State v. Anderson , 2023 Ohio 3335 ( 2023 )

[Cite as State v. Anderson, 2023-Ohio-3335.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MONROE COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
BRIAN L. ANDERSON,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 22 MO 0001
Application to Reopen
BEFORE:
Carol Ann Robb, David A. D’Apolito, Mark A. Hanni, Judges.
JUDGMENT:
Denied.
Atty. James L. Peters, Monroe County Prosecutor, Monroe County Prosecutor's Office,
101 N. Main Street, Room 15, Woodsfield, Ohio 43793 for Plaintiff-Appellee and
Brian L. Anderson, pro se, Noble Correctional Institution, 15708 McConnellsville Road,
Caldwell, Ohio 43724.
Dated: September 14, 2023
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PER CURIAM.
{¶1} Defendant-Appellant Brian L. Anderson has filed an application to reopen
his direct criminal appeal under App.R. 26(B). For the following reasons, the application
for reopening is denied.
{¶2} A criminal defendant may apply for reopening of his direct appeal based on
a claim of ineffective assistance of appellate counsel by raising an assignment of error or
an argument in support of an assignment of error that previously was not considered on
the merits (or that was considered on an incomplete record) because of appellate
counsel's deficient representation. App.R. 26(B)(1),(2)(c). Pursuant to the rule, in order
to warrant reopening for further briefing, the application must demonstrate a “genuine
issue as to whether the applicant was deprived of the effective assistance of counsel on
appeal.” App.R. 26(B)(5). If a genuine issue on ineffectiveness is established and further
briefing is thus ordered, then the appellant must fully prove the ineffectiveness of
appellate counsel by demonstrating deficient performance and prejudice. App.R.
26(B)(7)-(9).
{¶3} The traditional two-pronged test of deficiency and prejudice provides the
underlying framework for assessing whether an application raises a genuine issue as to
the ineffectiveness of appellate counsel under App.R. 26(B)(5). State v. Tenace, 109
Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶ 5, applying Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Adams, 146 Ohio
St.3d 232, 2016-Ohio-3043, 54 N.E.3d 1227, ¶ 2. See also App.R. 26(B)(2)(d) (requiring
a sworn statement on the basis for claiming deficient representation and how the
deficiency prejudicially affected the outcome of the appeal). Deficient performance
means a serious error in representation that falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 688 (refrain from second-guessing the strategic
decisions of counsel). In assessing the cited deficiency, a reviewing court heavily defers
to counsel's judgment and strongly presumes the contested conduct was in the wide
range of reasonable representation. Tenace, 109 Ohio St.3d 451 at ¶ 7. Prejudice exists
if there is reasonable probability the result of the proceedings would have been different
in the absence of the cited deficiency. Tenace, 109 Ohio St.3d 451 at ¶ 5. A reasonable
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probability is more than “some conceivable effect on the outcome of the proceeding.”
Strickland, 466 U.S. at 69; State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995)
(counsel's lacking performance caused unreliable results or fundamental unfairness).
{¶4} More specifically to the first stage in App.R. 26(B), for the applicant “to justify
reopening his appeal” for further briefing, it has been said he must meet “the burden of
establishing there was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of
ineffective assistance of counsel on appeal.” Tenace, 109 Ohio St.3d 451 at ¶ 6, quoting
State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). See also State v. Were,
120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 11. A reopening applicant must
keep in mind the following principle: “appellate counsel need not raise every possible
issue in order to render constitutionally effective assistance.” Tenace, 109 Ohio St.3d
451 at ¶ 7, citing Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987(1983) and State v. Sanders, 94 Ohio St.3d 150, 151-152, 761 N.E.2d 18 (2002).
{¶5} “An error-free, perfect trial does not exist, and is not guaranteed by the
Constitution.” State v. Italiano, 7th Dist. Mahoning No. 19 MA 0095, 2021-Ohio-1283, ¶
35, citing State v. Hill, 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996). “Experienced
advocates since time beyond memory have emphasized the importance of winnowing out
weaker arguments on appeal and focusing on one central issue if possible, or at most on
a few key issues, to avoid diluting the force of stronger arguments.” Jones, 463 U.S. at
751-752. In other words, constitutionally effective appellate counsel need not raise every
argument a client wishes to present, and making choices on the omission of every
potential or requested appellate argument is a strategic decision used to avoid diluting
the strength of stronger arguments. Id. at 751-752.
{¶6} After a jury trial in the Monroe County Common Pleas Court, Appellant was
convicted of the following offenses: aggravated drug possession, a second-degree felony
due to 25.89 grams of methamphetamine (meth), which is more than five times the bulk
amount; having a weapon while under disability, a third-degree felony (after a stipulation
as to a pending indictment for felony drug possession); and unlawful possession of a
dangerous ordnance for possessing a sawed-off shotgun, a fifth-degree felony. (1/21/22
J.E.). On appeal, Appellant raised multiple suppression issues and challenged the
sufficiency and the weight of the evidence. We affirmed his convictions. State v.
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Anderson, 7th Dist. Monroe No. 22 MO 0001, 2023-Ohio-945, reconsideration denied,
2023-Ohio-1695. Appellant filed the within timely application for reopening claiming
appellate counsel was ineffective for failing to brief seven additional assignments of error.
{¶7} First, Appellant says appellate counsel should have argued he was entitled
to merger of the two weapons offenses before sentencing under R.C. 2941.25. After
sentencing him to 6 to 9 years on the drug charge, the trial court imposed concurrent
sentences of 30 months for having a weapon while under disability and 11 months for
unlawful possession of a dangerous ordnance (for a total sentence of 6 to 9 years).
Appellant points out running sentences concurrently is not akin to merging offenses.
State v. Holcomb, 7th Dist. Mahoning No. 19 MA 0083, 2021-Ohio-2352, ¶ 46-47, citing,
e.g., State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512, ¶ 17.
Appellant says he was entitled to merger of unlawful possession of a dangerous ordnance
and having a weapon under disability because the conduct, animus, and import were the
same, citing the dissenting opinion in State v. Hines, 39 Ohio App.3d 129, 529 N.E.2d
1286 (2d Dist.1987).
{¶8} Under his argument, the merger doctrine would equate his conduct with the
conduct of a person under a weapons disability who possessed a standard (lawful)
firearm, even though Appellant’s unlawful firearm was separately criminalized. Appellant
acknowledges there are cases concluding these offenses are not allied offenses of similar
import. See e.g., State v. Creech, 188 Ohio App.3d 513, 2010-Ohio-2553, 936 N.E.2d
79, ¶ 31-34 (4th Dist.); State v. Whitmore, 8th Dist. Cuyahoga No. 56411 (Dec. 14, 1989),
citing Hines, 39 Ohio App.3d at 130. See also State v. Moore, 110 Ohio App.3d 649, 654,
675 N.E.2d 13 (1st Dist.1996) (possession of a banned firearm is not of similar import to
possession of a weapon while under a disability); State v. Perkins, 8th Dist. Cuyahoga
No. 68580 (Nov. 2, 1995) (the essence of possessing an unregistered handgun is that
the handgun has not been properly registered, but the distinct essence of having a
weapon while under disability is the legal status of the possessor). Those cases applied
prior interpretations of the statutory merger test.
{¶9} In evaluating merger under R.C. 2941.25, a court can find the defendant’s
conduct supports multiple offenses if the offenses were (1) dissimilar in import or
significance, (2) similar in import but committed separately, or (3) similar in import but
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committed with separate animus or motivation. State v. Ruff, 143 Ohio St.3d 114, 2015-
Ohio-995, 34 N.E.3d 892, ¶ 20, 31. If any one aspect of the test is met, then multiple
convictions are warranted. Id. Trial counsel did not request merger here. Although
merger is reviewed de novo, an unraised merger issue must be an error that is obvious
and prejudicial to meet the plain error test on appeal, and each case is fact-dependent.
State v. Bailey, __ Ohio St.3d __, 2022-Ohio-4407, __ N.E.3d __, ¶ 6-16 (reversing an
appellate court’s use of plain error to merge offenses and stating, “it is clear to us that in
an area of law so driven by factual distinctions, any asserted error was not obvious”).
{¶10} In considering the first aspect of the merger test, “offenses are not allied
offenses of similar import if they are not alike in their significance and their resulting harm.”
Id. at ¶ 21, 25 (offenses will be considered dissimilar in import or significance when “each
offense caused separate, identifiable harm”). The import of the offense of unlawful
possession of a dangerous ordnance related to Appellant’s violation of the ban on sawed-
off shotguns. See R.C. 2923.11(A); R.C. 2923.11(F),(K)(1). The significance of this
offense revolves around the extraordinary harm to society the legislature sees in this type
of firearm as contrasted with a standard firearm. Dissimilar in import, the offense of
having a weapon under disability related to Appellant’s legal status as an individual with
a certain pending indictment, which prohibited his conduct of possessing any firearm (or
dangerous ordnance). See R.C. 2923.13(A)(3). We note his firearm did not have to
qualify as a dangerous ordnance for this conviction. The harm flowing from this conduct
was separately identifiable in that Appellant was the type of individual the legislature
views as unqualified to possess any firearm due to his prior conduct.
{¶11} After considering the offenses in conjunction with Appellant’s conduct
elicited at trial, a sentencing court would not commit obvious error in concluding the
offenses were of dissimilar import or significance. Appellant failed to meet his burden of
establishing there was a genuine issue as to whether he has a colorable claim that
appellate counsel’s failure to raise this issue was deficient performance that prejudiced
his appeal. See Tenace, 109 Ohio St.3d 451 at ¶ 6.
{¶12} Second, Appellant contends appellate counsel should have argued trial
counsel was ineffective for not objecting to utilization of the principle of constructive
possession because the word “constructive” is not in the statutes or the indictment. Third,
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Appellant relatedly argues counsel should have argued the state’s reliance on
constructive possession violated the ex post facto clause, claiming it retroactively
changed the possession element of the offenses. The statutory elements relating to these
arguments are “acquire, have, carry, or use * * *.” R.C. 2923.13(A)(3); R.C. 2923.17(A).
In our decision affirming Appellant’s conviction, we concluded the state presented
sufficient evidence of all elements required for the weapons offenses, including
possession. Anderson, 7th Dist. No. 22 MO 0001 at ¶ 55. As we specifically explained,
“a person can ‘have’ an object through immediate physical possession or constructive
possession, which involves dominion and control.” Id., citing State v. Wolery, 46 Ohio
St.2d 316, 329, 348 N.E.2d 351 (1976). We also pointed out “circumstantial evidence
can be relied upon to establish constructive possession” regardless of ownership. Id.,quoting State v. Floyd, 7th Dist. Mahoning No. 18 MA 0106, 2019-Ohio-4878, 2019 WL
6358472, ¶ 16. It is a long-standing principle that constructive possession is an aspect
of possession and possession satisfies the “have” element, which was contained in the
statute and the indictment. It would have been wholly frivolous to argue that instructions
on constructive possession changed or added an element to the weapons offenses.
{¶13} Fourth, Appellant argues appellate counsel should have raised
prosecutorial misconduct because the state tried to “goad” him into a plea, which he did
not accept. He says the prosecutor offered to accept a plea to two charges with a total
sentencing recommendation of four years while warning it was a limited time offer
because the drug charge would be resubmitted to the grand jury on a higher degree felony
as the meth weighed more than the indicted amount. Appellant did not accept the offer,
and re-indictment occurred on the drug charge to reflect the greater amount of drugs. He
incorporates his constructive possession argument and claims the prosecutor improperly
added the element to the new indictment after attempting to “goad” a plea. This argument
is frivolous. In addition, on this argument and certain other claims here, Appellant does
not cite to evidence in the record, and appellate counsel could not have added matter to
the record. See Anderson reconsideration denied, 2023-Ohio-1695 at ¶ 4 (such as
incident or inventory reports).
{¶14} Appellant additionally says appellate counsel should have argued the
prosecutor used perjured testimony, claiming the deputy’s testimony at the suppression
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hearing differed from his testimony from the preliminary hearing. Within days of
indictment, trial counsel had the preliminary hearing transcribed. It was not filed as part
of the record. Attorneys regularly order the transcript of the preliminary hearing in county
court to prepare for later cross-examination of a witness in common pleas court.
Appellant suggests different subject matter constitutes an inconsistency. However, a
suppression hearing has a different focus and purpose than a preliminary hearing.
Moreover, Appellant’s general claim of an outcome-determinative inconsistency is not
supported, as noted in the denial of his application for reconsideration, in which he
attached the preliminary hearing transcript. See id. at ¶ 2, 4.
{¶15} Appellant also complains the state only played part of the body cam video
for the jury, opining it should not have been stopped before other officers searched the
driver’s vehicle because it contained a better view of the firearm’s location; he suggests
the deputy would not have known the shotgun next to Appellant measured under the legal
length on his initial viewing. However, suppression issues were no longer relevant at trial.
Moreover, there was no objection at trial, and plain error on the record would not have
been apparent to appellate counsel.
{¶16} Fifth, Appellant argues appellate counsel should have raised an additional
suppression argument that the welfare check ended and the officer should not have
ordered him out of the car once the driver was handcuffed. Sixth, he says another
suppression argument should have been made about the officer asking him if the gun
was loaded. Appellate counsel raised multiple suppression issues. In addressing those
issues, we noted the brief did not dispute certain issues, but we then explained why they
would be without merit. We pointed out a driver or passenger temporarily detained in a
routine traffic or investigatory stop is not generally considered to be in custody. Anderson,
7th Dist. No. 22 MO 0001 at ¶ 20, citing Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct.
3138, 82 L.Ed.2d 317 (1984) (the stop is temporary, brief, public, and substantially less
police-dominated than the type of interrogation at issue in Miranda, especially where only
one officer is present). Additionally, we stated an officer is permitted to order passengers
out of the vehicle during the stop. Id. at ¶ 21, citing Maryland v. Wilson, 519 U.S. 408,
413-415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). We further concluded the sawed-off
shotgun was in plain view as the passenger door was opened and the deputy’s question
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of whether the gun was loaded was not asked during a custodial interrogation but was
posed in response to the emergency situation of an occupant being removed from a
vehicle while within inches of a sawed-off shotgun. Id., citing New York v. Quarles, 467
U.S. 649, 656, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984).
{¶17} Accordingly, the failure of counsel to complain about the deputy ordering
Appellant to alight from the vehicle does not present a genuine issue on whether he has
a colorable claim of prejudice to his appeal from the alleged deficiency. The remainder
of Appellant’s argument essentially seeks reconsideration of our holdings on custody, the
pat-down, plain feel, and search incident to arrest. See id. at ¶ 25-37.
{¶18} Seventh, Appellant says trial counsel was ineffective for failing to object to
an alleged Brady violation. He claims the state failed to preserve the driver’s possessions
and complains she was not charged for any unlawful behavior. This argument improperly
relies on items outside of the record. Appellant also reiterates his prosecutorial
misconduct argument about the deputy’s testimony at the preliminary hearing in county
court differing from his testimony at the suppression hearing in common pleas court. He
believes appellate counsel should have argued trial counsel was ineffective by failing to
have the preliminary hearing transcript filed in the record. We addressed this topic supra.
In any event, the arguments for the seventh proposed assignment of error exceed the
prescribed page limit. App.R. 26(B)(4) (“An application for reopening and an opposing
memorandum shall not exceed ten pages, exclusive of affidavits and parts of the
record.”).1
{¶19} For the foregoing reasons, the application for reopening is denied.
JUDGE CAROL ANN ROBB
JUDGE DAVID A. D’APOLITO
JUDGE MARK A. HANNI
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
1 Appellant sets forth a statement of facts separately numbered, which is not the rule for reopening. He
then begins his arguments at a page he numbered “0” and finishes his arguments at page 11.
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