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State v. Johnson

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 6, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
ROBERT D. JOHNSON, Defendant-Appellant.

          Cuyahoga County Court of Common Pleas Case No. CR-17-614774-A Application for Reopening Motion No. 521796.

         JUDGMENT: APPLICATION DENIED.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Katherine Mullin, Assistant Prosecuting Attorney, for appellee.

          Robert D. Johnson, pro se.

          JOURNAL ENTRY AND OPINION

          LARRY 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 ineffective.

         {¶ 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 ...


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