State v. StefanState v. Stefan
JUDGMENT: APPLICATION DENIED
Gregory P. Stefan, pro se
Inmate No. A690081
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, Ohio 44030
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Amy Venesile
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} On April 25, 2018, the applicant, Grеgory Stefan, pursuant to
{¶2} In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel‘s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.
{¶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 aftеr 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 оmission 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
{¶4} Specifically, in regard to claims of ineffective assistance of appellate counsel, the United States Supreme Cоurt has upheld the appellate advocate‘s prerogative to decide strategy and tactics by selecting what he thinks are the most promising arguments out of all possible contentions. The court noted: “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Indеed, including weaker arguments might lessen the impact of the stronger ones. Accordingly, the court ruled that judges should not second-guess reasonable professional judgments and impose on appellate counsel the duty to raise every “colorable” issue. Such rules would disserve the goal of vigorous and effective advocacy. The Supreme Court of Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.
{¶5} Moreover, even if a petitioner establishes thаt an error by his lawyer was professionally unreasonable under all the circumstances of the case, the petitioner must further establish prejudice: but for the unreasonable error there is a reasonable probability that the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court need not determine whether counsel‘s performance was deficient before examining prejudice suffered by the defendant as a result of alleged deficiencies.
{¶6} Appellate review is strictly limited to the record. The Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97 (1898). Thus, “a reviewing court cannot
{¶7} The facts presented at the guilty plea and sentencing hearings showed that Stefan hаd an 18-year interest in child pornography. This interest had advanced to the point that he was seeking to meet underage girls through the internet. The Ohio Internеt Crimes against Children Task Force in a sex-related chat room set up a fictional profile of a 29-year-old mother with a 14-year-old daughter to intercept predators, and the task force intercepted Stefan. On this website, Stefan engaged in sexually explicit conversations with what he believed was a 14-year-old girl and arranged to meet with her to have sex. The task force three times confirmed that he traveled to different locatiоns to hook up with her. On the third time, the task force arrested him. After his arrest and advisement of his Miranda rights, Stefan admitted that he had traveled to have sex with a 14-year-old girl. The execution of a search warrant revealed child pornography on CDs, DVDs, and other electronic devices.
{¶8} The grand jury indicted him оn one count of importuning, one count of attempted unlawful sexual conduct with a minor, one count of possessing criminal tools, five counts of sеcond-degree pandering sexually oriented matter involving a minor, and five counts of fourth-degree pandering sexually oriented matter involving a minor. Pursuаnt to a plea
{¶9} Stefan now argues that his appellate counsel should have argued ineffective assistance of trial counsel for not arguing that the stаte abrogated the plea bargain. Stefan maintains that the initial agreement was that if he gave the passwords to all his electronic devices as requested by the state, and if none of those devices were found to contain any child pornography, then the state would nolle the five second-degree counts of pandering. Instead, it nolled the five fourth-degree counts, and Stefan complains that his trial counsel did not object.
{¶10} However, a thorough review of the entire record shows no indication that the state had ever agreed to nolle the second-degree felonies. Thаt includes Stefan stating that he was satisfied with his trial counsel (tr. 31) and admitting that no threats of promises were made in securing the plea (tr. 32). Without some record support, appellate counsel properly rejected this argument.
{¶11} Stefan‘s second argument is that his trial counsel was ineffective for failing to object to the trial court sentencing him to a term of imprisonment contrary to the statute and where its findings were not supported by the record pursuаnt to
ANITA LASTER MAYS, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
TIM McCORMACK, J., CONCUR