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State v. Makin

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 28, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
HAKEEN MAKIN DEFENDANT-APPELLANT

          Cuyahoga County Court of Common Pleas Case No. CR-15-600229-A Application for Reopening Motion No. 513129

          FOR APPELLANT Hakeen Makin, pro se.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Frank Romeo Zeleznikar Assistant County Prosecutor.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, P.J.

         {¶1} Hakeen Makin has filed a timely application for reopening pursuant to App.R. 26(B). Makin is attempting to reopen the appellate judgment rendered in State v. Makin, 8th Dist. Cuyahoga No. 104545, 2017-Ohio-7882, that affirmed his convictions and sentence for the offenses of failure to comply and felonious assault of a peace officer. We decline to reopen Makin's appeal.

         {¶2} In order to establish a claim of ineffective assistance of appellate counsel, Makin is required to establish that the performance of his appellate counsel was deficient and the deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990).

         {¶3} In Strickland, the United States Supreme Court held that a court's scrutiny of an attorney's work must be highly deferential. The court further stated that it is all too tempting for a defendant to second-guess his attorney after conviction and that it would be too easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Thus, 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

         {¶4} Herein, Makin raises three proposed assignments of error in support of his claim of ineffective assistance of appellate counsel. Makin's first proposed assignment of error is that:

The trial court committed error and denied appellant his rights under the constitutions of the United States and Ohio when it "abused its discretion", and wrongfully denied appellant his right to disqualify his trial counsel Brian McGraw.

         {¶5} Makin, through his first proposed assignment of error, argues that the trial court erred by failing to grant his request to remove appointed counsel. In State v. Makin, supra, this court held that:

Here, Makin requested that his appointed counsel be removed. The trial court conducted a hearing on Makin's request. A review of the hearing reveals that the court gave ample consideration to Makin's indications of his intent to self-represent. The trial court stated that it would give him a copy to read of the colloquy it must go through to determine if Makin could be his own attorney. The court stated:
"I'm not trying to talk you out of it. It's none of my business. There are some things that some people who want to represent themselves, that it sounds so good and glorious and maybe they saw a movie of where somebody represented themselves and did real well, et cetera, but there are some pitfalls. It might be good for you to read this colloquy so you'll know exactly the kind of questions the Court is going to be asking you and it gives you some time to think about it."
The court then set the matter for a hearing contingent upon Makin's indication to the court that he wished to proceed pro se. This matter, however, was not raised again by Makin, and he proceeded to trial with appointed counsel.
The foregoing record does not support Makin's assertion that the trial court denied him of his right to self-representation. Rather, it indicates that the trial court advised Makin of his options and set the ...

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