STATE OF OHIO, PLAINTIFF-APPELLEE vs. ALEX WULFF, DEFENDANT-APPELLANT
No. 94087
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 4, 2011
[Cite as State v. Wulff, 2011-Ohio-5146.]
JAMES J. SWEENEY, J.
Cuyahoga County Common Pleas Court, Case No. CR-518412, Application for Reopening, Motion No. 444348
Alex Wulff, Pro Se
No.A571-010
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Mary McGrath, Esq.
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} Alex Wulff has filed a timely application for reopening pursuant to
{¶ 3} “In State v. Reed [supra, at 458] we held that the two-prong analysis found in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess a defense request for reopening under
{¶ 4} It is also well settled that appellate counsel is not required to raise and argue assignments of error that are meritless. Jones v. Barnes (1983), 463 U.S. 745, 77 L.Ed.2d 987, 103 S.Ct. 3308. Appellate counsel cannot be considered ineffective for failing to raise every conceivable assignment of error on appeal. Jones v. Barnes, supra;
{¶ 5} In Strickland v. Washington, supra, the United States Supreme Court also stated that a court‘s scrutiny of an attorney‘s work must be deferential. The court further stated that it is too tempting for a defendant/appellant to second-guess his attorney after conviction and appeal and that it would be all to easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Accordingly, “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.” Id. at 689. Finally, the United States Supreme Court has upheld the appellate attorney‘s discretion to decide which issues he or she believes are the most fruitful arguments and the importance of winnowing out weaker arguments on appeal and focusing on one central issue or at most a few key issues. Jones v. Barnes, supra.
{¶ 6} In the case sub judice, Wulff raises three proposed assignments of error in support of his claim of ineffective assistance of appellate counsel. Specifically, Wulff argues that his appellate counsel was ineffective for failing to assign as error the trial court‘s failure to inquire into his competency to enter a plea of guilty, the trial court‘s
{¶ 7} Initially, we find that the plea colloquy, that occurred during the hearing conducted on June 8, 2009, demonstrates that Wulff was lucid when entering his plea of guilty to the offenses of murder, tampering with evidence, and abuse of a corpse. In addition, the competency evaluation of Wulff established that he was able to understand the nature and objectives of the court proceedings and that he was able to assist in his defense. State v. Taylor, Lake App. No. 2002-L-005, 2003-Ohio-6670. It must also be noted that Wulff is not rendered incompetent to stand trial or enter a plea of guilty because he is being treated with medicinal drugs. State v. Borchers, 101 Ohio App.3d 157, 655 N.E.2d 225. Wulff‘s first proposed assignment of error is not well taken and consideration of the issue of competency on appeal would not have resulted in a different outcome.
{¶ 8} Wulff, through his second proposed assignment of error, argues that the trial court failed to advise him of his right to compulsory process. An additional review of the plea hearing of June 8, 2009, demonstrates that the trial court explained the constitutional right of compulsory process in a manner reasonably intelligent to Wulff. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621; State v. Ballard (1981), 66 Ohio St.2d 473, 423 N.E.2d 115. Wulff‘s second proposed assignment of
{¶ 9} Wulff, through his third proposed assignment of error, argues that the trial court erred by imposing a term of five years of postrelease control with regard to the offenses of tampering with evidence and abuse of a corpse. We agree.
{¶ 10}
{¶ 11} Accordingly, we grant the application for reopening in part, reinstate this appeal to the active docket, vacate the sentence of the trial court solely as to the imposition of postrelease control, and remand to the trial court for the proper imposition of postrelease control. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332; State v. Street, Cuyahoga App. No. 85020, 2005-Ohio-1976, reopening granted, 2006-Ohio-21.
It is, therefore, ordered that appellant recover of the appellee his costs herein taxed.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27, of the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
PATRICIA ANN BLACKMON, P.J., and MELODY J. STEWART, J., CONCUR