[Cite as State v. Bray , 2011-Ohio-4660.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 2010 CA 14

v. : T.C. NO. 09CR542 MICAH BRAY : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N Rendered on the 16 th day of September , 2011.

. . . . . . . . . . ANDREW R. PICEK, Atty. Reg. No. 0082121, Assistant Prosecuting Attorney, 50 E. Columbia Street, 4 th Floor, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 E. Stroop Road, Kettering, Ohio 45429 Attorney for Defendant-Appellant

. . . . . . . . . . DONOVAN, J. {¶ 1} Defendant-appellant Micah Bray appeal s his conviction and sentence for one count of possessing a weapon while under disa bility, in violation of R.C. 2923.13(A)(3), a felony of the third degree; one count of illegal possession of a firearm in a liquor permit premises, in violation of R.C. 2923.121, a felony of the third degree; carrying a concealed2 weapon, in violation of R.C. 2923.12(A)(2), a fel ony of the fourth degree; and one count of tampering with evidence, in violation of R. C. 2921.12(A)(1), a felony of the third degree. {¶ 2} Bray filed a timely notice of appeal with this Court on February 5, 2010.
I {¶ 3} The incident which forms the basis for this appeal occurred during the early morning hours of May 30, 2009, at the Knights of Py thias, a social club in Springfield, Ohio. Bray was at the club with two of his cousins and another friend. Also inside the club were William Blaine Lewis and Diron Upshaw, two men identified as regulars by the club staff. {¶ 4} After midnight, some members of the club became aware that Lewis and Upshaw were armed with handguns. When th ey were asked to leave the club, Lewis and Upshaw informed the members that Bray wa s also carrying a handgun. Bray was then asked to leave, as well. {¶ 5} As the men were being escorted out of the club, Bray and Lewis began arguing with each other. Bray testified that Lewis and Upshaw were attempting to rob him of his money and jewelry. Af ter Bray allegedly poked Lewis in the side of his head, Lewis punched Bray, and the two men fell to the floor . During the ensuing struggle, two shots were fired from a .38 caliber revolver owned by Bray both of which struck Lewis. Immediately after the shooting, Bray got up and ran from the club. Lewis died at the scene. {¶ 6} The .38 caliber revolver was not recovere d by the police, and Bray testified that he did not remove it from the club fo llowing the shooting. Two live .38 caliber cartridges were recovered from the vehicle in which Bray left the club. Bray was not apprehended until approx imately three weeks later on June 19, 2009, after officers received a3 tip that he was hiding out at a local hotel. Bray was arrested and taken into custody after a short foot-chase. {¶ 7} On June 30, 2009, Bray was indicted for two counts of murder, one count of attempted murder, two counts of felonious assault, one count of possessing a weapon while under disability, one count of ille gal possession of a firearm in liquor permit premises, and tampering with evidence. Shortly thereafter, Bray was indicted for another count of carrying a concealed weapon in Case No. 2009 CR 732, but that case was consolidated with the instant case, 2009 CR 542. Prior to trial on December 15, 2009, Bray plead no contest to the count of having a weapon while under di sability. The trial c ourt found him guilty and sentenced him to three years in prison. {¶ 8} Following a jury trial during which he argued that he was acting in self defense, Bray was acquitted of the murder charges, as well as the charges for attempted murder and felonious assault. The jury, how ever, found Bray guilty of illegal possession of a firearm in a liquor permit premises, carry ing a concealed weapon, and tampering with evidence. On January 10, 2010, Bray was senten ced to five years in prison for tampering with evidence, five years for illegal possessi on of a firearm in a liquor permit premises, eighteen months for carryin g a concealed weapon, and one year for a criminal non-support charge in a separate case. {¶ 9} We note that the trial court stated in its second amended judgment entry that it “merged’ the counts of carrying a concealed weapon and illegal posse ssion of a firearm in a liquor permit premises for the purposes of sentencing. Howeve r, the trial court sentenced Bray separately on these two guilty findings. Accordingly, the trial court’s terminology of4 merger of the counts of carrying a concealed weapon and illegal possessi on of a firearm in a liquor permit premises was not a merger of convictions, but merely an order that the sentences for both offenses be served concurrently. The trial court ordered that the remainder of Bray’s sentences be served c onsecutively in addition to the three years for having a weapon while under disability, for an aggregate prison term of fourteen years. {¶ 10} It is from this judgment that Bray now appeals.
II {¶ 11} Bray’s first assignment of error is as follows: {¶ 12} “THE TRIAL COURT ERRED BY CONVICTING THE APPELLANT OF MULTIPLE ALLIED OFFENSES OF SIMILAR IMPORT.” {¶ 13} In his first assignment, Bray conte nds that possessing a weapon while under disability, illegal possession of a firearm in a liquor per mit premises, and carrying a concealed weapon are allied offens es of similar import. Accordingly, Bray asserts that the court erred when it refused to merge the char ges and convicted him se parately on each count. {¶ 14} R.C. 2941.25, concerning allied offens es of similar import, provides: {¶ 15} “(A) Where the same conduc t by defendant can be c onstrued to constitute two or more allied offenses of s imilar import, the indictment or information may contain counts for all such offenses, but the defe ndant may be convicted of only one. {¶ 16} “(B) Where the defendant’s conduct c onstitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separa tely or with a separate animus as to each, the indictment or information may contain counts for all such offe nses, and the defendant may be convicted of5 all of them.” {¶ 17} “R.C. 2941.25 codifies the double jeopardy protections in the federal and Ohio constitutions, which prohibit courts from imposing cumulative or multiple punishments for the same criminal conduct unless the legislature has expressed an intent to impose them. R.C. 2941.25 expresses the legi slature’s intent to prohibit multiple convictions for offenses which are allied offenses of similar im port per paragraph (A) of that section, unless the conditions of para graph (B) are also satisfied.” State v. Barker , 183 Ohio App.3d 414, 2009-Ohio-3511, ¶22, citing State v. Rance , 85 Ohio St.3d 632, 1999-Ohio-291, overruled on other grounds by State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314. {¶ 18} In Johnson , the Ohio Supreme Court recently clarified the process by which courts determine whether offenses are allied offenses of similar import. Johnson overruled
Rance “to the extent that it calls for a comparison of statutory elements solely in the abstract under R.C. 2941.25.” Johnson at ¶44. Now, “[w]hen determining whether two offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of the accused must be considered.” Id. {¶ 19} Johnson states that “the intent of the General Assembly is controlling.” Id. at ¶46. “We determine the Gene ral Assembly’s intent by applying R.C. 2941.25, which expressly instructs courts to consider the o ffenses at issue in light of the defendant’s conduct.” Id. The trial court mu st determine prior to sentenci ng whether the offenses were committed by the same conduct. The court no longer must perform any hypothetical or abstract comparison of the offenses at issue in order to conclude that the offenses are subject6 to merger. Id. at ¶47 “In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the question is wh ether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.” Id. at ¶48 (internal citation omitted). {¶ 20} “If the multiple offenses can be co mmitted by the same conduct, then the court must determine whether the offenses were committed by the sa me conduct, i.e., ‘a single act, committed with a single state of mi nd.’” Id. at ¶49 (citation omitted). “If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.” Id. at ¶50. “Conversely, if the court dete rmines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the offenses will not merge.” Id. at ¶51. {¶ 21} Recently, we held that the trial court di d not err in convicting and sentencing the defendant separately for carrying a con cealed weapon, illegal possession of a firearm in liquor permit premises, and having a weapon while under disability. State v. Young , Montgomery App. No. 23642, 2011-Ohio-747. Similar to the instant case, the defendant in Young was at a bar when he got into an ar gument with another patron. During the argument, the defendant brandished a gun and fi red several shots inside the bar. Id. The defendant killed the patron that he was arguing with, as well as wounding five others. Id. {¶ 22} “Young, a person under disability, nece ssarily acquired a handgun sometime7 before concealing it on his person. Thus, the el ements of proof for having a weapon while under disability were satisfied when Young acqui red the firearm. His subsequent conduct of concealing the handgun constituted a separate and distinct act from initially acquiring the weapon. Similarly, Young acquired the handg un and concealed it on his person before entering a liquor-permit establishment. His subs equent conduct of brin ging the weapon into a bar constituted a separate and distinct act from acquiring a nd concealing it. As a result, each of these offenses was committed separate ly under R.C. 2941.25(B). Therefore, even if the crimes were allied offens es under R.C. 2941.25(A), the tr ial court did not err in convicting and sentencing Y oung separately for carrying a concealed weapon, illegal possession of a firearm in a liquor-permit esta blishment, and having a weapon while under disability.” Young , 2011-Ohio-747, at ¶49. {¶ 23} In the instant case, Bray testified that he acquired the handgun from a friend two to three years prior to the shooting at the Knights of Pythias. Additionally, Bray testified that he had the gun in his possession when he decided to go out on the evening in question. Thus, sufficient evidence was adduced to support the charge of having a weapon while under disability when Bray acquired the handgun. Bray subsequently concealed the handgun, constituting a separate a nd distinct act from initially acquiring it. Lastly, Bray acquired and concealed the handgun on his pers on before entering the club, a liquor permit establishment. Each of these offenses was committed separate ly under R.C. 2941.25(B), and the trial court did not e rr when it convicted and senten ced Bray separately for each offense. {¶ 24} Bray’s first assignment of error is overruled.8 III {¶ 25} Bray’s second assignment of error is as follows: {¶ 26} “THE TRIAL COURT ERRED IN SENTENCING BY NOTIFYING THE DEFENDANT THAT HE WAS SUBJECT TO MANDATORY POST RELEASE CONTROL AND IMPOSING MAXIMUM CONSECUTIVE SENTENCES.” {¶ 27} In his second assignment, Bray argues th at the trial court a bused its discretion when it imposed maximum consecutive senten ces because application of the factors contained in R.C. 2929.12 “clearly i ndicate the offenses are not ‘o ffenses of the worst nature of these types of offenses,’ nor ‘that there is a great likelihood, if not the greatest likelihood, of recidivism,’ as found by the tr ial court.” Bray also asserts that the trial court erred when it informed him that upon release from prison, he was subject to period of mandatory post-release control. {¶ 28} A trial court has br oad discretion in sentencing a defendant and a reviewing court will not interfere with the sentence unless the tria l court abused its discretion. State v.
Reese , Mont. App. No. 21825, 2007-Ohio-6696; State v. Durham , Mont. App. No 21589, 2007-Ohio-6262; State v. Rose , Mont. App. No. 21673, 2007-Ohio-4212; State v. Slone , Greene App. No. 2005 CA 79, 2007-Ohio-130. The te rm "abuse of discretion" implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 54. A court will not typically be found to have abus ed its discretion in sentencing if the sentence it imposes is within the statutory limits. State v. Muhammad , Cuyahoga App. No. 88834, 2007-Ohio-4303; State v. Burge (1992), 82 Ohio App.3d 244, 249.9 {¶ 29} After Foster , trial courts are not required to make any findings or give reasons before imposing any sentence within the authorized statutory range, including maximum, consecutive, or more than minimum sentences, Foster, syllabus at ¶ 7. Courts, nevertheless, are still required to comply with the sentencing laws unaffected by Foster , such as R.C. 2929.11 and 2929.12 which require considera tion of the purposes and principles of felony sentencing and the serious ness and recidivism factors. State v. Mathis , 109 Ohio St.3d 54, 2006-Ohio-855. However, a sentencing court does not have to make any specific findings to demonstrate its considerati on of those general guidance statutes. Foster at ¶ 42;
State v. Lewis , Greene App. No. 06 CA 119, 2007-Ohio-6607. And, where the record is silent, a presumption exits that the trial court has considered the factors. State v. Adams (1988), 37 Ohio St.3d 295, 297. Further, where a criminal sentence is within statutory limits, an appellate court should acco rd the trial court the presum ption that it considered the statutory mitigating factors. State v. Taylor (1992), 76 Ohio App.3d 835, 839; State v.
Crouse (1987), 39 Ohio App.3d 18, 20. Consequently, the appellant has an affirmative duty to show otherwise. {¶ 30} Initially, we note that Bray concedes that the sentences imposed by the trial court are within the applicable statutory ranges for the offenses. We also note that the trial court affirmatively stated in its second amende d judgment entry that it considered both R.C. 2929.11 and 2929.12 before imposing sentence. At the sentencing hearing the trial court discussed Bray’s extensive criminal record including convictions for receiving stolen property, misdemeanor drug a buse, negligent assault, three separate domestic violence incidents, disorderly conduct, attempted tampering with ev idence, and tampering with10 evidence. The trial court also noted that Bray testified that he was arranging an illegal drug sale on the day of the shooting and specifically found his testimony regarding his use of the handgun to not be credible. It is clear from th e record that the trial court did not abuse its discretion when it considered th e appropriate statutory factors before sentencing Bray to maximum consecutive sentences. {¶ 31} Upon review, we also conclude that the trial court did not err when it informed Bray that he was subject to a manda tory period of post-release control. R.C. 2967.28(B) states in pertinent part: {¶ 32} “(B) Each sentence to a prison term *** fo r a felony of the third degree that is not a felony sex offense and in the commission of which the offender caused or threatened to cause physical harm to a person shall include a requirement that the o ffender be subject to a period of post-release control im posed by the parole board after the offender’s release from imprisonment. *** Unless reduced by the parole board pursuant to division (D) of this section when authorized under that division, a pe riod of post-release control required by this division for an offender shall be one of the following periods: {¶ 33} “(3) For a felony of the third degree that is not a felony sex offense and in the commission of which the offender caused or th reatened physical harm to a person, three years.” {¶ 34} Bray asserts that the trial court did not comply with the relevant statutes because none of the offenses for which he was convicted contained the elements of causation or attempted causation of phy sical harm. We note that R.C. 2967.28(B) does not require that the offense contain the elements of causa tion or attempted causati on of physical harm.11 The statute merely requires that, during the commission of the offense, the offender caused or threatened to cause physical harm to a pe rson. It is undisputed that Bray shot Leon Howard and shot and killed Lewis during the commission of the offenses of having a weapon while under disability and illegal possession of a fi rearm in a liquor permit premises, both felonies of the third degree. As we recently stated in State v. Ramey , Clark App. No. 2007 CA 130, 2009-Ohio-425, “[f]or the pur poses of sentencing, a trial court is entitled to take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted.” Because Bray caused physical harm to Lewis and Howard during the commission of the third degree weapons offenses for which he was convicted, the trial court properly notified Bray that he was subject to a mandatory three year period of post-release control. {¶ 35} Bray’s second assignment of error is overruled.
IV {¶ 36} Bray’s third assignment of error is as follows: {¶ 37} “APPELLANT’S CONVICTIONS ARE NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE GUILT BEYOND A REASONABLE DOUBT.” {¶ 38} In his third assignment, Bray argues that insufficient evidence was adduced at trial to support his convictions for the w eapons offenses beyond a reasonable doubt. {¶ 39} If the evidence that supports a material element of an offens e is insufficient, the defendant must be acquitted of that offense. In reviewing a claim of insufficient evidence, the relevant inquiry is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trie r of fact could have found the essential12 elements of the crime proven beyond a reasonable doubt. State v. Britton , 181 Ohio App.3d 415, 2009-Ohio-1282. {¶ 40} Bray argues that because no firearm was ever recovered from himself, Lewis, nor Upshaw, his conviction for tampering w ith evidence is not supported by sufficient evidence. Bray testified that after the shootin g, he retrieved two liv e .38 caliber shells from the area where the struggle occurred. Bray further testified that he could not locate the handgun after it discharged during the struggle, nor did he remove it from the scene. Bray contends that the only evidence of tampering is the absence of the handgun from the scene of the shooting. {¶ 41} R.C. 2921.12(A)(1) describes the offens e of tampering with evidence as follows: {¶ 42} “(A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following: {¶ 43} “(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation
***.” {¶ 44} In State v. Spears , 178 Ohio App.3d 580, 2008-Ohio-5181, we held that because there was no properly admissible ev idence to support the inference that the defendant tampered with evidence by disposing of the gun, his conviction for tampering with evidence was based on insufficient evidence, and therefore, contrary to law. In the instant case, Bray’s conviction for tampering with ev idence was supported by sufficient evidence, in addition to the mere absence of the handgun from the scene of the shooting. Howard13 testified that after going outside after he had been shot, he heard two gunshots fired by an individual he believed to be Bray. Richard Howard, anot her member of the club testified that he encountered Bray outside after the shooting carrying a “balled up shirt” with both hands, the inference being that Bray had wra pped up the handgun in the shirt. Moreover, Bray testified that he remove d two live .38 caliber shells from the scene which were in his handgun before the struggle with Lewis began. Accordingly, sufficient evidence was adduced at trial which supported Bray’s conviction for tampering with evidence. {¶ 45} Bray asserts that since he was acquitted of all the murder and felonious assault charges, the doctrine of collateral estoppel precluded th e State from using any facts, evidence, or testimony related to the charges of which he was acquitte d to support any of the weapons charges. Thus, in the absence of any testimony concerning his possession of a handgun, Bray argues that the State’s remainin g evidence in support of the weapons charges are insufficient as a matter of law. In support of his argument, Bray relies on Ashe v.
Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.E d.2d 469, in which the defendant was charged with armed robbery at a poker game. At trial, however, none of the State’s witnesses were able to positively identify the defendant as one of the culprits, and he was acquitted due to insufficient evidence. Id. Since the defendant was acquitted, the Fifth Amendment guarantee agains t double jeopardy precluded the State from attempting to prosecute him a second time for th e same offense. Id. at 445, 446. Ashe has no application to the instant case. {¶ 46} Bray’s offenses of carrying a con cealed weapon and illegal possession of a firearm in a liquor permit premis es had not been determined by a valid, final judgment, nor14 had they been litigated between the same parties in a prior lawsuit. Neither the doctrine of collateral estoppel nor the Fifth Amendmen t guarantee against double jeopardy were implicated, and the testimony adduced at tria l regarding Bray’s possession of the handgun was admissible in support of the weapons char ges against him. Bray’s acquittal for the murder and assault charges had no affect on the admissibility of the State’s evidence establishing that he was carrying a handgun on th e night of the shooting. Significantly, all weapon offenses had been completed befo re Bray acted in self defense. {¶ 47} Bray’s third assignment of error is overruled.
V {¶ 48} Bray’s fourth assignment of error is as follows: {¶ 49} “THE INDICTMENT CHARGING THE APPELLANT IS DEFECTIVE DUE TO A LACK OF COMPLIANCE WITH CRIMINAL RULE 6(C) AND (F).” {¶ 50} In Bray’s fourth assignment, he conte nds that the indictment is defective because it does not comply with the requirement s of Crim. R. 6(C) and (F). Specifically, Bray asserts that the indictment is defective because the signature page lists only five of the nine counts for which Bray was indicted, and th e remaining pages of the indictment are not signed by the jury foreperson. {¶ 51} Crim. R. 6(C), which outlines the duties of a grand-jury foreperson, grants the foreperson “the power to admin ister oaths and affirmations” and requires the foreperson to “sign all indictments;” to keep, or to designate another grand juror to “keep a record of the number of jurors concurring in the finding of every indictment[,] and upon the return of the indictment[,] [to] file the record with the clerk of court ***.” We also note that R.C.15 2939.20 requires the grand jury foreperson to sign the indictment, as well as indorse the indictment with the words “A True Bill.” {¶ 52} Crim. R. 6(F) states in pertinent part: {¶ 53} “An indictment may be found only upon th e concurrence of seven or more jurors. When so found the foreman or deputy foreman shall sign the indictment as foreman or deputy foreman .” {¶ 54} “A multiple-count indictment containing the words ‘a true bill’ and signed by the foreperson of the grand jury is sufficient when the entire indictment is provided to the defendant, notwithstanding that each count of the indictment is not sepa rately signed by the foreperson.” State v. Ballow (July 3, 1996), Medina App. No. 2527-M. There is no requirement in the Criminal Rules or the Revised Code that the grand jury foreperson sign every page and/or count in a multiple count indictment. In the instant case, Bray’s indictment was signed by the grand jury fore person and contains the words “a true bill.” Bray does not assert that he wa s not provided a copy the indic tment, and at his arraignment, he waived the reading of the indictment. Accordingly, Bray’s indictment is not defective and does not warrant revers al of his convictions.
VI {¶ 55} Bray’s fifth and final assignme nt of error is as follows: {¶ 56} “APPELLANT WAS PREJUDICED BY THE DENIAL OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.”16 {¶ 57} In his final assignment, Bray argues that he was afforded ineffective assistance when his counsel advised him to pl ead no contest to the charge of having a weapon while under disability. {¶ 58} “We review the alleged instances of in effective assistance of trial counsel under the two prong analysis set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, * * * . Pursuant to those cases, trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Strickland , 466 U.S. at 688. To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an objective standard of reasonabl eness and that his errors we re serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Id. Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel’s perspective at the time , and a debatable deci sion concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal citation omitted). State v. Mitchell , Montgomery App. No. 21957, 2008-Ohio-493, ¶ 31. {¶ 59} An appellant is not depriv ed of effective assistance of counsel when counsel chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown (1988), 38 Ohio St.3d 305, 319. The test for a claim of ineffective assistance of counsel is not whether counsel pursued every po ssible defense; the test is wh ether the defense chosen was objectively reasonable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052. A reviewing court may not second-gu ess decisions of counsel whic h can be considered matters17 of trial strategy. State v. Smith (1985), 17 Ohio St.3d 98. Debata ble strategic and tactical decisions may not form the basis of a claim for ineffective assi stance of counsel, even if, in hindsight, it looks as if a better strategy had been available. State v. Cook (1992), 65 Ohio St.3d 516, 524. {¶ 60} In the instant case, the crux of Bray’s argument regarding his claim for ineffective assistance revolves ar ound the tactical decision made by his counsel prior to trial when he advised Bray to plead no contest to the weapons under disability charge. Tactical decisions and trial strategy cannot form the basis of a claim fo r ineffective assistance. We note that had Bray allowed the weapon under disab ility charge to go to trial, the fact of Bray’s prior conviction which formed the basi s of the disability charge would have been admissible at trial. It is not unreasonable to conclude that Bray’s counsel advised him to plead in order to keep the prior conviction from th e jury. Bray has failed to establish that he was prejudiced by his counsel’s advice. “Reviewing courts must indulge in a strong presumption that counsel’s conduc t was not improper, and reject post-trial scrutiny of an act or omission that was a matter of trial tactics merely because it failed to avoid a conviction.” State v. Reid , Montgomery App. No. 23409, 2010-Ohio-1686. {¶ 61} Bray’s final assignment of error is overruled.
VII {¶ 62} All of Bray’s assignments having been overruled, the judgment of the trial court is affirmed.

. . . . . . . . . . GRADY, P.J. and FAIN, J., concur.18 Copies mailed to: Andrew R. Picek Charles M. Blue Hon. Richard J. O’Neill