STATE OF OHIO v. JAMES WESTLEY
No. 97650
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
RELEASE DATE: April 22, 2013
[Cite as State v. Westley, 2013-Ohio-1654.]
JOURNAL ENTRY AND OPINION; Cuyahoga County Court of Common Pleas, Case No. CR-549221; Application for Reopening, Motion No. 460023
James Westley, pro se
Inmate No. 620-771
Mansfield Correctional Institution
P.O. Box 788
Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kristen Sobieski
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} Appellant, James Westley, has filed an application with the court of appeals tо reopen this court‘s judgment in State v. Westley, 8th Dist. No. 97650, 2012-Ohio-3571, pursuant to
{¶2} Appellant was charged with murder including firearm specifications, having a weaрon while under disability, and carrying a concealed weapon. He pled guilty to involuntary manslaughter and firearm specifications. Appellant filed a pro se motion to withdraw his guilty plea prior to sentencing, which his triаl counsel adopted and which the trial court considered and denied. In his initial appeal, appellant argued that the trial court erred by denying the motion to withdraw his guilty plea because he alleged that he wаs coerced by his trial counsel and his family to enter it. Appellant also argued that he was innocent. The assignment of error was overruled. Appellant is now seeking to reopen the appeal, claiming his aрpellate counsel was ineffective for not raising various issues in an additional assignment of error.
{¶3}
{¶4} The appropriate standard to determine whether a defendant has received ineffective assistance of appellate counsel is the two-pronged analysis fоund 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. Appellant “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 appеal.” State v. Sheppard, 91 Ohio St.3d 329, 330, 744 N.E.2d 770 (2001), citing State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus. Appellant “bears the burden of establishing that there was a ‘genuine issuе’ 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). Appellate counsel is neither required to raise and argue assignments of error that are mеritless, nor is counsel ineffective for not raising every conceivable assignment of error. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); State v. Gumm, 73 Ohio St.3d 413, 653 N.E.2d 253 (1995).
{¶5} Appellant mаintains that his appellate counsel was ineffective for failing to raise a claim of ineffective assistance of trial counsel. Appellant contends that his trial counsel was ineffective in the alleged rеspects that are itemized below:
- failing to adequately investigate the case;
- disregarding information identifying the true offenders;
- withholding the case discovery after numerous requests;
- allowing his speedy trial right to be violated;
- pressuring and coercing him to plead guilty;
- failing to seek withdrawal of his guilty plea; and
failing to inquire into the specifics of how and why he was pressured and cоerced to plead guilty.
{¶6} The principles of res judicata bar appellant from raising any issues that were raised previously or could have been raised previously in an appeal. Were at ¶ 7. Appellant has alrеady alleged, in his initial appeal, that his trial counsel pressured and coerced him into entering the guilty plеa. We found that appellant, in his pro se motion, failed to submit supporting material containing information that defense counsel coerced his guilty plea. Westley, 8th Dist. No. 97650, 2012-Ohio-3571, ¶ 8, 11. Appellant‘s claims identified in items 5 and 7 above are barred by res judicata.
{¶7} Appellant contends in item 6 that his trial counsel failed to seek withdrawal of his guilty plea. The record demonstrates that trial counsel adopted appellant‘s pro se motion to withdraw his guilty plea. The court held a full and impartial hearing on this motion where appellant‘s trial counsel advocated in support of the motion. Id. at ¶ 11. Accordingly, appellant‘s claims with regard to item 6 are not supported by thе record and could not have served as a legitimate basis for an ineffective assistance of counsel claim on appeal.
{¶8} The record does not support appellant‘s contention that his sрeedy trial rights were violated. Appellant concedes that the record contains multiple continuances at appellant‘s request that tolled the speedy trial time. With these tolling events, appellant‘s сase was resolved well within the speedy trial limits. Appellant bases his speedy trial violation claim on his cоntention that he did not authorize these continuances and a general assertion that they were “unnecessary.” We note that ongoing discovery
{¶9} In a similar vein, appellant assеrts that his counsel failed to adequately investigate the case, disregarded the alleged true offenders, and withheld discovery from him. There is nothing in this record that would support any of these contentions.
{¶10} To the extent that appellant‘s arguments rely upon matters outside the trial court record, it would have been inappropriate for appellate counsel to have assigned errors on those grounds. State v. Budreaux, 8th Dist. No. 63698, 2003-Ohio-4335, ¶ 8, citing State v. McNeal, 8th Dist. No. 77977, 2002-Ohio-4764, ¶ 12 (issues based on evidence outside the trial record should be raised in postconviction proceedings). The alleged instancеs of ineffective assistance of trial counsel set forth in items 1-4 above rely on information that is outside the trial record and therefore could not form the basis of an error on a direct appeal. Appellate counsel was not ineffective for failing to raise those meritless claims.
{¶11} For all of the foregoing rеasons, appellant has not met the standard for reopening his appeal. The application to reopen is denied.
SEAN C. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
KENNETH A. ROCCO, J., CONCUR