State v. Williams , 2012 Ohio 352 ( 2012 )

[Cite as State v. Williams, 2012-Ohio-352.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95853
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RICHARD WILLIAMS
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-534090
Application for Reopening
Motion No. 447136
RELEASED AND JOURNALIZED: January 30, 2012
FOR APPELLANT
Richard Williams, pro se
Inmate #592-040
Marion Correctional Inst.
P. O. Box 57
Marion, OH 43301
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Mary McGrath
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} In State v. Williams, Cuyahoga Cty. Court of Common Pleas Case No.
CR-534090, applicant, Richard Williams, pled guilty to gross sexual imposition and rape.
This court affirmed that judgment in State v. Williams, 8th Dist. No. 95853,
2011-Ohio-2551.
{¶ 2} Williams has filed with the clerk of this court a timely application for
reopening. He argues that he was denied the effective assistance of appellate counsel
and asserts seven proposed assignments of error. We deny the application for reopening.
As required by App.R. 26(B)(6), the reasons for our denial follow.
{¶ 3} Having reviewed the arguments set forth in the application for reopening in
light of the record, we hold that Williams has failed to meet his burden to demonstrate
that “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). In State v. Spivey, 84 Ohio St.3d
24, 1998-Ohio-704, 701 N.E.2d 696, the Supreme Court specified the proof required of
an applicant. “In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we
held that 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. Williams cannot satisfy either prong of the Strickland
test. We must, therefore, deny the application on the merits.
{¶ 4} In his first proposed assignment of error, Williams contends that his
appellate counsel failed to assert Williams’s “actual innocence.” Williams pled guilty to
Count 3 (gross sexual imposition). During the lengthy plea colloquy, the trial court
asked Williams how he pled to Count 4, rape, and mistakenly identified B.U., the victim
of Count 3 (grosss sexual imposition), as the victim of Count 4. Williams stated on the
record that he did not rape B.U. and the trial court ultimately correctly associated the
victims with Counts 3 and 4 respectively.
{¶ 5} The trial court actually acknowledged Williams’s claim of innocence of the
rape of B.U. He, however, did not assert innocence of gross sexual imposition with
respect to B.U. The record does not support Williams’s claim of “actual innocence.”
We cannot, therefore, conclude that appellate counsel was deficient or that Williams was
prejudiced by the absence of this proposed assignment of error on direct appeal. As a
consequence, Williams's first proposed assignment of error is not well-taken.
{¶ 6} In his second proposed assignment of error, Williams complains that the
trial court did not render a final appealable order. In support of this argument, Williams
quotes part of R.C. 2929.19(A) which requires a sentencing hearing and provides, in part:
“The court shall inform the offender of the verdict of the jury or finding of the court and
ask the offender whether the offender has anything to say as to why sentence should not
be imposed upon the offender.” The trial court did ask: “Mr. Williams, what did you
wish to say before the court imposes sentence?” Tr. at 63.
{¶ 7} Additionally, the trial court’s August 31, 2010 sentencing entry “sets forth
(1) the fact of the conviction, (2) the sentence, (3) the judge's signature, and (4) the time
stamp indicating the entry upon the journal by the clerk.” (Citations deleted.) State v.
Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the
syllabus. In light of Lester, therefore, Williams has not demonstrated that his judgment
of conviction is not a final appealable order. As a consequence, Williams's second
proposed assignment of error is not well-taken.
{¶ 8} In his third proposed assignment of error, Williams contends that his
appellate counsel was ineffective for failing to assign as error that the trial court denied
Williams trial counsel of his choice. During the plea negotiations, Williams expressed
concern that his counsel was not going to “fight” for him and Williams told counsel that
he wanted to be represented by the public defender. Counsel explained to the trial court
that he was retained counsel. The trial court denied Williams’s motion to appoint the
public defender as his counsel.
{¶ 9} Williams has not provided this court with any controlling authority
requiring a trial court to replace retained counsel with the public defender. Furthermore,
his reliance on State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785, 947 N.E.2d 651,
is misplaced. In Chambliss, the Supreme Court held that a trial court’s order removing
retained defense counsel is immediately appealable. Obviously, the trial court did not
remove Williams’s retained counsel. As a consequence, Williams's third proposed
assignment of error is not well-taken.
{¶ 10} In his fourth proposed assignment of error, Williams asserts that his
appellate counsel was ineffective for not assigning as error that his waiver of jury trial
was not voluntary, knowing or intelligent. Initially, we note that the trial court docket
does not reflect the filing of a jury trial waiver. During the colloquy with the trial court,
when Williams indicated that he would like to go to trial, the court responded: “Okay.
We’ll see you tomorrow morning in civilian clothes.” Tr. 48. See also Tr. 51. The
portions of the transcript cited by Williams do not include a waiver of jury trial.
Appellate counsel was not deficient and Williams was not prejudiced by the absence of
this proposed assignment of error. As a consequence, Williams's fourth proposed
assignment of error is not well-taken.
{¶ 11} In his fifth proposed assignment of error, Williams claims that his appellate
counsel was deficient for failing to assign on direct appeal that his sentence was void.
Count 4 of the indictment included a furthermore clause referring to his prior conviction
for rape under R.C. 2907.02. The notice of prior conviction in Count 4 specifically
referred to Cuyahoga Cty. Court of Common Pleas Case No. CR-226563. Williams
asserts that he did not have counsel in Case No. CR-226563.
{¶ 12} Williams appealed his conviction in Case No. CR-226563. See State v.
Williams, 8th Dist. No. 56726, 1993 WL 27620 (Feb. 4, 1993), appeal dismissed 67 Ohio
St.3d 1409, 1993-Ohio-300, 615 N.E.2d 1043. In Case No. 56726, Williams’s appellate
counsel assigned as error that trial counsel was ineffective and that trial counsel failed to
request an instruction on gross sexual imposition. Indeed, this court discussed various
aspects of trial counsel’s representation. Clearly, Williams had counsel in Case No.
CR-226563. As a consequence, Williams's fifth proposed assignment of error is not
well-taken.
{¶ 13} In his sixth proposed assignment of error, Williams argues that appellate
counsel was ineffective for failing to assign that trial counsel was ineffective. Williams
contends that the cumulative effect of trial counsel’s purported shortcomings with respect
to: trial counsel’s failure to object to the plea colloquy because Williams asserted his
“actual innocence” (first proposed assignment of error ); his prior conviction being
“uncounseled” (fifth proposed assignment of error); and trial counsel’s permitting him to
plead guilty where the plea was not voluntary because the furthermore clause in Count 4
referring to his prior conviction is unconstitutional (fifth proposed assignment of error).
{¶ 14} Yet, as discussed above, Williams’s fourth and fifth proposed assignments
of error lack merit. He was not, therefore, prejudiced by the “cumulative effect” of the
absence of these assignments of error from his direct appeal. As a consequence,
Williams's sixth proposed assignment of error is not well-taken.
{¶ 15} In his seventh proposed assignment of error, Williams contends that the trial
court judge participated in plea negotiations. Our review of the portions of the plea and
sentencing transcript cited by Williams reflects the trial court’s repeated statements to
Williams that he could go to trial and that the trial court would not make any promises
regarding his sentence. The record does not reflect that the trial court participated in plea
negotiations. Rather, the trial court endeavored to establish whether Williams wished to
go to trial or enter a plea of guilty. Appellate counsel was not deficient and Williams
was not prejudiced by the absence of this assignment of error. Williams's seventh
proposed assignment of error is not well-taken.
{¶ 16} As a consequence, Williams has not met the standard for reopening.
Accordingly, the application for reopening is denied.
EILEEN A. GALLAGHER, JUDGE
MARY EILEEN KILBANE, P.J., and
LARRY A. JONES, J., CONCUR