State v. Mitchell

[Cite as State v. Mitchell, 2019-Ohio-4256.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107242
v. :
TERRANCE MITCHELL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: October 16, 2019
Cuyahoga County Court of Common Pleas
Case No. CR-17-620376-A
Application for Reopening
Motion No. 529800
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Christopher D. Schroeder, Assistant
Prosecuting Attorney, for appellee.
Terrance Mitchell, pro se.
MICHELLE J. SHEEHAN, J.:
Terrance Mitchell has filed a timely App.R. 26(B) application for
reopening. Mitchell is attempting to reopen the appeal rendered in State v. Mitchell,
8th Dist. Cuyahoga No. 107242, 2019-Ohio-1357, which affirmed his sentence for
pandering sexually oriented matter involving a minor, illegal use of a minor in
nudity-oriented material or performance, and possessing criminal tools. We decline
to grant Mitchell’s application for reopening because he fails to establish a claim of
ineffective assistance of appellate counsel nor that he was prejudiced.
I. Standard of Review Applicable to App.R. 26(B) Application for
Reopening
In order to establish a claim of ineffective assistance of appellate
counsel, Mitchell 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).
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.
Moreover, even if Mitchell establishes that an error by his appellate
counsel was professionally unreasonable, Mitchell must further establish that he
was prejudiced; but for the unreasonable error there exists a reasonable probability
that the results of his appeal would have been different. Reasonable probability,
with regard to an application for reopening, is defined as a probability sufficient to
undermine confidence in the outcome of the appeal. State v. May, 8th Dist.
Cuyahoga No. 97354, 2012-Ohio-5504.
II. Effect of Plea of Guilty on App.R. 26(B)
In the case sub judice, Mitchell entered a plea of guilty to the charged
offenses of pandering sexually oriented matter involving a minor, illegal use of a
minor in nudity-oriented material or performance, and possessing criminal tools. A
plea of guilty waives a defendant’s right to challenge his or her conviction on all
potential issues except for jurisdictional issues and the claim that ineffective
assistance of counsel caused the guilty plea to be less than knowing, intelligent, and
voluntary. Montpelier v. Greeno, 25 Ohio St. 3d 170, 495 N.E.2d 581 (1986); State
v. Vihtelic, 8th Dist. Cuyahoga No. 105381, 2017-Ohio-5818; State v. Szidik, 8th
Dist. Cuyahoga No. 95644, 2011-Ohio-4093; State v. Salter, 8th Dist. Cuyahoga No.
82488, 2003-Ohio-5652.
By entering a plea of guilty, Mitchell waived all appealable errors that
might have occurred at trial unless the errors prevented Mitchell from entering a
knowing and voluntary plea. State v. Kelley, 57 Ohio St. 3d 127, 566 N.E.2d 658
(1991); State v. Barnett, 73 Ohio App. 3d 244, 596 N.E.2d 1101 (2d Dist. 1991). Our
review of the plea transcript clearly demonstrates that the trial court meticulously
complied with the mandates of Crim.R. 11 and that Mitchell entered a knowing,
intelligent, and voluntary plea of guilty. Specifically, the trial court informed
Mitchell of the following waiver of rights and potential prison sentences: 1) the
degree of each charged felony offense; 2) the maximum sentence and fine associated
with each charged felony offense; 3) waiver of the right to a jury or bench trial; 4)
waiver of the right that the state must prove guilt beyond a reasonable doubt; 5)
waiver of the right to confront and cross-examine each witness called by the state;
6) Mitchell could not be compelled to testify against himself; 7) the court could
immediately proceed with judgment and imposition of sentence upon Mitchell
entering a plea of guilty; 8) the possibility of consecutive sentences with a maximum
sentence of 121 years; 9) imposition of restitution, fees, and costs; 10) requirement
of registration as a Tier 2 sex offender; 11) mandatory and permissive imposition of
postrelease control; 12) the effects of violation of postrelease control; and 13) the
possibility of a community control sentence. The trial court also inquired as to
whether Mitchell was satisfied with his attorney and whether any threats or
promises had been made to encourage the entry of a guilty plea. Because Mitchell’s
plea was knowingly, intelligently, and voluntarily made, and the claimed errors
raised by Mitchell are not based upon any jurisdictional defects, the raised proposed
assignments of error are waived. We further find that no prejudice can be
demonstrated by Mitchell based upon appellate representation on appeal. State v.
Bates, 8th Dist. Cuyahoga No. 100365, 2015-Ohio-297.
Application for reopening is denied.
MICHELLE J. SHEEHAN, JUDGE
MARY EILEEN KILBANE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR