State v. Newton

[Cite as State v. Newton, 2020-Ohio-376.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107200
v. :
ERIC S. NEWTON, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: January 31, 2020
Cuyahoga County Court of Common Pleas
Case No. CR-17-620243-A
Application for Reopening
Motion No. 534033
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mary M. Frey, Assistant Prosecuting
Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Noelle A. Powell, Assistant Public Defender, for appellant.
MICHELLE J. SHEEHAN, J.:
Applicant, Eric S. Newton, Jr., seeks to reopen his appeal, State v.
Newton, 8th Dist. Cuyahoga No. 107200, 2019-Ohio-3653 (“Newton I”). Newton
claims appellate counsel was ineffective because, within the assignment of error
challenging the trial court’s denial of the motion to suppress, counsel failed to raise
the validity of a search warrant affidavit requesting to search Newton’s cell phone.
The same suppression issue was argued and overruled in a companion appeal, State
v. Newton, 8th Dist. Cuyahoga No. 107195, 2019-Ohio-3566 (“Newton II”).
Therefore, the application to reopen is denied.
I. Procedural History
A thorough recitation of the background of the present case is set
forth in Newton I. A summary of those facts and the procedural history of the
present application follows.
Newton was involved in a traffic stop where police officers recovered
evidence pertaining to incidents of breaking and entering commercial buildings. He
was charged in a 47-count indictment in Cuyahoga C.P. No. CR-16-605078-B.
Following his arrest, police officers obtained a search warrant for a cell phone
belonging to Newton. From a search of the phone, police discovered evidence of the
exchange of child pornography. Evidence recovered from the phone and other
subsequent searches of Newton’s computer equipment and digital resources
resulted in a 31-count indictment in Cuyahoga C.P. No. CR-17-620243-A.
During the lower court cases, Newton filed a motion to suppress in
the breaking and entering case and incorporated it into the child pornography case.
The motion challenged the initial stop of the vehicle as well as the affidavit used to
obtain the warrant to search Newton’s cell phone because Newton alleged the
affidavit contained materially false statements. The second issue is commonly
referred to as a Franks issue, so named because of the seminal case of Franks v.
Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). The trial court denied
the suppression motion finding that the search of the vehicle and cell phone were
proper. (Tr. 147-148.) Newton was subsequently convicted of multiple counts in the
breaking and entering case and the child pornography case.
Newton filed separate notices of appeal from each case. Those
appeals were treated as companion cases — briefed, argued, and decided separately
by the same panel of judges. In Newton I, the child pornography case, Newton
challenged the denial of his motion to suppress, arguing: “The trial court erred when
it overruled the defendant-appellant’s motion to suppress where the arresting
officer lacked probable cause and specific, articulable facts to justify an investigatory
stop.” Newton I at ¶ 6. In the appeal from the breaking and entering case, Newton
argued: “The trial court erred when it overruled Eric Newton’s Motion to Suppress
when, one, the initial stop was improper and, two, the warrant affidavit used to
search the contents of Mr. Newton’s cell phone contained false information.”
Newton II at ¶ 25. This court rejected both arguments and affirmed Newton’s
convictions on September 5, 2019 (Newton II) and September 12, 2019 (Newton I).
On December 2, 2019, Newton timely filed an application for
reopening pursuant to App.R. 26(B) to reopen the appeal in Newton I. Newton did
not specifically set forth any proposed assignments of error, but argued that
appellate counsel was ineffective for failing to address the legitimacy of the warrant
affidavit in the assignment of error dealing with the denial of the motion to suppress.
The state timely filed a brief in opposition pointing out that this court addressed the
validity of the warrant in both appeals even though it was not raised in the
assignment of error in Newton I.
II. Law and Analysis
App.R. 26(B) provides a limited means of asserting a claim of
ineffective assistance of appellate counsel. The application shall be granted if “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). The Supreme Court of Ohio has held that
the two-pronged analysis found in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), is the appropriate standard in assessing whether
an applicant has raised a “genuine issue” as to the effectiveness of appellate counsel
in a request to reopen an appeal per App.R. 26(B)(5). State v. Myers, 102 Ohio St. 3d
318, 2004-Ohio-3075, 810 N.E.2d 436, ¶ 8. Pursuant to Strickland, Newman bears
the burden of showing “that his counsel [was] 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.” State v.
Spivey, 84 Ohio St. 3d 24, 24, 701 N.E.2d 696 (1998).
As stated above, under the Strickland standard, a successful claim of
ineffective assistance of counsel turns, in part, on whether there is a reasonable
probability of success. Here, there is no such probability because this court
addressed whether the search warrant affidavit was defective and whether the
search of Newton’s cell phone was improper. These are the same arguments Newton
now advances.
In the breaking and entering appeal, Newton II, Newton argued that
“the trial court erred when it overruled his motion to suppress because the initial
stop was improper and the warrant affidavit used to search his cell phone contained
false information.” Newton II at ¶ 27. This court analyzed the warrant affidavit used
to secure the search warrant for the cell phone. Id. at ¶ 34-38. This court rejected
the argument that the search of the phone was improper. Id. at ¶ 38. Specifically,
we found that the statement attributing ownership of the phone to a different
individual did not invalidate the affidavit. Id. at ¶ 35-37. We went on to find:
“Because of the circumstances in which the phones were obtained, probable cause
existed to search the phones.” Id. at ¶ 37. This analysis was specifically incorporated
into Newton I: “For purposes of this appeal, we adopt the analysis and conclusion
made in the companion appeal regarding Newton’s motion to suppress and
incorporate the same in this appeal.” Newton I at ¶ 29.
All of Newton’s arguments in his application go to the first prong of
the Strickland analysis — whether counsel’s performance was deficient. He does
not address the second prong of the Strickland analysis — a showing that there is a
reasonable probability of a different outcome — in light of this court overruling the
same arguments in Newton II. In his application for reopening, Newton argues that
the search warrant affidavit used to obtain a search warrant from his cell phone
contained false information and the warrant affidavit did not demonstrate probable
cause. Although appellate counsel did not raise the precise issues argued in the
application for reopening, they were fully considered in the companion appeal and
incorporated into Newton I. Newton acknowledges that the arguments were already
addressed by this court. (Application for reopening at 3.) Therefore, whether the
issues were raised by appellate counsel in Newton I is immaterial because those
issues were addressed, and there is no probability of a different outcome. This does
not present a genuine issue of ineffective assistance of appellate counsel.
The validity of the search warrant affidavit was fully briefed and
considered by this panel and resolved contrary to Newton’s position. Therefore, the
application for reopening is denied.
Application denied.
________________________________
MICHELLE J. SHEEHAN, JUDGE
ANITA LASTER MAYS, P.J., and
RAYMOND C. HEADEN, J., CONCUR