Court of Appeals of Ohio, Seventh District, Mahoning
to Reopen Appeal
Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M.
Rivera, Assistant Prosecuting Attorney Plaintiff-Appellee
Romeo, Pro se, #089-578 Ohio Reformatory for Women (ORW),
1479 Collins Avenue, Marysville, Ohio 43040.
BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb,
OPINION AND JUDGMENT ENTRY
Appellant Summer Romeo has filed an Application for Reopening
her appeal pursuant to App.R. 26(B). She was convicted for
complicity to improperly discharge a firearm at or into a
cohabitation in violation of R.C. 2923.161(A)(1)(C), a
firearm specification pursuant to R.C. 2941.145(A), and a
firearm specification under R.C. 2941.146(A). She was
sentenced to a term of imprisonment of three years on the
substantive crime, plus three years for the R.C. 2941.145(A)
firearm specification and five years for the firearm
specification in R.C. 2941.146(A). These were to be served
consecutively, for an aggregate sentence of eleven years in
Appellant's conviction was based on a drive-by shooting
that occurred after Appellant had sent numerous threatening
text messages to the victim of the crime. Witnesses
identified Appellant and her vehicle as being present at the
time that shots were fired at the residence. On direct
appeal, Appellant raised sufficiency and weight of the
evidence challenges to her conviction, and also argued that
the trial court failed to merge allied offense of similar
import. We affirmed Appellant's conviction and sentence.
A criminal defendant may apply for reopening of her 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 cannot merely allege
that appellate counsel rendered ineffective assistance for
failing to brief certain issues. Rather, the application must
demonstrate that 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).
Appellant's application suffers from several procedural
and substantive defects. Pursuant to App.R. 26(B)(1),
Appellant was required to file her application for reopening
within 90 days of the journalization of our judgment entry.
"Consistent enforcement of the rule's deadline by
the appellate courts in Ohio protects on the one hand the
state's legitimate interest in the finality of its
judgments and ensures on the other hand that any claims of
ineffective assistance of appellate counsel are promptly
examined and resolved." State v. Gumm, 103 Ohio
St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, ¶ 7.
If an application for reopening is not filed within the
90-day period set forth in App.R. 26(B)(1), an appellant must
make a showing of good cause for the untimely filing. App.R.
26(B)(2)(b). While Appellant concedes that her application is
untimely, she offers no explanation for her untimeliness.
Next, the application does not comply with the briefing
requirements of App.R. 26(B)(2)(c). Rather than stating
specific assignments of error, Appellant provides general
bullet points and caselaw, with little to no argument
addressing the specific facts in this case. Likewise,
Appellant did not fulfill the requirements of App.R.
26(B)(2)(d), insofar as she failed to submit a sworn
statement of the basis for the claim that appellate
counsel's representation was deficient with respect to
the assignments of error or arguments raised pursuant to
division (B)(2)(c), and the manner in which the deficiency
prejudicially affected the outcome of the appeal.
Even assuming that Appellant had complied with the
requirements of App.R. 26(B)(1) and (2), she fails to meet
the standard for reopening this appeal. The test for
ineffective assistance of appellate counsel has two parts:
establishing that counsel's performance was deficient,
and that this resulted in prejudice. 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.
Appellant must show that counsel's performance was so
deficient that it fell below an objective standard of
reasonableness and, but for this substandard representation,
the outcome of the case would have been different.
Strickland at 687. Establishing ineffective
assistance of appellate counsel means that the applicant must
prove that counsel was deficient for failing to raise the
issues now presented and that there was a reasonable
probability of success had applicant presented those claims
on appeal. State v. Were, 120 Ohio St.3d 85,
2008-Ohio-5277, 896 N.E.2d 699, ¶ 10-11.
Appellant also cites evidence not offered at trial involving
the gun, bullet casings, and gunshot residue tests, to assert
sufficiency and manifest weight of the evidence challenges.
Her argument ignores the evidence actually offered at trial,
which we previously held was sufficient to sustain the
jury's verdict in this case. She further argues that the