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State v. Conyer

Court of Appeals of Ohio, Seventh District, Mahoning

December 12, 2017


         Application to Reopen Appeal App.R. 26(B)

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Maurice Conyer, pro se

          Hon. Carol Ann Robb Hon. Cheryl L. Waite Hon. Mary DeGenaro JUDGES


          PER CURIAM.

         {¶1} A jury convicted Petitioner Maurice Conyer of two counts of felonious assault and attendant firearm specifications. Conyer appealed and this court affirmed the convictions. State v. Conyer, 7th Dist. No. 16 MA 0021, 2017-Ohio-7506. Conyer has filed a timely App.R. 26(B) motion to reopen his appeal asserting ineffective assistance of appellate counsel. For the reasons expressed below, the application is denied.

         {¶2} Under App.R. 26(B), "[a] defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel." The application is required to be filed within 90 days of the journalization of the appellate court decision. App.R. 26(B)(1).

         {¶3} Our decision in State v. Conyer was journalized on August 28, 2017. Conyer's application for reopening was filed October 26, 2017. Accordingly, the application is timely.

         {¶4} App.R. 26(B) further states to present the claim, the applicant must state "[o]ne or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel's deficient representation." App.R. 26(B)(2)(c). Applicant must also present "[a] sworn statement of the basis for the claim * * * [describing] the manner in which the deficiency prejudicially affected the outcome of the appeal." App.R. 26(B)(2)(d). Conyer complied with these procedural requirements and raises five assignments of error.

         {¶5} In reviewing the application, we are required to grant the application "if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal." App.R. 26(B)(5). This review requires application of the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). State v. Reed, 74 Ohio St.3d 534, 535, 660 N.E.2d 456 (1996). In the context of reopening, "[i]n order to show ineffective assistance, appellant 'must prove that his counsel were 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.'" State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 11. Conyer has the burden of demonstrating a "genuine issue" as to whether he has a "colorable claim" of ineffective assistance of appellate counsel. Id. at ¶ 11.

         {¶6} With those standards in mind, we will now consider each of Conyer's assignments of error. For ease of discussion, the third assignment of error is addressed last.

         First Assignment of Error

         "The Appellant was denied his due process right to a fair trial when the prosecution failed to disclose evidence favorable to an accused upon request."

         {¶7} Conyer argues appellate counsel failed to argue in the initial appeal that the prosecutor failed to disclose favorable evidence which would have been used to impeach the state's witnesses Sharron Winphrie and Shayla Blair. Conyer is asserting a Brady violation.

         {¶8} "Due process requires that the prosecution provide defendants with any evidence that is favorable to them whenever that evidence is material either to their guilt or punishment." State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 39, citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194 (1963). "Evidence is considered material when 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Brown at ¶ 39, quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375 (1985).

         {¶9} On May 21, 2015, the state filed a witness list. In addition to other witnesses, Sharron Winphrie and Shayla Blair were listed. 5/21/15 Witness List. Under Sharron Winphrie's names it stated, "Criminal History available for review upon request." Under Shayla Blair's name it stated, "No known Criminal History." The record contains no other information regarding those two witnesses' criminal history. Consequently, as to Shayla Blair, there is no violation because there was no known criminal history.

         {¶10} As to Sharron Winphrie, given the witness list, it appears she did have a criminal history. The record is devoid of any information as to what crimes/adjudications are in her criminal history. Furthermore, the record before us does not indicate the state failed to provide this information to Conyer and his counsel. That said, Winphrie's criminal history was not raised during her testimony. That failure, however, does not necessarily mean the state failed to disclose her criminal history. There could be multiple reasons why it was not brought to the attention of the jury. One could be that her criminal history was disclosed to the defense but it was inadmissible under Evid.R. 609. Another reason could be that it was never disclosed to Conyer.

         {¶11} Even if we could assume Winphrie's criminal history was not disclosed to the defense and amounted to a Brady violation, any error is harmless. "'A constitutional error can be held harmless if we determine that it was harmless beyond a reasonable doubt.'" State v. Campbell, 4th Dist. No. 13CA969, 2014-Ohio-3860, ¶ 18 (Alternatively holding that even assuming the state's nondisclosure of the alleged Brady evidence was improper, that alleged constitutional error is harmless beyond a reasonable doubt) quoting State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 123. In this case, there was overwhelming evidence of guilt. There was an admissible anonymous 911 call. The caller stated shots were fired from a moving car, specifically a red Impala with the license plate number REECE01 and the driver was a black male. State's Exhibit 1. The police investigating the shooting discovered Conyer owned a red Chevy Impala with that license plate number. Tr. 143. Shayla Blair testified Conyer drove a red Impala and shot at the car she and Winphrie occupied. Tr. 176, 177, 181.

         {¶12} For those reasons this assignment of error fails. There is no probability that a Brady argument would have had any success in the initial appeal. Therefore, appellate counsel was not ineffective for failing to argue this meritless argument.

         Second Assignment of Error

         "Appellant rights to a speedy trial was violated under the United States Constitution, Sixth Amendment; The Ohio Constitution, Section 10; and the O.R.C. § 2945.71(C)(2)."

         {¶13} Conyer argues appellate counsel should have raised a speedy trial assignment of error in the initial appeal. He makes two separate arguments in this assignment of error. His first argument is his statutory R.C. 2945.71 et seq. speedy trial rights were violated. He contends he was entitled to the triple count provision. The second argument is based on the Interstate Agreement on Detainers (IAD), R.C. ...

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