Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-17-615721-C
Application for Reopening Motion No. 525911
Michael C. O'Malley, Prosecuting Attorney, by Frank Romeo
Zeleznikar, Assistant Prosecuting Attorney, for appellee.
Charles Walker, pro se.
JOURNAL ENTRY AND OPINION
A. JONES, SR., J.
1} Charles Walker has filed a timely application for
reopening pursuant to App.R. 26(B). Walker is attempting to
reopen the appellate judgment, rendered in State v.
Walker, 8th Dist. Cuyahoga No. 106571, 2018-Ohio-5172,
that affirmed his conviction and sentence of incarceration
for the offenses of aggravated murder, murder, discharge of a
firearm on or near prohibited premises, felonious assault,
improperly handling firearms in a motor vehicle, and carrying
concealed weapons. We decline to reopen Walker's original
Standard of Review Applicable to App.R. 26(B) Application for
2} In order to establish a claim of ineffective
assistance of appellate counsel, Walker is required to
demonstrate 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 in 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
Convictions against Manifest Weight
4} Walker, through his first proposed assignment of
error, argues that appellate counsel failed to assert on
appeal that his convictions for the offenses of aggravated
murder, murder, felonious assault, and discharge of a firearm
near prohibited premises were against the manifest weight of
5} 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,
6} The issue raised by Walker through his first
proposed assignment of error, manifest weight, has already
been addressed upon direct appeal though his fifth assignment
of error. This court held that:
For his fifth assigned error, Walker challenges his
convictions as being against the manifest weight of the
When a conviction is challenged on appeal as being against
the weight of the evidence, an appellate court must review
the entire record, weigh the evidence and all reasonable
inferences, consider witness credibility, and determine
whether, in resolving conflicts in the evidence, the trier of
fact "clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed
and a new trial ordered." Thompkins, 78 Ohio
St.3d at 387, 678 N.E.2d 541. A judgment should be reversed
as being against the manifest weight of the evidence
"only in the exceptional case in which the evidence
weighs heavily against the conviction." State v.
Martin, 20 Ohio App.3d 172, 175, 20 Ohio B. 215, 485
N.E.2d 717 (1st Dist.1983).
A conviction is '"not against the manifest weight of
the evidence simply because the jury believed the prosecution
testimony."' State v. Moore, 2d Dist.
Montgomery No. 20005, 2004-Ohio 3398, ¶ 52, quoting
State v. Gilliam, 9th Dist. Lorain No. 97CA006757,
1998 Ohio App. LEXIS 3668 (Aug. 12, 1998). The weight to be
given to the evidence and the credibility of the witnesses
are issues primarily for the trier of fact, and the jury is
free to believe all, none or portions of the testimony.
State v. Long, 127 Ohio App.3d 328, 335, 713 N.E.2d
1 (4th Dist.1998). Thus, the fact that the jury may or may
not have found all of a particular witness's testimony to
be credible is not a basis for reversal on manifest weight
After carefully reviewing the trial court's record in its
entirety, we conclude that the jury did not lose its way in
resolving credibility determinations, nor did the convictions
create a manifest miscarriage of justice. The jury was in the
best position to determine the credibility of the testimony
presented, and we decline to substitute our judgment for that
of the trier of fact. Consequently, ...