State v. May

[Cite as State v. May, 2012-Ohio-5504.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97354
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DENNIS F. MAY
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No.CR-547913
Application for Reopening
Motion No. 457330
RELEASE DATE: November 28, 2012
APPELLANT
Dennis F. May, Pro Se
No. 604-524
Grafton Correctional Institution
2500 S. Avon-Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶1} On August 1, 2012, the applicant, Dennis May, pursuant to App.R. 26(B),
applied to reopen this court’s judgment in State v. May, 8th Dist. No. 97354,
2012-Ohio-2766, in which this court affirmed May’s convictions and sentences for five
counts of sexual battery.1 May now claims that his appellate counsel was ineffective for
not arguing the following: (1) the indictment was duplicitous because it did not provide
enough information in each count to allow May to defend against double jeopardy in
future prosecutions; (2) the guilty plea was not knowingly, intelligently, or voluntarily
made; (3) the sentence was contrary to law; (4) there was a disparity of treatment among
this offender and other offenders similarly situated; (5) trial counsel was ineffective; and
(6) May’s speedy trial rights were violated. On October 2, 2012, the state of Ohio filed
its brief in opposition. For the following reasons, this court denies the application.
{¶2} In order to establish a claim of ineffective assistance of appellate counsel,
the applicant must demonstrate that counsel’s performance was deficient and that the
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
1
The grand jury indicted May on 12 counts of kidnapping with sexual motivation and
sexually violent predator specifications, 12 counts of rape with sexually violent predator
specifications, and 12 counts of gross sexual imposition with sexually violent predator specifications.
Pursuant to a plea bargain, the state amended five of the rape charges to sexual battery and nolled the
sexually violent predator specifications. May pleaded guilty to those five charges, and the state nolled
the remaining counts. The trial court sentenced May to a total of six years on the first three sexual
battery counts and five years community control on the other two counts.
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.
{¶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} Specifically, in regard to claims of ineffective assistance of appellate
counsel, the United States Supreme Court has upheld the appellate advocate’s prerogative
to decide strategy and tactics by selecting what he thinks are the most promising
arguments out of all possible contentions. The Court noted: “Experienced advocates
since time beyond memory have emphasized the importance of winnowing out weaker
arguments on appeal and focusing on one central issue if possible, or at most on a few key
issues.” Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
Indeed, including weaker arguments might lessen the impact of the stronger ones.
Accordingly, the Court ruled that judges should not second-guess reasonable professional
judgments and impose on appellate counsel the duty to raise every “colorable” issue.
Such rules would disserve the goal of vigorous and effective advocacy. The Supreme
Court of Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172,
1996-Ohio-366, 672 N.E.2d 638.
{¶5} Moreover, even if a petitioner establishes that an error by his lawyer was
professionally unreasonable under all the circumstances of the case, the petitioner must
further establish prejudice: but for the unreasonable error there is a reasonable probability
that the results of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome. A court need not
determine whether counsel’s performance was deficient before examining prejudice
suffered by the defendant as a result of alleged deficiencies.
{¶6} In the present case, May has not established a genuine issue as to whether
he was deprived of the effective assistance of appellate counsel. App.R. 26(B)(5).
{¶7} May’s first argument that the indictment did not provide enough
information in each count to allow him double jeopardy protection is ill-founded. A plea
of guilty waives a defendant’s right to challenge his or her conviction on all but the most
fundamental premises for the conviction, e.g., subject matter jurisdiction. Montpelier v.
Greeno, 25 Ohio St.3d 170, 495 N.E.2d 581 (1986). This applies to any alleged defects
in the indictment. State v. Szidik, 8th Dist. No. 95644, 2011-Ohio-4093. Similarly the
guilty plea waived May’s right to challenge his convictions on speedy trial grounds.
State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991).
{¶8} May’s second argument is that his plea was not knowingly, intelligently, or
voluntarily made. The record does not support this argument. It shows that the trial
judge fully complied with Crim.R. 11 in accepting May’s guilty plea, including all the
rights waived. The trial judge explained the possible penalties for sexual battery,
postrelease control, and the reporting requirements as a Tier III sex offender. She also
noted that as charged May was facing a potential life sentence. She confirmed that May
had discussed this matter with his counsel and that he was satisfied with the
representation. She repeatedly asked him if he had any questions, and May replied,
“No.” Finally, in accepting the plea for sexual battery she detailed the elements of the
offense using the words of R.C. 2907.03.
{¶9} Between the time of the plea hearing and sentencing, May filed a motion to
withdraw the guilty plea on the grounds that he was not fully aware of the consequences
of his plea, and that he did not understand his rights, did not have the opportunity to
review discovery, and was too afraid to ask questions. He also obtained new counsel.
However, at the start of the sentencing hearing, new counsel withdrew the motion.
Furthermore, when a question arose during the sentencing hearing as to whether May
exactly understood his plea, the judge completely reviewed the plea hearing and all of the
answers May made. The judge then asked May if he wanted to withdraw his plea, and
May said, “No, your Honor.” Then the judge opined that she was completely
unconvinced that May didn’t understand what was going on. Given the state of the
record, it is understandable that appellate counsel in the exercise of professional judgment
would decline to argue this point.
{¶10} May merely lists the other three arguments, that the sentence was contrary
to law, that he suffered disparate treatment compared to similarly situated offenders, and
that his trial counsel was ineffective. He does not specify how his sentence was
contrary to law. The court notes that the sentences come within the scope of permissible
sentences for third degree felonies and that appellate counsel argued the propriety of
consecutive sentences. May provides this court with no comparisons to show that he
was treated more severely than similarly situated offenders. Nor does he specify how
his trial counsel was ineffective or even which lawyer was ineffective. Moreover, a
guilty plea generally waives a claim of ineffective assistance of counsel. State v.
Character, 8th Dist. No. 93765, 2011-Ohio-4128. The failure to support arguments
renders them stillborn. App.R. 12(A)(2).
{¶11} Accordingly, the court denies the application to reopen.
JAMES J. SWEENEY, JUDGE
PATRICIA ANN BLACKMON, A.J., and
LARRY A. JONES, SR., J., CONCUR