[Cite as State v. Moon, 2026-Ohio-3833.]
IN THE OHIO COURT OF APPEALS
FIFTH APPELLATE DISTRICT
COSHOCTON COUNTY, OHIO
STATE OF OHIO, Case No. 2026CA0002
Plaintiff - Appellee Opinion And Judgment Entry
-vs- Appeal from the Coshocton County Court of
Common Pleas, Case No. 2025 CR 0011
BURTCEL A. MOON,
Judgment: Affirmed
Defendant - Appellant
Date of Judgment Entry: September 29, 2026
BEFORE: Andrew J. King; Craig R. Baldwin; David M. Gormley, Judges
APPEARANCES: KATELYNN R. DAVIS, Assistant Prosecuting Attorney, for PlaintiffAppellee; CHRISTOPHER BAZELEY, for Defendant-Appellant.
Baldwin, J.
{¶1} The appellant, Burtcel A. Moon, appeals the sentence imposed by the
Coshocton County Court of Common Pleas following his guilty pleas to four counts of
Aggravated Trafficking in Drugs. The appellee is the State of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} On February 13, 2025, the appellant was indicted on four counts of Aggravated
Trafficking in Drugs: Count One in violation of R.C. 2925.03(A)(1) and (C)(1)(a); Counts
Two and Three in violation of R.C. 2925.03(A)(1) and (C)(1)(c); and Count Four in violation
of R.C. 2925.03(A)(2) and (C)(1)(c). Count Four further alleged that the offense was
committed in the vicinity of a juvenile.
{¶3} On June 2, 2025, the appellant entered pleas of guilty to all four counts. In
exchange for the pleas, the appellee agreed to take no position with regard to sentencing. The
trial court advised the appellant that the minimum term on Count Four was mandatory,
accepted his pleas, found him guilty, and ordered a presentence investigation. The trial court
continued the appellant’s recognizance bond but advised him that failure to appear for
sentencing was a factor the court could consider.
{¶4} Sentencing was scheduled for July 14, 2025. The appellant failed to appear, his
bond was revoked, and a warrant was issued for his arrest. The appellant turned himself in
on or about March 2, 2026, and was brought before the trial court that day. He appeared to
be under the influence of some substance, and the trial court continued sentencing to March
9, 2026.
{¶5} The appellant appeared at the March 9, 2026, sentencing hearing in restraints
and a safety helmet. When the trial court raised the issue of the appellant’s restraints, defense
counsel explained that the appellant had not been making sense during his appearance the
prior week and appeared to be under the influence. Counsel also stated that she had contacted
a corrections officer during the week and that the officer reported that the appellant was better
but still not well. Counsel argued that the appellant might be experiencing an episode of
substance-induced psychosis that would render him incompetent for purposes of the hearing
and that due process required that he understand the information conveyed at sentencing,
including his appellate rights, post-release control, and the mandatory nature of the prison
term on the second-degree felony. Counsel requested a competency evaluation and asked that
sentencing be deferred until it was completed.
{¶6} The trial court called the jail nurse as its own witness. The nurse testified that
when she saw the appellant on March 2, 2026, he appeared intoxicated and reported having
used several drugs, but his vital signs were normal, and he answered her questions
appropriately. She testified that on March 3, 2026, the appellant was found on the floor and
stated that he had fallen, but that a corrections officer reported that the jail’s camera footage
showed he had lowered himself to the ground. She further testified that the appellant was
observed in the medical cell walking and eating without difficulty; that he later claimed he
had brought drugs into the jail and used them; and that corrections officers reported that he
tested negative for all substances. According to the nurse, throughout the week the appellant
knew who he was, where he was, and why he was there, and he showed no signs of
impairment on the morning of the hearing until he was brought to the booking area for
transport to court. The appellee and defense counsel each questioned the nurse.
{¶7} The trial court found that nothing before it suggested that the appellant was
incompetent to proceed. The trial court further found that he was attempting to avoid
sentencing by feigning his behavior. The trial court then asked defense counsel whether she
had “any statement, evidence, or information that [she] wish[ed] to offer on behalf of [her]
client regarding sentencing.” Counsel responded, “No, Your Honor.” The trial court then
asked the appellant directly whether there was anything he wanted to say. The appellant did
not respond. The appellee likewise offered nothing, noting that it had previously agreed to
take no position with regard to sentencing.
{¶8} The trial court reviewed the presentence investigation report, noting the
appellant’s sale of methamphetamine and the recovery of packaging materials, digital scales,
and other drug paraphernalia from his residence. The trial court concluded that the appellant had an ongoing drug-dealing operation running out of his house. The trial court noted that
the appellant had no prior felony convictions but found that consecutive sentences were
necessary in light of his continued sale of methamphetamine in his neighborhood. The trial
court also considered the appellant’s conduct at the hearing and the harm caused to the
community by the distribution of methamphetamine.
{¶9} The trial court sentenced the appellant to seventeen months on Count One;
thirty months on each of Counts Two and Three; and an indefinite prison term on Count
Four, with a mandatory minimum term of eight years and a maximum term of twelve years.
The trial court relied on the appellant’s flight from the jurisdiction in imposing the maximum
term on Count Four and stated on the record that it had not considered his flight in imposing
consecutive sentences. The trial court ordered the sentences served consecutively and made
findings under R.C. 2929.14(C)(4) on the record. The trial court stated that the appellant
would serve seventy-seven months, followed by an indefinite prison term of eight to twelve
years. The sentence was journalized on March 18, 2026.
{¶10} The appellant filed a timely notice of appeal and sets forth the following sole
assignment of error:
{¶11} “I. MOON’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
ALLOCUTE ON HIS BEHALF AT SENTENCING.”
I.
{¶12} In his sole assignment of error, the appellant argues that his trial counsel was
ineffective for failing to offer an argument on his behalf before sentence was imposed. We
disagree.
STANDARD OF REVIEW
{¶13} The standard of review for ineffective assistance of counsel was set forth in the
seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
and was discussed by this Court in Mansfield v. Studer, 2012-Ohio-4840, ¶ 58 (5th Dist.):
A claim of ineffective assistance of counsel requires a two-prong
analysis. The first inquiry is whether counsel’s performance fell below an
objective standard of reasonable representation involving a substantial
violation of any of defense counsel’s essential duties to appellant. The second
prong is whether the appellant was prejudiced by counsel’s ineffectiveness.
Lockhart v. Fretwell (1993), 506 U.S. 364, [113 S.Ct. 838, 122 L.Ed.2d 180];
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
{¶14} In order to warrant a finding that trial counsel was ineffective, the appellant
must meet both prongs of Strickland and Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129
S.Ct. 1411, 173 L.Ed.2d 251 (2009).
{¶15} To show deficient performance, the appellant must establish that “counsel’s
representation fell below an objective standard of reasonableness.” Strickland at 688. This
requires showing that counsel made errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment. Strickland at 687. Counsel also
has a duty to bring to bear such skill and knowledge as will render the trial a reliable
adversarial process. Strickland at 688.
{¶16} The Supreme Court further explained:
Thus, a court deciding an actual ineffectiveness claim must judge the
reasonableness of counsel’s challenged conduct. A convicted defendant making
a claim of ineffective assistance must identify the acts or omissions of counsel
that are alleged not to have been the result of reasonable professional judgment.
The court then must determine whether, in light of all of the circumstances, the
identified acts or omissions were outside the wide range of professionally
competent assistance. In making that determination, the court should keep in
mind that counsel’s function, as elaborated in prevailing professional norms, is
to make the adversarial testing process work in the particular case. At the same
time, the court should recognize that counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.
Id. at 690.
In light of the “variety of circumstances faced by defense counsel [and]
the range of legitimate decisions regarding how best to represent a criminal
defendant,” the performance inquiry necessarily turns on “whether counsel’s
assistance was reasonable considering all the circumstances.” Strickland v.
Washington, 466 U.S. 668 at 689, 104 S.Ct. at 2064. At all points, “[j]udicial
scrutiny of counsel’s performance must be highly deferential.” Strickland v.
Washington, 466 U.S. 668 at 689, 104 S.Ct. at 2064.
Studer at ¶ 61.
{¶17} To demonstrate prejudice, the appellant must show a reasonable probability
that, but for counsel’s alleged error, the result of the proceeding would have been different. Strickland at 687-688, 694. A “reasonable probability” is “a probability sufficient to undermine
confidence in the outcome.” Strickland at 694.
{¶18} Thus, in order to prevail on an ineffective assistance of counsel argument, the
appellant must show both: (1) that his trial counsel’s performance fell below an objective
standard of reasonable representation involving a substantial violation of an essential duty to
the appellant; and (2) that the appellant was prejudiced by the alleged ineffectiveness.
ANALYSIS
{¶19} Crim.R. 32(A)(1) provides that at the time of imposing sentence, the trial court
shall “[a]fford counsel an opportunity to speak on behalf of the defendant and address the
defendant personally and ask if he or she wishes to make a statement in his or her own behalf
or present any information in mitigation of punishment.”
{¶20} The rule places an obligation upon the trial court, and this Court has ordered
resentencing where a trial court failed to afford the opportunity it requires. State v. Weber,
2009-Ohio-1344, ¶ 58, 64 (5th Dist.). That did not occur in the case sub judice. The trial court
asked defense counsel whether she wished to offer any statement, evidence, or information
on the appellant’s behalf, and then addressed the appellant personally and asked whether he
wished to say anything. The trial court complied with Crim.R. 32(A)(1). The appellant’s
reliance upon State v. Green, 90 Ohio St.3d 352 (2000), is misplaced for the same reason. Green
concerns the trial court’s obligation to afford the right of allocution, and the trial court
discharged that obligation here. The appellant’s challenge is not to the absence of the
opportunity, but to counsel’s decision not to use it.
{¶21} The appellant argues that his trial counsel was unable to think of any argument
to make on his behalf. The record reflects that counsel argued at length that the appellant might not be competent to proceed, requested a competency evaluation and a deferral of
sentencing, and questioned the trial court’s witness. It is also true, however, that counsel
offered nothing in mitigation when the trial court invited her to do so. We need not decide
whether that decision fell below an objective standard of reasonable representation, because
the appellant has not demonstrated that he was prejudiced by it. Strickland at 697. We also
reject the appellant’s suggestion that a defense attorney who makes no statement at sentencing
is ineffective as a matter of law. He cites no authority for that proposition, and we decline to
adopt it.
{¶22} The appellant does not identify anything counsel should have said. He argues
instead that because the one person in the courtroom most familiar with him and his case
offered nothing, the trial court must have concluded that there were no mitigating
circumstances. His claim of prejudice rests entirely upon that inference.
{¶23} The record does not support it. The trial court reviewed the presentence
investigation report and discussed it at length. Further, the trial court itself placed a significant
mitigating fact on the record before pronouncing sentence: the appellant had no prior felony
convictions. The trial court did not assume that no mitigating circumstances existed. It
identified one, weighed it, and explained why it did not change the result, pointing to the
appellant’s continued sale of methamphetamine in his neighborhood and the harm caused to
the community.
{¶24} Nor has the appellant identified anything counsel could have added. This Court
has held that a defendant who claims that counsel should have presented additional evidence
must demonstrate that the evidence would have been of significant assistance; the claim fails
where the record contains no proffer of that evidence. State v. Jenkins, 2021-Ohio-4100, ¶ 54 (5th Dist.), citing State v. Reese, 8 Ohio App.3d 202, 203 (1st Dist. 1982). The appellant has
proffered nothing. His assertion that some unidentified statement by counsel would have
resulted in a lesser sentence is speculative, and speculation does not establish a reasonable
probability of a different result.
{¶25} Moreover, mitigating evidence that is merely cumulative of what was already
before the sentencing court does not undermine the result of sentencing. State v. Baker, 2024-Ohio-906, ¶ 59 (5th Dist.), quoting State v. Herring, 2014-Ohio-5228, ¶ 117. The assessment of
and weight to be given mitigating evidence are matters for the trial court’s determination.
Baker at ¶ 62, citing State v. Jackson, 2005-Ohio-5981, ¶ 106. An appellate court may not
independently weigh the evidence in the record and substitute its judgment for that of the trial
court concerning the sentence that best reflects compliance with R.C. 2929.11 and R.C.
2929.12. Baker at ¶ 66, citing State v. Jones, 2020-Ohio-6729, ¶ 39. The appellant’s argument
would require us to presume that a statement by counsel would have led the trial court to
weigh the sentencing factors differently. The record provides no basis for that presumption.
{¶26} Further, the trial court’s stated reasons for the sentence were specific. The trial
court distinguished between the considerations supporting the maximum term on Count Four
and those supporting consecutive sentences, stating expressly that it had not considered the
appellant’s flight from the jurisdiction in imposing consecutive sentences. On this record,
there is no reasonable probability that the trial court would have imposed a lesser sentence
had defense counsel made a statement on the appellant’s behalf.
{¶27} The appellee relies upon State v. Campbell, 2024-Ohio-5343 (2d Dist.), and State
v. Maguire, 2009-Ohio-4393 (7th Dist.). In each case, the reviewing court noted that the
defendant had spoken on his own behalf and had a criminal history. Campbell at ¶ 13; Maguire at ¶ 20-21. Here, by contrast, the appellant had no prior felony convictions and did not address
the trial court. Neither distinction assists him. The trial court knew of and weighed the
absence of a felony record. The appellant was afforded the opportunity to speak and did not
respond, and the trial court found that he was feigning the behavior he exhibited at the
sentencing hearing.
{¶28} Accordingly, the appellant’s sole assignment of error is overruled.
CONCLUSION
{¶29} Based upon the foregoing, the judgment of the Coshocton County Court of
Common Pleas is hereby affirmed.
{¶30} Costs to the appellant.
By: Baldwin, J.
King, P.J. and
Gormley, J. concur.