State v. PhillipsState v. Phillips
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: August 14, 2020
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Brandon Piteo, Assistant Prosecuting Attorney, for appellee.
Dionte Phillips, pro se.
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Dionte Phillips has filed a timely App.R. 26(B) application for reopening. Phillips is attempting to reopen the appellate judgment rendered in State v. Phillips, 8th Dist. Cuyahoga No. 108423, 2020-Ohio-800, that affirmed his
I. STANDARD OF REVIEW APPLICABLE TO APP.R. 26(B) APPLICATION FOR REOPENING
{¶ 2} In order to establish a claim of ineffective assistance of appellate counsel under
{¶ 3} In Strickland, the United States Supreme Court held that a court‘s scrutiny of an attorney‘s work must be highly deferential. The court further stated that it is all too tempting for a defendant to second-guess his attorney after conviction and that it would be too easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Thus, a court must indulge in 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. Strickland.
{¶ 4} Moreover, even if Phillips establishes that an error by his appellate counsel was professionally unreasonable, Phillips must further demonstrate that he was prejudiced; but for the unreasonable error there exists a reasonable probability
II. EFFECT OF PLEA OF GUILTY ON APP.R. 26(B)
{¶ 5} A plea of guilty waives a defendant‘s right to challenge his or her conviction on all potential issues except for jurisdictional issues and the claim that ineffective assistance of counsel caused the guilty plea to be less than knowing, intelligent, and voluntary. Montpelier v. Greeno, 25 Ohio St.3d 170, 495 N.E.2d 581 (1986); State v. Vihtelic, 8th Dist. Cuyahoga No. 105381, 2017-Ohio-5818; State v. Szidik, 8th Dist. Cuyahoga No. 95644, 2011-Ohio-4093; State v. Salter, 8th Dist. Cuyahoga No. 82488, 2003-Ohio-5652. In State v. Phillips, Cuyahoga C.P. No. CR-18-632326-A, Phillips entered a plea of guilty to the offense of felonious assault. By entering a plea of guilty, Phillips waived all appealable errors that might have occurred at trial unless the errors prevented Phillips from entering a knowing and voluntary plea. Also, Phillips does not raise any jurisdictional issues in his application for reopening. State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991); State v. Barnett, 73 Ohio App.3d 244, 596 N.E.2d 1101 (2d Dist. 1991).
{¶ 6} Once again, our review of the plea transcript clearly demonstrates that the trial court meticulously complied with the mandates of
{¶ 7} Because Phillips‘s plea was knowingly, intelligently, and voluntarily made, and the claimed errors raised by Phillips are not based upon any jurisdictional defects, the raised proposed assignment of error is waived. We further find that no prejudice can be demonstrated by Phillips based upon appellate representation on appeal. State v. Bates, 8th Dist. Cuyahoga Nos. 97631, 97632, 97633, and 97634, 2015-Ohio-4176.
{¶ 8} Finally, Phillips has not supported the application with an affidavit averring the grounds for reopening.
{¶ 9} Application for reopening is denied.
KATHLEEN ANN KEOUGH, JUDGE
EILEEN T. GALLAGHER, A.J., and LARRY A. JONES, SR., J., CONCUR