[Cite as In re A.C., 2023-Ohio-902.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT 

WASHINGTON COUNTY 

In the Matter of: A.C., : 

: Case No. 22CA20 

Adjudicated Delinquent Child. : 

: 

: DECISION AND JUDGMENT 

: ENTRY 

:

: RELEASED: 03/15/2023

:

APPEARANCES:

Steven H. Eckstein, Washington Court House, Ohio, for Appellant.

Kelsey R. Riffle, Washington County Assistant Prosecutor, Marietta, Ohio, for Appellee.

 

Wilkin, J.

{¶1} Appellant, A.C., appeals a decision of the Washington County Court of 

Common Pleas, Juvenile Division, that adjudicated her a delinquent child for committing 

the offense of making false alarms, in violation of R.C. 2917.32(A)(3), a first-degree 

misdemeanor if committed by an adult. Appellant argues that trial counsel rendered 

ineffective assistance of counsel during the dispositional hearing by failing to present 

evidence to support her request for probation.1 After our review of the record and the 

applicable law, we do not find any merit to appellant’s assignment of error. Therefore, 

we affirm the trial court’s judgment.

1We note that R.C. 2152.19(A)(4)(a) allows a court to impose probation as a condition of community 

control.
Washington App. No. 22CA20 2

FACTS AND PROCEDURAL BACKGROUND

{¶2} On June 27, 2022, a complaint was filed that alleged appellant is a 

delinquent child for committing the offense of making false alarms, in violation of R.C. 

2917.32(A)(3), a first-degree misdemeanor if committed by an adult. At the adjudicatory 

hearing, appellant admitted the allegation contained in the complaint. Before accepting 

her admission, the court explained the dispositional orders that the court could impose, 

including placing her on probation or requiring her to complete a rehabilitation program 

at the Washington County Juvenile Center (WCJC). Appellant indicated that she 

understood and wished to admit the allegations of the complaint.

{¶3} The court then proceeded with the dispositional hearing. Appellant’s 

probation officer noted that the psychological evaluation indicated that appellant “does 

struggle with a lot of mental health issues.” The probation officer believed that placing 

appellant at WCJC, where she would be under medical care, “would be very beneficial 

for her.” The probation officer also thought that appellant would benefit from the smaller 

class sizes at the center. The probation officer, thus, stated that placing appellant in the 

WCJC rehabilitation program would be in her best interest. 

{¶4} The state likewise recommended that the court place appellant at WCJC.

The state indicated that the facts underlying the offense were serious: Appellant falsely 

accused an individual of raping her when she was eight years old. The state suggested 

that this type of false allegation could ruin a person’s life. The state additionally noted 

that law enforcement officers worked for nearly one year to find evidence to support 

appellant’s allegation before appellant admitted that she had not been truthful about her 

accusation.
Washington App. No. 22CA20 3

{¶5} The state further asserted that the psychological evaluation raises several 

concerns such as appellant’s poor performance in school and some significant mental 

health issues. The state noted that appellant currently is enrolled in an online school 

and lacks a structured environment. The state recommended that the court place her in 

the WCJC rehabilitation program to give her structure, access to mental health 

resources, and a better learning environment.

{¶6} The child’s guardian ad litem (GAL) also believed that placing appellant at 

WCJC “would be the best option.” The GAL viewed this placement as “an opportunity 

to ensure that there is regular and consistent counseling [and] to ensure that 

schoolwork is being addressed.”

{¶7} Appellant’s counsel argued that placing her on probation would give her 

adequate structure and would give appellant a chance to improve her behavior without 

subjecting her to an institutional environment. Appellant and her mother also asked the 

court to place her on probation.

{¶8} The court noted that the nature of the charge (falsely accusing another 

person of raping her when she was eight years old) was serious and found that the 

psychological evaluation indicated that appellant “needs a lot of help.” The court 

determined that placing her in the rehabilitation program at WCJC would be in her best 

interest. The court thus committed appellant to WCJC’s temporary custody to complete 

a rehabilitation program. 
Washington App. No. 22CA20 4

ASSIGNMENT OF ERROR

I. THE APPELLANT RECEIVED THE INEFFECTIVE ASSISTANCE OF 

TRIAL COUNSEL IN VIOLATION OF HER RIGHTS UNDER THE SIXTH 

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO 

CONSTITUTION.

ANALYSIS

{¶9} In her sole assignment of error, appellant argues that trial counsel failed to 

provide the effective assistance of counsel. Specifically, she asserts that trial counsel 

performed ineffectively during the dispositional hearing by failing to present evidence to 

support her request for probation. Appellant criticizes counsel for presenting a closing 

argument rather than finding evidence that supported her request for probation. She 

alleges that counsel’s failure constitutes a complete denial of counsel at a critical stage 

of the proceedings and entitles her to invoke the prejudice presumption set forth in 

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

{¶10} An accused juvenile has a constitutional right to counsel and the same 

rights to effective assistance of counsel as an adult criminal defendant. In re Lower, 4th 

Dist. Highland No. 06CA31, 2007-Ohio-1735, ¶ 37, citing In re Gault (1967), 387 U.S. 1, 

41, 87 S.Ct. 1428, 18 L.Ed.2d 527. Thus, we apply the same Sixth Amendment 

effective assistance of counsel principles that apply in criminal proceedings. See In re 

B.C.S., 4th Dist. Washington No. 07CA60, 2008-Ohio-5771. 

{¶11} Establishing constitutionally ineffective assistance of counsel requires a 

delinquent child (or a criminal defendant) to show (1) that counsel’s performance was 

deficient and (2) that the deficient performance prejudiced the defense. E.g., State v. 

Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 15, 
Washington App. No. 22CA20 5

citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984); State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 85. 

“Failure to establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto 

No. 06CA3116, 2008-Ohio-968, ¶ 14.

{¶12} Counsel’s performance is deficient when it falls “below an objective level 

of reasonable representation.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 

848 N.E.2d 810, ¶ 95. Courts that are considering whether counsel’s performance fell 

below an objective level of reasonable representation, “must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance.” Strickland, 466 U.S. at 689. The party challenging counsel’s 

performance “must overcome the presumption that, under the circumstances, the 

challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 

689.

{¶13} The prejudice component requires the challenging party to show that a 

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

would have been different. A reasonable probability is a probability sufficient to 

undermine the outcome.’ ” Hinton v. Alabama, 571 U.S. 263, 134 S.Ct. 1081, 1089, 188 

L.Ed.2d 1 (2014), quoting Strickland, 466 U.S. at 694; e.g., State v. Short, 129 Ohio 

St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v. Bradley, 42 Ohio St.3d 

136, 538 N.E.2d 373 (1989), paragraph three of the syllabus. Furthermore, courts 

ordinarily may not simply presume the existence of prejudice but must require the 

defendant to affirmatively establish prejudice. State v. Clark, 4th Dist. Pike No. 

02CA684, 2003-Ohio-1707, ¶ 22. 
Washington App. No. 22CA20 6

{¶14} However, in limited circumstances, courts may presume prejudice. Florida 

v. Nixon, 543 U.S. 175, 190, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (noting that 

prejudice presumed in narrow circumstances); Cronic, 466 U.S. at 658-59; see also 

Garza v. Idaho, ___ U.S. ___, ___, 139 S.Ct. 738, 744, 203 L.Ed.2d 77 (2019). For 

example, “the complete denial of counsel” is “so likely to prejudice the accused that the 

cost of litigating [its] effect in a particular case is unjustified.” Cronic, 466 U.S. at 658-

59. This complete-denial-of-counsel prejudice presumption typically applies if an 

“accused is denied counsel at a critical stage” of the proceedings. Id. Likewise, the 

prejudice presumption may apply “if counsel entirely fails to subject the prosecution’s 

case to meaningful adversarial testing.” Id. The prejudice presumption also may apply

if “counsel is called upon to render assistance under circumstances where competent 

counsel very likely could not.” Bell v. Cone, 535 U.S. 685, 695–98, 152 L.Ed.2d 914, 

122 S.Ct. 1843, 1851–52, (2002), citing Cronic, 466 U.S. at 659–662, and Powell v. 

Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). 

{¶15} In contrast, a mere failure at a sentencing hearing to present specific

evidence or to make a closing argument does not equate to presumed prejudice. In 

Bell, for instance, the defendant asserted that trial counsel entirely failed to subject the 

prosecution’s case to meaningful adversarial testing when counsel did not “ ‘mount 

some case for life’ after the prosecution introduced evidence in the sentencing hearing 

and gave a closing statement.” Bell, 535 U.S. at 696, quoting Brief for Respondent 26. 

During the sentencing hearing, both the prosecution and the defense presented opening 

statements. Defense counsel’s opening statement reminded the jury of the mitigating 

evidence that had been presented during the trial phase and asserted that the 
Washington App. No. 22CA20 7

defendant “was under the influence of extreme mental disturbance or duress, that he 

was an addict whose drug and other problems stemmed from the stress of his military 

service, and that he felt remorse.” Id. at 691. The prosecution then presented its 

evidence in support of the death penalty, and defense counsel cross-examined the 

witnesses. After both sides rested, the junior prosecuting attorney gave “a ‘low-key’ 

closing.” Id. at 692. Defense counsel chose to waive final argument, which prevented 

“the lead prosecutor, who by all accounts was an extremely effective advocate, from 

arguing in rebuttal.” Id. The jury subsequently found four aggravating factors and no 

mitigating factors, which required the court to impose the death penalty.

{¶16} After his direct appeals were affirmed, the defendant filed a postconviction 

relief petition. He argued that trial counsel did not provide effective assistance of 

counsel during the sentencing phase and faulted counsel for failing to present mitigating 

evidence and for waiving final argument. The defendant eventually succeeded with this 

argument. Cone v. Bell, 243 F.3d 961 (6th Cir.2001). The Sixth Circuit determined that 

prejudice should be presumed under Cronic, “because his counsel, by not asking for 

mercy after the prosecutor’s final argument, did not subject the State’s call for the death 

penalty to meaningful adversarial testing.” Bell, 535 U.S. at 693 (summarizing Sixth 

Circuit’s decision). 

{¶17} The United States Supreme Court disagreed that the prejudice 

presumption applied in this situation. Instead, it explained that the presumption applies 

only if “the attorney’s failure [is] complete.” Id. at 697. The court emphasized that 

Cronic held that the presumption may apply when “ ‘counsel entirely fails to subject the 

prosecution’s case to meaningful adversarial testing.’ ” Id. (emphasis sic), 
Washington App. No. 22CA20 8

quoting Cronic, 466 U.S. at 659; accord State v. Drain, ___ Ohio St.3d ___, 2022-Ohio3697, ___ N.E.3d ___, ¶ 69. The Bell court observed that the defendant had not argued 

that trial counsel’s failure had been complete; in other words, the defendant did not 

argue “that his counsel failed to oppose the prosecution throughout the sentencing 

proceeding as a whole.” Id. Rather, the defendant asserted “that his counsel failed to 

do so at specific points.” Id. The court, thus, concluded that the defendant’s challenge 

to counsel’s failure to present mitigating evidence and decision to waive closing 

argument was “plainly of the same ilk as other specific attorney errors” that are “subject 

to Strickland’s performance and prejudice components.” Id. at 697-698, citing Burger v. 

Kemp, 483 U.S. 776, 788, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), and Darden v. 

Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (observing that 

Burger and Darden applied Strickland standard, not Cronic, when defendants

challenged counsel’s decision at capital sentencing hearing not to offer any mitigating 

evidence). Therefore, the court concluded that the Strickland standard, not the

presumed-prejudice standard, applied to the defendant’s ineffective-assistance 

challenge.

{¶18} Similarly, in the case before us, appellant faults counsel for failing to 

present evidence at the dispositional hearing to support her request for probation. She 

contends that counsel did not conduct any discovery during the dispositional phase and 

asserts that merely presenting a closing argument does not subject the state’s case to 

meaningful adversarial testing. Appellant’s argument, however, contradicts Bell’s 

emphatic reminder that the presumption applies when “ ‘counsel entirely fails to subject 

the prosecution’s case to meaningful adversarial testing.’ ” Id. (emphasis sic), 
Washington App. No. 22CA20 9

quoting Cronic at 659. Bell indicates that when the ineffectiveness claim involves an 

alleged sentencing-hearing deficiency, counsel does not entirely fail to subject the 

prosecution’s case to meaningful adversarial testing if counsel presents an argument 

during the sentencing phase. Here, appellant’s trial counsel did not entirely fail to 

subject the prosecution’s case to meaningful adversarial testing. Counsel appeared at 

the dispositional hearing and presented an argument to support her probation request. 

Counsel’s decision not to present evidence at the dispositional hearing does not equate 

to a finding that counsel entirely failed to subject the prosecution’s case to meaningful 

adversarial testing. Bell; Burger; Darden. Therefore, we do not agree with appellant

that the presumed-prejudice standard applies to her ineffective-assistance-of-counsel 

claim. Consequently, appellant must establish the Strickland-prejudice standard, i.e., a 

reasonable probability exists that but for counsel’s alleged deficient performance, the 

result of the proceeding would have been different.

{¶19} Appellant has not argued, however, that she can establish the Stricklandprejudice standard. Instead, she relies solely upon the presumed-prejudice standard. 

Given that appellant has not presented an argument regarding the Strickland-prejudice 

standard, we will not create one for her. E.g., State v. Dailey, 4th Dist. Adams No. 

18CA1059, 2018-Ohio-4315, ¶ 43-44, quoting State v. Palmer, 9th Dist. Summit No. 

28303, 2017-Ohio-2639, ¶ 33 (appellate court does not have a duty to construct 

argument on an appellant’s behalf and will not address “ ‘undeveloped arguments’ 

”); McPherson v. Goodyear Tire & Rubber Co., 9th Dist. Summit No. 21499, 2003-Ohio7190, ¶ 31 (appellate courts do not have duty to construct or develop arguments to 

support a defendant’s assignment of error).
Washington App. No. 22CA20 10

{¶20} Additionally, appellant has not demonstrated that counsel’s performance

during the dispositional phase was deficient. Other than a broad assertion that trial 

counsel did “nothing” to help her, appellant has not identified any additional actions that 

trial counsel should have undertaken to support her request for probation. 

{¶21} We observe that during the adjudicatory hearing, appellant agreed that she 

had spoken with her counsel about her decision to admit the allegations of the 

complaint and about the consequences if the court found her to be a delinquent child. 

Additionally, trial counsel presented an argument during the dispositional phase to 

support appellant’s request for probation. Counsel stated:

This is her first time getting into trouble really at all.

She does have a couple charges here, one was misuse of a motor 

vehicle, and the case that she was found delinquent on, of course.

Basically, you know, based on the conversations with her, and briefly 

with her parents, it’s obvious she needs some structure in her life.

I think probation would be sufficient enough to provide that structure.

One, she seems to be willing to be on probation, and we’ll you know, 

want to be at least compliant with that structure, and sending her to the 

center, which, you know, she doesn’t necessarily agree that that’s in her 

best interest. She you know, she might just try to fight against that structure.

Additionally, you know, starting out on a probation-type of sanction 

or punishment would not necessarily rule out the center at a later time, you 

know, if the structure that probation tries to give her is not enough, then a 

probation violation can be filed and then the center can be imposed at that 

time.

She is going to counseling, L&P Services. Alison is her counselor. 

She seems to be enjoying that. Doing well on that.

She is struggling in school with her online classes, but a drastic 

change in her life, which would be removing her from her home and putting 

her in a strange environment, you know, might make that worse.

Basically for those reasons, I think probation would be the most 

appropriate sanction.

Counsel’s argument reflects that he had discussed the case with appellant, and he 

informed the court of her desire to be placed on probation. He pointed out that 

appellant has a minimal history of juvenile infractions. He recognized, through 
Washington App. No. 22CA20 11

conversations with appellant, that she needs structure in her life and advised the court 

that probation would provide adequate structure. Counsel further expressed concern 

that placing appellant at WCJC would cause her to rebel, which would frustrate her 

ability to address her mental-health issues and to improve her schoolwork. Appellant

has not identified what additional evidence counsel could have presented that might

have affected the outcome of the proceedings and has not shown that the failure to 

present additional evidence was objectively unreasonable under the circumstances. 

{¶22} We additionally note that other courts have rejected ineffective-assistanceof-counsel claims under similar facts. See State v. Jones, 8th Dist. Cuyahoga No. 

102260, 2016-Ohio-688, ¶ 26 (noting that a claim that counsel failed to present specific 

evidence during sentencing phase usually relies upon evidence outside of the record 

and thus is not a proper consideration on direct appeal); State v. Jordan, 2nd Dist. Clark 

No. 2020-CA-62, 2021-Ohio-2332, ¶ 23 (rejecting ineffectiveness claim even though

counsel gave “only a ‘brief statement’ at sentencing); State v. Ford, 3rd Dist. Union No. 

14-10-07, 2010-Ohio-4069, ¶ 18 (emphasis sic.) (pointing out that defendant “failed to 

identify what, if any, evidence trial counsel could have presented to change the outcome 

of the sentencing”). Consequently, appellant has not established that trial counsel failed 

to provide the effective assistance of counsel.

{¶23} Accordingly, based upon the foregoing reasons, we overrule appellant’s 

sole assignment of error.
Washington App. No. 22CA20 12

CONCLUSION

{¶24} Having overruled appellant’s sole assignments of error, we affirm the trial 

court’s judgment. 

JUDGMENT AFFIRMED.
Washington App. No. 22CA20 13

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the 

costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the 

Washington County Common Pleas Court, Juvenile Division, 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.

P.J., Smith and J., Abele: Concur in Judgment and Opinion.

 For the Court,

BY: ____________________________

 Kristy S. Wilkin, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.