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State v. Cobb

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 12, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
MONTEZ COBB, Defendant-Appellant.

          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

          FRANK 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.

         I. 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 counsel.

         II. Law and Analysis

         A. 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 demonstrate ...


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