State v. McGowen , 2016 Ohio 48 ( 2016 )

[Cite as State v. McGowen, 2016-Ohio-48.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 14 JE 37
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
FREDERICK McGOWAN, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Appellant’s application for reopening.
JUDGMENT: Denied.
APPEARANCES:
For Plaintiff-Appellee: Atty. Jane M. Hanlin
Prosecuting Attorney
Jefferson County Justice Center
16001 State Route 7
Steubenville, Ohio 43952
For Defendant-Appellant: Frederick McGowen, pro se
#A 662-710
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: January 4, 2016
[Cite as State v. McGowen, 2016-Ohio-48.]
PER CURIAM.
{¶1} On November 9, 2015, Defendant-Appellant Frederick McGowan filed a
timely application for reopening pursuant to App.R. 26(B). He is attempting to reopen
the appellate judgment that was rendered by this Court in State v. McGowan, 7th
Dist. No. 14 JE 37, 2015–Ohio–3429, where we affirmed his convictions and
sentences for felony drug offenses.
{¶2} An application for reopening must be granted “if there is a genuine
issue as to whether the applicant was deprived of the effective assistance of counsel
on appeal.” App.R. 26(B)(5). The appropriate standard to determine whether a
defendant has received ineffective assistance of appellate counsel is the two-
pronged analysis found in Strickland. State v. Were, 120 Ohio St. 3d 85, 2008–Ohio–
5277, 896 N.E.2d 699, ¶ 10, citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052 (1984). Therefore, the applicant must prove that his counsel was 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. State v. Spivey, 84 Ohio St. 3d 24, 25, 701 N.E.2d 696 (1998). To
justify reopening his appeal, the 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.” State v. Myers, 102 Ohio St. 3d 318, 2004–Ohio–
3075, 810 N.E.2d 436, ¶ 9; Spivey.
{¶3} Appellant cannot meet this burden. His basis for reopening is that
appellate counsel failed to raise the issue of whether there was sufficient evidence to
find him guilty of possession of heroin. In his direct appeal, appellate counsel raised
two assignments of error. In the first assignment of error, appellate counsel argued
that the possession of heroin and possession of cocaine convictions were against the
manifest weight of the evidence. We found no merit with that argument. McGowan,
2015-Ohio-3429 at ¶ 11-26.
{¶4} It is widely recognized that “a finding that a conviction is supported by
the manifest weight of the evidence necessarily includes a finding of sufficiency.”
State v. Brady, 7th Dist. No. 13 MA 88, 2014-Ohio-5721, ¶ 26, quoting State v.
-2-
Gravely, 188 Ohio App. 3d 825, 2010-Ohio-3379, 188 N.E.2d 825 ,¶ 46 (10th Dist.).
See also State v. Boyd, 6th Dist. No. OT-06-034, 2008-Ohio-1229, ¶ 24 (“A
conclusion that convictions are not against the manifest weight of the evidence
necessarily encompasses a conclusion that the convictions are supported by
sufficient evidence.”). Many of the arguments presented in that first assignment of
error as a basis to assert the convictions were against the manifest weight of the
evidence are now being used to make an argument that there was insufficient
evidence to support the possession of heroin conviction. Based on the above law,
since this court found those arguments did not establish that the convictions were
against the manifest weight of the evidence, those arguments also fail to establish
there was insufficient evidence. In other words, our determination that the conviction
was supported by the manifest weight of the evidence necessarily included a finding
of sufficiency. The sufficiency argument has no reasonable probability of success.
Accordingly, Appellant fails to present a colorable claim of ineffective assistance of
counsel.
{¶5} Application of reopening is denied.
Robb, J., concurs.
Donofrio, P.J., concurs.
DeGenaro, J., concurs.