COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61199 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION RICHARD WILSON : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-237259 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor TIMOTHY DOBECK, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: GREGORY T. STRALKA 400 The Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 2 - KRUPANSKY, J.: Defendant-appellant appeals from his conviction for felonious assault with a handgun following his guilty plea pursuant to a negotiated plea bargain. Defendant was indicted by the Cuyahoga County Grand Jury for the felonious assault of William Butler with a handgun in violation of R.C. 2903.11 with an accompanying firearm specification pursuant to R.C. 2941.14.1. The charges stemmed from an altercation on March 4, 1989 when defendant shot the victim in the neck. Defendant was appointed trial counsel, who requested several continuances, and the case was ultimately scheduled for a jury trial on July 10, 1989. The record demonstrates that the prosecution amended the indictment on the day of trial to delete the firearm specification in return for defendant's plea of guilty to the felonious assault charge. The transcript of the proceedings demonstrates the trial court informed defendant of his rights, the possible penalties and non-probationable nature of the felonious assault offense, and otherwise complied with Crim. R. 11 prior to accepting defendant's guilty plea. The trial court subsequently sentenced defendant on August 15, 1989 to a term of three to fifteen years imprisonment. Defendant pro se filed a delayed appeal pursuant to App. R. 5 January 18, 1991 and was appointed new appellate counsel. Defendant's sole assignment of error follows: - 3 - THE APPELLANT/DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE DEFENSE COUNSEL FAILED TO FILE ANY DISCOVERY REQUESTS IN ORDER TO OBTAIN THE FACTS AND EVIDENCE THAT WOULD BE PRESENTED AT TRIAL AGAINST THE APPELLANT/DE-FENDANT. Defendant's sole assignment of error lacks merit. Defendant contends that trial counsel's failure to conduct any formal written discovery prior to negotiating the above plea bargain in the case sub judice constitutes ineffective assistance of counsel. Defendant maintains the record demonstrates a "failure of the adversarial process" since "there is no evidence trial counsel provided any legal assistance or advice to defendant." The standards governing claims of ineffective assistance of defense trial counsel under the Federal and Ohio Constitutions are well-established and essentially the same. Strickland v. Washington (1984), 466 U.S. 668; State v. Bradley (1989), 42 Ohio St.3d 136, 142. To demonstrate ineffective assistance of trial counsel in the context of cases involving guilty pleas, the defendant must demonstrate the following; viz., (1) trial counsel's performance was deficient; and (2) there is a reasonable probability that, but for trial counsel's errors, defendant would not have pled guilty. Hill v. Lockhart (1985), 474 U.S. 52; State v. Xie (1992), 62 Ohio St.3d 521. Based upon our review of the record, defendant has failed to demonstrate either of these two criteria in the case sub judice. Deficient Performance of Trial Counsel - 4 - Defendant has cited no authority holding that defense trial counsel must always file formal written discovery requests pursuant to Crim. R. 16 in every case or that declining to do so per se constitutes representation below an objective standard of reasonableness. We note that criminal trial counsel frequently conduct discovery without filing formal written motions pursuant to Crim. R. 16. See, State v. Russell (1985), 26 Ohio App.3d 185, 188. More importantly, the reasonableness of counsel's determination concerning the extent, method and scope of any criminal pretrial discovery necessarily depends upon the particular facts and circumstances of each case. State v. Lewis (Nov. 22, 1989), Cuyahoga App. Nos. 56227 and 57494, unreported at 22-23. The Lewis Court rejected defendant's contention that re- fraining from formal written discovery constitutes ineffective assistance of trial counsel when the record demonstrates counsel conducted other pretrial investigation. Id. As in Lewis, supra, we are unable to conclude from the record sub judice that trial counsel failed to conduct adequate pretrial investigation of the case. The record demonstrates that defendant's trial counsel subpoenaed at least one witness to testify for the defense at trial and defendant informed the trial court that he was satisfied with his representation by trial counsel prior to entering his guilty plea. (Tr. 11.) Moreover, as in Lewis, supra, given the nature of the offense of felonious assault, - 5 - defendant himself would possess knowledge of any applicable defense or potential mitigating circumstances, and there is no indication that additional discovery would have revealed any such information. Accord State v. Steward (June 4, 1990), Fayette App. No. 89-04-007, unreported at 5-6 (rejecting claim of ineffective assistance of defense trial counsel based upon failure to conduct formal written discovery in prosecution for escape in violation of R.C. 2921.34 "given the rather simple and uncomplicated facts of the charged offense"). Based upon our review of the record sub judice, defendant has failed to demonstrate his trial counsel conducted inadequate pretrial investigation or failed to provide "any legal assistance or advice to defendant." Trial counsel negotiated a plea bargain to delete the firearm specification from the indictment and reduce defendant's potential sentence by the additional mandatory three years consecutive term for this specification. Although in retrospect defendant may regret accepting the plea bargain, the record does not demonstrate that defendant's trial counsel failed to provide any legal assistance or advice prior to the plea hearing. Defendant's trial counsel stated that he had advised defendant several times concerning the facts of the case and his alternative courses of action. (Tr. 5.) Defendant informed the trial court that he was satisfied with the representation he received from his trial counsel and was satisfied with the plea bargain negotiated by trial counsel on his behalf. - 6 - Prejudice Resulting from Deficient Performance Defendant has likewise failed to demonstrate any prejudice resulted from trial counsel's failure to conduct formal written discovery. Absent such a demonstration of prejudice from the alleged deficient performance of trial counsel, defendant's claim of ineffective assistance of counsel must be rejected. State v. Kolasa (Mar. 19, 1987), Cuyahoga App. No. 51158, unreported at 8. The record sub judice does not demonstrate that trial counsel's failure to conduct formal written discovery had any adverse effect on the plea process or any potential trial. Defendant apparently found none when he informed the trial court that he was satisfied by the representation provided by trial counsel and that his plea was voluntary. Absent any indication what information defendant would have obtained from such additional discovery that defendant did not previously possess, any inference of prejudice would be speculative and unwarranted in the case sub judice. Accordingly, defendant's sole assignment of error is overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J., and HARPER, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .