Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-12-568849-A
Application for Reopening Motion No. 515411
APPELLANT Damon Dunn, pro se
ATTORNEYS FOR APPELLEE Mike DeWine Ohio Attorney General By:
Brian S. Deckert Micah Ault Assistant Ohio Attorney
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, JUDGE
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
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,
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.
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 Assistance of Appellate Counsel
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.
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
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.
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.
Sufficiency and Manifest ...