credibility 

than are the appellate judges.” Gondor, at ¶ 55. 

1. Plea offer. 

{¶12} In the case at bar, Hall first argues that trial counsel was ineffective 

because counsel failed to convey a plea offer made by the state. 
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045 5 

{¶13} During the hearing, Hall submitted a document marked Defendant’s 

Exhibit A, which he contended, was an offer on behalf of the state. In reviewing this 

contention the trial court found, 

 Exhibit A purports to be an offer on the case 12 CR I-01-0031, the 

most recent case which was consolidated with the other two. No 

signatures appear on the document and the testimony did not support that 

it was a plea offer. 

{¶14} Our review of Defendant’s Exhibit A leads us to conclude that the trial 

court did not abuse its discretion. The document has signature lines for the assistant 

prosecutor, defense counsel and the defendant. None is signed. No date appears 

anywhere on the document. No recommendations or agreements are detailed by any 

party within the document. 

{¶15} A properly licensed attorney is presumed competent. State v. Hamblin, 37 

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of 

ineffective assistance of counsel, Hall must show counsel's performance fell below an 

objective standard of reasonable representation and but for counsel's error, the result of 

the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 

373 (1989). In other words, Hall must show that counsel's conduct so undermined the 

proper functioning of the adversarial process that the trial cannot be relied upon as 

having produced a just result. Id. 

{¶16} Missouri v. Frye, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), concerned the 

right to effective assistance of counsel with respect to communicating formal plea offers 
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045 6 

to a criminal defendant. Id. at 1408. The court in Frye held that “defense counsel has 

the duty to communicate formal offers from the prosecution to accept a plea on terms 

and conditions that may be favorable to the accused.” Id. (Emphasis added). The 

Court’s decision was based on “[t]he reality * * * that plea bargains have become so 

central to the administration of the criminal justice system that defense counsel have 

responsibilities in the plea bargain process, responsibilities that must be met to render 

the adequate assistance of counsel that the Sixth Amendment requires in the criminal 

process at critical stages.” Id., ––– U.S. ––––, 132 S.Ct. at 1407, 182 L.Ed.2d 379. 

{¶17} In Frye, defense counsel had received a letter from the prosecutor offering 

a choice of two plea bargains. The offers were for a sentence substantially less than 

what the defendant otherwise faced; both of the offers had an expiration date. Id., ––– 

U.S. ––––, 132 S.Ct. at 1404, 182 L.Ed.2d 379. Defense counsel never advised his 

client of the offers, and they expired. Id. The defendant eventually pled guilty and was 

sentenced to the lengthier sentence. 

{¶18} The Supreme Court concluded that, “[w]hen defense counsel allowed the 

offer to expire without advising the defendant or allowing him to consider it, defense 

counsel did not render the effective assistance the Constitution requires.” Id., ––– U.S. –

–––, 132 S.Ct. at 1408, 182 L.Ed.2d 379. The Supreme Court declined, however, “to try 

to elaborate or define detailed standards for the proper discharge of defense counsel’s 

participation in the process.” Id. In this regard, the Court reasoned that elaboration 

would be neither “prudent nor practicable” because “[t]he alternative courses and tactics 

in negotiation are so individual.” Id. 
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045 7 

{¶19} The Supreme Court made it clear it was only deciding about ineffective 

assistance of trial counsel claims where the prosecutor makes an offer which is 

rejected, 

The prosecution and the trial courts may adopt some measures to help 

ensure against late, frivolous, or fabricated claims after a later, less 

advantageous plea offer has been accepted or after a trial leading to 

conviction with resulting harsh consequences. First, the fact of a formal 

offer means that its terms and its processing can be documented so that 

what took place in the negotiation process becomes more clear if some 

later inquiry turns on the conduct of earlier pretrial negotiations. Second, 

States may elect to follow rules that all offers must be in writing, again to 

ensure against later misunderstandings or fabricated charges. See N .J. 

Ct. Rule 3:9–1(b) (2012) (“Any plea offer to be made by the prosecutor 

shall be in writing and forwarded to the defendant’s attorney”). Third, 

formal offers can be made part of the record at any subsequent plea 

proceeding or before a trial on the merits, all to ensure that a defendant 

has been fully advised before those further proceedings commence. At 

least one State often follows a similar procedure before trial. 

 Frye, 132 S.Ct. at 1408–1409. 

{¶20} In the case at bar, Defendant’s Exhibit A does not support Hall’s 

contention that a formal plea offer was made by the state and communicated to his trial 

counsel. No evidence was submitted to prove Hall’s trial counsel was aware of the 

existence of Defendant’s Exhibit A or its contents. We also conclude the trial court did 
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045 8 

not err by finding Hall’s testimony to be vague, contradictory and to lack specificity. Hall 

presented no other witness or evidence to support his testimony. There was no 

testimony or affidavit from Hall’s trial attorney or the assistant prosecutor concerning the 

plea negotiations. The record does not include an affidavit or testimony from any other 

non-interested party with personal knowledge of the plea negations. 

{¶21} As self-serving testimony, the trial court could give it little or no weight. 

See, State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999); State v. Kapper, 

5 Ohio St.3d 36, 38, 448 N.E.2d 823 (1983) (letter or affidavit from the court, 

prosecutors, or defense counsel alleging a defect in the plea process might be sufficient 

to warrant a hearing, although defendant's own affidavit alleging same defect would not, 

because the former are not self-serving declarations);State v. Elmore, 5th Dist. No. 

2005-CA-32, 2005-Ohio-5740, ¶109. The judge who reviewed defendant's post 

conviction relief petition and conducted the hearing was the same judge who presided 

at the jury trial and the sentencing hearing. Thus, the trial judge was familiar with the 

underlying proceedings and was in the best position to observe Hall and therefore 

assess the credibility of his testimony during the hearing on his petition for post 

conviction relief. Calhoun, supra, 86 Ohio St.3d 279, 286. 

{¶22} The petition, the documentary evidence, the files, the transcript and the 

records do not demonstrate that Hall set forth sufficient operative facts to establish 

substantive grounds for relief concerning counsel's effectiveness during plea 

negotiations. Calhoun, 86 Ohio St.3d at paragraph two of the syllabus; see R.C. 

2953.21(C). The trial court’s findings are supported by competent and credible 

evidence. 
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045 9 

2. Failure to meet with Hall and prepare for trial. 

{¶23} Hall next argues that his trial counsel was ineffective because counsel had 

insufficient contact with Hall before his jury trial and failed to review discovery with him.

{¶24} “Not every restriction on counsel’s time or opportunity * * * to consult with 

his client or otherwise to prepare for trial violates a defendant’s Sixth Amendment right 

to counsel.” Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). 

“[T]here is generally no basis for finding a Sixth Amendment violation unless the 

accused can show how specific errors of counsel undermined the reliability of the 

finding of guilt.” United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 

657 (1984)United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 

(1984) fn. 26; Accord, State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 

1032. 

{¶25} In the case at bar, Hall points to no specific attorney errors that resulted 

from the denial, and he makes no showing of prejudice. We cannot presume that the 

defendant has suffered prejudice. Hancock, 108 Ohio St.3d 57, ¶112, citing, State v. 

Coleman, 85 Ohio St.3d 129 at 144, 707 N.E.2d 476 (1999); State v. Sanders, 92 Ohio 

St.3d 245 at 277, 750 N.E.2d 90 (2001). 

{¶26} The petition, the documentary evidence, the files, the transcript and the 

records do not demonstrate that Hall set forth sufficient operative facts to establish 

substantive grounds for relief concerning counsel's effectiveness concerning counsel’s 

preparation and representation during Hall’s jury trial. Calhoun, 86 Ohio St.3d at 

paragraph two of the syllabus; see R.C. 2953.21(C). The trial court’s findings are 

supported by competent and credible evidence. 
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045 10 

3. Failure to subpoena witnesses. 

{¶27} Hall’s final contention is that trial counsel failed to subpoena witnesses on 

his behalf during trial. 

{¶28} “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 the purported witnesses. Based upon the status of the record 

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

have been of significant assistance to his defense. Further, he has not established that 

there is a reasonable probability that the outcome of the trial would have been different 

if counsel would have subpoenaed and called the witnesses on his behalf. 

{¶29} The petition, the documentary evidence, the files, the transcript and the 

records do not demonstrate that Hall set forth sufficient operative facts to establish 

substantive grounds for relief concerning counsel's failure to subpoena witnesses. 

Calhoun, 86 Ohio St.3d at paragraph two of the syllabus; see R.C. 2953.21(C). The trial 

court’s findings are supported by competent and credible evidence. 

{¶30} Hall’s sole assignment of error is overruled. 
Delaware County, Case Nos. 13 CAA 03 0043, 13 CAA 03 0044, & 13 CAA 03 0045 11 

{¶31} For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Delaware County Court of Common Pleas is affirmed. 

By Gwin, P.J., and 

Hoffman, J., and 

Delaney, J., concur 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

WSG:clw 1203 
[Cite as State v. Hall, 2013-Ohio-5856.]

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

HARRY P. HALL JR. : 

 : 

 : 

 Defendant-Appellant : CASE NO. 13 CAA 03 0043 

 13 CAA 03 0044 

 13 CAA 03 0045 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of 

the Delaware County Court of Common Pleas is affirmed. Costs to appellant. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN 

 _________________________________ 

 HON. PATRICIA A. DELANEY