holding defendant established reasonable probability that, but for counsel's errors, the result of jury trial would have been different
How later courts described this case
- holding defendant established reasonable probability that, but for counsel's errors, the result of jury trial would have been different
- finding Old Chief distinguishable and not applying its holding to the admission of defendant’s prior criminal record
Written by the judges who cited it.
The opinion
Cook, J.,
dissenting. At first, the majority purports to “save * * * for another day” the question of whether R.C. 2713.22 permits a bounty hunter to enter the home of a third party unannounced and without permission in order to locate and apprehend a fugitive. Yet the majority eventually decides that “[o]n its face, [R.C. 2713.22] could have established a privilege for two of the charges against [the] defendant in this case” and that Kole’s trial counsel was thus ineffective for failing to raise this statute as an affirmative defense.
With all due respect, I suggest that the majority cannot have it both ways. A reasonable probability of a different trial outcome would not exist here per Strickland v. Washington (1984), 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 , unless R.C. 2713.22 actually provided Kole a valid statutory privilege or defense for the jury to consider. Put another way, the majority cannot decide that Kole’s trial counsel was constitutionally ineffective for her failure to raise the statute without also implicitly deciding that the statute provided Kole a legitimate defense.
Today’s majority deems trial counsel’s performance constitutionally deficient based on her failure to raise a statute that, to the best of my knowledge, has never been cited in any opinion published by any court in this state. Even if I were to assume, for the sake of argument, that trial counsel performed deficiently by failing to raise the statute and that Kole thus satisfied Strickland’s first prong, *310 I could go no further. To be of any assistance to Kole, R.C. 2713.22 must be interpreted to endow bounty hunters with greater rights to enter the private dwellings of nonconsenting third parties than are possessed by our state’s law enforcement officers. See Steagald v. United States (1981), 451 U.S. 204 , 101 S.Ct. 1642 , 68 L.Ed.2d 38 (holding that, absent exigent circumstances or consent, law enforcement officers may not constitutionally search for the subject of an arrest warrant in the home of a third party without first obtaining a search warrant). Neither Strickland nor the Sixth Amendment requires trial counsel, or reviewing courts for that matter, to entertain such improbabilities. See Murray v. Carrier (1986), 477 U.S. 478, 486 , 106 S.Ct. 2639, 2644 , 91 L.Ed.2d 397, 407 (“ ‘the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable * * * claim,’ ” quoting Engle v. Isaac [1982], 456 U.S. 107, 133-134 , 102 S.Ct. 1558, 1575 , 71 L.Ed.2d 783, 804 ). Thus, I respectfully dissent.
Gregory A. White, Lorain County Prosecuting Attorney, and Lisa A Locke Graves, Assistant Prosecuting Attorney, for appellee.
David H. Bodiker, State Public Defender, and James R. Foley, Assistant State ' Public Defender, for appellant.
David M. Gormley, State Solicitor, and Norman E. Plate, Assistant Solicitor, urging affirmance for amicus curiae, Attorney General of Ohio.