Court of Appeals of Ohio, Seventh District, Mahoning
to Reopen Appeal App.R. 26(B)
Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County
Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting
Defendant-Appellant: Maurice Conyer, pro se
Carol Ann Robb Hon. Cheryl L. Waite Hon. Mary DeGenaro JUDGES
OPINION AND JUDGMENT ENTRY
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.
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).
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
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.
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.
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.
Assignment of Error
Appellant was denied his due process right to a fair trial
when the prosecution failed to disclose evidence favorable to
an accused upon request."
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.
"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).
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.
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.
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.
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
Assignment of Error
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)."
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. ...