COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69899 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION WILLSHAWN LAWSON, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 12, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-325728 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Mark J. Mahoney Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Valerie R. Arbie Assistant Public Defender 100 Lakeside Place 1200 West Third Street, N.W. Cleveland, Ohio 44113-1569 -2- NAHRA, J.: Appellant, Willshawn Lawson ("Lawson"), appeals convictions for one count of aggravated robbery, in violation of R.C. 2911.01, and for one count of felonious assault, in violation of R.C. 2903.11. For the following reasons, we affirm the convictions. The convictions stem from an incident on March 8, 1995, during which Dennis Sanders ("Sanders") was robbed and viciously beaten. On that day, Sanders walked home from his bus stop after work. Sanders testified that during this walk, Lawson approached him and said "Hey, big man, I need a few dollars." According to Sanders, Lawson was about three feet away and directly facing him. Sanders testified that he told Lawson that he could not help him and then turned and walked away. As he turned, he was struck on the back of the head with what he believed was a hard, blunt object. Sanders fell to the ground and lost consciousness. Sanders stated that as he slowly regained his senses, he heard voices. The initial voice I distinctly remembered that stopped me, being the defendant's, and two other voices. And the two other voices were saying, "Come on, Dink, come on. Let's get out of here. Let's get out of here," and something to the effect of I should kill this MF'er, or something like that. The men fled and Sanders did not see whose voices he had heard. When Sanders had fully regained consciousness, he walked to the local police department. Once there, the police summoned an ambulance and Sanders was taken to Huron Road Hospital. Hospital staff treated him for a broken ankle and severe facial and scalp -3- lacerations. An inventory of Sanders' possessions revealed that Lawson had robbed him. During the criminal investigation which followed, Sanders identified Lawson as the man who had approached him on the street. Appellant was indicted on two counts, aggravated robbery and felonious assault. Nevertheless, he steadfastly maintained his innocence. The record reveals that appellant refused to enter into any plea negotiations with the prosecution and exercised his right to trial. At trial, the state presented the testimony of Sanders as well as other evidence. During his testimony, Sanders identified Lawson as the man who had approached him. Appellant testified and denied any involvement in the incident. Lawson admitted that his street name was "Dink" and that he had two prior felony drug convictions. The prosecution, through effective cross-examination, impeached Lawson's credibility by demonstrating his propensity to misstate fact. The jury convicted Lawson on both counts. He appeals and asserts two assignments of error. I. Appellant's first assignment of error states: WILLSHAWN LAWSON WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Quoting paragraphs one and two of the syllabus from State v. Bradley, (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, this court in -4- State v. Young (February 22, 1996), Cuyahoga App. Nos. 69010, 69011, unreported, summarized the proper standard of review: Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. State v. Lytle (1976), 42 Ohio St.2d 391; Strickland v. Washington (1984), 466 U.S. 668, followed. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsels' [sic] error, the result of the trial would have been different. A reviewing court must presume that a properly licensed attorney executes his legal duty to competently represent the client. State v. Smith (1985), 17 Ohio St.3d 98, 100, 17 OBR 219, 477 N.E.2d 1128; State v. Houser (May 30, 1996), Cuyahoga App. No. 69639, unreported. Appellant's assignment of error rests upon two distinct grounds. First, appellant claims that he was denied effective assistance of counsel when his trial attorney failed to advise him of the potential sentence upon conviction. The only evidence appellant produced to support this contention is the following excerpt from his sentencing hearing. THE COURT: * * * I don't have it within my power to grant you probation. Are you aware of that? THE DEFENDANT: Yes. THE COURT: I must sentence you to a minimum of five years to twenty-five years. Had Mr. Adrine told you this? -5- THE DEFENDANT: No, he didn't. THE COURT: He never told you that? THE DEFENDANT: Never told me nothing about it. * * * THE COURT: Mr. Adrine [Lawson's trial counsel], can that possibly be true? MR. ADRINE: Your Honor, I indicated to him that it was non-probational. Appellant's assignment of error fails for two reasons. First, defense counsel's indirect response does not indicate whether he failed to inform Lawson of the potential sentence. Accordingly, there is no factual basis for his claim. Second, we hold that a defense counsel's failure to inform his client of the range of sentencing possibilities does not require reversing the conviction. Appellant failed to cite any case law establishing his contrary position. Rather, Lawson cited Boria v. Keane (C.A.2, 1996), 83 F.3d 48, aff'd on rehearing, (C.A.2, 1996), 90 F.3d 36. However, the Second Circuit, in Boria, held only that defense counsel was required to advise his client as to whether a plea offer should be accepted or rejected where a great disparity existed between the potential sentences on conviction and under the proposed plea arrangement. See Boria, 90 F.3d at 38, n.2. The critical distinction between Boria and the case sub judice is the existence of a plea offer. A criminal defendant can show prejudice, and thereby satisfy Strickland's second -6- element, only where he has a meaningful choice between potential sentences. Where no plea offer exists, a defendant has no meaningful choice of conduct; regardless of whether he understands the potential sentence, he must proceed to trial or either plead guilty or no contest to the crime charged. In each case, the potential sentence is the same. Thus, unlike the facts in Boria, Lawson's trial counsel did not deny him the opportunity to encounter a potentially lesser sentence and he can not demonstrate prejudice as a result. Appellant urges us to consider that he would have entered plea negotiations had he fully appreciated the potential sentence. However, this argument is misplaced for two reasons. First, there is no evidence in the record supporting this claim. Second, because no plea offer existed, Lawson can not demonstrate that "but for" counsel's alleged error, the outcome would have been both different and more favorable. There is no basis upon which to establish what would have happened had Lawson engaged in plea negotiations and we will not reverse his conviction on pure speculation. The remaining half of appellant's ineffective assistance claim alleges that Lawson's trial counsel permitted without objection an inappropriate line of impeachment questioning. The sequence of testimony at issue came after the prosecutor asked Lawson about prior drug related felonies. Shortly thereafter, appellant testified: -7- A. And I was placed in a rehab center and I did receive help. Q. Okay. So you have been clean since then? A. Yes, sir. Q. Okay. Well, how about some probation violations? You want to tell the ladies and gentlemen of the jury about those? [Defense Counsel]: Objection. THE COURT: Overruled. This question was not answered. Following a related line of questioning, the prosecutor returned to the probation violations. Q. All right. You testified that you went clean and got yourself some treatment. What about a probation violation on September 29th, 1993, and another probation violation January 25, 1995. A. I don't know about that. Q. Okay. A. I may have been guilty of that. I am not - -. Again, the existence of the probation violations was never directly admitted. It is clear from the record that contrary to appellant's assertions, defense counsel timely objected to this line of questioning. Consequently, the alleged failure to object cannot serve as the factual basis for an ineffective assistance of counsel claim. Further, even if counsel failed to perform an essential duty by not more vigorously objecting, Lawson suffered no prejudice. There is no reasonable probability that the existence of such objections would have altered the outcome of -8- the trial. Accordingly, we overrule appellant's first assignment of error. II. Appellant's second assignment of error states: MR. LAWSON'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR DURING CROSS-EXAMINATION AND CLOSING ARGUMENT. This assignment of error is based on two allegedly improper acts. First, appellant contends that the prosecutor improperly cross-examined Lawson with respect to probation violations. The line of questioning discussed in appellant's first assignment of error forms the factual basis for the instant assignment of error. To sustain this error, it must appear that the prosecutor's actions were improper and that they prejudiced substantial rights of the defendant. State v. Brewer (June 22, 1995), Cuyahoga App. No. 67782, unreported. Further, the verdict will be overturned "only where the outcome of the trial would clearly have been different but for the alleged misconduct." Id. In resolving this claim, we note that the Ohio Supreme Court has broadened the scope of permissible impeachment to include parole violations. State v. Greer (1988), 39 Ohio St.3d 236, 243, 530 N.E.2d 382. Further, at least one Ohio Court of Appeals permits impeachment through cross-examination into a probation violation. See State v. Hurt (March 29, 1996), Franklin App. No. 95APA06-786, unreported. In light of these holdings, we find -9- that the prosecutor's line of questioning did not constitute prosecutorial misconduct. While the line of questioning may have been objectionable, it did not clearly alter the outcome of the trial. Appellant also bases his claim of prosecutorial misconduct on the state's closing argument. Several times throughout his argument, the prosecutor referred to Lawson as a "liar." Despite failing to timely object, appellant now claims that these remarks denied him a fair trial. The standard for reviewing Lawson's claim of misconduct during closing argument was articulated by this Court in State v. Bryant (June 2, 1994), Cuyahoga App. No. 65614, unreported. The test for prosecutorial misconduct is whether remarks are improper and, if so, whether they prejudicially affect substantial rights of the accused. In State v. Bell (March 18, 1993), Cuyahoga App. No. 61827, unreported, we identified several factors a reviewing court should consider when resolving this issue. In making this determination, an appellate court should consider several factors: (1) the nature of the remarks; (2) whether an objection was made by counsel; (3) whether corrective instructions were given by the court; and (4) the strength of the evidence against defendant. We note that a prosecutor may state reasonable inferences that are drawn from the evidence presented at trial. Bryant, supra. Thus, a prosecutor may argue that the evidence demonstrated that the accused was lying. Bell, supra, citing, State v. Draughn (1992), 76 Ohio App.3d 664. However, a prosecutor may not -10- personally vouch for the credibility of a witness or state that he believes that the accused is lying. Id. We find that the prosecutor's statements were not improper. See Bryant, supra. The prosecutor did not state his personal belief and he confined his argument to inferences clearly supported by the evidence. Furthermore, even if the statements were improper, because of the weight of the evidence inculpating defendant, it is clear that the same verdict would have been reached in the absence of the prosecutor's remarks. We do not find appellant's second assignment of error well taken. Judgment affirmed. -11- 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. SPELLACY, C.J., and PATTON, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .