Court of Appeals of Ohio, Eighth District, Cuyahoga
County Court of Common Pleas Case No. CR-14-587709-B
Application for Reopening Motion No. 498399
APPELLANT Perez Worley, pro se.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Brent Kirvel Mary M. Dyczek Assistant
JOURNAL ENTRY AND OPINION
C. GALLAGHER, J.
Under App.R. 26(B), defendant-appellant, Perez Worley, seeks
to reopen his appeal in State v. Worley, 8th Dist.
Cuyahoga No. 103105, 2016-Ohio-2722, which affirmed his
conviction for aggravated murder, with an associated firearm
specification, and his indefinite, aggregate sentence of 28
years to life in prison. For the reasons that follow, we deny
the application to reopen.
Initially, we note that Worley's application is
procedurally defective. The application exceeds the ten-page
limitation set forth by App.R. 26(B)(4). This procedural
defect provides sufficient grounds for dismissing the
application for reopening. State v. Harris, 8th
Dist. Cuyahoga No. 94388, 2011-Ohio-194, reopening
disallowed, 2011-Ohio-4403, ¶ 2. Additionally,
Worley failed to attach a sworn statement as required under
App.R. 26(B)(2)(d). The sworn statement is mandatory, and the
failure to include one warrants denial of the application.
State v. Lechner, 72 Ohio St.3d 374, 650 N.E.2d 449
(1995); see also State v. Bates, 8th Dist. Cuyahoga
Nos. 97631, 97632, 97633, and 97634, 2012-Ohio-3949,
reopening disallowed, 2015-Ohio-4176 (applying
Lechner and recognizing that the sworn statement is
Apart from the procedural defects in Worley's
application, Worley's five proposed assignments of error
fail on the merits. He fails to demonstrate "a genuine
issue as to whether [he] was deprived of the effective
assistance of counsel on appeal" as required under
The appropriate standard to determine whether a defendant has
received ineffective assistance of appellate counsel is the
two-pronged analysis found in Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). State v. Were, 120 Ohio St.3d
85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 10. Applicant
"must prove that his 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." State v. Sheppard, 91 Ohio
St.3d 329, 330, 744 N.E.2d 770 (2001), citing State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraph three of the syllabus. 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 24, 25, 701 N.E.2d
696 (1998). Appellate counsel is not required to raise and
argue assignments of error that are meritless, nor is counsel
ineffective for not raising every conceivable assignment of
error. Jones v. Barnes, 463 U.S. 745, 103 S.Ct.
3308, 77 L.Ed.2d 987 (1983); State v. Gumm, 73 Ohio
St.3d 413, 653 N.E.2d 253 (1995).
In his first proposed assignment of error, Worley challenges
the trial court's failure to give an instruction on
accomplice testimony as required by R.C. 2923.03(D) and
contends that such failure constitutes plain error. Plain
error does not exist, however, if (1) the accomplice's
testimony was corroborated by other evidence introduced at
trial, (2) the jury was aware from the accomplice's
testimony that he benefitted from agreeing to testify against
the defendant; and/or (3) the jury was instructed generally
regarding its duty to evaluate the credibility of the
witnesses. State v. Woodson, 10th Dist. Franklin No.
03AP-736, 2004-Ohio-5713, ¶ 18; State v.
Jackson, 2d Dist. Greene No. 2009 CA 21, 2010-Ohio-1127,
¶ 17. When these factors are present, it simply cannot
be said that the absence of the accomplice instruction
affected the outcome of the trial. Woodson at ¶
19-20; see also State v. Ross, 8th Dist. Cuyahoga
No. 98764, 2013-Ohio-3130, ¶ 39-40 (failure to provide
cautionary instruction was harmless error where the other
evidence independent of codefendant's testimony was
overwhelming and jury was aware of codefendant's
self-interest and bias in testifying for the state).
All three of these factors apply in this case and therefore
plain error does not exist. The record reflects that several
witnesses circumstantially identified Worley as the shooter
and that another witness familiar with Worley saw him
actually shoot the victim. Thus, the state produced
significant evidence apart from the codefendant's
testimony that supported the conviction. Further, the trial
court provided the standard instructions to the jury
regarding their duty to evaluate the credibility of the
witnesses, and the jury was aware that the codefendant
received a favorable plea agreement in exchange for his
testimony at trial.
Next, Worley contends that his appellate counsel was
ineffective in failing to raise a prosecutorial misconduct
assignment of error based on the prosecutor allegedly
providing an inaccurate summary of the evidence during
closing arguments and eliciting speculative testimony from
witnesses. But our review of the record does not support
Worley's claim. Nor does Worley demonstrate any prejudice
from these alleged instances of misconduct. He therefore
fails to establish a reasonable probability that the outcome
of the appeal would have been different had this assignment
of error been raised.
In his third proposed assignment of error, Worley argues that
his appellate counsel should have raised an additional
argument in support of the ineffective assistance of trial
counsel claim in his direct appeal. According to Worley, his
trial counsel was ineffective in failing to offer evidence
that the victim refused to testify against him in a 2009
criminal case, which directly contradicted the state's
theory of Worley's motive for shooting the victim. But
the decision not to introduce this alleged evidence, which
would have opened the door as to the specifics concerning
Worley's prior criminal case, was a matter of trial
strategy that we will not second-guess. State v.
Littlejohn, 8th Dist. Cuyahoga No. 95480,
2001-Ohio-2035, reopening disallowed,
2012-Ohio-1064, ¶ 8, citing State v.
Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903
N.E.2d 270. Worley has failed to demonstrate any prejudice
that resulted from the trial counsel's strategic decision
not to introduce this evidence or that the outcome of his
appeal would have been different had this issue been raised
In his fourth proposed assignment of error, Worley contends
that appellate counsel should have argued that the trial
court abused its discretion in denying Worley's motion
for a continuance of the trial to allow his newly retained
counsel to get "up to speed." The record reflects,
however, that the trial court exercised its sound judgment by
denying the request, which would have unnecessarily delayed
the proceedings. Further, Worley's two appointed
attorneys continued to represent him during the trial,
providing effective assistance of counsel. Worley cannot
demonstrate any prejudice by the trial court's decision
to deny his request for a continuance and consequently fails
to set forth a colorable claim of ineffective assistance of
appellate counsel. State v. Schwarzman, 8th Dist.
Cuyahoga No. 100337, 2014-Ohio-2393, reopening
disallowed, 2015-Ohio-516, ¶ 14.
In his fifth proposed assignment of error, Worley argues that
the trial court abused its discretion in failing to honor his
mother's right to "plead the Fifth" and to
avoid testifying because she had not been properly served
with a subpoena. Aside from the record reflecting that the
prosecutor had served Worley's mother with a subpoena,
mother's stated reasoning for invoking her Fifth
Amendment privilege did not involve a concern of
self-incrimination. See State v. Arnold, 147 Ohio
St.3d 138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 43
(recognizing that the cloak of the Fifth Amendment applies
only when the danger of self-incrimination is "real and
appreciable"). Moreover, this court has previously
recognized that an appellant lacks standing to challenge the
trial court's actions regarding another person's
assertion of his Fifth Amendment privilege against
self-incrimination since that privilege is personal in
nature. State v. Ramjit, 8th ...