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State v. Walker

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 31, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
CHARLES WALKER, Defendant-Appellant.

          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

          LARRY 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 appeal.

         I. Standard of Review Applicable to App.R. 26(B) Application for Reopening

         {¶ 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 strategy. Strickland.

         II. 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 the evidence.

         {¶ 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, 2008-Ohio-1934.

         {¶ 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 evidence.
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 grounds.
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, ...

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