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State v. Tabasso

Court of Appeals of Ohio, Eighth District

August 27, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JUSTIN TABASSO DEFENDANT-APPELLANT

Cuyahoga County Court of Common Pleas Case No. CR-554082 Application for Reopening Motion No. 464251

FOR APPELLANT Justin Tabasso, pro se.

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor Sheila Turner-McCall Daniel T. Van Assistant County Prosecutors.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, P.JUDGE.

(¶ 1} Justin Tabasso has filed a timely application for reopening pursuant to App.R. 26(B). Tabasso is attempting to reopen the appellate judgment that was rendered in State v. Tabasso, 8th Dist. Cuyahoga No. 98248, 2012-Ohio-5747, which affirmed his conviction for the offense of felonious assault. For the following reasons, we decline to reopen Tabasso's original appeal.

(¶2} In order to establish a claim of ineffective assistance of appellate counsel, Tabasso must demonstrate that appellate counsel's performance was deficient and that, but for the deficient performance, the result of his appeal would have been different. State v. Reed, 1A Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456. Specifically, Tabasso must establish that "there is a genuine issue as to whether he was deprived of the effective assistance of counsel on appeal." App.R. 26(B)(5).

(¶3} In State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588, the Supreme Court of Ohio held that:

Moreover, to justify reopening his appeal, [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." State v. Spivey, 84 Ohio St.3d at 25, 1998-Ohio-704, 701 N.E.2d 696.

Smith, supra, at 7.

(¶ 4} In addition, the Supreme Court of Ohio, in State v. Spivey, 84 Ohio St.3d 24, 1998-Ohio-704, 701 N.E.2d 696, held that:

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. 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.

(¶ 5} It is also well settled that appellate counsel is not required to raise and argue assignments of error that are meritless. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987. Appellate counsel cannot be considered ineffective for failing to raise every conceivable assignment of error on appeal. Jones, supra, at 752; State v. Grimm, 73 Ohio St.3d 413, 1995-Ohio-24, 653 N.E.2d 253; State v. Campbell, 69 Ohio St.3d 38, 1994-Ohio-492, 630 N.E.2d 339.

(¶ 6} In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984), 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 too 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 firmly established that appellate counsel possesses the sound discretion to decide ...


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