STATE OF OHIO v. HAKEEN K. MAKIN
No. 104010
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 13, 2017
[Cite as State v. Makin, 2017-Ohio-8569.]
JOURNAL ENTRY AND OPINION; Cuyahoga County Court of Common Pleas Case No. CR-15-594103-A; Application for Reopening Motion No. 509162
Hakeen Makin
Inmate No. A683089
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Hakeen Makin has filed a timely application for reopening pursuant to
A. Standard of Review
{¶2} The appropriate standard to determine whether a defendant has received ineffective assistance of appellate counsel is the two-pronged analysis found in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 10. Applicant “must prove that his counsel [was] deficient for failing to raise the issues he now presents and that there was a reasonable probability of success had he presented those claims on appeal.” Id., quoting State v. Sheppard, 91 Ohio St.3d 329, 330, 744 N.E.2d 770 (2001). Applicant “bears the burden of establishing that there was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of ineffective assistance of counsel on appeal.” State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998).
{¶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.”
{¶4} With this standard in mind, we turn to the arguments raised by Makin.
B. Arguments Not Meritorious
{¶5} Makin raises three proposed assignments of error in support of his application to reopen his direct appeal. Having reviewed the arguments in light of the record, we hold that Makin cannot satisfy either prong of the Strickland test. We must, therefore, deny the application on the merits.
1. Imposition of postrelease control
{¶6} In his first proposed assignment of error, Makin argues that his appellate counsel was ineffective in failing to challenge his sentence as to the imposition of postrelease control. According to Makin, the trial court failed to properly impose separate terms of postrelease control for each conviction, thereby rendering his sentence void. This argument, however, lacks merit.
{¶7} Under
{¶8} The record reflects that the trial court properly notified Makin that he was subject to a mandatory five-year period of postrelease control. Among Makin‘s multiple convictions, he was convicted of trafficking in violation of
{¶9} Because this proposed assignment of error has no merit, appellate counsel cannot be deemed ineffective in refraining from raising it.
2. Fabricated Evidence
{¶10} In his second and third proposed assignments of error, Makin argues that the prosecutor presented “fabricated evidence,” which his trial counsel should have challenged and that his appellate counsel should have raised assignments of error relating to prosecutorial misconduct and ineffective assistance of counsel. Makin argues that the prosecutor lied about the confidential informant being fitted with “two separate devices” as opposed to just one recording device. Makin further contends that the prosecutor coerced the CI to commit perjury as to the recording devices and that the prosecutor introduced a “fabricated” audio-recording. But our review of the record does not support Makin‘s argument.
{¶12} Application denied.
ANITA LASTER MAYS, JUDGE
KATHLEEN ANN KEOUGH, A.J., and PATRICIA ANN BLACKMON, J., CONCUR