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State v. Brown

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 31, 2017


         Cuyahoga County Court of Common Pleas Case No. CR-15-595913-A Application for Reopening Motion No. 500042.

          FOR APPELLANT Daryl W. Brown, pro se Inmate No. 674-068

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Gregory J. Ochocki Assistant County Prosecutor Justice



         {¶1} On September 13, 2016, the applicant, Daryl Brown, pursuant to App.R. 26(B), applied to reopen this court's judgment in State v. Brown, 8th Dist. Cuyahoga No. 103748, 2016-Ohio-5244, in which this court affirmed his convictions for aggravated vehicular homicide and failure to stop. Brown asserts that his appellate counsel should have argued the impropriety of amending the failure to stop indictment and trial counsel's failure to protect Brown's "due process at the grand jury and at sentencing with accurate information." The state of Ohio filed its brief in opposition on October 12, 2016. For the following reasons, this court denies the application.

         {¶2} On May 9, 2015, Brown was driving a truck westbound on Miles Avenue in Cleveland, Ohio. Brown swerved the truck into the eastbound lanes and then made a left-hand turn onto East 114th Street. In doing so, Brown failed to yield the right of way to a motorcycle traveling eastbound on Miles Avenue. The truck collided with the motorcycle and mortally injured the driver. Brown stopped and walked to the rear of the vehicle. He paused momentarily, ran back to the truck, and drove away. He abandoned the truck in the driveway of a vacant home.

         {¶3} The grand jury indicted Brown for aggravated vehicular homicide and failure to stop after an accident, pursuant to R.C. 4549.02(A). The latter indictment included the specification: "FURTHERMORE, and the violation resulted in the death of a person." (Emphasis sic.) R.C. 4549.02(B)(3)(a) provides: "If the accident or collision results in the death of a person, failure to stop after an accident is * * * a felony of the third degree." Thus, the specification raised the level of the crime from a first-degree misdemeanor to a third-degree felony. Indeed, the indictment stated that this charge was a "F3."

         {¶4} At the close of the state's case the prosecutor moved to amend the indictment by substituting "accident or collision" for "violation" to track the wording of the statute. Brown's counsel objected, arguing that the wording was an essential component of the greater offense and allowing the amendment would change the nature and identity of the charge. (Tr. 199-200.) The trial judge allowed the amendment relying on Crim.R. 7(D), which allows the judge to amend the indictment at any time during trial in respect to any defect, imperfection, or omission in form or substance provided no change is made in the name or identity of the crime charged.

         {¶5} The trial judge found Brown guilty as charged of the two offenses. After reviewing Brown's lengthy criminal history, which included convictions for involuntary manslaughter, aggravated robbery, aggravated assault, and domestic violence, the judge sentenced him to eight years for aggravated vehicular homicide and 36 months for failure to stop after an accident to run concurrently.

         {¶6} Now Brown argues that his appellate counsel was ineffective for not raising the following: (I) appellant's counsel failed to object when the state moved to amend the language in Count 2 (Failure to stop) to fall in line with the statute pursuant to Crim.R. 7(D), and (II) appellant was denied effective assistance of counsel where his appellate counsel failed to raise the issue that trial counsel failed to protect the appellant's due process at the grand jury and at sentencing with accurate information.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.

         {¶10} Moreover, 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 ...

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