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State v. Landrum

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 15, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MICHAEL LANDRUM DEFENDANT-APPELLANT

         Cuyahoga County Court of Common Pleas Case No. CR-15-601193-A Application for Reopening Motion No. 506736

          ATTORNEY FOR APPELLANT Gregory Scott Robey Robey & Robey

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Amy Venesile Assistant County Prosecutor

          JOURNAL ENTRY AND OPINION

          MELODY J. STEWART, J.

         {¶1} Under App.R. 26(B), applicant Michael Landrum seeks to reopen this court's judgment in State v. Landrum, 8th Dist. Cuyahoga No. 104511, 2017-Ohio-389, in which this court affirmed Landrum's convictions and sentences for rape, three counts of gross sexual imposition, and kidnapping - all committed against a victim who was less than 13 years of age. Landrum argues that his appellate counsel should have argued ineffective assistance of Landrum's trial counsel based on trial counsel's (1) stipulating to the reports provided by the court's psychiatric clinic as to Landrum's competency; (2) failing to object to the state's motion to amend the indictment; and (3) failing to present evidence as to Landrum's sexually transmitted disease at trial, which he contends would have proven that Landrum did not rape the victim. The state opposes the application as having no merit. We agree and deny the application to reopen.

         A. Standard of Review

         {¶2} 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." Id., quoting State v. Sheppard, 91 Ohio St.3d 329, 330, 744 N.E.2d 770 (2001). 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).

         {¶3} 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.

         {¶4} With this standard in mind, we turn to the arguments raised by Landrum.

         B. Arguments Not Meritorious

         {¶5} Landrum raises three proposed assignments of error in support of his application to reopen his direct appeal. Having reviewed the arguments in light of the record, we hold that Landrum has failed to meet his burden to justify reopening his appeal. He cannot satisfy either prong of the Strickland test. We must, therefore, deny the application on the merits.

         1. Competency Report and ...


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