[Cite as State v. Kingsley, 2016-Ohio-592.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 103055 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

KENNETH D. KINGSLEY

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-14-590907-A 

BEFORE: Stewart, J., E.A. Gallagher, P.J., and McCormack, J. 

RELEASED AND JOURNALIZED: February 18, 2016 
ATTORNEY FOR APPELLANT

James J. Hofelich 

614 W. Superior Avenue, Suite 1310 

Cleveland, OH 44113 

 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

John D. Kirkland 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
MELODY J. STEWART, J.: 

{¶1} Defendant-appellant Kenneth Kingsley pleaded guilty to a single count of attempted 

felonious assault, a third-degree felony. In anticipation of sentencing, the court referred 

Kingsley to the court psychiatric clinic for a report on the “psychiatric factors in the crime” for 

purposes of mitigation of sentence. At sentencing, defense counsel noted that the psychiatric 

clinic did not prepare a report as instructed, but told the court that the probation department 

referenced Kingsley’s mental health and substance abuse issues in a “very detailed” presentence 

investigation report. The court told counsel that it did not believe that a psychiatric clinic 

evaluation would contain more detail than the presentence investigation report. Defense counsel 

agreed and assented to going forward with sentencing. The court sentenced Kingsley to a 

maximum term of 36 months in prison. Kingsley’s sole assignment of error on appeal is that 

defense counsel was ineffective for waiving a psychiatric clinic report. 

{¶2} A defendant claiming ineffective assistance of counsel bears the burden of 

establishing two elements: (1) that trial counsel’s performance fell below objective standards for 

reasonably effective representation, and (2) that counsel’s deficiency prejudiced the defense. 

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 

{¶3} To satisfy the first element of the Strickland test, appellant must direct the court to 

specific acts or omissions by his counsel. Id. at 690. We consider whether, in light of all the 

circumstances, counsel’s performance was outside the wide range of professionally competent 

assistance. Id. Our assessment of counsel’s performance is “highly deferential” so we indulge 

in “a strong presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance * * *.” Id. at 689. 
{¶4} To satisfy the second Strickland element, the defendant must show that there is a 

reasonable probability that, but for counsel’s errors, the result of the proceedings would have 

been different. Id. at 694. A “reasonable probability” is defined as one that is “sufficient to 

undermine confidence in an outcome.” Id. 

{¶5} Because the test for ineffective assistance of counsel requires the defendant to 

establish both elements of the Strickland test, State v. Santana, 90 Ohio St.3d 513, 515, 

2001-Ohio-7, 739 N.E.2d 798, we can decide this appeal based on Kingsley’s failure to establish 

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

would have been different. 

{¶6} Kingsley’s argument on appeal is that had the court’s psychiatric clinic prepared a 

report as ordered, the report would have documented his current mental health status (as opposed 

to his past mental history detailed in the presentence investigation report) and he would not have 

received the maximum sentence on a third-degree felony. Not only is that conclusion pure 

speculation, it is not based on any facts in the record — without knowing what the psychiatric 

clinic had to say about his current mental health, Kingsley has no basis for arguing that he would 

have received a lighter sentence had a report been prepared. 

{¶7} What is more, nothing in the record proves that Kingsley had mental health issues at 

the time of sentencing that would have moved the court to leniency. Defense counsel told the 

court Kingsley was not receiving mental health services at the time of this offense. And while 

the presentence investigation report documented Kingsley’s assertion that he had been diagnosed 

with bipolar disorder, depression, and attention deficit hyperactive disorder, the presentence 

investigation report showed that Kingsley last received treatment for mental health issues 

approximately seven years ago. 
{¶8} Apart from the record failing to show that Kingsley suffered from mental health 

issues that would have mitigated his sentence, the record shows that the length of sentence was a 

product of an extensive criminal history and pervasive substance abuse. Kingsley’s record was 

heavy with domestic violence and disorderly conduct, with one of the domestic violence 

convictions involving a pregnant woman. The court found that the victim of the offense for 

which Kingsley pleaded guilty in the current case suffered serious physical and psychological 

harm as a result of his offense. The court also found that Kingsley committed his offenses while 

on community control. With these factors before it, the court stated: 

it looks as though no judge has ever given this defendant a sentence, to teach him 

there are ramifications for negative behavior. Almost every judge he’s been in 

front of put him on probation, let him violate the probation, and then gave him a 

nominal jail sentence. That’s going to change here today. 

{¶9} While it is true that Kingsley had never received a prison term, there is no basis in 

the record to conclude that Kingsley would have received a lighter sentence had defense counsel 

not waived a report in mitigation. The assignment of error is overruled. 

{¶10} Judgment affirmed. 

It is ordered that appellee recover of said appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common pleas 

court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

______________________________________________ 

MELODY J. STEWART, JUDGE 
EILEEN A. GALLAGHER, P.J., and 

TIM McCORMACK, J., CONCUR