Court of Appeals of Ohio, Eighth District, Cuyahoga
County Court of Common Pleas Case No. CR-15-594924-A
Application for Reopening Motion No. 505092.
APPELLANT John C. Ledbetter, pro se Inmate No. 673466 Lake
Erie Correctional Institution
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Amy Venesile Assistant County
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., JUDGE
John C. Ledbetter has filed a timely application for
reopening pursuant to App.R. 26(B). Ledbetter is attempting
to reopen the appellate judgment, rendered in State v.
Ledbetter, 8th Dist. Cuyahoga No. 104077, 2017-Ohio-89,
that affirmed his plea of guilty and the sentence of the
trial court imposed with regard to the offenses of drug
trafficking, possession of criminal tools, and endangering
children. We decline to reopen Ledbetter's original
In order to establish a claim of ineffective assistance of
appellate counsel, Ledbetter is required to establish that
the performance of his appellate counsel was deficient and
the deficiency resulted in prejudice. Strickland v.
Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110
S.Ct. 3258, 111 L.Ed.2d 767 (1990).
In Strickland, the United States Supreme Court held
that a court's scrutiny of an attorney's work must be
highly deferential. The court further stated that it is all
too tempting for a defendant to second-guess his attorney
after conviction and that it would be too easy for a court to
conclude that a specific act or omission was deficient,
especially when examining the matter in hindsight. Thus, 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.
Herein, Ledbetter has raised three proposed assignments of
error in support of his application for reopening.
Ledbetter's initial proposed assignment of error is that:
Appellant was denied effective assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendments to the
United States Constitution and Article I, Section 10 of the
Ohio Constitution where his appellate counsel omitted a dead
bang winner, prejudicing appellant to receive a full review
by the court.
Ledbetter, through his initial proposed assignment of error,
has failed to raise any argument that would support his claim
of ineffective assistance of appellate counsel. The simple
statement that appellate counsel failed to raise a "dead
bang winner" does not identify any deficient conduct on
the part of appellate counsel. The mere recitation of a
proposed assignment of error is not sufficient to meet an
applicant's burden of establishing that his appellate
counsel was deficient and that there existed a reasonable
probability that he would have been successful. State v.
Mays, 8th Dist. Cuyahoga No. 99150, 2014-Ohio-814;
State v. Harris, 8th Dist. Cuyahoga No. 90699,
2008-Ohio-5873. Ledbetter, through his first proposed
assignment of error, has failed to demonstrate that the
performance of his appellate counsel was deficient and that
he was prejudiced.
Ledbetter's second proposed assignment of error is that:
Trial court did not comply with the mandatory requirements of
Criminal Rule 11 when accepting appellant's guilty pleas
without making a proper finding under R.C. 2941.25.
Ledbetter, through his second proposed assignment of error,
argues that prior to accepting the pleas of guilty, the trial
court was required to determine what offenses were allied
offenses of similar import pursuant to R.C. 2941.25.
Specifically, Ledbetter argues that "the trial court
could not have properly explained the nature of the offenses
and the maximum penalties involved until it resolved the
issue of allied offenses of similar import."
Contrary to Ledbetter's argument, there exists no
requirement, pursuant to Crim.R. 11, to determine prior to
accepting a plea of guilty what offenses will merge for
sentencing. In fact, the Supreme Court of Ohio has opined
that merger is a sentencing question.
Merger is a sentencing question, not an additional burden of
proof shouldered by the State at trial. * * * Nothing in
Ohio's felony-sentencing statutes prohibits the
litigation of merger at sentencing. To the contrary, R.C.
2929.19(B)(1) states that the trial court "shall
consider * * * any information presented" by the defense
or the prosecution at the sentencing hearing. Further, R.C.
2929.19(A) allows the state and the defendant to
"present information relevant to the imposition of
sentence in the case." On appeal from a felony sentence,
the reviewing court "shall review the record, "
R.C. 2953.08(G)(2), which includes more than the evidence and
arguments presented at trial. R.C. 2953.08(F)(3) provides
that the record to be reviewed shall include "[a]ny oral
or written statements made to or by the court at the
State v. Washington, 137 Ohio St.3d 427,
2013-Ohio-4982, 999 N.E.2d 661, ¶ 12.
In addition, a review of the guilty plea hearing clearly
demonstrates that Ledbetter was informed of the nature of
each charge and the maximum penalty involved with regard to
each charge and that the issue of merger would be addressed
THE COURT: Do you understand that by virtue of this plea,
there is mandatory imprisonment, as well as mandatory fines,
forfeitures, mandatory driver's license suspension,
mandatory post-release control? Have you ...