STATE OF OHIO v. JAMES FREEMAN
No. 95511
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 3, 2011
2011-Ohio-5151
Cuyahoga County Common Pleas Court Case No. CR-353508, Application for Reopening, Motion No. 446563
JUDGMENT: APPLICATION DENIED
James Freeman, pro se
#590410
NCCI
P. O. Box 1812
Marion, OH 43301
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: Pinkey S. Carr
Asst. County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} James Freeman has filed a timely application for reopening pursuant to
{¶ 2} In order to establish a claim of ineffective assistance of appellate counsel, Freeman must demonstrate that appellate counsel‘s performance was deficient and that, but for his deficient performance, the result of his appeal would have been different.
{¶ 3} “In State v. Reed [supra, at 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
{¶ 4} It is also well settled that appellate counsel is not required to raise and argue assignments of error that are meritless. Jones v. Barnes (1983), 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987. Appellate counsel cannot be considered ineffective for failing to raise every conceivable assignment of error on appeal. Jones v. Barnes, supra; 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.
{¶ 5} In Strickland, the United States Supreme Court also stated that a court‘s scrutiny of an attorney‘s work must be deferential. The court further stated that it is too tempting for a defendant/appellant to second-guess his attorney after conviction and
{¶ 6} In the case sub judice, Freeman raises three proposed assignments of error in support of his claim of ineffective assistance of appellate counsel:
{¶ 7} “(1) “The penalties and offenses assessed within this action, should have at least resulted in some of the offenses of similar import being merged into one sentence, while preserving the convictions.”
{¶ 8} “(2) “The Appellate Counsel failed to adequately present a substantive argument of how its constitutional to be convicted of both rape and gross sexual imposition.”
{¶ 9} “(3) “Appellate counsel failed to attack the veracity of the severity of such an argument and assignment of error as manifest weight of the evidence and is demonstrative of a failure to vigorously represent the appellant.”
{¶ 11} In State v. Kelly (Nov. 18, 1999), Cuyahoga App. No. 74912, reopening disallowed (June 21, 2000), Motion No. 312367, this court established that the mere recitation of assignments of error is not sufficient to meet the burden to prove that applicant‘s appellate counsel was deficient for failing to raise the issues he now presents or that there was a reasonable probability that he would have been successful if the present issues were considered in the original appeal. State v. Gaughan, Cuyahoga App. No. 90523, 2009-Ohio-955, reopening disallowed, 2009-Ohio-2702, Motion No. 421223. See, also, State v. Mosely, Cuyahoga App. No. 79463, 2002-Ohio-1101, reopening disallowed, 2005-Ohio-4137, Motion No. 365082; State v. Dial, Cuyahoga App. No. 83847, 2004-Ohio-5860, reopening disallowed, 2007-Ohio-2781, Motion No. 392410; State v. Ogletree, Cuyahoga App. No. 86500, 2006-Ohio-2320, reopening disallowed, 2006-Ohio-5592, Motion No. 387497; State v. Huber, Cuyahoga App. No. 80616, 2002-Ohio-5839, reopening disallowed, 2004-Ohio-3951, Motion No. 356284. The failure of Freeman to present any argument with regard to his three proposed assignments of error results in the failure to demonstrate that his counsel was deficient and that he was prejudiced by the alleged deficiency.
{¶ 12} Accordingly, the application for reopening is denied.
KATHLEEN ANN KEOUGH, JUDGE
COLLEEN CONWAY COONEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR