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State v. Griffin

Court of Appeals of Ohio, Seventh District, Mahoning

January 19, 2018

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
BRIAN C. GRIFFIN, DEFENDANT-APPELLANT.

         Application for Reopening

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

          For Defendant-Appellant: Brian C. Griffin, pro se.

          JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl L. Waite.

          OPINION AND JUDGMENT ENTRY

          PER CURIAM.

         {¶1} Defendant-Appellant Brian C. Griffin has filed a timely application to reopen the direct appeal from his criminal conviction. Appellant sets forth six proposed assignments of error he claims appellate counsel should have raised. For the following reasons, the application is denied.

         {¶2} A jury found Appellant guilty of eight counts of rape of a child under age ten. He was also found guilty of eight counts of gross sexual imposition, which merged with the rape counts at sentencing. Appellant filed a timely appeal from the March 8, 2016 amended sentencing entry. His first assignment of error addressed the manifest weight of the evidence, which this court overruled. State v. Griffin, 7th Dist. No. 16MA29, 2017-Ohio-7796, ¶ 12-21. His second assignment of error alleged the trial court erred in excluding evidence about an accusation against the victim's grandfather by another family member, which this court also overruled. Id. at ¶ 22-30.

         {¶3} On December 11, 2007, Appellant filed a timely application to reopen our September 20, 2017 decision. A criminal defendant may apply for reopening of an appeal from the judgment of conviction and sentence based on a claim of ineffective assistance of appellate counsel. App.R. 26(B)(1). The application for reopening must contain: "One 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).

         {¶4} The application must demonstrate 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). The inquiry utilizes the standard two-part test for ineffective assistance of counsel where both prongs must be met: deficient performance and resulting prejudice. See State v. Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶ 5, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); App.R. 26(B)(2)(d). See also State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (if the performance was not deficient, then there is no need to review for prejudice, and vice versa).

         {¶5} In evaluating an alleged deficiency in performance, an appellate court's review is highly deferential to counsel's decisions as there is a strong presumption counsel's conduct falls within the wide range of reasonable professional assistance. State v. Bradley, 42 Ohio St.3d 136, 142-143, 538 N.E.2d 373 (1989), citing Strickland, 466 U.S. at 689. See also State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995) (a court should not second-guess the strategic decisions of counsel). Instances of debatable strategy very rarely constitute ineffective assistance of counsel. See State v. Thompson, 33 Ohio St.3d 1, 10, 514 N.E.2d 407 (1987). There are "countless ways to provide effective assistance in any given case." Bradley, 42 Ohio St.3d at 142, citing Strickland, 466 U.S. at 689.

         {¶6} On the prejudice prong, a lawyer's errors must be so serious that there is a reasonable probability the result of the proceeding would have been different. Carter, 72 Ohio St.3d at 558. Lesser tests of prejudice have been rejected: "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Bradley, 42 Ohio St.3d 136 at fn. 1, quoting Strickland, 466 U.S. at 693. Prejudice from defective representation justifies reversal only where the results were unreliable or the proceeding was fundamentally unfair due to the performance of trial counsel. Carter, 72 Ohio St.3d at 558, 651 N.E.2d 965, citing Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

         {¶7} Appellant proposes six assignments of error he claims appellate counsel should have briefed. First, he alleges: "Appellant's sentence is contrary to law." In the sentencing entry, the trial court recited the jury's guilty verdict on eight counts of rape of a child under age 10, citing "R.C. 2907.02(A)(1)(b), (B), a Felony/Life." The court then sentenced Appellant to life on each of these rape counts. Five of the life sentences were ordered to run consecutively, and three were ordered to run concurrently. Appellant contends the trial court disregarded the statutory sentencing requirements by phrasing his sentence as a "life" sentence instead of stating his sentence was "a minimum term of fifteen years and a maximum of life imprisonment, " quoting R.C. 2971.03(B)(1)(b).

         {¶8} Rape in violation of R.C. 2907.02(A)(1)(b) involves sexual conduct with a child under 13. Division (B) then provides: "Except as otherwise provided in this division, notwithstanding sections 2929.11 to 2929.14 of the Revised Code, an offender under division (A)(1)(b) of this section shall be sentenced to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code." R.C. 2907.02(B) (however, "if the victim under division (A)(1)(b) of this section is less than ten years of age, in lieu of sentencing the offender to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, the court may impose upon the offender a term of life without parole"). The state sought, but the court did not choose, this life without parole option for rape of a child under 10. Instead, the court chose the life option in R.C. 2907.02(B), which refers the court to R.C. 2971.03. Pursuant to R.C. 2971.03(B)(1),

if a person is convicted of or pleads guilty to a violation of division (A)(1)(b) of section 2907.02 of the Revised Code committed on or after January 2, 2007, if division (A) of this section[1] does not apply regarding the person, and if the court does not impose a sentence of life without parole when authorized pursuant to division (B) of section 2907.02 of the Revised Code, the court shall impose upon the person an indefinite prison term consisting of one of the following: * * * ...

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