Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-17-614774-A
Application for Reopening Motion No. 521796.
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Katherine Mullin, Assistant Prosecuting
Attorney, for appellee.
D. Johnson, pro se.
JOURNAL ENTRY AND OPINION
A. JONES, SR, JUDGE.
1} On October 9, 2018, the applicant, Robert
Johnson, pursuant to App.R. 26(B), applied to reopen this
court's judgment in State v. Johnson, 8th Dist.
Cuyahoga No. 106532, 2018-Ohio-3999, in which this court
affirmed his conviction and sentences. Johnson now asserts
that his appellate counsel was ineffective for not arguing
that Johnson was denied his right to a speedy trial and that
his trial counsel were ineffective for not seeking his
discharge. In a supplement, filed October 22, 2018, Johnson
added that his appellate counsel should have raised
insufficiency of the evidence. The state of Ohio filed its
brief in opposition on November 8, 2018. Johnson filed a
reply brief on November 16, 2018. For the following reasons,
this court denies the application to reopen.
2} On the night of February 22, 2017, Johnson was
trying to talk to his ex-girlfriend, who was carrying their
baby. After going to her home, he argued through the door.
When he broke a window and the outer front door, she called
the police, and he fled.
3} In the early morning hours of February 24, 2017,
he returned to his ex-girlfriend's home and broke windows
using a bar and punched out the plexiglass of the back door.
When he heard screaming from the house, he fled again. He
returned a short time later and this time broke down the back
door. Upon entering the home, he seized his ex-girlfriend,
choked her, pulled out her hair extensions, ripped off her
clothes, and tried to rape her. Responding to a call from one
of the ex-girlfriend's children, the police arrived at
her residence and arrested Johnson.
4} In a trial that began on September 19, 2017, a
jury convicted him of attempted rape, aggravated burglary,
abduction, assault, and criminal damaging. The trial judge
imposed a prison sentence of 12 years. He merged the
attempted rape charge with the abduction charge and imposed
an eight-year sentence for attempted rape. He merged
aggravated burglary with the burglary charge and imposed a
four-year sentence for aggravated burglary to be served
consecutively to the attempted rape sentence. The judge
imposed 180-day sentences for assault and criminal damaging
to be served concurrently.
5} On appeal, counsel argued that the attempted rape
charges and the aggravated burglary charges should have
merged as allied offenses and that the court erred in
imposing the maximum eight-year sentence for attempted rape.
Johnson now argues that his appellate counsel was
6} In order to establish a claim of ineffective
assistance of appellate counsel, the applicant must
demonstrate that counsel's performance was deficient and
that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v.
Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.
7} In Strickland, the United States Supreme
Court ruled that judicial scrutiny of an attorney's work
must be highly deferential. The court noted that it is all
too tempting for a defendant to second-guess his lawyer after
conviction and that it would be all too easy for a court,
examining an unsuccessful defense in hindsight, to conclude
that a particular act or omission was deficient. Therefore,
"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 at 689.
8} Specifically, in regard to claims of ineffective
assistance of appellate counsel, the United States Supreme
Court has upheld the appellate advocate's prerogative to
decide strategy and tactics by selecting what he thinks are
the most promising arguments out of all possible contentions.
The court noted: "Experienced advocates since time
beyond memory have emphasized the importance of winnowing out
weaker arguments on appeal and focusing on one central issue
if possible, or at most on a few key issues." Jones
v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308,
77 L.Ed.2d 987 (1983). Indeed, including weaker
arguments might lessen the impact of the stronger ones.
Accordingly, the court ruled that judges should not
second-guess reasonable professional judgments and impose on
appellate counsel the duty to raise every
"colorable" issue. Such rules would disserve the
goal of vigorous and effective advocacy. The Supreme Court of
Ohio reaffirmed these principles in State v. Allen,
77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.
9} Moreover, even if a petitioner establishes that
an error by his lawyer was professionally unreasonable under
all the circumstances of the case, the petitioner must
further establish prejudice: but for the unreasonable error
there is a reasonable probability that the results of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. A court need not determine whether