The opinion
[Cite as State v. Brown, 2023-Ohio-330.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-22-1041
Appellee Trial Court No. CR0202102690
v.
Izell Brown, Jr. DECISION AND JUDGMENT
Appellant Decided: February 3, 2023
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Francis P. de la Serna, Assistant Prosecuting Attorney, for appellee.
Tyler Naud Jechura, for appellant.
*****
OSOWIK, J.
{¶ 1} Appellant, Izell Brown, Jr. appeals the February 1, 2022 judgment of the
Lucas County Court of Common Pleas, sentencing him to 11 months in the Ohio
Department of Rehabilitation and Corrections for the offense of Harassment with a
Bodily Substance, in violation of R.C. 2921.38(A) and (D), a felony of the fifth degree.
{¶ 2} For the following reasons, we affirm.
{¶ 3} Appellant raises a single assignment of error:
1. The assistance of counsel is ineffective when counsel fails to
produce relevant information in mitigation at sentencing.
Facts
{¶ 4} The record reflects that, at the time of the offense, July 13, 2021, Brown was
serving a period of incarceration at Toledo Correctional Institution. While being escorted
past a rec cage, Brown spit at a corrections officer. He then returned to another rec cage,
was given directives to exit the cage, and then he spit on another officer. As a result of
this behavior, he was indicted on two counts of Harassment with a Bodily Substance, in
violation of R.C. 2921.38(A) and (D). One of the counts was dismissed as a result of a
plea agreement.
{¶ 5} At the plea/sentencing hearing, counsel for Brown stated that appellant had
recently been moved from the Toledo Correctional Institution to another prison at
Lucasville and that he had two years remaining to serve on that charge.
{¶ 6} Counsel further indicated that Brown does suffer from mental health issues
and that he was taking medications regarding those issues and asked that the court take
those factors in mitigation in fashioning a sentence.
{¶ 7} Brown himself went on to state to the court:
{¶ 8} “I’ve been incarcerated seven years, I have a nine-year-old son. As my
attorney probably already stated, I do suffer from mental health issues. I was trying to
2.
get in contact with mental health so I can get my diagnosis printed off. I been talking to
my son and he gave me some really good advice.”
{¶ 9} Appellant was sentenced to eleven months, and after making appropriate and
necessary findings including Brown’s criminal history, the sentence was ordered to be
served consecutive to his existing sentence. Appellant finds no error in the imposition of
the length of the sentence or the imposition of the sentence consecutive to his existing
sentence of which he had already served five years.
Analysis
{¶ 10} Appellant argues that his counsel was ineffective in failing to pursue more
information concerning his mental health issues to present to the court in mitigation prior
to the imposition of his sentence. He argues that his counsel should have moved the trial
court for a continuance to gather more information.
{¶ 11} To establish his claim for ineffective assistance of counsel, Brown must
show “(1) deficient performance by counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that
but for counsel’s errors, the proceeding’s result would have been different.” State v.
Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 200, citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.
3.
{¶ 12} A reviewing court must determine whether trial counsel’s assistance fell
below an objective standard of reasonable advocacy. Bradley at 141-142. Moreover, the
deficient performance must have been so serious that, “were it not for counsel’s errors,
the result of the trial would have been different.” Id. at 141-142.
{¶ 13} Trial strategy “must be accorded deference and cannot be examined
through the distorting effect of hindsight.” State v. Conway, 109 Ohio St.3d 412, 2006-
Ohio-2815, 848 N.E.2d 810, ¶ 115. “An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment.” Strickland at 691.
{¶ 14} Brown does not argue that the failure to move for a continuance to obtain
more mental health information was prejudicial. He merely asserts that such information
would have been relevant to sentencing.
{¶ 15} In sentencing Brown, the Court indicated it had considered his criminal
history and stated:
{¶ 16} “Mr. Brown, I have listened to what you have had to say and you’ve given
excuses for your conduct. However, you show no remorse.”
{¶ 17} Appellant committed these offenses against these corrections officers while
he was serving a sentence of incarceration with the Ohio Department of Rehabilitation
and Corrections.
4.
{¶ 18} In the instant case, there is nothing in the record to suggest that a
continuance of the sentencing would have assisted the appellant’s defense. Likewise,
there is nothing in the record to suggest that the failure to move for a continuance
constituted the violation of a substantial duty to appellant or otherwise prejudiced
appellant’s defense.
{¶ 19} There was accordingly no reason to move for a continuance, but even if
counsel’s failure to move for a continuance was deficient, Brown suffered no prejudice,
since his mental health issues were brought to the attention of the trial court for its
consideration in sentencing.
{¶ 20} Having thoroughly reviewed the record, we cannot say that Brown’s
counsel’s representation fell below an objective standard of reasonableness.
{¶ 21} We find appellant’s sole assignment of error to be without merit and
denied.
Conclusion
{¶ 22} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24(A)(4).
Judgment affirmed.
5.
State of Ohio
v. Izell Brown, Jr.
L-22-1041
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
6.