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State v. Dunn

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 2, 2018


          Cuyahoga County Court of Common Pleas Case No. CR-12-568849-A Application for Reopening Motion No. 515411

          FOR APPELLANT Damon Dunn, pro se

          ATTORNEYS FOR APPELLEE Mike DeWine Ohio Attorney General By: Brian S. Deckert Micah Ault Assistant Ohio Attorney



         {¶1} Applicant, Damon Dunn, seeks to reopen his appeal pursuant to App.R. 26(B), claiming that appellate counsel was ineffective. For the reasons that follow, we deny the application.

         {¶2} Dunn was indicted in Cuyahoga C.P. No. CR-12-568849-A and convicted of crimes related to the murder of Kenneth Adams. He appealed, arguing three assigned errors: The denial of a motion to dismiss based on prosecutorial misconduct, the admission of testimony from a representative of a cell phone company, and the court's use of a flight jury instruction. Dunn's convictions were affirmed on appeal. State v. Dunn, 8th Dist. Cuyahoga No. 101648, 2015-Ohio-3138.[1]

         {¶3} After the appellate decision was issued on August 6, 2015, Dunn filed a timely application for reopening on November 3, 2015. Six days later, this court journalized an erroneous denial of a motion for reconsideration. Through a series of clerical errors, the application remained pending. These errors were brought to this court's attention by Dunn's motion requesting findings of facts and conclusions of law, filed on March 5, 2018. This court vacated the earlier order denying a motion for reconsideration, and gave the state an opportunity to file a brief in opposition to Dunn's application. The state did not do so.

         {¶4} In his application, Dunn asserts two proposed assignments of error. First, he contends that appellate counsel was ineffective for failing to raise and argue that the evidence was insufficient to support his convictions and the manifest weight of the evidence did not support his convictions. Second, Dunn asserts that appellate counsel was ineffective for not alleging instances where trial counsel was ineffective.

         I. Ineffective Assistance of Appellate Counsel

         {¶5} A criminal defendant is constitutionally entitled to representation during the appellate process. Therefore, claims of ineffective assistance of appellate counsel are cognizable. State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992). App.R. 26(B) provides a procedure to assert such claims. It allows for the reopening of an appeal based on a claim that appellate counsel was ineffective.

         {¶6} An application for reopening must set forth "[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). The application is required to support the alleged assignments of error with a sworn statement detailing the deficient representation and how the deficient performance prejudiced the applicant. App.R. 26(B)(2)(d). "To succeed on an App.R. 26(B) application, a petitioner must establish that counsel's performance fell below an objective standard of reasonable representation and that he was prejudiced by the deficient performance." State v. Adams, 146 Ohio St.3d 232, 2016-Ohio-3043, 54 N.E.3d 1227, ¶ 2, citing State v. Dillon, 74 Ohio St.3d 166, 171, 657 N.E.2d 273 (1995); App.R. 26(B)(5). This is the standard applicable to other ineffective assistance claims announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See State v. Reed, 74 Ohio St.3d 534, 660 N.E.2d 456 (1996). Dunn must demonstrate that "there was a 'genuine issue' as to whether he has a 'colorable claim' of ineffective assistance of counsel on appeal." State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998).

         {¶7} In order to show prejudice, an applicant must demonstrate that "there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt about his guilt." Strickland at 695. In determining whether an applicant has been prejudiced, the court "must consider the totality of the evidence before the judge or jury." Id.

         {¶8} An appellate attorney has wide latitude and thus the discretion to decide which issues and arguments will prove most useful on appeal. Strickland at __ 7. Appellate counsel is also not required to raise every possible issue. Jones v. Barnes, 463 U.S. 745, 753-754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); State v. Gumm, 73 Ohio St.3d 413, 653 N.E.2d 253 (1995). Additionally, appellate counsel is not required to argue assignments of error that are meritless. Id.

         A. Sufficiency and Manifest ...

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