State v. Gibson , 2024 Ohio 658 ( 2024 )

[Cite as State v. Gibson, 2024-Ohio-658.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111440
v. :
KODII GIBSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: February 21, 2024
Cuyahoga County Court of Common Pleas
Case No. CR-19-642539-B
Application for Reopening
Motion No. 568727
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Erica B. Cunliffe, Assistant Public Defender, for appellant.
MARY J. BOYLE, J.:
Applicant, Kodii Gibson (“Gibson”), seeks to reopen his appeal in State
v. Gibson, 2023-Ohio-2481, 221 N.E.3d 984 (8th Dist.). For the reasons below, we
deny the application for reopening.
I. Factual and Procedural History
As we previously set forth in the direct appeal, following a nine-day
trial, Gibson was found guilty of two counts of aggravated murder with capital
course-of-conduct specifications, two counts of kidnapping, one count of aggravated
burglary, two counts of aggravated arson, two counts of murder, and two counts of
felonious assault. According to Gibson’s statement to police, he, Ronald Newberry
(“Newberry”), Demarcus Sheeley (“Sheeley”), and a fourth unidentified man were
involved in the kidnapping and murder of a man and his young daughter. Gibson at
¶ 11-15. The jury recommended a sentence of life in prison with parole eligibility
after 30 years for the aggravated murder charges, and the trial court imposed an
aggregate sentence of life in prison with parole eligibility after 50 years. Id. at ¶ 41-
42.
In his direct appeal, Gibson’s appellate counsel sought and was granted
leave to file a brief in excess of the normal page limitation. In an 80-page brief,
counsel raised twelve assignments of error for review:
Assignment of Error I: The trial court erred by overruling [Gibson]’s
motion to suppress statements made by [Gibson] after he was taken
into custody and after he invoked his rights to counsel and to remain
silent where the statements were used as evidence against [Gibson] at
his trial in violation of his rights under the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution and under the
Constitution of Ohio, Article I, Section 10.
Assignment of Error II: The trial court erred in allowing the state to use
a preemptory challenge in a racially discriminatory manner in violation
of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986), and by denying the defense motion to dismiss an impaneled
juror who disclosed mid-trial that he had violated the court’s order and
conducted an internet search in violation of the Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Section
10 of the Ohio Constitution.
Assignment of Error III: The court erred by denying the joint request
for mistrial where the court had continued proceedings without
jurisdiction after an appeal had been filed.
Assignment of Error IV: The trial court erred by denying the motions
for mistrial due to discovery violations or to continue the trial in
violation of the Fifth, Sixth and Fourteenth Amendments to the United
States Constitution and Article I, Section 10 of the Ohio Constitution.
Assignment of Error V: The trial court erred by admitting video and
photo evidence over defense objection and limiting the testimony of
[Gilbert] which contrary to Evid.R. 401, 402, 403, 803 and 901, and in
violation of [Gibson]’s state and federal constitutional rights to due
process and a fair trial.
Assignment of Error VI: The court erred by including jury instructions
over defense objection on natural consequences language on causation,
including consciousness of guilt for concealing crime language, and by
denying a jury instruction on unanimity requested by the defense.
Assignment of Error VII: The court erred by denying [Gibson]’s motion
to declare R.C. 2929.03 unconstitutional.
Assignment of Error VIII: The sentence recommended by the jury and
imposed by the trial court were not proportional and failure to conduct
a proportionality analysis when imposing a criminal sentence violates
the Eighth and Fourteenth Amendments to the United States
Constitution.
Assignment of Error IX: The trial court erred when it denied [Gibson]’s
motion for acquittal under Crim.R. 29 because the state failed to
present sufficient evidence to establish beyond a reasonable doubt the
elements necessary to support the convictions.
Assignment of Error X: [Gibson]’s convictions are against the manifest
weight of the evidence.
Assignment of Error XI: [Gibson]’s sentence is contrary to law because
consecutive sentences are not supported by the record.
Assignment of Error XII: [Gibson] was deprived of his constitutional
rights to due process, a fair trial, and the effective assistance of counsel
where Agent Kunkle was allowed to offer opinion testimony without
objection.
Gibson at ¶ 43. On July 20, 2023, we issued an opinion that overruled these
assigned errors and affirmed the convictions.
On October 18, 2023, Gibson timely filed an application to reopen his
appeal. Gibson now claims that counsel was ineffective for not advancing three
additional proposed assignments of error:
Proposed Assignment of Error I: The trial court erred when it refused
to allow defense counsel to conduct additional voir dire of Juror 7 given
inconsistencies between his disclosure to the court that he had done an
internet search about the case and other statements he made during
the jury selection process.
Proposed Assignment of Error II: The trial court erred when it failed
to grant trial counsel’s motion to dismiss the death specifications in this
case because they were improperly and unconstitutionally applied by
the prosecution.
Proposed Assignment of Error III: The trial court erred when it barred
the defense from presenting the jury with information that the state
intended to remove the capital punishment specifications on Gibson’s
more culpable codefendants while continuing to seek Gibson’s death
sentence.
The state timely filed a brief in opposition to Gibson’s application for reopening on
November 17, 2023.
II. Law and Analysis
App.R. 26(B) provides for a special procedure to hear a claim of
ineffective assistance of appellant counsel; a right recognized in State v. Murnahan,
63 Ohio St.3d 60, 584 N.E.2d 1204 (1992). This rule establishes a two-step process
whereby a defendant can argue that appellate counsel was ineffective under the
standard for the effective assistance of counsel established by Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Leyh,
166 Ohio St.3d 365, 2022-Ohio-292, 185 N.E.3d 1075, ¶ 17, 19. “The application for
reopening ‘shall 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
burden is on the applicant to demonstrate a ‘genuine issue’ as to whether there is a
‘colorable claim’ of ineffective assistance of appellate counsel.” Id. at ¶ 21, quoting
State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). Under Strickland, an
applicant must show that appellate counsel was deficient for failing to raise an issue
presented in the application, and had counsel done so, there is a reasonable
probability of success. Spivey at 24. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland at 694.
Appellate attorneys are often faced with the dilemma of deciding which
issues to raise in an appeal given the limited nature of the arguments that can
effectively be addressed within the confines of the length of briefing allowed. They
must often winnow out weaker arguments to focus on those that present the
strongest possibility for success. Here, appellate counsel sought and was granted
leave to file an 80-page brief that raised 12 assignments of error. The Supreme Court
of Ohio has recognized this issue in a similar case: “[the] allegedly ineffective
appellate counsel raised twenty-two assignments of error on appeal. ‘Counsel could
have reasonably decided they could not add * * * more issues without “burying good
arguments * * * in a verbal mound made up of strong and weak contentions.”’” State
v. Allen, 77 Ohio St.3d 172, 173, 672 N.E.2d 638 (1996), quoting State v. Campbell,
69 Ohio St. 3d 38, 53, 630 N.E.2d 339 (1994), quoting Jones v. Barnes, 463 U.S.
745, 753, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983). Therefore, appellate counsel
enjoys some degree of latitude in the choices made in their professional judgment
and “judges should not second-guess reasonable professional judgments and
impose on appellate counsel the duty to raise every ‘colorable’ issue.” State v.
Reynolds, 8th Dist. Cuyahoga No. 106979, 2019-Ohio-4456, ¶ 12.
A. Voir Dire of Juror 7
In the direct appeal, Gibson’s counsel raised an assignment of error
challenging the trial court’s decision to retain Juror 7 after the juror self-reported
misconduct. Gibson now claims that appellate counsel was ineffective in the manner
in which he raised this assignment of error. In the direct appeal, appellate counsel
argued that the trial court erred in not excusing Juror 7. We overruled the
assignment of error, finding that “there is nothing in the record to suggest that Juror
7’s ability to perform his duty is impaired.” Gibson, 2023-Ohio-2481, 221 N.E.3d
984, at ¶ 65. Gibson now claims that counsel should have argued that the court
erred in not allowing further voir dire of Juror 7. However, this argument is
contradicted by the record.
Juror 7 wrote a letter to the trial judge informing the court that the juror
had conducted a prohibited Google search. The court read the letter into the record
and then questioned Juror 7. The court also allowed the parties to question Juror 7.
The trial court did not limit Gibson’s questioning of Juror 7 at that time. Gibson’s
trial counsel asked a few questions of Juror 7 after the court’s and the prosecutor’s
questioning, and then counsel said “thank you,” indicating that she was done with
questioning. (Tr. 3814.) The court then excused the juror and heard arguments
from the parties. Id. The court allowed Gibson to question Juror 7 and the record
does not indicate that questioning of Juror 7 was curtailed in any manner during
this initial hearing.
Later, Gibson filed a renewed motion to remove Juror 7. The renewed
motion, filed December 9, 2021, did seek additional voir dire of the juror in the
alternative. However, the motion did not present additional evidence of extrinsic
influence. At the hearing held on this motion, Gibson’s attorney reargued that Juror
7 failed to abide by the court’s admonition, and Juror 7 may have given misleading
answers in his juror questionnaire and during his voir dire. (Tr. 4887.) However,
at no point during arguments on the motion did Gibson seek to further question
Juror 7.
Gibson claims the appellate counsel was ineffective for failing to argue
that trial court had a duty to allow additional questioning of Juror 7, relying on
United States v. Davis, 177 F.3d 552 (6th Cir.1999). There, the Sixth Circuit stated:
“When possible juror misconduct is brought to the trial judge’s
attention he has a duty to investigate and to determine whether there
may have been a violation of the [constitutional guarantee].” [United
States v. Shackelford, 777 F.2d 1141, 1145 (6th Cir.1985).] On review,
we examine the district judge’s decision on juror misconduct for abuse
of discretion. See United States v. Copeland, 51 F.3d 611, 613 (6th
Cir.1995). Such an abuse may be found when a district court refuses
“to permit an evidentiary hearing * * * when the alleged jury
misconduct involves extrinsic influences.” Shackelford, 777 F.2d at
1145.
We have recently noted that “[a] new trial will not be necessary every
time a question of juror partiality is raised. Where a colorable claim of
extraneous influence has been raised, however, a ‘Remmer hearing’”
must be held to afford the defendant an opportunity to establish actual
bias. United States v. Herndon, 156 F.3d 629, 635 (6th Cir.1998)
(referencing Remmer v. United States, 347 U.S. 227, 98 L.Ed. 654, 74
S.Ct. 450 (1954)). At that hearing, the defendant bears the burden of
proving actual juror bias, and no presumption of prejudice arises
merely from the fact that improper contact occurred. See United States
v. Zelinka, 862 F.2d 92, 96 (6th Cir.1988).
Id. at 557.
Here, the trial court conducted the hearing that Remmer provides for
and allowed questioning of the juror by, and heard arguments from, the parties. The
renewed motion did not present new or additional claims of extraneous influence.
The claims presented in the renewed motion were inferences from previously known
information that Gibson could have questioned the juror about at the previous
hearing but did not.
Gibson’s counsel questioned the juror during the first hearing and did
not seek additional voir dire of the juror during the second hearing. We have already
determined in the direct appeal that the trial court did not abuse its discretion in
failing to remove Juror 7, and Gibson’s proposed assignment of error in this
application lacks support in the record.
Therefore, appellate counsel cannot be ineffective for failing to couch
the assignment of error in the terms Gibson now claims was required.
B. Failure to Dismiss the Death Specifications
In his next proposed assignment of error, Gibson argues that appellate
counsel was ineffective for not asserting that the trial court erred in denying two
motions to dismiss the death specifications that were charged in this case. Gibson
argues that “[i]nvoking the death penalty specifications in this case was
unconstitutional and arbitrary and the court should have dismissed them.”
Application for Reopening at 8. Gibson’s claim rests on the belief that he was not
the principal offender, did not commit acts of murder with prior calculation or
design, and that his codefendants did not face the death penalty. He makes a
broader argument that he should not have been charged with capital specifications
in the first place because others charged with similar crimes did not face a death
penalty trial.
The death penalty was not imposed. The proposed assignment of error
challenging the trial court’s failure to dismiss the death specifications offers little in
the way of prejudice beyond speculation. Gibson states that he was under increased
pressure as a result of the death specifications, and the state charged the death
specifications in an attempt to compel Gibson to cooperate in the prosecution of
other culprits.
Further, death penalty specifications for aggravated murder, found in
R.C. 2929.04, enumerate the charges of aggravated murder that are eligible for the
death penalty in Ohio. Some of the subsections of R.C. 2929.04(A) require that the
defendant be the principal offender or commit acts with prior calculation and
design, and some do not. R.C. 2929.04(A)(5) provides for the imposition of the
death penalty for aggravated murder if, “[p]rior to the offense at bar, the offender
was convicted of an offense an essential element of which was the purposeful killing
of or attempt to kill another, or the offense at bar was part of a course of conduct
involving the purposeful killing of or attempt to kill two or more persons by the
offender.” This subsection, colloquially referred to as the course-of-conduct
specification, does not include language that exists in other subsections limiting its
application to only principal offenders or those acts committed with prior
calculation and design. Contrast R.C. 2929.04(A)(7) (“The offense was committed
while the offender was committing * * * [one of any enumerated crimes], and either
the offender was the principal offender in the commission of the aggravated murder
or, if not the principal offender, committed the aggravated murder with prior
calculation and design.”).
The Supreme Court of Ohio has examined the course-of-conduct
specification and has determined that there is no requirement that it is limited to a
principal offender as Gibson argues. State v. Herring, 94 Ohio St.3d 246, 252, 762
N.E.2d 940 (2002). The Herring Court rejected the argument that because the jury
did not find Herring to be the actual killer in any of three murders, he could not be
guilty of the specification under R.C. 2929.04(A)(5). Id. See also State v. Dean, 146
Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 185.
Further, the claim that Gibson’s codefendants, or other defendants,
did not face the death penalty when he did is a claim of selective prosecution. The
Supreme Court of Ohio has adopted the following test for claims of selective
prosecution:
“To support a defense of selective or discriminatory prosecution, a
defendant bears the heavy burden of establishing, at least prima facie,
(1) that, while others similarly situated have not generally been
proceeded against because of conduct of the type forming the basis of
the charge against him, he has been singled out for prosecution, and (2)
that the government’s discriminatory selection of him for prosecution
has been invidious or in bad faith, i.e., based upon such impermissible
considerations as race, religion, or the desire to prevent his exercise of
constitutional rights.”
State v. Flynt, 63 Ohio St. 2d 132, 134, 407 N.E.2d 15 (1980), quoting United States
v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974). See also State v. Lawson, 64 Ohio
St.3d 336, 346, 595 N.E.2d 902 (1992).
Gibson does not point to or satisfy this test. Gibson’s codefendants,
Sheeley and Newberry, were similarly charged with death penalty specifications. In
fact, all three were named in the same indictment with the same death
specifications. Sheeley accepted a plea agreement that resulted in the dismissal of
the capital specifications. Gibson, 2023-Ohio-2481, 221 N.E.3d 984, at ¶ 3, fn. 2.
Sheeley’s case does not present a claim of selective prosecution. State v. Getsy, 84
Ohio St.3d 180, 203-204, 702 N.E.2d 866 (1998) (finding that plea bargains offered
to codefendants that removed capital offenses did not establish a claim of selective
prosecution). Gibson’s application for reopening and the record in this case also
show that Gibson was offered a plea deal that removed the death specifications.
Gibson at ¶ 7. Therefore, Gibson and Sheeley were not treated dissimilarly in
relation to the capital specifications.
Newberry’s capital specifications were dismissed, but as Gibson’s
application acknowledges, nothing in the record details why those specifications
were dismissed. Additionally, nothing in the record establishes that Gibson was
singled out for prosecution based on an invidious motive or that the state’s actions
were based on some impermissible consideration. Gibson argues the state charged
Gibson with capital offenses in this case in order to force his cooperation with the
prosecution of others. This is merely speculation on Gibson’s part that does not
meet Gibson’s burden for the test established in Flynn. This supposition is also
unsupported in the application and the record before this court. As a result,
appellate counsel could have appropriately determined, in their professional
judgment, that this claim would be better raised in postconviction proceedings
because the claim necessarily relies on information outside of the present appellate
record. See State v. Lenard, 8th Dist. Cuyahoga Nos. 105342 and 105343, 2018-
Ohio-4847, ¶ 12.
Gibson’s claim that appellate counsel was ineffective for failing to
argue that the trial court erred in not dismissing the course-of-conduct death
specifications is contrary to well-established precedent that this provision does not
require the defendant to be the principal offender or commit acts with prior
calculation and design. Gibson’s argument that the death penalty specifications
were arbitrarily charged in this case or amount to selective prosecution also fail.
Therefore, appellate counsel was not ineffective for failing to advance this claim.
C. Evidence of Capital Specifications of a Codefendant
Finally, Gibson argues that appellate counsel was ineffective for
failing to assign an error challenging the trial court’s decision to prevent Gibson
from introducing evidence that his codefendants did not face the death penalty.
This proposed assignment of error involves the exclusion of evidence
proffered in mitigation. “The admission or exclusion of relevant evidence lies within
the sound discretion of the trial court.” State v. Dixon, 101 Ohio St.3d 328, 2004-
Ohio-1585, 805 N.E.2d 1042, ¶ 67, citing State v. Sage, 31 Ohio St.3d 173, 510
N.E.2d 343 (1987), paragraph two of the syllabus. An abuse of discretion occurs
when a court exercises “its judgment, in an unwarranted way, in regard to a matter
over which it has discretionary authority.” Johnson v. Abdullah, 166 Ohio St.3d 427,
2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. Pursuant to R.C. 2929.04(C), a defendant
has “great latitude in the presentation of evidence” in mitigation of the imposition
of the death penalty. However, a court may still exclude evidence that is irrelevant
to the jury’s sentencing decision. Dixon at ¶ 67. “‘Relevant evidence’ means
evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Evid.R. 401.
In Dixon, the Supreme Court of Ohio ruled that a court did not err in
excluding evidence of other capitally indicted offenses in Lucas County that a
defendant sought to offer in mitigation because “[t]he admission of such evidence
would have invited the jury to engage in speculative analysis of the sentencing
disparity that is not authorized by law.” Id. at ¶ 68. This type of proportionality
analysis is generally reserved for reviewing courts. See R.C. 2929.05(A).
R.C. 2929.05(A) mandates appellate review of death sentences. The
statute provides for, among other things, two types of review that have been
somewhat conflated in the briefing in this case. The reviewing court, generally the
Supreme Court of Ohio, must determine (1) whether the sentence is excessive or
disproportionate to the penalty imposed in similar cases, known as proportionality
review, and also (2) must independently weight the aggravating circumstances
against the mitigating factors to determine if the sentence of death is appropriate.
R.C. 2929.05(A). See also State v. Stumpf, 32 Ohio St.3d 95, 98, 512 N.E.2d 598(1987).
During the hearing on the motion before the trial court, the state
argued against the admission of evidence related to the treatment of codefendants
based on citations to cases dealing with proportionality review. And, indeed, the
Supreme Court of Ohio has held that the lesser sentences of codefendants are not
factors to be considered when reviewing the proportionality of a sentence of death.
See, e.g., State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138,
¶ 228. In another case, the court reasoned that as between codefendants that had
separate trials, “[t]he life sentence given to [the codefendant] is the verdict of a jury
in a separate trial. Proportionality review in the cause sub judice does not require a
reweighing of the aggravating circumstances against the mitigating factors in [the
codefendant’s] case.” Stumpf at 108.
But proportionality review is different from a weighing of the
aggravating circumstances against the mitigating factors in which the jury and the
reviewing court must engage. The Supreme Court of Ohio has considered disparate
treatment between codefendants as a mitigating factor under R.C. 2929.04(B)(7)
when independently weighing the aggravating circumstances against the mitigating
factors. State v. Green, 66 Ohio St.3d 141, 153, 609 N.E.2d 1253 (1993). There, the
court considered as a mitigating factor that a codefendant was allowed to plead
guilty to involuntary manslaughter and aggravated robbery, and the capital charges
were dismissed. The court afforded this factor little weight in mitigation, however.
Id.Further, the Supreme Court of Ohio has recognized that the United
States Supreme Court has implicitly determined that a codefendant’s sentence could
be considered as a nonstatutory mitigating factor. State v. Getsy, 84 Ohio St.3d 180,
208, 702 N.E.2d 866 (1998), citing Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731,
112 L.Ed.2d 812 (1991). The Sixth Circuit has described Parker’s holding as not
constitutionally required, but permissive. Middlebrooks v. Bell, 619 F.3d 526, 540
(6th Cir.2010) citing Parker. See also Meyer v. Branker, 506 F.3d 358, 375-376
(4th Cir.2007) (holding that states may, but are not constitutionally required to,
permit consideration of such evidence as mitigating); and Beardslee v. Woodford,
358 F.3d 560, 579 (9th Cir. 2004) (same).
More recently, the Supreme Court of Ohio stated a lesser sentence of
a codefendant “is entitled to consideration as a nonstatutory mitigating factor.”
State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 322, citing
Getsy at 208-209. However, the court went on to state that “‘[d]isparity of sentence
does not justify reversal when the sentence is neither illegal nor an abuse of
discretion.’” Id. at ¶ 322, quoting State v. Jamison, 49 Ohio St.3d 182, 191, 552
N.E.2d 180 (1990).
Based on the most recent pronouncement by the Supreme Court of
Ohio, there is no probability of success had appellate counsel raised the issue in the
direct appeal. While some case law supports Gibson’s argument that the disparate
treatment of codefendants may be permissible evidence in mitigation, Gibson was
not subjected to the death penalty and any claim that this evidence should have been
presented to the jury as a mitigating factor that weighs in favor of a non-death
sentence is moot.
Instead, Gibson argues that had the jury been presented with facts
related to the charges of the codefendants, the jury may have recommended a lesser
sentence1 such as life with parole eligibility after 25 years.2 But whether Gibson’s
codefendants were charged with capital offenses does not impact the choice the jury
faced when deciding among the non-death sentences available under the statute.
The sentences of the other codefendants were unknown at the time of the
evidentiary ruling, so what Gibson sought to introduce and what the jury could have
considered was that the codefendants did not face the death penalty. The fact that
Sheeley and Newberry, codefendants who Gibson argues were more culpable, did
not face the death penalty may be relevant to a jury’s consideration of whether to
recommend a sentence of death, but that information has little relevance once the
jury decided to recommend a sentence other than death.3 As a result, this proposed
assignment of error does not present legitimate grounds for ineffective assistance of
counsel.
1 Pursuant to R.C. 2929.03(D)(2)(c), with limited exception, in this case when a
jury does not recommend a sentence of death, the trial court must impose the life sentence
recommended by the jury.
2 This argument is intertwined with an attack on the sentence that was imposed in
this case. Absent a constitutional challenge, R.C. 2953.08 provides a limited means to
challenge a sentence. R.C. 2953.08(D)(3) states that a sentence imposed for aggravated
murder pursuant to R.C. 2929.04 is not subject to review under this statute, and this court
may not review the sentence. State v. Campbell, 8th Dist. Cuyahoga No. 103982, 2016-
Ohio-7613, ¶ 16, citing State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829
N.E.2d 690.
3 Success on this proposed assignment of error may also subject Gibson to an
increased sentence, not just a reduced sentence at a resentencing hearing. Appellate
counsel, in their professional judgment, may have decided the risk did not outweigh the
potential for a five-year reduction from a sentence of life with parole eligibility after
serving 50 years when one of the potential penalties Gibson could face is life without the
possibility of parole.
This proposed assignment of error does not present a colorable claim of ineffective
assistance of appellate counsel.
_________________________
MARY J. BOYLE, JUDGE
EILEEN A. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR