State v. Warner , 2012 Ohio 256 ( 2012 )

[Cite as State v. Warner, 2012-Ohio-256.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95750
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEREK WARNER
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No.CR-539458
Application for Reopening
Motion No. 448587
RELEASE DATE: January 24, 2012
FOR APPELLANT
Derek Warner
Mansfield Correctional Inst.
Inmate #952-912
P. O. Box 8107
Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Katherine Mullin
Justice Center, 8th Fl.
1200 Ontario Street
Cleveland, OH 44113
MARY EILEEN KILBANE, P.J.:
{¶ 1} Derek Warner has filed a timely application for reopening pursuant to
App.R. 26(B). Warner is attempting to reopen the appellate judgment, as rendered in
State v. Warner, Cuyahoga App. No. 95750, 2011-Ohio-4096, which affirmed his
conviction for the offenses of burglary (R.C. 2911.12(A)(2)), theft (R.C. 2913.02(A)(1)),
vandalism (R.C. 2909.05), and criminal damaging (R.C. 2909.06). We decline to reopen
Warner’s original appeal.
{¶ 2} In order to establish a claim of ineffective assistance of appellate counsel,
Warner 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, Warner 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).
{¶ 3} “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.
{¶ 4} 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. Id., 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.
{¶ 5} 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. Barnes, supra.
{¶ 6} In the case sub judice, Warner raises two proposed assignments of error in
support of his claim of ineffective assistance of appellate counsel:
{¶ 7} (1) “Appellate counsel, Michael Maloney was ineffective for failing to
bring up key points which occurred at trial which could have further supported appellant
Derek Warner defense.”; and
{¶ 8} (2) “Trial counsel, Ms. Dobroshi was ineffective for failure to fully prepare
for trial, and for failure to bring up key evidence during the trial which could have further
supported defendant’s Derek Warner innocence and defense, which caused the trial
counsel to be ineffective during the trial.”
{¶ 9} Warner, however, has failed to present any substantive argument, with
regard to his two proposed assignments of error, that demonstrates how appellate
counsel’s performance was deficient and that he was prejudiced by appellate counsel’s
claimed deficiency.
{¶ 10} In State v. Kelly, 8th Dist. No. 74912, 1999 WL 1044494 (Nov. 18, 1999),
reopening disallowed (June 21, 2000), this court established that the mere recitation of
assignments of error, without substantive argument, is not sufficient to meet the burden to
prove that applicant’s appellate counsel was deficient for failing to raise the issues he
now presents or that there was a reasonable probability that he would have been
successful if the present issues were considered in the original appeal. State v. Gaughan,
8th Dist. No. 90523, 2009-Ohio-955, reopening disallowed, 2009-Ohio-2702. See, also,
State v. Mosely, 8th Dist. No. 79463, 2002-Ohio-1101, reopening disallowed,
2005-Ohio-4137; State v. Dial, 8th Dist. No. 83847, 2004-Ohio-5860, reopening
disallowed 2007-Ohio-2781; State v. Ogletree, 8th Dist. No. 86500, 2006-Ohio-2320,
reopening disallowed, 2006-Ohio-5592; State v. Huber, 8th Dist. No. 80616,
2002-Ohio-5839, reopening disallowed, 2004-Ohio-3951. The failure of Warner to
present any substantive argument with regard to his two proposed assignments of error
results in the inability to demonstrate that his counsel was deficient and that he was
prejudiced by the alleged deficiencies.
{¶ 11} It must also be noted that Warner’s claims 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 continence 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. State v. Pasqualone, 121 Ohio
St.3d 186, 2009-Ohio-315, 903 N.E.2d 270; State v. Frazier, 115 Ohio St.3d 139,
2007-Ohio-5048, 873 N.E.2d 1263. Warner has failed to demonstrate the prejudice that
resulted from the strategic decisions as made by trial counsel during the course of trial or
that the outcome of his appeal would have been different had the issues been raised on
appeal. State v. Spivey, supra, 701 N.E.2d 696; State v. Reed, supra, 660 N.E.2d 456.
Thus, we find that Warner has failed to establish that appellate counsel was ineffective on
appeal through his two proposed assignments of error.
{¶ 12} Accordingly, the application for reopening is denied.
MARY EILEEN KILBANE, PRESIDING JUDGE
PATRICIA A. BLACKMON, A.J., AND
FRANK D. CELEBREZZE, JR., J., CONCUR