State v. Freeman , 2011 Ohio 5151 ( 2011 )

[Cite as State v. Freeman, 2011-Ohio-5151.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95511
STATE OF OHIO
PLAINTIFF-RELATOR
vs.
JAMES FREEMAN
DEFENDANT-RESPONDENT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-353508
Application for Reopening
Motion No. 446563
RELEASE DATE: October 3, 2011
FOR RELATOR
James Freeman, pro se
#590410
NCCI
P. O. Box 1812
Marion, OH 43301
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: Pinkey S. Carr
Asst. County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} James Freeman has filed a timely application for reopening pursuant to
App.R. 26(B). Freeman is attempting to reopen the appellate judgment, rendered in State
v. Freeman, Cuyahoga App. No. 95511, 2011-Ohio-2663, which affirmed his conviction
for the offenses of rape and gross sexual imposition. We decline to reopen Freeman’s
original appeal.
{¶ 2} In order to establish a claim of ineffective assistance of appellate counsel,
Freeman must demonstrate that appellate counsel’s performance was deficient and that,
but for his 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, Freeman
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,
1998-Ohio-704, 701 N.E.2d 696, at 25.
{¶ 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 (1983), 463 U.S. 745, 103 S.Ct.
3308, 77 L.Ed.2d 987. 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.
{¶ 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. Jones v.
Barnes, supra.{¶ 6} In the case sub judice, Freeman raises three proposed assignments of error
in support of his claim of ineffective assistance of appellate counsel:
{¶ 7} “(1) “The penalties and offenses assessed within this action, should have at
least resulted in some of the offenses of similar import being merged into one sentence,
while preserving the convictions.”
{¶ 8} “(2) “The Appellate Counsel failed to adequately present a substantive
argument of how its constitutional to be convicted of both rape and gross sexual
imposition.”
{¶ 9} “(3) “Appellate counsel failed to attack the veracity of the severity of such
an argument and assignment of error as manifest weight of the evidence and is
demonstrative of a failure to vigorously represent the appellant.”
{¶ 10} However, Freeman has failed to present any argument, with regard to his
three proposed assignments of error, that demonstrates how appellate counsel’s
performance was deficient and that he was prejudiced by appellate counsel’s claimed
deficiency.
{¶ 11} In State v. Kelly (Nov. 18, 1999), Cuyahoga App. No. 74912, reopening
disallowed (June 21, 2000), Motion No. 312367, this court established that the mere
recitation of assignments of error 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, Cuyahoga App.
No. 90523, 2009-Ohio-955, reopening disallowed, 2009-Ohio-2702, Motion No. 421223.
See, also, State v. Mosely, Cuyahoga App. No. 79463, 2002-Ohio-1101, reopening
disallowed, 2005-Ohio-4137, Motion No. 365082; State v. Dial, Cuyahoga App. No.
83847, 2004-Ohio-5860, reopening disallowed, 2007-Ohio-2781, Motion No. 392410;
State v. Ogletree, Cuyahoga App. No. 86500, 2006-Ohio-2320, reopening disallowed,
2006-Ohio-5592, Motion No. 387497; State v. Huber, Cuyahoga App. No. 80616,
2002-Ohio-5839, reopening disallowed, 2004-Ohio-3951, Motion No. 356284. The
failure of Freeman to present any argument with regard to his three proposed assignments
of error results in the failure to demonstrate that his counsel was deficient and that he was
prejudiced by the alleged deficiency.
{¶ 12} Accordingly, the application for reopening is denied.
KATHLEEN ANN KEOUGH, JUDGE
COLLEEN CONWAY COONEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR