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State v. Marsh

Court of Appeals of Ohio, Seventh District

June 19, 2013


Application for Reopening.

For Plaintiff-Appellee: Attorney Paul Gains Prosecuting Attorney Attorney Ralph Rivera Assistant Prosecuting Attorney.

For Defendant-Appellant: Michael Marsh, Pro se #623-088 Belmont Correctional Institution.

JUDGES: Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Cheryl L. Waite.



¶{1} Defendant-appellant Michael Marsh was charged with second degree felony robbery in violation of R.C. 2911.02(A)(2), which entails inflicting, attempting to inflict, or threatening to inflect physical harm on another in attempting or committing a theft offense or in fleeing immediately thereafter. He had various prior convictions. The state offered to recommend two years in prison if appellant pled as charged. He refused the offer and proceeded to a jury trial after which he was found guilty and sentenced to six years in prison.

¶{2} In the direct appeal, appellate counsel urged that trial counsel's advice concerning the plea or chances of winning at trial constituted ineffective assistance of counsel. We overruled that argument. State v. Marsh, 7th Dist. No. 12MA40, 2013-Ohio-757. Appellant has filed a timely application to reopen his appeal under App.R. 26(B), setting forth two potential assignments of error that he believes appellate counsel was ineffective for failing to raise. For the following reasons, the application to reopen is denied.

¶{3} A defendant in a criminal case may apply for reopening of his direct appeal 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).

¶{4} 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): deficient performance and prejudice. Thus, the applicant must point to: (1) an error or omission in failing to raise the issue now raised that fell below an objective standard of reasonableness, and (2) a reasonable probability of success on appeal had that error or omission not been made. State v. Were, 120 Ohio St.3d 85, 2008-Ohio- 5277, 896 N.E.2d 699, ¶ 10-11, 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).

¶{5} 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. State v. Adams, 7th Dist. No. 08MA246, 2012-Ohio-2719, ¶ 8-12, citing Jones, 463 U.S. at 751-752 ("Multiplicity hints at lack of confidence in any one [argument]").

¶{6} As aforementioned, appellate counsel argued that trial counsel rendered ineffective assistance of counsel by causing appellant to reject a favorable plea bargain offered by the state, urging that he would have accepted a plea agreement with a recommendation of two years if counsel would not have caused him to believe that that they could win at trial. See Marsh, 7th Dist. No. 12MA40. This argument revolved around a recent case from the United States Supreme Court where counsel's erroneous advice resulted in the rejection of a favorable plea agreement. See Lafler v. Cooper, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).

¶{7} In Lafler, the Court held that a defendant has the right to effective assistance of counsel in considering whether to accept a plea offered by the prosecution and thus the two-part Strickland test applies on review. Id. at 1387. The Court rejected the state's argument that there is no prejudice if the defendant is later convicted after a fair trial. Id. at 1385 (deficient performance had been stipulated). The Court then agreed that the defendant in that case suffered prejudice and outlined certain remedies available on remand. Id. at 1389, 1391. We distinguished Lafler and found no deficient performance or prejudice regarding the entry of appellant's plea. Marsh, 7th Dist. No. 12MA40 at ¶ 24-29.

¶{8} One of the issues now raised by appellant in his request to reopen is directly contradictory to the arguments presented in support of the assignment of error that was fully briefed in the direct appeal. That is, in his application for reopening, appellant contends that appellate counsel should have raised sufficiency of the evidence as an assignment of error. He urges that there was insufficient evidence that he was the cause of the physical harm suffered by the security guard whose hands were scratched and bleeding.

¶{9} As the assignment of error raised on appeal argued that trial counsel rendered ineffective assistance of counsel by advising that the case was possibly winnable when it was not, it would have been contradictory to simultaneously argue that the evidence was insufficient as a matter of law. Although appellate counsel could have briefed the issues in the alternative, he was not required to do so in order to avoid rendering deficient performance. If "[m]ultiplicity hints at lack of confidence in any one" argument, then wholly ...

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