Cuyahoga County Court of Common Pleas Case No. CR-548609 Application for Reopening Motion No. 464038
APPELLANT Timothy West, Pro Se Richland Correctional Institution No. 604-876.
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Daniel Van Assistant County Prosecutor
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, J.
(¶ 1} On April 11, 2013, the applicant, Timothy West, pursuant to App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this court's judgment in State v. West, 8th Dist. Cuyahoga Nos. 97391 and 97900, 2013-Ohio-96, in which this court affirmed in part and reversed in part West's convictions and sentences for drug cultivation, drug trafficking, and possession of criminal tools. West argues that his appellate counsel was ineffective because he did not argue the following: (1) the trial court's lack of jurisdiction to hold a forfeiture hearing on real property, (2) the improper forfeiture of the real property when it was not identified in the indictment or bill of particulars, (3) prosecutorial misconduct in failing to disclose favorable evidence, (4) the trial court's failure to conduct a hearing and suppress evidence arising from thermal imaging flyovers, (5) the failure to return property taken from his residence, (6) ineffective assistance of trial counsel in failing to proffer an affidavit of indigency, (7) the improper imposition of a fine for allied offenses, and (8) insufficient evidence for the trafficking charge. On June 24, 2013, the state of Ohio filed its brief in opposition. For the following reasons, this court denies the application to reopen.
(¶2} Timothy West and his brother, Todd West, owned and used the large commercial building at 2341 Scranton Road, Cleveland, Ohio to grow hundreds of marijuana plants. As part of the investigation, the Cleveland police observed Timothy West buying supplies, such as bags of dirt, for the operation. They observed the brothers entering the lot and building and carefully unlocking and then locking the gates and doors to the building upon entering and exiting. In walking around the building, police officers smelled a strong scent of marijuana. When the police raided the operation and arrested the brothers on November 5, 2010, Todd West gave incriminating statements. In addition to the hundreds of marijuana plants, the police also found a gallon bag containing 173 grams of marijuana, scales, plant clippings, and packaging material. On the same day, the police also raided the brothers' homes in Westlake, Ohio, and confiscated money and papers.
(¶ 3} The grand jury indicted the brothers for the illegal cultivation of marijuana, drug trafficking, drug possession, and possession of criminal tools. Each indictment also included forfeiture specifications for Todd's 1998 Oldsmobile Intrigue, Timothy's 1999 Ford van, the money found on the brothers and in the brothers' homes, a scale, a cell phone, and the Scranton Road property.
(¶ 4} Timothy testified at trial that he and his brother did not grow the marijuana, that Todd did not say anything to the police, and that they rented part of the building to others who actually grew the marijuana. In September 2011, the jury convicted the brothers on all counts. The judge ruled that the possession count merged with the trafficking count as allied offenses and sentenced the brothers to eight years on the cultivation charge, consecutive to eight years on the trafficking charge, and to 12 months on the possession of criminal tools charge to run concurrent to the other two counts, for a total of 16 years. The judge also imposed a $15, 000 fine — $7, 500 on each of cultivation and trafficking counts — and ordered all of the property listed in the specifications forfeited. Subsequent to the filing of the notice of appeal, the trial court in late 2011, conducted a R.C. 2981.04 hearing on the Scranton Road property. The brothers had "sold" the property to Nicholas Kulon in May 2011, and he filed the petition to determine possession of the land. The judge ordered the transfer of the property to Kulon as a bona fide purchaser and ordered the proceeds of the sale forfeited to the city of Cleveland and Cuyahoga County law enforcement trust funds. The brothers appealed this ruling, which this court consolidated with the first appeal.
(¶5} Timothy's appellate counsel argued the following: (1) the violation of Timothy's Sixth Amendment right to confrontation by using Todd's incriminating statements against Timothy; (2) the failure to try the West brothers separately; (3) the failure to merge the cultivation and trafficking charges as allied offenses, (4) imposing consecutive sentences; (5) ineffective assistance of trial counsel for failing to file meritorious motions, failing to object to improper testimony, argument, jury instructions, and sentences; (6) the improper forfeiture of the cash and automobile; and (7) the improper forfeiture of the entire Scranton Road property. This court ruled that the cultivation and trafficking counts were allied offenses. Thus, this court reversed the sentences on both counts and remanded for merger and resentencing with the state selecting on which count Timothy should be sentenced. The court also reversed the forfeiture of the $1, 313 seized from Timothy's home. The court further held that the trial court did err in allowing Todd's incriminating statement to be used against Timothy, but such error was harmless because the rest of the admissible evidence proved Timothy's guilty beyond a reasonable doubt. This court overruled the other assignments of error. Timothy now submits that his appellate counsel was ineffective.
(¶ 6} In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.
(¶ 7} In Strickland, the United States Supreme Court ruled that judicial scrutiny of an attorney's work must be highly deferential. The Court noted that it is all too tempting for a defendant to second-guess his lawyer after conviction and that it would be all too easy for a court, examining an unsuccessful defense in hindsight, to conclude that a particular act or omission was deficient. Therefore, "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.'" Strickland at 689.
(¶ 8} Specifically, in regard to claims of ineffective assistance of appellate counsel, the United States Supreme Court has upheld the appellate advocate's prerogative to decide strategy and tactics by selecting what he thinks are the most promising arguments out of all possible contentions. The court noted: "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Indeed, including weaker arguments might lessen the impact of the stronger ones. Accordingly, the Court ruled that judges should not second-guess reasonable professional judgments and impose on appellate counsel the duty to raise every "colorable" issue. Such rules would disserve the goal of vigorous and effective advocacy. The Supreme Court of Ohio reaffirmed these principles in State v. Allen, 11 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.
(¶ 9} Additionally, even if a petitioner establishes that an error by his lawyer was professionally unreasonable under all the circumstances of the case, the petitioner must further establish prejudice: but for the unreasonable error there is a reasonable probability that the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court need not determine whether counsel's performance was deficient before examining prejudice suffered by the defendant as a result of alleged deficiencies.
(¶ 10} Moreover, appellate review is strictly limited to the record. The Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97 (1898). "Clearly, declining to raise claims without record support cannot constitute ineffective assistance of appellate counsel." State v. ...