Court of Appeals of Ohio, Seventh District, Mahoning
Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County
Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting
Defendant-Appellant: Brian C. Griffin, pro se.
JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl
OPINION AND JUDGMENT ENTRY
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.
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.
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).
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).
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.
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).
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.
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 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: * * * ...