Case Information
*1
[Cite as
State v. Collier
,
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95572
STATE OF OHIO
PLAINTIFF-APPELLEE vs.
DOUGLAS COLLIER
DEFENDANT-APPELLANT JUDGMENT:
APPLICATION DENIED Cuyahoga County Common Pleas Court Case No. CR-534548
Application for Reopening
Motion No. 447247
RELEASE DATE: November 30, 2011
FOR APPELLANT
Douglas Collier, pro se
Inmate No. 590-984
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.: Douglas Collier has filed a timely application for reopening pursuant to
App.R. 26(B). Collier is attempting to reopen the appellate judgment rendered in
State v.
Collier
, Cuyahoga App. No. 95572,
Collier must demonstrate that appellate counsel’s performance was deficient and that, but
*3
for his deficient performance, the result of his appeal would have been different.
State v.
Reed
, 74 Ohio St.3d 534,
{¶ 3}
“In
State v. Reed
[supra, at 535] we held that the two-prong analysis found
in
Strickland v. Washington
(1984),
assignments of error that are meritless.
Jones v. Barnes
(1983),
scrutiny of an attorney’s work must be deferential. The court further stated that it is too *4 tempting for a defendant/appellant to second-guess his attorney after conviction and appeal and that it would be all to easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Accordingly, “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.” Id. at 689. Finally, the United States Supreme Court has firmly established that appellate counsel possesses the discretion to decide which issues are of greatest importance and that appellate counsel must be allowed to winnow out weaker arguments on appeal while focusing on one central issue or, at most, a few key issues. Jones v. Barnes , supra.
{¶ 6} In the case sub judice, Collier raises two proposed assignments of error in support of his claim of ineffective assistance of appellate counsel: “Trial counsel provided ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Ohio Constitution for failing move to suppress or object to evidence having nothing to do with the crimes charge, which permitted the state to improperly tar the appellant as a degenerate and prejudice his lifestyle and character during the pivotal sentencing phase of proceedings.” “Appellant’s counsel provided ineffective assistance of counsel in violation
of the Sixth Amendment to the United States Constitution and Article 1, Section 10 of the
*5
Ohio Constitution for failing to request a delay from this honorable court in light of the
recent decision in House Bill 86 that re-instates the language in ORC § 292914(E).”
Through his first proposed assignment of error, Collier argues that he was
prejudiced by appellate counsel’s failure to argue on appeal that he was prejudiced by
trial counsel’s omission to file “a motion to suppress the evidence unassociated (sic) with
the crimes charged.” Appellate counsel, however, was not permitted to raise on appeal
the failure to file a motion to suppress because Collier entered a plea of guilty to the
offenses of pandering sexually oriented matter involving a minor, importuning, and
possessing criminal tools. A plea of guilty waives the right to challenge a conviction on
the ground that a motion to suppress should have been granted and constitutes a waiver of
alleged errors by the trial court in not suppressing evidence.
State v. Elliot
(1993), 86
Ohio App.3d 792, 621 N.E.2d 1272;
State v. Bogan
, Cuyahoga App. No. 84468,
appellate counsel was ineffective on appeal by failing to anticipate a change in the law that potentially affected the sentence imposed by the trial court. Specifically, Collier argues that appellate counsel should have sought a delay of consideration of his appeal so that the change in R.C. 2929.14(E), with regard to the imposition of consecutive sentences of incarceration, would have resulted in a reversal of the consecutive sentence of incarceration imposed by the trial court. Appellate counsel is not ineffective for failing to anticipate future changes
in the law and argue such changes on appeal.
State v. Williams
(1991), 74 Ohio App.3d
686, 600 N.E.2d 298;
State v. Sharp
, Cuyahoga App. No. 87709,
FRANK D. CELEBREZZE, JR., JUDGE
MARY EILEEN KILBANE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR