State v. Glenn , 2012 Ohio 1530 ( 2012 )

[Cite as State v. Glenn, 2012-Ohio-1530.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94425
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEVANTE GLENN
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-525626
Application for Reopening
Motion No. 448730
RELEASE DATE: April 2, 2012
ATTORNEYS FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, OH 44113
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: Andrew J. Santoli
Matthew E. Meyer
Justice Center, 8th Fl.
1200 Ontario Street
Cleveland, OH 44113
JAMES J. SWEENEY, P.J.:
{¶1} Devante Glenn has filed a timely application for reopening pursuant to
App.R. 26(B). Glenn is attempting to reopen the appellate judgment, as rendered in State
v. Glenn, Cuyahoga App. No. 94425, 2011-Ohio-3684, which affirmed his conviction for
two counts of aggravated robbery, with firearms specifications, and two counts of theft
with firearm specifications. We decline to reopen Glenn’s original appeal.
{¶2} In order to establish a claim of ineffective assistance of appellate counsel,
Glenn must demonstrate that appellate counsel’s performance was deficient and that, but
for the deficient performance, the result of his appeal would have been different. State
v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456. Specifically, Glenn must
establish that “there is a genuine issue as to whether he was deprived of the assistance of
counsel on appeal.” App.R. 26(B)(5).
In State v. Reed [supra, at 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 was
deficient for failing to raise the issue 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.
State v. Spivey, 84 Ohio St.3d 24, 25,1998-Ohio-704, 701 N.E.2d 696.
{¶3} It is also well settled that appellate counsel is not required to raise and argue
assignments of error that are meritless. Jones v. Barnes, 463 U.S. 745, 77 L.Ed.2d 987,
103 S.Ct. 3308 (1983). Appellate counsel cannot be considered ineffective for failing to
raise every conceivable assignment of error on appeal. Jones v. Barnes, supra; State v.
Grimm, 73 Ohio St.3d 413, 1995-Ohio-24, 653 N.E.2d 253; State v. Campbell, 69 Ohio
St.3d 38, 1994-Ohio-492, 630 N.E.2d 339.
{¶4} In Strickland, the United States Supreme Court also stated that a court’s
scrutiny of an attorney’s work must be deferential. The court further stated that it is too
tempting for a defendant/appellant to second-guess his attorney after conviction and
appeal and that it would be all to easy for a court to conclude that a specific act or
omission was deficient, especially when examining the matter in hindsight.
Accordingly, “a court must indulge 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.” Id. at 689. Finally, the United States Supreme Court
has upheld the appellate attorney’s discretion to decide which issues he or she believes
are the most fruitful arguments and the importance of winnowing out weaker arguments
on appeal and focusing on one central issue or at most a few key issues. Jones v.
Barnes, supra.{¶5} In the case sub judice, Glenn raises four proposed assignments of error in
support of his claim of ineffective assistance of appellate counsel:
(1) “Defendant was denied due process of law when counsel failed to file a motion
to suppress and the prosecutor took inconsistent positions with any oral statements of
defendant.”;
(2) “Defendant was denied due process of law and effective assistance of counsel
when counsel failed to file a motion to suppress of the identification.”;
(3) “Defendant was subjected to unconstitutional and multiple punishments when
the court separately sentenced defendant for aggravated robbery and theft of the same
property.”; and
(4) “Defendant was denied due process of law when the court convicted defendant
with firearm specifications.”
{¶6} Glenn, however, has failed to demonstrate that appellate counsel’s
performance was deficient and that he was prejudiced by appellate counsel’s claimed
deficiencies.
{¶7} Through his first and second proposed assignments of error, Glenn argues
that trial counsel was ineffective because he failed to file a motion to suppress based upon
the issues of an oral statement as made to a police officer and a tainted photographic
identification procedure. The doctrine of res judicata, however, prevents our
consideration of Glenn’s first and second proposed assignments of error. Res judicata
involves the two related concepts of claim preclusion, also known as estoppel by
judgment, and issue preclusion, also known as collateral estoppel. O’Nesti v. DeBartolo
Realty Corp., et al, 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803; Grava v.
Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995).
{¶8} The issues of Glenn’s oral statement to a police officer and the photographic
identification process, used to identify Glenn, were previously raised and argued on
appeal. Each issue was previously found to not form the basis of any error of law that
prejudiced Glenn. Thus, the doctrine of res judicata prevents any further examine of the
issues of an oral statement and photographic identification. State v. Murnahan, 63 Ohio
St.3d 60, 584 N.E.2d 1204 (1992); State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104(1967). See also State v. Dehler, 73 Ohio St.3d 307, 1995-Ohio-320, 652 N.E.2d 987;
State v. Terrell, 72 Ohio St.3d 247, 1995-Ohio-54, 648 N.E.2d 1353.
{¶9} Glenn, through his third proposed assignment of error, argues that his
conviction for the offenses of aggravated robbery and theft should have merged for
sentencing, because the offenses are allied offenses of similar import. However, based
upon our independent review of the record and the original appeal, we find that the
offenses of aggravated robbery and theft are not allied offenses of similar import subject
to merger under R.C. 2941.25. The record and appeal clearly demonstrate that the
offenses of aggravated robbery and theft constituted separate acts. The two offenses of
aggravated robbery were related to the theft of a purse, keys and a wallet, while Glenn
was in the possession of a firearm. The two offenses of theft were related to the taking,
without the owners’ consent, of a 2009 Chevrolet Malibu and a 2003 Chevrolet Monte
Carlo. Herein, it is abundantly clear that Glenn possessed a separate animus for the
offenses of aggravated robbery and theft and that he “broke a temporal continuum”
started by the initial act of theft and culminating in the taking of the two motor vehicles.
This court has previously found that in determining whether a separate
animus exists for two offenses, a court may examine “case-specific factors
such as whether the defendant at some point broke ‘a temporal continuum
started by his initial act,” [or] whether facts appear in the record that
“distinguish the circumstances or draw a line of distinction that enables a
trier of fact to reasonably conclude separate and distinct crimes were
committed.” State v. Roberts, 180 Ohio App.3d 666, 2009-Ohio-298, 906
N.E.2d 1177, ¶ 14, quoting State v. Williams, 8th Dist. No. 89726,
2008-Ohio-5286, 2008 WL 4531946, ¶ 37; State v. Hines, 8th Dist. No.
90125, 2008-Ohio-4236, 2008 WL 3870669, ¶ 48. See also State v. Cronin,
6th Dist. No. S–09–032, 2010-Ohio-4717, 2010 WL 3820598, ¶ 45; State v.
Helms, 7th Dist. No. 08 MA 199, 2010-Ohio-4872, 2010 WL 3904121, ¶
52; State v. Nuh, 10th Dist. No. 10AP–31, 2010-Ohio-4740, 2010 WL
3820583, ¶ 16; Thompkins v. Ross (S.D.Ohio 2009), 2009 WL 4842247, fn.
1. State v. Lee, 190 Ohio App.3d 581, 2010-Ohio-5672, 943 N.E.2d 602, ¶
38.
As a consequence, Glenn’s third proposed assignment of error does not provide a basis
for reopening.
{¶10} Glenn, through his fourth proposed assignment of error, argues that the
evidence adduced at trial was insufficient to prove beyond a reasonable doubt that he
possessed a firearm during the commission of the offenses of aggravated robbery and
theft. Specifically, Glenn argues that no evidence was adduced at trial to prove that the
alleged firearm was operable. The Supreme Court of Ohio, however, has firmly
established that:
In State v. Murphy (1990), 49 Ohio St.3d 206, 551 N.E.2d 932, we modified
State v. Gaines (1989), 46 Ohio St.3d 65, 545 N.E.2d 678, with respect to
the type of evidence required to prove a firearm specification beyond a
reasonable doubt. Specifically, in Murphy, we held: “The state must
present evidence beyond a reasonable doubt that a firearm was operable at
the time of the offense before a defendant can receive an enhanced penalty
pursuant to R.C. 2929.71(A). However, such proof can be established
beyond a reasonable doubt by the testimony of lay witnesses who were in a
position to observe the instrument and the circumstances surrounding the
crime. (Emphasis added.) Id. at syllabus. State v. Thompkins, 78 Ohio
St.3d 380, 383, 1997-Ohio-52, 678 NE2d 541.
{¶11} Herein, both victims of the offenses of aggravated robbery and theft testified
to the following: (1) Glenn held a firearm in his hand during the commission of the
offenses; (2) the color of the firearm; (3) the size of the firearm; and (4) Glenn threatened
the victims with the firearm. Based upon all relevant facts and circumstances, we find
that sufficient evidence was adduced at trial to demonstrate that Glenn possessed a
firearm that was operable or capable of being made operable at the time of the offenses.
State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 158, 679 N.E.2d 1131; State v.
Johnson, 8th Dist. No. 90449, 2008-Ohio-4451. Glenn’s fourth proposed assignment of
error is not well taken and fails to establish ineffective assistance of appellate counsel.
{¶12} Thus, we find that Glenn has failed to establish that appellate counsel was
ineffective on appeal through his four proposed assignments of error.
Accordingly, the application for reopening is denied.
JAMES J. SWEENEY, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
SEAN C. GALLAGHER, J., CONCUR