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State v. Binford

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 31, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
CARLOS BINFORD DEFENDANT-APPELLANT

          Cuyahoga County Court of Common Pleas Case No. CR-16-610418-A Application for Reopening Motion No. 516631

          FOR APPELLANT CARLOS BINFORD, PRO SE LAKE ERIE CORRECTIONAL INSTITUTION

          ATTORNEYS FOR APPELLEE MICHAEL C. O'MALLEY CUYAHOGA COUNTY PROSECUTOR BY: MARY C. FREY KELLY NEEDHAM ASSISTANT COUNTY PROSECUTORS

          JUDGMENT

          KATHLEEN ANN KEOUGH, JUDGE.

         {¶1} Carlos Binford has filed a timely application for reopening pursuant to App.R. 26(B). Binford is attempting to reopen the appellate judgment rendered in State v. Binford, 8th Dist. Cuyahoga No. 105414, 2018-Ohio-90, that affirmed his conviction and sentence for the offenses of felonious assault, having weapons while under disability, and improperly handling firearms in a motor vehicle. We decline to reopen Binford's appeal.

         {¶2} In order to establish a claim of ineffective assistance of appellate counsel, Binford 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, Binford has raised one proposed assignment of error in support of his claim of ineffective assistance of appellate counsel. Binford's sole proposed assignment of error is that:

Appellate counsel was ineffective for failing to assign as error, trial counsel's ineffectiveness for his failure to impeach the state's star witness with the police body camera video of the star witnesses' statements on the day of the incident due to trial counsel's failure to introduce the police body camera video into evidence.

         {¶5} Binford, through his proposed assignments of error, argues that his appellate counsel should have raised an ineffective assistance of trial counsel claim because a police officer's body camera video was not introduced at trial to impeach a state's witness.

         {¶6} The principles of res judicata may be applied to bar the further litigation of issues that were raised previously or could have been raised previously in an appeal. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Claims of ineffective assistance of appellate counsel in an application for reopening may be barred from further review by the doctrine of res judicata unless circumstances render the application of the doctrine unjust. State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992); State v. Logan, 8th Dist. Cuyahoga No. 88472, 2008-Ohio-1934.

{¶7} In State v. Binford, supra, this court held that:
Patrolman Frank Garmbach testified at trial that he responded to the scene of the shooting on June 26, 2016, and that he turned his body camera on when he exited his patrol car. He said that when he arrived, he approached Rencher, who was applying pressure to Ward's leg to stop the bleeding.
The record reflects that during his cross-examination of Rencher, defense counsel asked Rencher about statements he made to the police on the video. Counsel asked Rencher if he remembered telling an officer at the scene "that you were fighting somebody, and somebody else drove up and shot your son in the leg?" Rencher said he did not remember making this statement. Defense counsel also questioned Rencher regarding whether he had told the police that Ward chased Binford to his car, and that Binford then got a gun out of the car and shot him. When Rencher denied that Ward had chased Binford to his car, counsel ...

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