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State v. Baker

Court of Appeals of Ohio, Seventh District

June 17, 2013


Application for Reopening.

For Plaintiff-Appellee: Attorney Christopher Berhalter Prosecuting Attorney Attorney Daniel Fry Assistant Prosecuting Attorney

For Defendant-Appellant: Craig Dean Baker, Pro se

Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Mary DeGenaro



¶{1} Defendant-appellant Craig Dean Baker requests that we reopen his appeal, claiming that appellate counsel should have argued that his total sentence of 24 years was unduly harsh and thus an abuse of discretion. As established infra, this contention was essentially raised by appellate counsel and addressed by this court in the direct appeal. Consequently, the application to reopen is denied.


¶{2} Appellant pled guilty in the Belmont County Common Pleas Court to four counts of unlawful sexual conduct with a minor. The offenses were second degree felonies because he was more than ten years older than the victim and because he had been previously convicted of a certain sex offense. See R.C. 2907.02(B)(3), (4). Specifically, he was 42 years old while the victim was 14 years old, and he had been convicted in 2006 of a sex offense involving a minor (for which he was a registered sex offender). The court sentenced him to six years on each count and ordered the sentences to be served consecutively for a total of 24 years.

¶{3} In the direct appeal, appellate counsel raised two assignments of error: (1) the trial court erred and abused its discretion in imposing consecutive sentences; and (2) trial counsel rendered ineffective assistance at sentencing by not verbalizing the written request for concurrent sentences, by failing to present mitigating evidence, and by failing to inquire into whether a mental health evaluation had been conducted. On March 1, 2013, we overruled both assignments of error and upheld the trial court's judgment. State v. Baker, 7th Dist. No. 11BE40, 2013-Ohio-900. On May 15, 2012, appellant filed the within timely application to reopen his appeal under App.R. 26(B).


¶{4} A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence based upon a claim of ineffective assistance of counsel. App.R. 26(B)(1). The defendant must set forth one or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits or that were considered on an incomplete record due to appellate counsel's deficient performance. App.R. 26(B)(2)(c). An application for reopening shall be granted if there is a genuine issue as to whether the defendant was deprived of the effective assistance of counsel on appeal. App.R. 26(B)(5).

¶{5} Thus, in determining whether a defendant-appellant has received ineffective assistance of appellate counsel, we apply the two-pronged analysis from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) conduct that fell below an objective standard of reasonableness, and (2) a reasonable probability the results would have been different. State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 10-11. Thus, the applicant must prove that 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 appeal. Id. at ¶ 11, citing State v. Sheppard, 91 Ohio St.3d 329, 330, 744 N.E.2d 770 (2001). In seeking reopening, the appellant bears the burden of demonstrating that there is a "genuine issue" as to whether he has a "colorable claim" of ineffective assistance of appellate counsel. Id., citing State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998).

¶{6} Appellate counsel need not raise every possible issue in order to render constitutionally effective assistance. State v. Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶ 7, citing Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Counsel is expected to focus on strong arguments and winnow out the weaker ones as it is said that the receptiveness of the reviewing court declines as the number of assigned errors increases. State v. Adams, 7th Dist. No. 08MA246, 2012-Ohio-2719, ...

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