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State v. Makin

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 13, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
HAKEEN K. MAKIN DEFENDANT-APPELLANT

         Cuyahoga County Court of Common Pleas Case No. CR-15-594103-A Application for Reopening Motion No. 509162

          FOR APPELLANT Hakeen Makin.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Daniel T. Van Assistant County Prosecutor

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE

         {¶1} Hakeen Makin has filed a timely application for reopening pursuant to App.R. 26(B). Makin seeks to reopen the appellate judgment rendered in State v. Makin, 8th Dist. Cuyahoga No. 104010, 2017-Ohio-2649, that affirmed his convictions and sentence for multiple drug-related offenses. For the reasons that follow, we decline to reopen Makin's appeal.

         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 Makin. \

         B. Arguments Not Meritorious

         {¶5} Makin 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 Makin cannot satisfy either prong of the Strickland test. We must, therefore, deny the application on the merits.

         1.Imposition of ...


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