State v. Grant

[Cite as State v. Grant, 2011-Ohio-2254.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94101
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
VINCENT GRANT
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-518679
Application for Reopening
Motion No. 440509
RELEASE DATE: May 10, 2011
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FOR APPELLANT
Vincent Grant, Pro Se
No. 570-720
North Central Correctional Institution
P.O. Box 1812
Marion, Ohio 43302
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Katherine Mullin, Esq.
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} In State v. Grant, Cuyahoga County Court of Common Pleas Case
No. CR-518679, the grand jury indicted applicant, Vincent Grant, on four
counts: rape, kidnapping and two counts of felonious assault. He pled guilty
to sexual battery with a sexually violent predator specification (amended from
rape) and the state nolled the other three counts. The trial court imposed a
five-year prison sentence. This court affirmed that judgment in State v.
Grant, Cuyahoga App. No. 94101, 2010-Ohio-5241. The Supreme Court of
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Ohio dismissed Grant’s appeal for want of prosecution. State v. Grant, Case
No. 2010-2182, 03/09/2011 Case Announcements, 2011-Ohio-1030.
{¶ 2} Grant has filed with the clerk of this court a timely application
for reopening. He asserts that he was denied the effective assistance of
appellate counsel because his appellate counsel did not assign as error that:
1) trial counsel was ineffective for failing to adequately cross-examine
witnesses; 2) the verdict was against the manifest weight of the evidence; 3)
the verdict was against the sufficiency of the evidence; and 4) Grant was
denied a fair trial through judicial bias. We deny the application for
reopening. As required by App.R. 26(B)(6), the reasons for our denial follow.
{¶ 3} Having reviewed the arguments set forth in the application for
reopening in light of the record, we hold that Grant has failed to meet his
burden to demonstrate that “there is a genuine issue as to whether the
applicant was deprived of the effective assistance of counsel on appeal.”
App.R. 26(B)(5). In State v. Spivey, 84 Ohio St.3d 24, 1998-Ohio-704, 701
N.E.2d 696, the Supreme Court specified the proof required of an applicant.
“In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 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]
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must prove that his counsel were deficient for failing to raise the issues 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.” Id. at 25. Grant cannot satisfy either
prong of the Strickland test. We must, therefore, deny the application on the
merits.
{¶ 4} Grant’s first three proposed assignments of error refer to
proceedings during trial: cross-examination of witnesses as well as the
sufficiency and weight of the evidence. The docket in Case No. CR-518679
does not reflect that the court of common pleas ever commenced trial.
Rather, after continuances of several scheduled trial dates, Grant pled guilty
to one amended count and the state nolled the other counts. Obviously,
appellate counsel was not ineffective for failing to assign errors related to
proceedings during “trial.”
{¶ 5} Additionally, the state argues that Grant’s plea waived these
errors. We agree. A guilty plea waives errors that occurred at trial. See,
e.g., State v. Lenard, Cuyahoga App. No. 95317, 2011-Ohio-1571, ¶17.
Specifically, a guilty plea waives errors based on the sufficiency or manifest
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weight of the evidence. See, e.g., State v. Weakley, Cuyahoga App. No.
93282, 2011-Ohio-304, ¶4. Grant was not prejudiced and appellate counsel
was not deficient by the absence of these proposed assignments of error on
direct appeal. As a consequence, Grant’s first, second and third proposed
assignments of error are not well-taken.
{¶ 6} In his fourth proposed assignment of error, Grant complains that
he “was denied a fair trial through judicial bias * * *.” Application,
unnumbered page 8. The trial court scheduled trial in the underlying case to
begin on March 3, 2009. On that date and in open court, Grant’s counsel
asked to be removed due to communication problems between counsel and
Grant. During the ensuing colloquy, the court stated: “The issue is he
[Grant] is an intimidator.” Tr. 5. Grant complains that original trial
counsel did not request the trial court to recuse herself. He also contends
that new counsel should have requested that the Supreme Court of Ohio
disqualify the trial court judge. Application, unnumbered page 8.
{¶ 7} On direct appeal, appellate counsel’s first assignment of error
asserted that Grant was denied due process based upon ineffective assistance
of counsel because his trial court attorney did not comply with the proper
procedure to have a trial court judge removed from the case. On March 17,
2009, Grant filed a pro se motion to dismiss the trial judge. In the motion,
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he stated: “On 3/11/09 A Complaint was filed with Ohio State Bar
Association for bias [sic] Statement at trial on 3/09/09. I believe doue [sic]
Process will be denied in Furture [sic] Court Proceedings, and Request to
dismiss said Judge from the bench for my trial.” Motion to Dismiss Judge,
Pagination of Record #22 (capitalization in original).
{¶ 8} On direct appeal, this court acknowledged that R.C. 2701.03
governs the procedure for seeking the disqualification of a judge of the court
of common pleas. The court also noted that a claim of ineffective assistance
of trial counsel is waived by a guilty plea unless the purported ineffectiveness
caused the plea to be involuntary. State v. Grant, Cuyahoga App. No. 94101,
2010-Ohio-5241, ¶10. “Notwithstanding the waiver, we find that trial
counsel’s decision not to proceed with a formal motion for disqualification
could be deemed a trial tactic, one that this court will not second-guess.” Id.,
¶11.
{¶ 9} Clearly, this court has already considered whether trial counsel
was ineffective for failing to file an affidavit of disqualification under R.C.
2701.03. Res judicata, therefore, bars our considering this issue. As a
consequence, Grant’s fourth proposed assignment of error is not well-taken.
{¶ 10} We also note that Grant’s application does not contain a “sworn
statement of the basis for the claim that appellate counsel’s representation
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was deficient” as required by App.R. 26(B)(2)(d). The absence of a sworn
statement is a sufficient basis for denying an application for reopening. See,
e.g., State v. Fortson, Cuyahoga App. No. 92337, 2010-Ohio-2337, reopening
disallowed, 2011-Ohio-698.
{¶ 11} Grant has not met the standard for reopening. Accordingly, the
application for reopening is denied.
_______________________________________________
JAMES J. SWEENEY, JUDGE
MARY EILEEN KILBANE, A.J., CONCURS;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY