State v. Makin

[Cite as State v. Makin, 2017-Ohio-8569.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104010
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
HAKEEN K. MAKIN
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-15-594103-A
Application for Reopening
Motion No. 509162
RELEASE DATE: November 13, 2017
FOR APPELLANT
Hakeen Makin
Inmate No. A683089
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, P.J.:
{¶1} Hakeen Makin has filed a timely application for reopening pursuant to App.R.
26(B). Makin seeks to reopen the appellate judgment rendered in State v. Makin, 8th Dist.
Cuyahoga No. 104010, 2017-Ohio-2649, that affirmed his convictions and sentence for multiple
drug-related offenses. For the reasons that follow, we decline to reopen Makin’s appeal.
A. Standard of Review
{¶2} The appropriate standard to determine whether a defendant has received ineffective
assistance of appellate counsel is the two-pronged analysis found in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). State v. Were, 120 Ohio St. 3d 85,
2008-Ohio-5277, 896 N.E.2d 699, ¶ 10. Applicant “must prove that his counsel [was]
deficient for failing to raise the issues he now presents and that there was a reasonable probability
of success had he presented those claims on appeal.” Id., quoting State v. Sheppard, 91 Ohio
St.3d 329, 330, 744 N.E.2d 770 (2001). 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, 701 N.E.2d 696 (1998).
{¶3} In Strickland, the United States Supreme Court ruled that judicial scrutiny of an
attorney’s work must be highly deferential. The court noted that it is all too tempting for a
defendant to second-guess his lawyer after conviction and that it would be all too easy for a
court, examining an unsuccessful defense in hindsight, to conclude that a particular act or
omission was deficient. Therefore,
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.”
Strickland at 689.
{¶4} With this standard in mind, we turn to the arguments raised by Makin.
B. Arguments Not Meritorious
{¶5} Makin raises three proposed assignments of error in support of his application to
reopen his direct appeal. Having reviewed the arguments in light of the record, we hold that
Makin cannot satisfy either prong of the Strickland test. We must, therefore, deny the
application on the merits.
1. Imposition of postrelease control
{¶6} In his first proposed assignment of error, Makin argues that his appellate counsel
was ineffective in failing to challenge his sentence as to the imposition of postrelease control.
According to Makin, the trial court failed to properly impose separate terms of postrelease
control for each conviction, thereby rendering his sentence void. This argument, however, lacks
merit.
{¶7} Under R.C. 2967.28(F)(4)(c), if a defendant may be subject to multiple terms of
postrelease control, “the period of post-release control for all of the sentences shall be the period
of post-release that expires last, as determined by the parole board or court. Periods of
post-release control shall be served concurrently and shall not be imposed consecutively to each
other.” Relying on this statutory language, “Ohio appellate courts have held that trial courts are
permitted only to impose one term of post-release control even when the defendant has been
convicted of multiple felony offenses.” State v. Brown, 2d Dist. Montgomery No. 25653,
2014-Ohio-2551, ¶ 23, citing State v. Orr, 8th Dist. Cuyahoga No. 96377, 2011-Ohio-6269, ¶ 50;
State v. Reed, 2012-Ohio-5983, 983 N.E.2d 394, ¶ 12 (6th Dist.); see also State v. Tharp, 8th
Dist. Cuyahoga No. 104216, 2016-Ohio-8316, reopening disallowed, 2017-Ohio-2750, ¶ 3- 5
(rejecting the exact argument raised by Makin).
{¶8} The record reflects that the trial court properly notified Makin that he was subject to
a mandatory five-year period of postrelease control. Among Makin’s multiple convictions, he
was convicted of trafficking in violation of R.C. 2925.03(A)(2), a first-degree felony. Under
R.C. 2967.28(B)(1), a five-year term of postrelease control is mandatory for a felony of the first
degree. Therefore, in ordering the imposition of a five-year postrelease control term, the trial
court had no obligation to impose shorter terms for the remaining offenses. Tharp at ¶ 5, citing
State v. Morris, 8th Dist. Cuyahoga No. 97215, 2012-Ohio-2498, ¶ 18 (recognizing that the trial
court’s imposition of a single term of postrelease control was proper and that R.C.
2967.28(F)(4)(c) precludes the court or the parole board from imposing more than one period of
postrelease control in cases that involve multiple convictions).
{¶9} Because this proposed assignment of error has no merit, appellate counsel cannot be
deemed ineffective in refraining from raising it.
2. Fabricated Evidence
{¶10} In his second and third proposed assignments of error, Makin argues that the
prosecutor presented “fabricated evidence,” which his trial counsel should have challenged and
that his appellate counsel should have raised assignments of error relating to prosecutorial
misconduct and ineffective assistance of counsel. Makin argues that the prosecutor lied about
the confidential informant being fitted with “two separate devices” as opposed to just one
recording device. Makin further contends that the prosecutor coerced the CI to commit perjury
as to the recording devices and that the prosecutor introduced a “fabricated” audio-recording.
But our review of the record does not support Makin’s argument.
{¶11} The record reflects that the state presented several exhibits evidencing the meetings
and controlled buys, which included both audio and video recordings, spanning from March
through July 2014. The authenticity or admissibility of these exhibits, including the recording
that Makin now challenges, were not questioned at trial. The record, however, does not reveal
any grounds to challenge the recording. Indeed, the CI directly testified as to the recording that
Makin challenges. We find no basis to support Makin’s claim that the prosecutor “fabricated”
evidence. Moreover, Makin’s argument fails to demonstrate any prejudice that would support
an ineffective assistance of appellate counsel. Accordingly, we find appellate counsel was not
ineffective in refusing to raise such a baseless argument.
{¶12} Application denied.
ANITA LASTER MAYS, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR