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State v. Ledbetter

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 14, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE
v.
JOHN C. LEDBETTER, DEFENDANT-APPELLANT

         Cuyahoga County Court of Common Pleas Case No. CR-15-594924-A Application for Reopening Motion No. 505092.

          FOR 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 Prosecutor Justice

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., JUDGE

         {¶1} 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 appeal.

         {¶2} 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).

         {¶3} 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.

         Strickland.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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."

         {¶8} 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 sentencing hearing."

State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 12.

         {¶9} 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 at sentencing.

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 ...

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