State v. Howard ( 2014 )

[Cite as State v. Howard, 2014-Ohio-5679.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100094
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LEDON HOWARD
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-12-566854-A
Application for Reopening
Motion No. 477763
RELEASE DATE: December 22, 2014
FOR APPELLANT
Ledon Howard, pro se
Inmate # 642-368
501 Thompson Road
P.O. Box 8000
Conneaut, Ohio 44030
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James M. Rice
Brett Hammond
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
TIM McCORMACK, J.:
{¶1} In State v. Howard, Cuyahoga C.P. No. CR-12-566854-A, the applicant, Ledon
Howard, was found guilty by a jury of felonious assault. This court affirmed that judgment in
State v. Howard, 8th Dist. Cuyahoga No. 100094, 2014-Ohio-2176.
{¶2} Howard has filed a timely application for reopening. Appellant argues that his
appellate counsel was allegedly ineffective for not asserting errors challenging his conviction as
being unsupported by sufficient evidence and being against the manifest weight of the evidence.
Additionally, Howard contends that his appellate counsel should have argued that he was denied
a fair trial because the prosecutors failed to correct allegedly false and perjured testimony from
Det. DeCaro regarding the photo identification procedure. Howard asserts that Det. DeCaro
“deliberately obstructed justice by altering sections of the Photo Lineup.”
{¶3} The state has opposed the application for reopening.
{¶4} The application for reopening is denied for the reasons that follow.
{¶5} Howard has failed to meet his burden to demonstrate that “there is a genuine issue
as to whether [he] was deprived of the effective assistance of counsel on appeal.” App.R.
26(B)(5).
{¶6} In State v. Spivey, 84 Ohio St.3d 24, 701 N.E.2d 696 (1998), the Supreme Court
specified the proof required of an applicant as follows:
the two-prong analysis found in Strickland v. Washington (1984), 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess a defense
request for reopening under App.R. 26(B)(5). [Applicant] must prove that his
counsel were deficient for failing to raise the issues he now presents, as well as
showing that had he presented those claims on appeal, there was a “reasonable
probability” that he would have been successful. Thus [applicant] bears the
burden of establishing that there was a “genuine issue” as to whether he has a
“colorable claim” of ineffective assistance of counsel on appeal.
Id. at 25. The applicant must demonstrate that counsel’s performance was deficient and that the
deficient performance prejudiced the defense. Strickland.
{¶7} Howard cannot show prejudice with regard to his argument that counsel was
ineffective for failing to challenge his conviction for insufficiency of the evidence or that his
conviction is against the manifest weight of the evidence.
{¶8} When assessing a challenge of sufficiency of the evidence, a reviewing court
examines the evidence admitted at trial and determines whether such evidence, if believed,
would convince the average mind of the defendant’s guilt beyond a reasonable doubt. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “The relevant
inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” Id. A reviewing court is not to assess “whether the state’s evidence is to be
believed, but whether, if believed, the evidence against a defendant would support a conviction.”
State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
{¶9} Howard argues that he was misidentified and, therefore, his conviction was based on
insufficient evidence. The record includes testimony from several witnesses who positively
identified Howard as the person who broke Shawna Mackey’s jaw on August 16, 2012. Under
the applicable standard, a sufficiency of the evidence argument would fail because if that
evidence is believed, it supports Howard’s conviction. Accordingly, Howard has not
established a colorable claim for ineffective assistance of appellate counsel on this issue.
{¶10} While the test for sufficiency of the evidence requires a determination whether the
state has met its burden of production at trial, a manifest weight challenge questions whether the
state has met its burden of persuasion. Thompkins at 390. Also unlike a challenge to the
sufficiency of the evidence, a manifest weight challenge raises a factual issue.
“The court, reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered. The discretionary power to grant a new trial should be exercised
only in the exceptional case in which the evidence weighs heavily against the
conviction.”
Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶11} “[T]he weight to be given the evidence and the credibility of the witnesses are
primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus. When examining witness credibility, “the choice
between credible witnesses and their conflicting testimony rests solely with the finder of fact and
an appellate court may not substitute its own judgment for that of the finder of fact.” State v.
Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). A factfinder is free to believe all, some,
or none of the testimony of each witness appearing before it. State v. Ellis, 8th Dist. Cuyahoga
No. 98538, 2013-Ohio-1184, ¶ 18.
{¶12} Considering the record as a whole, Howard’s conviction is not against the manifest
weight of the evidence. Howard provides no specifics in his argument as to why he believes his
conviction is against the manifest weight of the evidence apart from his contention that he was
misidentified. He generally refers to the lack of witness credibility. In his statement of facts,
Howard argues that Mackey’s description to police “did not compare or come close to being a
description” of him. However, defense counsel thoroughly cross-examined Mackey on this
topic. She indicated that she believed she had accurately described Howard to police. She
also testified that she gave police Howard’s phone numbers. She indicated Howard had gained
weight since the incident and that she considered his hairstyle to be an “afro.” Mackey knew
Howard and was 100 percent certain that he was the person who punched her. The jury heard the
testimony and was free to believe or disbelieve it, and they had the opportunity to see Howard at
trial to further assess the credibility of her description of him. Further, Mackey was only one of
several people who witnessed the incident and identified Howard as the person who hit Mackey.
Howard’s conviction is not against the manifest weight of the evidence, and therefore, he cannot
establish a colorable claim of ineffective assistance of his appellate counsel for not raising this
issue in his direct appeal.
{¶13} There is no evidence in the record to support an argument that the state knowingly
permitted false and perjured testimony from Det. DeCaro regarding the photo identification
process. Howard complains that Det. DeCaro somehow tampered with the lineups by altering the
location of the suspects on them. Det. DeCaro was questioned over the potential that a witness
had actually identified a different person from photo set number 2, location number 5; rather than
having identified Howard’s photo from set number 1, location number 5. Det. DeCaro testified
that he did not show the photos to the witnesses and he does not know whether the person who
did administer the photo lineups had mixed up the sheets or not. There is no indication that
Det. DeCaro improperly changed the location of the photos or otherwise tampered with the
photographic arrays. Appellate counsel cannot raise arguments that are not supported by evidence
contained in the appellate record.
{¶14} We note that appellate counsel did challenge Mackey’s identification of Howard.
Appellate counsel challenged the trial court’s denial of the motion to suppress Mackey’s pretrial
identification of him based on the photo arrays and the procedure utilized. The United States
Supreme Court has upheld the appellate advocate’s prerogative to decide strategy and tactics by
selecting what he thinks are the most promising arguments out of all possible contentions. The
court noted: “Experienced advocates since time beyond memory have emphasized the
importance of winnowing out weaker arguments on appeal and focusing on one central issue if
possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct.
3308, 77 L.Ed.2d 987 (1983). Indeed, including weaker arguments might lessen the impact of the
stronger ones. Accordingly, the court ruled that judges should not second-guess reasonable
professional judgments and impose on appellate counsel the duty to raise every “colorable” issue.
Such rules would disserve the goal of vigorous and effective advocacy. The Supreme Court of
Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172, 672 N.E.2d 638 (1996).
{¶15} Howard has not met the standard for reopening under either prong of the Strickland
test. Accordingly, the application for reopening is denied.
TIM McCORMACK, JUDGE
SEAN C. GALLAGHER, P.J., and
KENNETH A. ROCCO, J., CONCUR