2017 Ohio 8569
Ohio Ct. App.2017Background
- Defendant Hakeen Makin filed an App.R. 26(B) application to reopen his direct appeal challenging convictions and sentence for multiple drug offenses.
- He contended appellate counsel was ineffective for not raising three issues: (1) improper imposition of postrelease control, (2) prosecution’s alleged fabrication of evidence regarding recording devices, and (3) related prosecutorial misconduct/ineffective assistance claims.
- Trial court had imposed a single five-year mandatory postrelease-control term, based on a first-degree-felony trafficking conviction.
- The record included multiple audio/video exhibits of controlled buys from March–July 2014; authenticity and admissibility of recordings were not challenged at trial.
- The court evaluated Makin’s application under the Strickland two-prong ineffective-assistance standard and sought a genuine, colorable claim of appellate counsel deficiency with a reasonable probability of success on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether postrelease control was improperly imposed | Makin: trial court failed to impose separate PRC terms for each conviction, rendering sentence void | State: single PRC term is proper; statute/parole board sets concurrent period | Court: PRC correctly imposed as single five-year term; no merit to claim; appellate counsel not ineffective |
| Whether prosecutor fabricated evidence or recordings | Makin: prosecutor lied about CI wearing two devices, coerced perjury, and introduced a fabricated recording | State: recordings and CI testimony were in the record and unchallenged at trial; no record basis for fabrication claim | Court: record contains no support for fabrication; claim baseless; appellate counsel not ineffective |
| Whether appellate counsel was ineffective for not raising above issues | Makin: counsel deficient for failing to raise PRC and fabrication/prosecutorial-misconduct claims on appeal | State: issues lack merit or record support; no reasonable probability of success on appeal | Court: Under Strickland, Makin failed both prongs; application to reopen denied |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-pronged ineffective assistance of counsel test and presumption of reasonable professional assistance)
- State v. Were, 896 N.E.2d 699 (Ohio 2008) (applies Strickland standard to appellate counsel claims)
- State v. Sheppard, 744 N.E.2d 770 (Ohio 2001) (discusses appellate counsel deficiency requirement)
- State v. Spivey, 701 N.E.2d 696 (Ohio 1998) (applicant bears burden to show a colorable ineffective-assistance claim)