State v. Morton , 2021 Ohio 3468 ( 2021 )

[Cite as State v. Morton, 2021-Ohio-3468.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109200
v. :
JEREMIAH MORTON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: September 27, 2021
Cuyahoga County Court of Common Pleas
Case No. CR-19-636658-A
Application for Reopening
Motion No. 546846
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione, Assistant Prosecuting
Attorney, for appellant.
Jeremiah Morton, pro se.
LARRY A. JONES, SR., P.J.:
Jeremiah Morton has filed a timely App.R. 26(B) application for
reopening. Morton is attempting to reopen the appellate judgment, rendered in
State v. Morton, 8th Dist. Cuyahoga No. 109200, 2021-Ohio-581, that affirmed his
conviction and sentence for the offenses of rape, kidnapping, and aggravated
burglary. We decline to reopen Morton’s appeal for the following reasons.
I. Standard of Review Applicable to App.R. 26(B) Application for
Reopening
An application for reopening shall be granted if there exists a genuine
issue as to whether an applicant was deprived of the effective assistance of appellate
counsel on appeal. See App.R. 26(B)(5). To establish a claim of ineffective
assistance of appellate counsel, Morton 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 (1990).
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 in 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.
Moreover, even if Morton establishes that an error by his appellate
counsel was professionally unreasonable, Morton must further establish that he was
prejudiced; but for the unreasonable error there exists a reasonable probability that
the results of his appeal would have been different. Reasonable probability,
regarding an application for reopening, is defined as a probability sufficient to
undermine confidence in the outcome of the appeal. State v. May, 8th Dist.
Cuyahoga No. 97354, 2012-Ohio-5504.
II. First Proposed Assignment of Error
Morton’s first proposed assignment of error is that:
Appellate counsel was ineffective for failing to argue that his
convictions are against the manifest weight of the evidence.
Herein, Morton specifically argues that his convictions for the
offenses of rape, in violation of R.C. 2907.02(A)(1)(c) and 2907.02(A)(2), were
against the manifest weight of the evidence. In a manifest weight analysis, an
appellate court reviews the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses, and resolves conflicts in the
evidence. An appellate court may not substitute its view for that of the jury unless it
finds that 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. State v.
Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264; State v. Thompkins,
78 Ohio St.3d 380, 678 N.E.2d 541 (1997); State v. Walker, 8th Dist. Cuyahoga No.
109328, 2021-Ohio-2037.
A complete and thorough review of the record clearly demonstrates
that Morton’s convictions for the offenses of rape were not against the manifest
weight of the evidence. Morton’s conviction for two counts of rape, in violation of
R.C. 2907.02(A)(1)(c), were not against the manifest weight of the evidence, because
the testimony and evidence adduced at trial demonstrated that the victim’s ability
to resist or consent was substantially impaired as the result of a mental condition,
physical condition, and the consumption of alcohol. Tr. 406–451.
Morton’s convictions for two counts of rape, in violation of R.C.
2907.02(A)(2), were not against the manifest weight of the evidence, because the
testimony and evidence adduced at trial demonstrates that Morton used physical
force to compel the victim to engage in unwanted sexual activity. Tr. 418-455.
We cannot say that the trier of fact clearly lost its way and created
such a manifest miscarriage of justice that the convictions for rape must be reversed.
Morton has failed to establish any prejudice through his first proposed assignment
of error.
III. Second Proposed Assignment of Error
Morton’s second proposed assignment of error is that:
Appellate counsel was ineffective for failing to raise a disproportionate
aggregate twenty (20) year consecutive prison sentence that is
unsupported by the record.
Morton’s second proposed assignment of error is raised through a
supplement, filed June 20, 2021, to his original App.R. 26(B) application for
reopening that was originally filed on May 25, 2021. App.R. 26(B) does not contain
any provision for the filing of a supplement to the original application for reopening.
In addition, the supplement, with the additional proposed assignment of error,
constitutes an attempt to evade the 90-day requirement for the timely filing of the
application for reopening. App.R. 26(B)(2)(b) requires that Morton establish “a
showing of good cause for untimely filing if the application is filed more than 90
days after journalization of the appellate judgment” that is subject to reopening.
State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, ¶ 7. See also
State v. Lamar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v.
Cooey, 73 Ohio St.3d 411, 653 N.E.2d 252 (1995); State v. Reddick, 72 Ohio St.3d
88, 647 N.E.2d 784 (1995).
Morton has failed to establish any good cause for the filing of the
supplemental second proposed assignment of error, and thus, we are permitted to
summarily reject the second proposed assignment of error. State v. Durham, 8th
Dist. Cuyahoga No. 94747, 2012-Ohio-2053. Nevertheless, we shall address
Morton’s second proposed assignment of error.
Morton, through his second proposed assignment of error, argues
that the trial court’s imposition of consecutive sentences of incarceration was not
supported by the record.
A trial court, when imposing consecutive terms of incarceration, must
make the findings required by R.C. 2929.14(C)(4). The findings made by the trial
court must be stated and placed upon the record at the sentencing hearing and
incorporated into the sentencing journal entry. State v. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, 16 N.E.3d 659. At the sentencing hearing, the trial court
opined that:
The Court finds that a consecutive sentence is necessary to protect the
public and will not demean the seriousness of ─ protect the public from
future crime ─ I’m sorry. That this consecutive sentence is necessary
to protect the public from future crime or to punish the offender and
that consecutive sentences are not disproportionate to the seriousness
of the defendant’s conduct and to the danger the offender poses to the
public.
And the reason why I find that you are a danger to the public is that if
you are preying on people who live in group homes, who live in places
where everyone there has a mental disability, then you are a danger to
that community. In addition, the Court finds that the course of conduct
and the harm caused by the two or more multiple offenses that were
committed are so great or unusual that no single prison term for any of
the offenses committed as part of the courses of conduct adequately
reflect the seriousness of the offender’s conduct.
Tr. 884-885.
The trial court, during sentencing, entered upon the record the
findings mandated by R.C. 2929.14(C)(4) that are required for the imposition of
consecutive sentences of incarceration: 1) protect the public from future crimes; 2)
punish Morton; 3) danger to the public by preying upon persons that live in group
homes; 4) victim had a mental disability; 5) conduct and harm caused by multiple
offenses were so great or unusual that no single term of prison adequately reflected
the seriousness of the offenses. We find that the record supports the trial court’s
findings and that the imposition of consecutive sentences of incarceration were
warranted. State v. Russell, 11th Dist. Lake No. 2019-L-138, 2020-Ohio-3243; State
v. Spence, 8th Dist. Cuyahoga No. 101154, 2014-Ohio-4691; State v. Venes, 8th Dist.
Cuyahoga No. 98682, 2013-Ohio-1891. Morton has failed to establish any prejudice
through his second proposed assignment of error.
Application denied.
LARRY A. JONES, SR., PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
LISA B. FORBES, J., CONCUR