[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, 2016ATTORNEY 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 44113MELODY J. STEWART, J.: {¶1} Defendant-appellant Kenne th Kingsley pleaded guilty to a single count of attempted felonious assault, a third-degree felony. In anticipation of sentenci ng, 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 sentenci ng, 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 h ealth and substance abuse issues in a “very detailed” presentence investigation report. The court told counsel that it did not belie ve that a psychiatric clinic evaluation would contain more detail than the pres entence investigation re port. 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 wa iving a psychiatric clinic report. {¶2} A defendant claiming ineff ective assistance of counsel bears the burden of establishing two elements: (1) that trial couns el’s performance fell belo w objective standards for reasonably effective representati on, and (2) that counsel’s defici ency 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 ra nge of professionally competent

assistance. Id . Our assessment of counsel’s performance is “highly deferentia l” so we indulge in “a strong presumption that counsel’s conduc t 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 erro rs, the result of the proceedings would have

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

undermine confidence in an outcome.” Id

. {¶5} Because the test for ineffective assistan ce 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 app eal based on Kingsley’s failure to establish that there is a reasonable probability that, but fo r 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 woul d have documented his current me ntal health status (as opposed to his past mental history detaile d in the presentence investigati on 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 th at Kingsley had mental health issues at the time of sentencing that woul d have moved the court to lenien cy. Defense counsel told the court Kingsley was not receiving mental health se rvices at the time of this offense. And while the presentence investigation repor t documented Kingsley’s asserti on that he had been diagnosed with bipolar disorder, depressi on, and attention defic it 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 hi story and pervasive substance a buse. Kingsley’s record was heavy with domestic violence and disorderly conduct, with one of the domestic violence convictions involving a pregnant woman. The c ourt 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 al so 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 behavi or. Almost every judge he’s been in front of put him on probation, let him viol ate 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 ha ve received a lighter sent ence had defense counsel not waived a report in mitigation. Th e assignment of error is overruled. {¶10} Judgment affirmed. It is ordered that appellee recover of said appellant co sts herein taxed.

The court finds there were reas onable 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 Appella te Procedure.

______________________________________________ MELODY J. STEWART, JUDGEEILEEN A. GALLAGHER, P.J., and TIM McCORMACK, J., CONCUR