Court of Appeals of Ohio, Eighth District, Cuyahoga
County Court of Common Pleas Case No. CR-15-600096-A
Application for Reopening Motion No. 509517
APPELLANT Dominique Lennon, pro se Inmate No. 682031 Lebanon
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Mary M. Dyczek Assistant County
JOURNAL ENTRY AND OPINION
J. BOYLE, PRESIDING JUDGE.
On August 14, 2017, applicant Dominique Lennon filed an
untimely application to reopen under App.R. 26(B). He seeks
to reopen this court's judgment in State v.
Lennon, 8th Dist. Cuyahoga No. 104344, 2017-Ohio-2753,
in which this court affirmed his convictions and sentences
for attempted murder, felonious assault, discharging a
firearm on or near a prohibited premises, carrying a
concealed weapon, improperly handling a firearm in a vehicle,
and vandalism. Lennon contends that his appellate counsel was
ineffective for not raising an ineffective assistance of
trial counsel assignment of error. The state opposes the
application on the grounds that it is untimely and has no
merit. For the following reasons, this court denies the
application to reopen.
App.R. 26(B)(1) and (2)(b) require applications claiming
ineffective assistance of appellate counsel to be filed
within 90 days from journalization of the decision unless the
applicant shows good cause for filing at a later time. Lennon
is attempting to reopen the appellate judgment that was
journalized on May 11, 2017. His application, however, was
filed on August 14, 2017 - beyond the 90-day deadline. Thus,
it is untimely on its face. Further, Lennon does not argue or
identify any basis for good cause that would allow this court
to consider his untimely application for reopening. See
State v. Fulton, 8th Dist. Cuyahoga No. 96156,
2011-Ohio-4259, reopening disallowed,
2013-Ohio-2087. Indeed, the Supreme Court of Ohio in
State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976,
812 N.E.2d 970, and State v. Gumm, 103 Ohio St.3d
162, 2004-Ohio-4755, 814 N.E.2d 861, held that the 90-day
deadline for filing must be strictly enforced.
Even if we were able to reach the merits of Lennon's
application, he still fails to satisfy the standard for
"To succeed on an App.R. 26(B) application, a petitioner
must establish that counsel's performance fell below an
objective standard of reasonable representation and that he
was prejudiced by the deficient performance." State
v. Adams, 146 Ohio St.3d 232, 2016-Ohio-3043, N.E.3d
1227, ¶ 52, 54, citing State v. Dillon, 74 Ohio
St.3d 166, 171, 657 N.E.2d 273 (1995); see also
Strickland v. Washington, 466 U.S. 668, 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 768 (1990).
Specifically, Lennon "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 his proposed three assignments of error, Lennon argues
that his trial counsel was ineffective in failing to properly
investigate, interview, and call alibi witnesses, despite
having filed a notice of alibi. According to Lennon, these
witnesses would have established that Lennon was not at the
scene of the crime, and therefore he could not have committed
the offenses. He further maintains that his trial counsel did
not properly investigate and failed to obtain "video
footage" that would have been exculpatory. These
arguments, however, are based purely on speculation.
There is no evidence in the trial record as to what the
testimony of these witnesses would have been; nor is there
any support in the trial court record as to the existence of
any exculpatory video surveillance. "Speculation is
insufficient for making an appellate argument and does not
establish prejudice." State v. Logan, 8th Dist.
Cuyahoga No. 97022, 2012-Ohio-1944, reopening
disallowed, 2012-Ohio-5713, ¶ 10, citing State
v. Addison, 8th Dist. Cuyahoga No. 90642, 2009-Ohio-221,
reopening disallowed, 2009-Ohio 2704; and State
v. Abdul, 8th Dist. Cuyahoga No. 90789, 2009-Ohio-225,
reopening disallowed, 2009-Ohio-6300; see also
State v. Bays, 87 Ohio St.3d 15, 28, 716 N.E.2d 1126
(1999) (prejudice from counsel's failure to employ
investigative services is speculative where the record does
not disclose what investigations trial counsel had performed
or what information an investigator might have "turned
up or that defense counsel in fact failed to obtain").
Despite Lennon's complaint of his "inability to
provide any supporting testimony for his strongest
defense"- his alibi - we note that the record reflects
that the trial court expressly explained to Lennon his right
to testify at trial. Lennon, however, declined. He expressly
stated on the record that he "would not like to
testify." Further, as for Lennon's accusation that
his trial counsel failed to investigate the leads that Lennon
provided regarding his alibi, we find no evidence in the
record corroborating this.
To the extent that Lennon relies on the affidavit that he has
attached to his application in support of these arguments,
this affidavit was not part of the trial court record. Thus,
appellate counsel could not have relied on this evidence to
raise these arguments in the direct appeal because they would
require speculation or consideration of evidence that is
outside of the record. State v. Campbell, 8th Dist.
Cuyahoga No. 102788, 2016-Ohio-389, reopening
disallowed, 2016-Ohio-5510, ¶ 5 (matters outside
the record do not provide a basis for reopening under App.R.
Accordingly, this court denies the ...