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State v. Anderson

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 10, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
SHYNE ANDERSON DEFENDANT-APPELLANT

         Cuyahoga County Court of Common Pleas Case Nos. CR-15-599104-A, CR-15-599105-A, CR-15-602138-A, and CR-15-602139-A Application for Reopening Motion No. 507480

          Shyne Anderson, pro se FOR APPELLANT

          Michael C. O'Malley ATTORNEYS FOR APPELLEE

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, J.

         {¶1} On May 26, 2017, the applicant, Shyne Anderson, pursuant to App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this court's judgment in State v. Anderson, 8th Dist. Cuyahoga No. 104460, 2017-Ohio-931, in which this court affirmed his convictions for felonious assault, kidnapping, aggravated burglary, criminal damaging, domestic violence, rape, grand theft, intimidation of a crime victim, assault, robbery, and abduction. Anderson now argues that his appellate counsel should have argued prosecutorial misconduct, ineffective assistance of trial counsel, improper evidence, insufficient evidence, and appellant counsel's failure to cooperate with him. The state of Ohio filed its brief in opposition on June 13, 2017, and Anderson filed a reply brief on July 12, 2017. For the following reasons, this court denies the application to reopen.

         {¶2} Anderson faced charges in four different cases in which he beat up two women, the mother of his child and another woman, on five different occasions. In State v. Anderson, Cuyahoga C.P. No. CR-15-602138, Anderson and the mother of his child went drinking on the night of July 23, 2014. When the mother said she wanted to go home, Anderson, thinking that she was going to see another man, took her keys and drove off in her car. The mother, while walking around, picked up a brick. Eventually, Anderson returned with the car. When the mother entered the vehicle, they resumed arguing, and the mother tossed the brick into Anderson's lap. Anderson threw the brick at the mother and gashed her face. The mother asked Anderson to take her to the hospital, but he refused. Instead, he drove her to her home, where they continued to argue. Eventually, Anderson drove off in the mother's car. On these facts, the trial court found Anderson guilty of felonious assault and kidnapping, for which the judge sentenced him to 8 years and 11 years respectively, to be served concurrently.

         {¶3} In State v. Anderson, Cuyahoga C.P. No. CR-15-599104-A, on January 11, 2015, Anderson and the mother had gone out drinking again. After Anderson had returned the mother to her second-floor apartment residence, she saw Anderson climbing in through a window. The mother fled her apartment and ran downstairs. When Anderson caught her, he started hitting her in the face. A neighbor opened his door, and the mother fell into the neighbor's home. Anderson followed her. Eventually, the neighbor and the mother pushed Anderson out of the apartment and locked the door. The mother received injuries to her jaw, forehead, and eye. The windshield of a vehicle parked on the driveway was also shattered. On these facts, the trial court found Anderson guilty of aggravated burglary relating to the mother's residence, domestic violence, and two counts of criminal damaging. Anderson's sentence was 11 years for aggravated burglary and a fine of $250 on each count.

         {¶4} In State v. Anderson, Cuyahoga C.P. No. CR-15-599105-A, on July 18, 2015, Anderson had a fight with the second woman. After the fight, the second woman went out with her friend. When she returned to her home, Anderson, who apparently had entered through a previously broken door, was waiting for her and began beating her and accusing her of having sex with somebody else. He also ripped off her shorts and inserted his fingers into her vagina. When the woman ran to her bathroom, Anderson followed her and hit her with the shower curtain rod. Anderson then took the woman's cell phone and her car keys and drove off with her car. After the police arrested Anderson, he called the victim from jail and asked her not to appear at court proceedings. For these offenses, the court sentenced him to 11 years each on rape, kidnapping, and aggravated burglary; 17 months on grand theft; 36 months on the intimidation charge; and a $250 fine for assault, all to be served concurrently.

         {¶5} In State v. Anderson, Cuyahoga C.P. No. CR-15-602139-A, in December 2015, Anderson and the second woman were driving in her rental car. When she refused to let Anderson borrow the rental car, they fought, during which time Anderson tried to drag her out of the car. Later, Anderson "messed up" the car. In another incident in December 2015, Anderson "bumrushed" the woman and pushed her inside her home. He punched her and poured juice and cooking oil over her. He then drove off in her car without her permission. For these offenses, the trial court sentenced Anderson to 8 years on burglary, 8 years on robbery, 36 months on abduction, and 18 months on grand theft, all to be served concurrently. Altogether, the trial court sentenced Anderson to a total of 22 years.

         {¶6} Anderson's appellate counsel argued manifest weight of the evidence, improper admission of "other acts" evidence, and ineffective assistance of trial counsel for failing to challenge the joinder of the four cases. Anderson now claims that his appellate counsel was ineffective.

          {¶7} In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. 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); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.

         {¶8} 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.

         {¶9} Specifically, in regard to claims of ineffective assistance of appellate counsel, the United States Supreme Court has upheld the appellate advocate's prerogative to decide strategy and tactics by selecting what he thinks are the most promising arguments out of all possible contentions. The court noted: "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Indeed, including weaker arguments might lessen the impact of the stronger ones. Accordingly, the court ruled that judges should not second-guess reasonable professional judgments and impose on appellate counsel the duty to raise every "colorable" issue. Such rules would disserve the goal of vigorous and effective advocacy. The Supreme Court of Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.

         {¶10} Moreover, even if a petitioner establishes that an error by his lawyer was professionally unreasonable under all the circumstances of the case, the petitioner must further establish prejudice: but for the unreasonable error there is a reasonable probability that the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court need not determine whether ...


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