State v. Lloyd

(1984). However, that presumption can be overcome.
         {¶ 15} The “benchmark” for determining ineffectiveness is “whether
counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.”

Id. at 686

. To
establish that an attorney’s conduct fell below the benchmark, the defendant must
satisfy a two-part test. The defendant first must show that “counsel’s performance
was deficient.”

Id. at 687

. The defendant then “must show that the deficient
performance prejudiced the defense.”

         {¶ 16} Courts determine deficient performance by asking whether the
attorney’s conduct “fell below an objective standard of reasonableness.”

Id. at 688

.



1. In his briefing to this court, Lloyd goes beyond the issue we accepted for review and the
arguments he raised below by arguing that his attorney should have advised him to enter a guilty
plea but that her misunderstanding of the law likely impaired her ability to properly counsel him on
that decision. We are limited, however, to consider only the proposition of law we accepted and
only the arguments raised below. State v. Phillips,

27 Ohio St.2d 294, 302

272 N.E.2d 347

 (1971).
Thus, we will not consider Lloyd’s guilty-plea argument.




                                                 6
                                January Term, 2022




The reasonableness of the attorney’s conduct must be judged based on “the facts of
the particular case, viewed as of the time of counsel’s conduct.” Id. at 690. Only
when the attorney’s errors were “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment” has the attorney
engaged in deficient performance. Id. at 687.
       {¶ 17} When the alleged error concerns what could be viewed as trial
strategy, courts must be “highly deferential” to the attorney’s strategic decisions.
Id.,

466 U.S. at 689

909 N.E.2d 106, ¶ 8, fn. 3

. After all, each case is unique
and capable of being argued in a variety of ways. See

id. at 689-690

. Nobody can
predict the future, and “it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.”

Id. at 689

. Hindsight is 20/20 after all. Accordingly,
the defendant “must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’ ”

Id.,

 quoting Michel
v. Louisiana,

350 U.S. 91, 101

76 S.Ct. 158

100 L.Ed. 83

 (1955).
       {¶ 18} To establish prejudice, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. The error must be so serious as
to “undermine confidence in the outcome.” Id.
      A. The Record Does not Establish that Lloyd’s Counsel Was Deficient
       {¶ 19} The premise of Lloyd’s argument is that his attorney misunderstood
the law and, as a result, failed to ask for lesser-included- and inferior-degree-
offense instructions. There are two problems with this argument, both of which are
fatal to Lloyd’s appeal. First, the record does not demonstrate that Lloyd’s counsel
misunderstood the law.      Second, Lloyd would not have been entitled to the
instructions had his counsel asked for them.




                                          7
                                 SUPREME COURT OHIO




       1. Lloyd has not shown that his attorney misunderstood the law
       {¶ 20} There is caselaw to support the notion that an attorney’s failure to
know the law can cause blunders that amount to deficient performance. In Williams
v. Taylor, defense attorneys failed to investigate the defendant’s background before
sentencing, “not because of any strategic calculation but because they incorrectly
thought that state law barred access to such records.”

529 U.S. 362, 395

120 S.Ct. 1495

146 L.Ed.2d 389

 (2000). The United States Supreme Court recognized that
this failure to investigate, which left undiscovered substantial evidence of
childhood trauma and other mitigating evidence, constituted deficient performance.
See

id. at 395-396

. Other courts have also recognized that an attorney’s failure to
know the law can lead to deficient performance. See, e.g., Smith v. Dretke,

417 F.3d 438, 442

 (5th Cir.2005) (“failing to introduce evidence because of a
misapprehension of the law is a classic example of deficiency of counsel”); People
v. Pugh,

157 Ill.2d 1, 19

623 N.E.2d 255

 (1993) (“counsel’s advice, based upon a
misapprehension of the law, fell outside the range of competence demanded of
attorneys in criminal cases”).
       {¶ 21} But we are not convinced that Lloyd’s attorney misunderstood the
law. In arguing that his attorney did not understand the elements of the felonious-
assault offense upon which the felony-murder charge was predicated, Lloyd zeroes
in on several statements that she made in closing argument. Specifically, his
attorney said, “[T]here is no way that Mr. Lloyd could have knowingly been aware
that hitting someone with one punch would cause the death of that individual.”
According to Lloyd, this statement and others like it are proof that his attorney did
not know the elements of the crime charged, because the state needed only to prove
that Lloyd knowingly caused serious physical harm to the victim. The problem is
that this interpretation does not take into account the totality of counsel’s closing
argument.




                                         8
                                January Term, 2022




        {¶ 22} In this case, the serious physical harm that occurred was the victim’s
death. One way of looking at counsel’s statement that Lloyd could not have known
that one punch would have killed the victim is that she was simply specifying the
serious physical harm that was alleged to have occurred.
        {¶ 23} Imagine that instead of killing the victim, Lloyd’s punch broke his
nose. Rather than use the phrase “serious physical harm,” Lloyd’s attorney could
have said: “My client could not have known that one punch would break the
victim’s nose.” It appears to us that this is what was going on here—Lloyd’s
attorney was simply using a more precise description of the serious physical harm
that occurred. And one can understand why she might want the jury to focus on
the precise harm that occurred here—no reasonable jury would conclude that Lloyd
did not know that a hard-thrown punch to Power’s face would cause serious
physical harm, but a jury could easily conclude that Lloyd did not know his punch
would kill Power. So, Lloyd’s counsel had good reason to focus the jury on the
specific serious physical harm that occurred here, rather than serious physical harm
in the abstract.
        {¶ 24} Indeed, other parts of closing argument demonstrate that Lloyd’s
attorney fully understood the elements of the felonious-assault charge. During
closing, counsel also argued to the jury that Lloyd did not knowingly cause “serious
physical harm.” If we understand defense counsel’s other statements as referring
to death as the specific serious physical harm that occurred, then the statements
work together. In contrast, it would make little sense for counsel to say that Lloyd
did not knowingly cause serious physical harm, if she believed that the state was
required to show that Lloyd knowingly killed the victim. When counsel’s words
are read in context, then, it is evident that she understood the law and was merely
identifying death as the serious physical harm that happened in this case. We thus
reject Lloyd’s argument that his defense attorney misunderstood the law.




                                          9
                               SUPREME COURT OHIO




           2. Lloyd’s attorney was not deficient for failing to request
                           alternative jury instructions
       {¶ 25} Even if we were to assume that Lloyd’s counsel misunderstood the
law, she was not ineffective for failing to ask for instructions on the lesser-included
and inferior-degree offenses.     This is because Lloyd was not entitled to the
alternative instructions and a request for them would have been futile.
       {¶ 26} The court of appeals reviewed the trial court’s failure to sua sponte
provide instructions on the lesser-included offenses and concluded that the trial
court did not err, “plain or otherwise.”

2021-Ohio-1808 at ¶ 44

. It also found that
Lloyd “was not entitled to” an instruction on the inferior-degree offenses and noted
that Lloyd’s counsel had conceded as much in closing argument. Id. at ¶ 45. Lloyd
did not advance a proposition of law challenging these conclusions. Thus, we are
bound to accept the court of appeals’ determination that under any standard, Lloyd
was not entitled to the lesser-included and inferior-degree instructions. See Meyer
v. United Parcel Serv., Inc.,

122 Ohio St.3d 104

2009-Ohio-2463

 (explaining that the court of appeals’ determination on an issue not
accepted for review stood as “conclusively established”). But even if one could
somehow read Lloyd’s arguments before this court as challenging the court of
appeals’ conclusion that Lloyd would not have been entitled to the alternative
instructions had he asked for them, we would conclude that the court of appeals got
it right. Recall that a judge is to give instructions on lesser-included and inferior-
degree offenses only when the evidence would allow a jury to reasonably reject the
greater offense and find the defendant guilty on the lesser-included or inferior-
degree offenses.

2021-Ohio-1808 at ¶ 25

; accord State v. Thomas,

40 Ohio St.3d 213, 216-217

533 N.E.2d 286

 (1988); Shane,

63 Ohio St.3d at 632-633

590 N.E.2d 272

.
       {¶ 27} For Lloyd to be entitled to the alternative instructions, there needed
to be evidence that could cause a jury to reasonably conclude that he did not cause




                                          10
                                 January Term, 2022




“serious physical harm” to Power, or that he did not do so “knowingly.” R.C.
2903.11(A)(1).      “Serious physical harm” includes harm that requires
hospitalization, incapacitates, disfigures, involves acute or prolonged pain, or
carries a substantial risk of death. R.C. 2901.01(A)(5). A person acts “knowingly,”
in turn, when he “is aware that [his] conduct will probably cause a certain result.”
R.C. 2901.22(B).
       {¶ 28} Here, Lloyd delivered a hard punch to the face of an 83-year-old
man. There is no way that a reasonable jury would find that someone throwing this
kind of punch to a senior citizen did not knowingly cause serious physical harm.
Lloyd might not have known that his punch would kill the victim, but he was
certainly aware that it would probably cause serious physical harm. Thus, it would
have been error for the trial court to provide instructions on misdemeanor assault
and involuntary manslaughter.
       {¶ 29} Similarly, Lloyd would not have been entitled to an instruction on
aggravated assault and voluntary manslaughter. Aggravated assault, the predicate
offense for voluntary manslaughter, requires a serious provocation. And here, there
is simply no evidence of provocation. The video of the incident shows nothing that
would amount to serious provocation on the part of Power. Nor does any other
evidence in the record suggest serious provocation. As Lloyd’s counsel put it in
closing argument: “Was he provoked in any way? Absolutely not.” Thus, even if
Lloyd’s counsel had asked for these instructions, the trial court would have been
compelled to deny the request.
       {¶ 30} So, even if we assume that Lloyd’s counsel misunderstood the law,
counsel was not ineffective for failing to ask for alternative jury instructions. One
cannot be ineffective for failing to make a request that would have been denied.
                          B. We Do not Reach Prejudice
       {¶ 31} A defendant’s failure to make a sufficient showing of either prong
of the Strickland inquiry is fatal to his claim of ineffective assistance.

466 U.S. at 11

                                    SUPREME COURT OHIO




697,

. Because we conclude that Lloyd has failed
to demonstrate that his counsel was deficient, we do not reach the prejudice prong
of the Strickland inquiry.
                                     III. CONCLUSION
         {¶ 32} Lloyd has failed to establish that his counsel was deficient in failing
to ask for instructions on lesser-included and inferior-degree offenses.                        The
judgment of the court of appeals is affirmed.
                                                                             Judgment affirmed.
         O’CONNOR, C.J., and KENNEDY and FISCHER, JJ., concur.
         DONNELLY, J., dissents, with an opinion joined by STEWART and
BRUNNER, JJ.
                                     _________________
         DONNELLY, J., dissenting.
         {¶ 33} Respectfully, I dissent.          The only question before this court is
whether an attorney’s misunderstanding of the law can rebut a presumption of
sound trial strategy when analyzing the first prong of a claim of ineffective
assistance of counsel under Strickland v. Washington,

466 U.S. 668, 687

2021-Ohio-1808, ¶ 32, 34-35

 (1984). The majority decides that, well, actually, the defense
attorney in this case didn’t really misunderstand the law; she just spiced up her
phrasing a bit here and there. After ducking the legal issue and engaging in error
correction, the majority goes on to act as a 13th juror and assess the weight of the
evidence against appellant, Cronie Lloyd. The majority’s assessment belongs in an
analysis of the prejudice prong of Strickland or of the proposition of law that this
court declined to review.2 It does not belong here. To make matters worse, the
majority shoehorns its assessment of the weight of the evidence into its analysis of


2. The court declined jurisdiction over Lloyd’s first proposition of law, which states: “The throwing
of a single punch to the head, without more, may be the reckless—not knowing—causing of serious
physical harm.” See

164 Ohio St.3d 1446

2021-Ohio-3336

173 N.E.3d 1237

.




                                                 12
                                January Term, 2022




the law under the first prong of Strickland, unnecessarily blurring the line between
matters of fact and questions of law.
       {¶ 34} I would hold that the presumption of sound trial strategy is rebutted
when, as here, that strategy entails defense counsel’s repeatedly misrepresenting
the law in closing argument, conceding the defendant’s guilt to lesser-included
offenses, and then failing to seek instructions on those lesser-included offenses
even though they were the only reasonable alternative to Lloyd being convicted of
the charged offenses. I would further hold that when, as here, defense counsel
admits to and identifies evidence supporting the elements of a lesser-included
offense, an instruction on that offense must go to the jury. Whether the evidence
adequately supports the elements of the offense is a question of fact for the jury to
decide. And whether the jury might have reached a different decision is a question
for the prejudice prong of a Strickland analysis, which both the court of appeals and
the majority claim to not address. See

; majority
opinion at ¶ 31. I would reverse the judgment of the court of appeals related to
ineffective assistance of counsel and lesser-included offenses, and I would remand
the cause to the court of appeals to properly examine whether Lloyd was prejudiced
by the deficient performance of his trial counsel.
Relevant facts
{¶ 35} Prior to Lloyd’s trial for felony murder with a predicate offense of
felonious assault, the parties engaged in months of negotiations for a plea
agreement. It was clear from the parties’ positions that they believed that a
conviction for the lesser-included offense of involuntary manslaughter would be
appropriate under the facts of Lloyd’s case. However, the state was not willing to
reduce the felonious-assault charge or omit the repeat-violent-offender

13
SUPREME COURT OHIO

specification attached to that charge. The negotiations ultimately fell apart,
primarily over the issue of sentencing consequences.3
{¶ 36} At Lloyd’s trial, overwhelming evidence established that Lloyd
punched Gary Power and that Power died as a result of that punch. The only
arguable issue was whether Lloyd “knowingly caused serious physical harm” to
Power.4
{¶ 37} Lloyd’s counsel deferred making an opening statement before the
state’s case-in-chief, waived opening statements after the state’s case, and
presented no defense. Immediately after the trial court instructed the jury on the
meaning of “knowingly” and “serious physical harm” for the offense of felonious
assault, Lloyd’s counsel presented a closing argument that repeatedly urged the jury
to find Lloyd not guilty of murder because he did not “knowingly cause [Power’s]
death,” or assault Power “with the intent to cause death.” Counsel also conceded
that Lloyd had committed assault. Despite this admission, and despite the trial
court’s repeated prompts for the parties to request additional or different jury
instructions, Lloyd’s counsel did not request instructions on assault and involuntary
manslaughter. In less than two hours, the jury reached its verdict, finding Lloyd
guilty of felonious assault and felony murder.

3. Although the parties disagreed over the appropriate length of a jointly recommended sentence,
the trial court made it clear that it would ignore the parties’ recommendation and impose a prison
term of 15 years at an absolute minimum—and only as low as 15 years if the victim’s family
approved. The trial court’s original statement to the parties regarding its intended sentence was
unsurprisingly not put on the record, as the trial court shared it in a backroom discussion that would
never have seen the light of day had defense counsel not brought the matter up on the record.

4. Lloyd also presented arguments at trial regarding causation and on appeal regarding instructions
on the inferior-degree offenses of aggravated assault and voluntary manslaughter. Neither one of
these arguments is viable in my view. Lloyd abandoned the causation argument,

2021-Ohio-1808, ¶ 53

, and as the majority notes, he conceded at trial that he did not act under provocation, majority
opinion at ¶ 29, foreclosing the possibility of instructions on aggravated assault and voluntary
manslaughter.




                                                 14
                                 January Term, 2022




                                       Analysis
       {¶ 38} The effective assistance of defense counsel is a critical component
of a defendant’s constitutional right to a fair trial. Gideon v. Wainwright,

372 U.S. 335, 344

83 S.Ct. 792

9 L.Ed.2d 799

 (1963). To establish a claim of ineffective
assistance of counsel, a defendant must (1) “show that counsel’s performance was
deficient,” and (2) “show that the deficient performance prejudiced the defense.”
Strickland,

466 U.S. at 687

. An examination under
the first prong of Strickland looks to whether counsel’s performance was reasonable
in light of the totality of the circumstances.

Id. at 688

.
       {¶ 39} A reviewing court must presume that counsel’s conduct was
reasonable and that her decisions “ ‘might be considered sound trial strategy.’ ”

Id. at 689

, quoting Michel v. Louisiana,

350 U.S. 91, 101

76 S.Ct. 158

100 L.Ed. 83

(1955). However, no presumption of sound trial strategy is due when counsel’s
actions are based on a misunderstanding of the law or otherwise have no logical
justification. See Kimmelman v. Morrison,

477 U.S. 365, 385

106 S.Ct. 2574

91 L.Ed.2d 305

 (1986) (decisions based on factual, procedural, and legal
misunderstandings are not “strategy” as contemplated by Strickland); Riley v.
Wyrick,

712 F.2d 382, 385

 (8th Cir.1983) (presumption of sound trial strategy does
not apply “[i]f a tactical choice is wholly without reason”); United States v. Span,

75 F.3d 1383, 1390

 (9th Cir.1996) (failure to request an affirmative-defense
instruction due to a misunderstanding of the law is not a “strategic decision”);
Richards v. Quarterman,

566 F.3d 553, 569

 (5th Cir.2009) (failure to request a
lesser-included-offense instruction based on a misunderstanding of the law is not a
“strategic decision”).
       {¶ 40} Counsel’s failure to request instructions on lesser-included offenses
can sometimes be deliberate, and it can be a valid strategic decision when pursuing
what we have characterized as an “all-or-nothing defense” such as “alibi, mistaken
identity, or self-defense,” State v. Wine,

140 Ohio St.3d 409

2014-Ohio-3948

, 18



                                          15
                               SUPREME COURT OHIO




N.E.3d 1207, ¶ 33. However, it is unreasonable to force a jury into an all-or-nothing
decision when a defendant is clearly guilty of something, as the jury is all but certain
to find the defendant guilty. See Vujosevic v. Rafferty,

844 F.2d 1023, 1027

 (3d
Cir.1988) (failing to instruct on a lesser-included offense can create the “risk that a
defendant might otherwise be convicted of a crime more serious than that which
the jury believes he committed simply because the jury wishes to avoid setting him
free”); Crace v. Herzog,

798 F.3d 840, 848

 (9th Cir.2015), citing Keeble v. United
States,

412 U.S. 205, 212-213

93 S.Ct. 1993

36 L.Ed.2d 844

 (1973). It is also
unreasonable to pursue an all-or-nothing defense with the goal of causing the jury
to disregard or disobey the trial court’s instructions regarding the elements of the
charged offense. United States ex rel. Barnard v. Lane,

819 F.2d 798, 803-805

 (7th
Cir.1987).
        {¶ 41} In Barnard, the defendant was charged in an Illinois state court with
murder for fatally shooting a man during an argument in the defendant’s house.

Id. at 799-800

. The defendant admitted that he shot and killed the victim,

id. at 802

,
and his only viable defense would have been to assert the mitigating element of
“justification,” which would have triggered a requirement for a jury instruction on
the lesser-included offense of manslaughter,

id. at 803

. Defense counsel declined
to request a justification instruction and thereby avoided the manslaughter
instruction as part of an all-or-nothing strategy that apparently banked on the jury
having sympathy for the defendant and being unwilling to find him guilty of murder
despite his having admitted to all of the essential elements of the offense.

Id. at 804-805

. In a subsequent habeas action, the Seventh Circuit Court of Appeals held
that counsel’s performance was deficient because “[t]he spectrum of counsel’s
legitimate tactical choices does not include abandoning a client’s only defense in
the hope that a jury’s sympathy will cause them to misapply or ignore the law they
have sworn to follow.”

Id. at 805

.




                                          16
                                 January Term, 2022




        {¶ 42} In Crace, the defendant was charged in a Washington state court
with second-degree assault for charging at a police officer while brandishing a
sword.

Crace at 844

. The defense conceded that the defendant had committed the
acts charged but argued that his diminished capacity prevented him from forming
the requisite criminal intent.

 The jury ultimately found him guilty of the lesser-
included felony offense of attempted second-degree assault.

 In a petition for a
writ of habeas corpus, the defendant argued that his trial counsel had been
ineffective for failing to request an instruction on a lesser-included misdemeanor
offense of unlawful display of a weapon.

Id. at 845

. The relevant difference
between the offenses was the mens rea element.

Id. at 850

. The Ninth Circuit noted
that the defense attorney admitted that he had not thought to request the instruction,
and it held that such ignorance constituted deficient performance.

Id. at 852

. The
Ninth Circuit further held that even if defense counsel had purposefully chosen not
to request the instruction as a matter of trial strategy, it still would have been
deficient performance because there was no conceivable reason for such a strategy.

Id. at 852-853

.
        {¶ 43} In this case, Lloyd was charged with felonious assault under R.C.
2903.11(A)(1) for “knowingly caus[ing] serious physical harm” to Power, and he
was charged with felony murder under R.C. 2903.02(B) for causing Power’s death
as a result of the felonious assault. It was indisputable that Lloyd caused serious
physical harm to Power, and defense counsel conceded that Lloyd assaulted Power.
This is exactly the kind of case where a jury “ ‘is likely to resolve its doubts in favor
of conviction’ even if it has reservations about one of the elements of the charged
offense, on the thinking that ‘the defendant is plainly guilty of some offense.’ ”

Crace at 848

, quoting Keeble,

412 U.S. at 212-213

93 S.Ct. 1993

36 L.Ed.2d 844

.
        {¶ 44} Lloyd’s only viable defense in this context would have been to claim
that he lacked the mens rea required for felonious assault and instead committed
the offense of assault under R.C. 2903.13(A) or (B), which provide that “[n]o



                                           17
                                SUPREME COURT OHIO




person shall knowingly cause or attempt to cause physical harm to another * * *”
and “[n]o person shall recklessly cause serious physical harm to another * * *.”
But instead of taking that approach, defense counsel told the jury that they should
find Lloyd not guilty because he did not knowingly or intentionally kill Power.
Defense counsel’s misstatements of the law were irrelevant to the elements of
felonious assault, and her credibility before the jury was surely compromised when
her framing of the law differed so markedly from that of the trial-court judge, who
had already accurately instructed the jury on “knowingly” and on “serious physical
harm.”
         {¶ 45} Regardless of whether defense counsel’s actions came from a
misunderstanding of the law or from an attempted all-or-nothing-defense strategy,
I would hold that counsel’s performance was deficient under the first prong of
Strickland.
         {¶ 46} “A trial is a search for the truth as well as an effort by the state to
convict.”     State v. Edwards,

52 Ohio App.2d 120, 122

368 N.E.2d 302

 (6th
Dist.1975). That truth is for the trier of fact to determine after presentation of the
evidence and all reasonable interpretations thereof. Today, the majority makes
numerous assumptions about Lloyd’s state of mind based on the tragic consequence
of his action; but determining facts is not within the purview of this court.
         {¶ 47} This court generally does not make determinations on the weight of
the evidence. State v. Cliff,

19 Ohio St.2d 31, 33

249 N.E.2d 823

 (1969); R.C.
2953.02. However, the court has the authority to determine whether the evidence
would allow reasonable minds to differ regarding the elements of an offense, and
thus whether the defendant’s guilt of that offense should be determined by the jury.
See

Cliff at 33

; State v. Antill,

176 Ohio St. 61

, 65,

197 N.E.2d 548

 (1964).
         {¶ 48} If reasonable minds could disagree whether a defendant is guilty of
a lesser offense rather than a greater offense, then “the instruction on the lesser-
included offense must be given” to the jury. (Emphasis added.) State v. Wilkins,




                                           18
                                January Term, 2022

64 Ohio St.2d 382, 388

415 N.E.2d 303

 (1980). In this court’s limited inquiry
regarding the reasonable-minds rule, “[t]he evidence must be considered in the light
most favorable to [the] defendant.”

 Further, “[t]he persuasiveness of the
evidence regarding the lesser included offense is irrelevant.”