State v. Reeves , 2015 Ohio 299 ( 2015 )

[Cite as State v. Reeves, 2015-Ohio-299.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100560
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DONALD R. REEVES
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-13-571787-A
Application for Reopening
Motion No. 479982
RELEASE DATE: January 26, 2015
FOR APPELLANT
Donald Reeves
#644-480
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, OH 43950
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Anthony T. Miranda
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Donald R. Reeves has filed a timely application for reopening pursuant to App.R.
26(B). Reeves is attempting to reopen the appellate judgment that was rendered by this court in
State v. Reeves, 8th Dist. Cuyahoga No. 100560, 2014-Ohio-3497, which affirmed his plea of
guilty and sentence to the offenses of attempted felonious assault, felonious assault, and
compelling prostitution. For the following reasons, we decline to reopen Reeves’s original
appeal.
{¶2} In order to establish a claim of ineffective assistance of appellate counsel, Reeves
is required to establish that the performance of his appellate counsel was deficient and the
deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied,
497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767.
{¶3} In Strickland, the United States Supreme Court held that a court’s scrutiny of an
attorney’s work must be highly deferential. The court further stated that it is all too tempting for
a defendant to second-guess his attorney after conviction and that it would be too easy for a court
to conclude that a specific act or omission was deficient, especially when examining the matter in
hindsight. Thus, a court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy. Strickland.
{¶4} Herein, Reeves raises seven proposed assignments of error in support of App.R.
26(B) application for reopening:
1) The trial court erred to the prejudice of defendant-appellant when it sentenced
him to consecutive periods of incarceration for a total of 17 years;
2) The trial court erred by allowing the government to breach its plea agreement
with Mr. Reeves;
3) The trial court erred when it ignored the following: that no principle of
procedural due process is more clearly established than that notice of the specific
charge, and a change to be heard in a trial of the issues raised by that charge, if
desired, are among the constitutional rights of every accused in a criminal
proceeding in all courts, state or federal;
4) The trial court imposed a sentence contrary to law and violated appellant’s due
process rights when it imposed a maximum sentence upon appellant that was
inconsistent with and disproportionate to the sentencing imposed upon like
defendants. The trial court abused its discretion by sentencing the defendant to
the maximum sentence contrary to law and in violation of the Ohio Constitution
and Eighth Amendment to the United States Constitution;
5) The trial court abused its discretion in finding that the following factors,
making this offense more serious than the norm, were present in this case; (1) the
defendant caused serious physical harm to the victim, and (2) the defendant’s
relationship with the victim facilitated the offense;
6) Appellant’s conviction was against the manifest weight of the evidence; and
7) Defendant’s sentence was void because the court failed to merge two offenses
which were allied, the trial court, contrary to R.C. 2941.25, imposed a sentence on
both counts instead of merging both counts and imposing a sentence on one; res
judicata did not bar consideration of this issue, as correcting this error in
defendant’s sentence was both fair and just and res judicata should not be used to
permit a void sentence to stand.
{¶5} Reeves, however, has failed to present any argument with regard to his seven
proposed assignments of error. Thus, Reeves has failed to demonstrate how appellate counsel’s
performance was deficient and that he was prejudiced by appellate counsel’s claimed
deficiencies.
{¶6} In State v. Kelly, 8th Dist. Cuyahoga No. 74912, 2000 Ohio App. LEXIS 2907(June 21, 2000), this court established that the mere recitation of assignments of error is not
sufficient to meet the burden to prove that the applicant’s appellate counsel was deficient for
failing to raise the issues he now presents or that there was a reasonable probability that the
applicant would have been successful if the present issues had been considered in the original
appeal. See also State v. Jones, 8th Dist. Cuyahoga No. 99703, 2014-Ohio-4467; State v.
Hawkins, 8th Dist. Cuyahoga No. 90704, 2009-Ohio-2246. The failure of Reeves to present any
argument with regard to his seven proposed assignments of error results in the failure to
demonstrate that his appellate counsel was deficient and that he was prejudiced by the alleged
deficiency. State v. Freeman, 8th Dist. Cuyahoga No. 95511, 2011-Ohio-5151.
{¶7} It must also be noted that a guilty plea is a complete admission of the defendant’s
guilt. A counseled plea of guilty, that is voluntarily and knowingly given, removes the issue of
factual guilt from the case. State v. Siders, 78 Ohio App.3d 699, 605 N.E.2d 1283 (11th
Dist.1992). When a defendant enters a plea of guilty, he waives all appealable errors that might
have occurred at trial unless the errors precluded the defendant from entering a knowing and
voluntary plea. State v. Barnett, 73 Ohio App.3d 244, 596 N.E.2d 1101 (2d Dist.1991), citing
State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991). A plea of guilty even waives the
right to claim that a defendant was prejudiced by ineffective counsel, except to any defects that
caused the plea to be less than knowing and voluntary. Id. at 249; see also State v. Ketterer, 111
Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48.
{¶8} Upon direct appeal, the issues of a knowing and voluntary plea of guilty and
sentencing were raised and addressed by this court. This court found that “Reeves did, in fact,
knowingly, voluntarily, and intelligently enter a guilty plea to the charges of felonious assault in
violation of R.C. 2903.11(B)(1), as well as the other three charges.” Reeves, 8th Dist. Cuyahoga
No. 100560, 2014-Ohio-3497, at ¶ 17. Thus, the fact that Reeves entered a knowing and
voluntary plea of guilty waived all appealable error unrelated to the entry of the plea. Ketterer,
supra.
{¶9} In addition, this court found no error associated with the trial court’s sentence and
held that:
Further, Reeve’s convictions resulted from a plea agreement. Because there was
no agreement by the parties that the trial court should not consider the dismissed
charges, and because trial courts routinely consider these matters in sentencing,
the court’s consideration of the underlying facts in this case was proper. In
receiving 17 years incarceration on the four counts to which he pleaded guilty as
part of the plea agreement, rather than the possible 127 years incarceration
without the plea agreement, Reeves received the benefit of the bargain. See
Frankos, 8th Dist. Cuyahoga No. 78072, 2001 Ohio App. LEXIS 3712, at *7.
Finally, there is no indication in the record that the trial court’s sentence was
reflective of any improper sentencing factors. There are no statements clearly
indicating that the dismissed charges were the sole basis for the sentence, and
Reeves’s sentence was within the statutory parameters.
In light of the above, we find that the record supports the conclusion that the trial
court considered the relevant sentencing factors before imposing sentence, and the
sentence was not solely based on unproven conduct. The sentence is therefore
not contrary to law. See Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112.
Reeves at ¶ 34-36.
{¶10} Therefore, we find no prejudice as claimed by Reeves vis-a-vis his proposed
assignments of error that deal with the trial court’s sentence.
{¶11} Accordingly, the application for reopening is denied.
TIM McCORMACK, JUDGE
MARY EILEEN KILBANE, P.J., and
MELODY J. STEWART, J., CONCUR