State v. Hunt , 2018 Ohio 2383 ( 2018 )

[Cite as State v. Hunt, 2018-Ohio-2383.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
JEFFERSON COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
CHAD A. HUNT, JR.,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 17 JE 0012
Motion to Reopen.
BEFORE:
Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Denied.
Atty. Jane M. Hanlin, Prosecuting Attorney for Jefferson County, 16001 SR 7,
Steubenville, Ohio 43952, Plaintiff-Appellee.
Chad A. Hunt, Jr., Pro Se, (A)694-881, Belmont Correctional Institution, P.O. Box 540,
St. Clairsville, Ohio 43950, for Defendant-Appellant.
DATED:
June 19, 2018
–2–
PER CURIAM.
{¶1} Defendant-appellant, Chad Hunt, has filed an application for reopening of
his direct appeal from his convictions for one count of trafficking in drugs and two counts
of possession of drugs. State v. Hunt, 7th Dist. No. 17 JE 0012, 2018-Ohio-815. For
the following reason, the application is denied.
{¶2} An application to reopen an appeal must be filed “within ninety days from
journalization of the appellate judgment unless the applicant shows good cause for filing
at a later time.” App.R. 26(B). Our judgment in this case was filed on March 1, 2018.
Appellant filed this application on May 21, 2018. Thus, it was timely filed.
{¶3} When considering an application for reopening pursuant to App.R. 26(B),
we must first determine, based upon appellant’s application, affidavits, and portions of
the record before us, whether appellant has set forth a colorable claim of ineffective
assistance of appellate counsel. See e.g. State v. Milburn, 10th Dist. No. 89AP-655,
1993 WL 339900 (Aug. 24, 1993); State v. Burge, 88 Ohio App.3d 91, 623 N.E.2d 146(10th Dist.1993). In order to show ineffective assistance of appellate counsel, appellant
must prove that his counsel was deficient for failing to raise the issues he now presents
and that there was a reasonable probability of success had he presented those claims
on appeal. State v. Goff, 98 Ohio St.3d 327, 2003-Ohio-1017, 784 N.E.2d 700, ¶5,
(explaining that the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), test
is used to determine if appellate counsel was ineffective).
{¶4} In his direct appeal, appellant’s counsel raised a single assignment of
error arguing that the trial court erred in sentencing appellant to an aggregate prison
term of nine years and ten months. Within the assignment of error counsel argued that
the trial court failed to properly consider the seriousness and recidivism factors, that the
court should have merged the possession of cocaine conviction with the possession of
heroin conviction, and that court erred in ordering appellant’s sentences to be served
consecutively.
Case No. 17 JE 0012
–3–
{¶5} Appellant asserts his appellate counsel was ineffective for failing to raise
an additional assignment of error. The assignment of error appellant asserts his
counsel should have raised is:
THE COURTS [sic.] CONSIDERATION INTO THE
INVESTIGATION OF THE PYTASH MURDER VIOLATED HUNT’S DUE
PROCESS[.]
{¶6} Appellant states that, at his sentencing hearing, the trial court heard
testimony from a detective that appellant was untruthful in statements he made to police
regarding the murder investigation of Stephanie Pytash. Appellant claims this testimony
rendered his sentencing hearing fundamentally unfair.
{¶7} In his direct appeal, we thoroughly reviewed appellant’s sentence. We
concluded that all of appellant's sentences were within the applicable statutory ranges.
Hunt, 2018-Ohio-815, ¶ 19. We determined that the trial court properly considered the
statutory seriousness and recidivism factors. Id. ¶ 12. We found that the trial court was
correct in not merging appellant's convictions for possession of cocaine and possession
of heroin. Id. at ¶ 18. And we found that the trial court made all of the statutorily-
required consecutive sentencing findings at the sentencing hearing. Id. at ¶ 23.
{¶8} Thus, we have already thoroughly reviewed appellant’s sentence and the
trial court’s findings and upheld them.
{¶9} Counsel was not deficient for failing to raise the assignment of error
appellant now presents.
{¶10} Accordingly, appellant’s application to reopen his appeal is hereby denied.
JUDGE GENE DONOFRIO
JUDGE CHERYL L. WAITE
JUDGE CAROL ANN ROBB
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 17 JE 0012