Court of Appeals of Ohio, Eighth District, 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
JOURNAL ENTRY AND OPINION
J. STEWART, J.
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.
Standard of Review
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).
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.
With this standard in mind, we turn to the arguments raised
Arguments Not Meritorious
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.
Competency Report and ...