State v. CvijetinovicState v. Cvijetinovic
{¶ 1} Aleksandar Cvijetinovic has filed an application for reopening pursuant to
{¶ 2} As required by
{¶ 3} The doctrine of res judicata also prevents this court from reopening Cvijetinovic‘s original appeal. Errors of law that were either previously raised or could have been raised through an appeal may be barred from further review vis-a-vis the doсtrine of res judicata. See, generally, State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104. The Supreme Court of Ohio has also established that a claim of ineffective assistance оf appellate counsel may be barred by the doctrine of res judicata unless circumstances render the application of the doctrine unjust. State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204.
{¶ 4} Herein, Cvijetinovic possessed a prior opportunity to raise and argue the claim of ineffective assistancе of appellate counsel upon appeal to the Supreme Court of Ohio. Cvijetinovic, however, failed to file an aрpeal with the Supreme Court of Ohio, with regard to Cuyahoga Appellate Case No. 81534, and has further
{¶ 5} Finаlly, a substantive review of Cvijetinovic‘s brief in support of his application for reopening fails to establish the claim of ineffective assistance of appellate counsel. It is well settled that appellate counsel is not required to raise and argue assignments оf error that are meritless. Jones v. Barnes (1983), 463 U.S. 745, 77 L.Ed.2d 987, 103 S.Ct. 3308. Appellate counsel cannot be considered ineffective for failing to raise every concеivable assignment of error on appeal. Id; State v. Grimm, 73 Ohio St.3d 413, 1995-Ohio-24, 653 N.E.2d 253; State v. Campbell, 69 Ohio St.3d 38, 1994-Ohio-492, 630 N.E.2d 339. Cvijetinovic must establish the prejudice which results from the claimed deficient performance of appellate counsel. Finally, Cvijetinovic must demonstrate that but for the deficient performance of appellate counsel, the result of his appeal would have been different. State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456. Therefore, in order for this court to grant an application for rеopening, Cvijetinovic must establish that “there is a genuine issue as to whether the applicant was deprived of the assistance of cоunsel on appeal.”
In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we held that the two prong analysis found in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct 2052, 80 L.Ed.2d 674, is the appropriate standard to assess a defense request for reopening under
{¶ 6} State v. Spivey, 84 Ohio St.3d 24, 1998-Ohio-704, 701 N.E.2d 696, at 25.
{¶ 7} In support of his claim of ineffective assistance of appellate counsel, Cvijetinovic raises three prоposed assignments of error:
“Defendant was denied due process of law when the court and his attorney promised him that he would be eligible for judicial release after serving five years and defendant relied of counsel‘s and the courts (sic) representations in pleading guilty.”
“Defendant was denied due process of law and the effective assistance of counsel when his attorney failed to question judicial release eligibility with respect to the mandatory Sixteen (16) year sentence imposed or to immediatly seek to have defendant‘s plеas of guilty withdrawn.”
“Defendant was denied due process of law and the effective assistance of counsel when his trial counsel failed tо investigate the search warrants and seek to have the search warrants unsealed to determine whether they were valid or invalid.”
{¶ 8} Cvijetinovic‘s, through his first and second proposed assignments of error, argues that he did not understand the consequences of his plea of guilty and the nаture of the rights being waived. The issue of whether Cvijetinovic entered a voluntary, knowing, and intelligent plea of guilty, as required by
{¶ 9} Cvijetinovic, through his third proposed assignment of error, argues that appellate counsel was ineffective upon appeal as a result of failing to raise on appeal thе issue of “unsealed” search warrants. A plea of guilty effectively waives all appealable errors unless such errors are shown tо preclude the defendant from voluntarily entering a plea pursuant to
{¶ 10} Accordingly, we decline to reopen Cvijetinovic‘s original appeal and deny his application for reopening as made per
Application denied.
Celebrezze, P.J., Concurs Corrigan, J., Concu