State v. Bolan , 2012 Ohio 2381 ( 2012 )

[Cite as State v. Bolan, 2012-Ohio-2381.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95807
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RAYMOND BOLAN
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-531193
Application for Reopening
Motion No. 450162
RELEASE DATE: May 29, 2012
-i-
ATTORNEY FOR APPELLANT
Robert A. Dixon
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Daniel T. Van
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:
{¶1} In State v. Bolan, Cuyahoga C.P. No. CR-531193 (Sept. 30, 2010),
applicant, Raymond Bolan, was found guilty by a jury and convicted of aggravated
murder, murder, and felonious assault with respect to one victim and attempted murder
and felonious assault with respect to another victim. He was also found guilty of one-year
and three-year firearm specifications on each count. This court affirmed Bolan’s
convictions but vacated his sentence in part and remanded the case for resentencing with
respect to the allied offenses of attempted murder and related felonious assault in State v.
Bolan, 8th Dist. No. 95807, 2011-Ohio-4501. The Supreme Court of Ohio denied
Bolan’s motion for leave to appeal and dismissed the appeal as not involving any
substantial constitutional question. State v. Bolan, 131 Ohio St.3d 1414, 2012-Ohio-136,
959 N.E.2d 1058.
{¶2} Bolan has filed with the clerk of this court a timely application for
reopening. He asserts that he was denied the effective assistance of counsel because his
counsel did not assign as error that trial counsel was ineffective. 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 applicant 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).” Bolan must prove that his counsel was 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, Bolan 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. Applicant cannot satisfy either prong of the Strickland test. We must,
therefore, deny the application on the merits.
{¶4} Bolan argues that his trial counsel was ineffective because trial counsel did
not object to and/or acquiesced in the closure of the courtroom for the testimony of two
state’s witnesses and did not secure the attendance of a defense witness.
{¶5} On direct appeal, the sixth assignment of error asserted by appellate counsel
challenged the propriety of the trial court’s closing the courtroom during the testimony of
two of the state’s witnesses, including the trial court’s instruction that Bolan was not to
look at one of those witnesses. Appellate counsel argued that the trial court abused its
discretion.
{¶6} In his application for reopening, Bolan argues that appellate counsel should
have argued that trial counsel was ineffective because trial counsel did not object to the
trial court’s closure of the courtroom. In State v. Drummond, 111 Ohio St.3d 14,
2006-Ohio-5084, 854 N.E.2d 1038, the Supreme Court upheld the partial closure of the
courtroom for the cross-examination of one prosecution witness and the examination of
two other prosecution witnesses. The trial court had determined that there was, among
other considerations, a fear of retaliation against the witnesses. The Supreme Court
determined that there was a substantial reason for the partial closure.
{¶7} One of the two state’s witnesses in question stated that she was afraid.
Prior to the testimony of the other state’s witness later in the case, trial counsel stated:
“[I]t’s been demonstrated in this trial that people in the neighborhood and associated with
either family in this case have had a reluctance to be candid with witnesses, whether for
admitting different stories, or for fear of retribution.” Tr. 856. Clearly, these
circumstances suggest a “substantial reason” for the trial court’s partial closure of the
courtroom. In light of the evidence in the record for the partial closure, we cannot
conclude that appellate counsel was deficient or that Bolan was prejudiced by the absence
of the argument that his trial counsel was ineffective for failing to object to the partial
closure of the courtroom.
{¶8} In his second argument, Bolan contends his trial counsel was ineffective
because trial counsel did not secure the attendance of a defense witness. In the fourth
assignment of error on direct appeal, appellate counsel argued that the trial court “violated
his right to present a meaningful trial by refusing to grant a continuance” to secure the
presence of a defense witness. 2011-Ohio-4501, ¶ 40.
{¶9} Bolan now contends that trial counsel’s conduct provided the basis for this
court’s upholding of the trial court’s ruling. That is, trial counsel initially declined to
request a bench warrant for the defense witness and only on the next day — the day on
which the witness could have testified — did trial counsel request a bench warrant. The
trial court also complained regarding conflicting information provided to the trial court
regarding the status of law enforcement’s efforts to secure the attendance of the witness
on that day. Bolan argues, therefore, that trial counsel’s actions were at issue as well as
whether the trial court abused its discretion by refusing to grant the continuance.
{¶10} As noted above, trial counsel was aware that witnesses on both sides were
afraid to testify. In response to the trial court’s observation that trial counsel did not
address the issue of a bench warrant a day earlier, trial counsel stated: “* * * I didn’t
want her coming in under those circumstances * * * .” Tr. 980. We recognize that trial
counsel could have been attempting to balance securing the attendance of the witness
with avoiding alienating the witness. “It is well established that sound trial strategy does
not provide a basis for reopening. See, e.g., State v. Warner, 8th Dist. No. 95750,
2011-Ohio-4096, reopening disallowed, 2012-Ohio-256, at ¶ 5.” State v. Foster, 8th
Dist. No. 95209, 2012-Ohio-916, ¶ 13. In Warner, this court observed that:
[C]laims of ineffective assistance of both appellate counsel and trial
counsel, as predicated upon the failure to introduce evidence during the
course of trial, failure to subpoena witnesses, and a request for
continuance of trial, involved strategic choices of counsel that fell
within the realm of trial strategy and tactics that will not ordinarily be
disturbed on appeal. 2012-Ohio-256, at ¶ 11.
{¶4} Similarly, an appellate court cannot presume to second guess trial counsel’s
judgment regarding the risks and benefits of having law enforcement personnel secure the
attendance of this witness. Rather, we must conclude that appellate counsel was not
deficient and Bolan was not prejudiced by the absence of this argument from his direct
appeal. As a consequence, Bolan has failed to demonstrate that there is a “genuine
issue” whether he has a “colorable claim” of ineffective assistance of counsel on appeal.
Accordingly, the application for reopening is denied.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR