Case Information
*1
[Cite as
State v. Vanderhorst
,
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 97242 STATE OF OHIO PLAINTIFF-APPELLEE vs.
QUENTIN VANDERHORST DEFENDANT-APPELLANT JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas Case No. CR-540773 Application for Reopening Motion No. 458684 RELEASE DATE: April 29, 2013
ATTORNEYS FOR APPELLANT
Timothy Young
State Public Defender
Francisco E. Luttecke
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEES
Timothy J. McGinty
Cuyahoga County Prosecutor
Mark J. Mahoney
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1}
Quentin Vanderhorst has filed a timely application for reopening pursuant
to App.R. 26(B). Vanderhorst is attempting to reopen the appellate judgment that was
rendered in
State v. Vanderhorst
, 8th Dist. No. 97242,
{¶2}
In order to establish a claim of ineffective assistance of appellate counsel,
Vanderhorst must demonstrate that appellate counsel’s performance was deficient and
that, but for the deficient performance, the result of his appeal would have been different.
State v. Reed
, 74 Ohio St.3d 534,
Supreme Court of Ohio held that:
Moreover, to justify reopening his appeal, [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
,
Strickland
[
v. Washington
] charges us to “appl[y] a heavy measure of
deference to counsel’s judgments,” 466 U.S. [668] at 691,
Smith at ¶ 7-8. In addition, the Supreme Court of Ohio in Spivey held that:
In
State v. Reed
(1996),
Id .
{¶5}
It is also well settled that appellate counsel is not required to raise and argue
assignments of error that are meritless.
Jones
at 752. Appellate counsel cannot be
considered ineffective for failing to raise every conceivable assignment of error on
appeal.
Id.
;
State v. Grimm
,
scrutiny of an attorney’s work must be deferential. The court further stated that it is too tempting for a appellant to second-guess his attorney after conviction and appeal and that it would be all too easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Accordingly, “a court *5 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.” Id. at 689. Finally, the United States Supreme Court has firmly established that appellate counsel possess the sound discretion to decide which issues are the most fruitful arguments on appeal. Appellate counsel possesses the sound discretion to winnow out weaker arguments on appeal and to focus on one central issue or at most a few key issues. Jones at 752.
{¶7} In support of his claim of ineffective assistance of appellate counsel, Anderson raises one proposed assignments of error:
The trial court erred when it imposed consecutive sentences for gun specifications that were committed as part of the same act or transaction under R.C. 2929.14(B)(1)(b), or alternatively, are allied offenses of similar import under R.C. 2941.25 (Tr. 908-910). Vanderhorst, though his sole proposed assignment of error, argues that the
trial court erred by sentencing him to multiple consecutive three-year terms of
incarceration for firearm specifications. Specifically, Vanderhorst argues that the
three-year firearm specifications should have been merged for purposes of sentencing
because R.C. 2929.14(B)(1)(g), formerly R.C. 2929.14(D)(1)(g), does not mandate the
imposition of consecutive sentences for gun specifications. Vanderhorst’s argument
lacks merit.
This court, in
State v. Glenn
, 8th Dist. No. 97314,
R.C. 2929.14(D)(1)(b), as it existed at the time of sentencing, prohibited a *6 trial court from imposing more than one prison term for multiple firearm specifications if the specifications were committed as part of the same act or transaction. However, R.C. 2929.14(D)(1)(g) provided an exception for certain felonies including felonious assault and aggravated robbery. R.C. 2929.14(D)(1)(g) stated: * * *.
The sentencing entry states that [defendant] was found guilty of four counts
of felonious assault (Counts 4, 5, 11, and 12) and two counts of aggravated
robbery (Counts 6 and 7). All of these charges included one- and
three-year firearm specifications. Under R.C. 2929.14(D)(1)(g), the court
was required to impose prison terms for the two most serious firearm
specifications * * * and had discretion to impose a sentence for the third
firearm specification.
State v. Worth
, 10th Dist. No. 10AP-1125,
Id . at ¶ 31. In addition, the 12th District Court of Appeals, in State v. Israel , 12th Dist.
No. CA2011-11-115,
[Defendant] argues that because he committed his crimes as part of a single
criminal objective, mainly to flee from the police, his sentences should be
run concurrently. As support, [defendant] cites several cases in which courts
analyze whether crimes were committed as part of a single transaction, and
then hold that sentences imposed for firearm specifications must run
concurrently if committed as part of a single criminal objective.
See
,
e.g
.,
State v. Moore
, 161 Ohio App.3d 778,
[Defendant] further argues that the case law he cites is controlling because
the statute does not address whether the trial court is required to order the
*7
sentences consecutive or concurrent. However, we disagree and find that
pursuant
to R.C. 2929.14(B)(1)(g), sentences for multiple gun
specifications should be run consecutive to each other.
See Glenn
, 8th Dist.
No. 97314,
While the General Assembly did not include the word “consecutive” in R.C. 2929.14(B)(1)(g), it nonetheless carved out an exception to the general rule that a trial court may not impose multiple firearm specifications for crimes committed within a single transaction. The mandatory language of the statute (“the court shall impose”) also indicates the General Assembly’s intention that the defendant serve multiple sentences for firearm specifications associated with the enumerated crimes, such as murder or felonious assault. Had the Legislature intended a per se rule that sentences for firearm specifications must be served concurrent with one another, it could have stated as much. Or, the Legislature could have chosen not to codify R.C. 2929.14(B)(1)(g), which serves as an exception to the rule that multiple firearm specifications must be merged for purposes of sentencing when the predicate offenses were committed as a single criminal transaction.
[Defendant] did not argue that the trial court abused its discretion in ordering the third firearm specification as set forth in R.C. 2929.14(B)(1)(g), we nonetheless find that the trial court did not abuse its discretion in ordering the additional firearm specification in addition to the other two required by statute. The trial court took into consideration the fact that [defendant] had a lengthy criminal past, and that his actions during the police chase caused the death of [victim] and placed countless other officers and civilians in danger. The fact that [defendant] had a gun on his person during the chase only heightened the potential danger. The trial court’s decision to impose the additional firearm specification was not unreasonable, arbitrary, or unconscionable.
Id.
at ¶ 71;
see also State v. Savage
, 7th Dist. No. 11-MA-163,
prejudiced by the conduct of appellate counsel on appeal. The trial court was required *8 to impose multiple and consecutive three-year terms of incarceration upon Vanderhorst. The fact that some of the offenses were allied offenses of similar import did not obviate the multiple and consecutive sentencing requirements of R.C. 2929.14(B)(1)(g), formerly R.C. 2929.14(D)(1)(g). Thus, appellate counsel was not required to raise the issue of the need to merge the firearm specifications on appeal, and appellate counsel was not ineffective upon appeal. Application for reopening is denied.
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE., JR., P.J., and
TIM McCORMACK, J., CONCUR