Court of Appeals of Ohio, Eighth District, Cuyahoga
County Court of Common Pleas Case No. CR-15-595913-A
Application for Reopening Motion No. 500042.
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
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., JUDGE
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.
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.
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."
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.
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.
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.
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.
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.
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.
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 ...