State v. Lester , 2018 Ohio 5154 ( 2018 )

[Cite as State v. Lester, 2018-Ohio-5154.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105992
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
HOWARD LESTER
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-17-613903-A
Application for Reopening
Motion No. 522517
RELEASE DATE: December 19, 2018
FOR APPELLANT
Howard Lester, pro se
Inmate No. A700767
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, Ohio 44030
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Eben McNair
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶1} Howard Lester has filed a timely application for reopening pursuant to App.R.
26(B). Lester is attempting to reopen the appellate judgment, rendered in State v. Lester, 8th
Dist. Cuyahoga No. 105992, 2018-Ohio-3041, that affirmed his convictions and sentence of
incarceration for two counts of having weapons while under disability (R.C. 2923.13(A)(2)), one
count of criminal damaging or endangering (R.C. 2909.06(A)(1)), one count of tampering with
evidence (R.C. 2921.12(A)(1)), one count carrying concealed weapons (R.C. 2923.12(A)(2)), and
one count of improperly handling firearms in a motor vehicle (R.C. 2923.16(B)). We decline to
reopen Lester’s original appeal.
I. Standard of Review Applicable to App.R. 26(B) Application for Reopening
{¶2} In order to establish a claim of ineffective assistance of appellate counsel, Lester is
required to establish that the performance of his appellate counsel was deficient and the
deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989), cert. denied,
497 U.S. 1011, 110 S. Ct. 3258, 111 L. Ed. 2d 767 (1990).
{¶3} In Strickland, the United States Supreme Court held that a court’s scrutiny of an
attorney’s work must be highly deferential. The court further stated that it is all too tempting
for a defendant to second-guess his attorney after conviction and that it would be too easy for a
court to conclude that a specific act or omission was deficient, especially when examining the
matter in hindsight. Thus, a court must indulge in 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. Strickland.
II. Failure to Comply with App.R. 26(B)(2)(d) and Civ.R. 11
{¶4} Initially, we find that Lester has failed to comply with the mandatory requirement of
App.R. 26(B)(2)(d), which requires that the application for reopening shall contain a sworn
statement of the basis of the claim that appellate counsel’s representation was deficient with
respect to the proposed assignments of error raised pursuant to App.R. 26(B)(2)(c) and the
manner in which the claimed deficiency prejudicially affected the outcome of the appeal. State
v. Perry, 8th Dist. Cuyahoga No. 90497, 2009-Ohio-2245; State v. Dial, 8th Dist. Cuyahoga No.
83847, 2007-Ohio-2781; State v. Young, 8th Dist. Cuyahoga No. 78058, 2007-Ohio-6481. See
also State v. Davis, 119 Ohio St. 3d 422, 2008-Ohio-4608, 894 N.E.2d 1221.
{¶5} In addition, Lester’s App.R. 26(B) application for reopening is defective because it
was not signed. The Supreme Court of Ohio has firmly established that an App.R. 26(B)
application for reopening is a civil, postconviction proceeding:
We have ourselves explicitly and consistently recognized that the App.R. 26(B)
process represents a collateral postconviction remedy. See, e.g., State v. Robinson
(1996), 74 Ohio St. 3d 1518, 600 N.E.2d 472, 660 N.E.2d 472 (describing the
App.R. 26[B] process as a “civil, post-conviction matter"); State v. Boone (1996),
74 Ohio St. 3d 1491, 658 N.E.2d 788 [* * * * 15] (also describing the App.R.
26[B] process as a “civil, post-conviction matter”). Accord State v. Sproat (1995),
74 Ohio St. 3d 1442, 656 N.E.2d 342; State v. Alexander (1995), 74 Ohio St. 3d
1470, 657 N.E.2d 511; State v. Kirby (1995), 72 Ohio St. 3d 1534, 650 N.E.2d
111. We have used the same descriptive term in numerous other orders. Our
own Rules of Practice reinforce the point, for they refer to “appeals involving
postconviction relief, including appeals brought pursuant to * * * App.R. 26(B).”
S.Ct.Prac.R. II (2)(A)(4)(b).
Today we continue to adhere to the position that the App.R. 26(B) process
represents a collateral postconviction remedy and is not part of the original appeal.
***
Morgan v. Eads, 104 Ohio St. 3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 9.
{¶6} Civ.R. 11, which deals with the signing of pleadings, motions or other documents in
a civil proceeding, provides in pertinent part that:
A party who is not represented by an attorney shall sign the pleading, motion, or
other document and state the party’s address. * * * The signature of an attorney or
pro se party constitutes a certificate by the attorney or party that the attorney or
party has read the document; that to the best of the attorney’s or party’s
knowledge, information, and belief there is good ground to support it; and that it
is not interposed for delay. If a document is not signed or is signed with intent to
defeat the purpose of this rule, it may be stricken as sham and false and the action
may proceed as though the document had not been served. * * *
{¶7} We find that Lester has not complied with Civ.R. 11 by failing to affix his signature
to the App.R. 26(B) application for reopening, which constitutes another reason for denial of the
application for reopening.
III. Res Judicata and App.R. 26(B)
{¶8} Lester argues three proposed issues in support of his application for reopening.
Specifically, Lester argues that his appellate counsel was ineffective on appeal by failing to raise
or properly argue the following issues: 1) testimony of expert witness Kristen Koeth with regard
to the operability of firearms; 2) failure of trial counsel to seek a suppression hearing and
suppress a seized firearm; and 3) verdicts against the manifest weight of the evidence as to all
counts.
{¶9} Lester’s request for reopening is barred by the doctrine of res judicata. The
principles of res judicata may be applied to bar the further litigation in a criminal case of issues
that were raised previously or could have been raised previously in an appeal. See generally
State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. Claims
of ineffective assistance of appellate counsel in an application for reopening may be barred by res
judicata unless circumstances render the application of the doctrine unjust. State v. Murnahan, 63
Ohio St. 3d 60, 66, 584 N.E.2d 1204 (1992); State v. Williams, 8th Dist. Cuyahoga No. 57988,
1991 Ohio App. LEXIS 757 (Mar. 4, 1991), reopening disallowed, Motion No. 52164 (Aug. 15,
1994).
{¶10} On direct appeal, this court addressed the following six assignments of error:
Assignment of Error One
The evidence is insufficient to support the guilty verdicts on Counts 5 [having
weapons while under disability] and 9 [criminal damaging].
Assignment of Error Two
The guilty verdicts on Counts 5 [having weapons while under disability] and 9
[criminal damaging or endangering] are not supported by the manifest weight of
the evidence.
Assignment of Error Three
The guilty verdicts on Counts 10 [tampering with evidence], 12 [carrying
concealed weapons], 13 [having weapons while under disability], and 14
[improper handling firearms in a motor vehicle] are not supported by the manifest
weight of the evidence.
Assignment of Error Four
The handgun at issue in Counts 10 [tampering with evidence], 12 [carrying
concealed weapons], 13 [having weapons while under disability], and 14
[improper handling firearms in a motor vehicle] is the fruit of an unconstitutional
seizure and it should have been suppressed.
Assignment of Error Five
Evidence that the handgun at issue in Counts 10 [tampering with evidence], 12
[carrying concealed weapons], 13 [having weapons while under disability], and 14
[improper handling firearms in a motor vehicle] operable was admitted in
violation of the Confrontation Clause of the Sixth Amendment and Article I,
Section 10, Ohio Constitution.
Assignment of Error Six
[Lester] was denied his right to effective assistance of counsel when his attorney
(1) did not move to suppress state’s exhibit 14 [firearm] as the fruit of an
unconstitutional seizure, and (2) did not object to [Koeth’s] statement that state’s
exhibit 14 was operable as violative of his rights under the confrontation clauses
of the sixth amendment.
{¶11} The issues of an expert witness testifying as to operability of a firearm, a
suppression of the firearm as evidence, and the manifest weight of the evidence were already
addressed by this court on direct appeal and found to be not well taken. Because the issues of
operability of a firearm, suppression of evidence, and manifest weight have already been
addressed on appeal, res judicata bars Lester from once again raising the issues in his App.R.
26(B) application for reopening. O’Nesti v. DeBartolo Realty Corp., 113 Ohio St. 3d 59,
2007-Ohio-1102, 862 N.E.2d 803.
{¶12} Lester, through the issues raised in support of his application for reopening, has
failed to establish any prejudice that resulted from the representation provided by his appellate
counsel on appeal. We further find that the circumstances of this appeal do not render the
application of the doctrine of res judicata unjust.
{¶13} Accordingly, the application for reopening is denied.
MARY EILEEN KILBANE, PRESIDING JUDGE
MELODY J. STEWART, J., and
LARRY A. JONES, SR., J., CONCUR
.