Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State of Ohio v. Brian Waltzer

October 5, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
BRIAN WALTZER DEFENDANT-APPELLANT



Cuyahoga County Court of Common Pleas Case No. CR-529366 Application for Reopening Motion No. 443631

The opinion of the court was delivered by: Mary Eileen Kilbane, A.J.:

JOURNAL ENTRY AND OPINION

JUDGMENT:

APPLICATION DENIED

{¶1} In State v. Waltzer, Cuyahoga County Court of Common Pleas Case No. CR-529366, applicant, Brian Waltzer, was found guilty by a jury of felonious assault and domestic violence. He received concurrent sentences of five years and six months, respectively. This court affirmed that judgment in State v. Waltzer, Cuyahoga App. No. 94444, 2011-Ohio-594.

{¶2} Waltzer has filed with the clerk of this court an application for reopening. He asserts that he was denied the effective assistance of appellate counsel because: 1) "he wrote [appellate counsel] several times concerning the ineffectiveness of his trial attorney * * *", Application at unnumbered 2; 2) "the use of two Judges during trial," Id.; and 3)

"Appellant [was] convicted of Allied Offences of similar import." Id. (capitalization and spelling in original).

{¶3} We deny the application for reopening. As required by App.R. 26(B)(6), the reasons for our denial follow.

{¶4} Having reviewed the arguments set forth in the application for reopening in light of the record, we hold that Waltzer has failed to meet his burden to demonstrate that "there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal." App.R. 26(B)(5). In State v. Spivey, 84 Ohio St.3d 24, 1998-Ohio-704, 701 N.E.2d 696, the Supreme Court specified the proof required of an applicant. "In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 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 App.R. 26(B)(5). [Applicant] must prove that his counsel were deficient for failing to raise the issues he now presents, as well as showing that had he presented those claims on appeal, there was a 'reasonable probability' that he would have been successful. Thus [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." Id. at 25. Applicant cannot satisfy either prong of the Strickland test. We must, therefore, deny the application on the merits.

{¶5} In his first proposed assignment of error, Waltzer contends that his appellate counsel was ineffective for failing to assign as error that trial counsel was ineffective. Waltzer's specific complaint is that, although he wrote letters to appellate counsel recommending as error trial counsel's failure to subpoena a witness for trial, appellate counsel did not assign the error. Waltzer does not, however, indicate the source in the record for these assertions.

{¶6} "It is well-settled that '[m]atters outside the record do not provide a basis for reopening.' State v. Hicks, Cuyahoga App. No. 83981, 2005-Ohio-1842, at ¶7. More properly, 'any allegations of ineffectiveness based on facts not appearing in the [trial] record should be reviewed through the post-conviction remedies.' State v. Coleman, 85 Ohio St.3d 129, 1999-Ohio-258, 707 N.E.2d 476, 483." State v. Carmon (Nov. 18, 1999), Cuyahoga App. No. 75377, reopening disallowed, 2005-Ohio-5463, ¶29.

To the extent that Waltzer relies on materials which are outside the record, his first proposed assignment of error does not provide a basis for reopening.

{¶7} In his second proposed assignment of error, Waltzer contends that "Judge Hollie Gallager [sic] took over in mid-trial" for Judge David T. Matia who presided during the trial. Application at unnumbered 3. Waltzer correctly observes that the state did not respond to this proposed assignment of error.

{ΒΆ8} Our review of the record reflects that Judge Gallagher presided when the jury returned its verdict and issued a journal entry memorializing the verdict. Judge Matia presided at the sentencing hearing and issued the sentencing entry. We acknowledge, however, that we are unable to identify anywhere in the record where the court of common pleas complied ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.