Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-17-623540-A
Application for Reopening Motion No. 526558
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Jennifer M. Meyer, Assistant Prosecuting
Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Timothy B. Hackett,
Assistant State Public Defender, for appellant
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., J.
1} Applicant, Montez Cobb, timely seeks to reopen
his appeal in State v. Cobb, 8th Dist. Cuyahoga No.
106928, 2018-Ohio-5043, claiming that appellate counsel was
ineffective because counsel failed to order and submit for
review the transcript of a juvenile bindover hearing that
resulted in Cobb's trial for crimes in the common pleas
court. We deny the application because Cobb has not presented
a colorable claim of ineffective assistance of counsel.
Factual and Procedural History
2} As set forth in the appellate decision, Cobb was
charged with numerous offenses related to a string of
robberies, including burglaries and armed robberies.
Id. at ¶ 2. He was bound over from juvenile
court and tried in the common pleas court. Id. He
eventually pled guilty to 8 of the counts contained in the
26-count indictment. Id. at ¶ 5. Cobb received
an aggregate 30-year prison sentence.
3} On appeal, Cobb raised three assignments of error
dealing with the length of sentence, the consecutive nature
of sentences, and ineffective assistance of trial counsel for
failing to offer mitigating evidence during sentencing.
Id. at ¶ 10. These assignments of error were
overruled, and the convictions were affirmed in this
court's decision released December 13, 2018. Id.
at ¶ 22.
4} On March 13, 2019, Cobb filed the instant
application to reopen his appeal. He claims that appellate
counsel was ineffective because counsel failed to
include the juvenile-court transcript as part of the record
on appeal. As a result, counsel failed to raise any issues or
arguments pertaining to the juvenile court's probable
cause and amenability determinations; and, in fact, it is
unclear whether counsel even reviewed the juvenile court
record to determine whether there were appealable issues.
(Citations omitted.) Application for Reopening at page 4. The
state timely opposed the application pointing out that Cobb
failed to include a sworn affidavit as required by App.R.
26(B)(2)(d), failed to include any proposed assignments of
error as required by App.R. 26(B)(2)(c), and failed
sufficiently to show ineffective assistance of appellate
Standard for Reopening
5} App.R 26(B) provides a limited means for a
criminal defendant to reopen a direct appeal based on a claim
of ineffective assistance of appellate counsel. A defendant
must establish a colorable claim of ineffective assistance of
counsel in order to prevail on an application for reopening.
State v. Smith,95 Ohio St.3d 127, 2002-Ohio-1753,
766 N.E.2d 588, ¶ 7, citing State v.
Spivey,84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). The
test for ineffective assistance of counsel requires a
defendant to prove (1) that counsel's performance was
deficient, and (2) that the deficient performance prejudiced
the defendant. Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this
test, a criminal defendant seeking to reopen an appeal must