Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-17-613109-A
Application for Reopening Motion No. 522502
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Frank Zeleznikar, Assistant Prosecuting
Attorney, for appellee.
Norman Law, Inc., and William N. Norman, for appellant.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, PRESIDING JUDGE.
1} On October 29, 2018, the applicant, Ranau
Johnson, pursuant to App.R. 26(B), applied to reopen this
court's judgment in State v. Johnson, 2018-
Ohio-3670, 119 N.E.3d 914 (8th Dist.), in which this court
affirmed his convictions for arson and two of his sentences,
but vacated his conviction for attempted felony murder,
reversed the award of restitution, and remanded the case for
a resentencing on one of the arson counts and for an
evidentiary hearing to determine the appropriate amount for
restitution. Johnson now argues that his appellate counsel
was ineffective for failing to argue that all of the arson
counts should have merged as allied offenses and that the
testimony of the fire investigator was not based on
scientific evidence. The state filed its brief in opposition
on November 5, and Johnson filed a reply brief on November
14, 2018. For the following reasons, this court denies the
application to reopen.
2} In early January 2016, Johnson's
ex-girlfriend was living in her uncle's home; they had
broken up as a couple on New Year's Eve. On the night of
January 4, 2016, the ex-girlfriend was in her basement
bedroom, when she heard a window break, and some glass fell
on her bed. She saw Johnson pouring liquid from a Hawaiian
Punch bottle. She recognized that the liquid was gasoline,
and she ran from the bedroom. When she looked back, she saw
flames coming down the wall, traveling across the floor and
onto her bed. She ran from the house and saw Johnson with the
bottle getting into his car.
3} The uncle also heard glass break and while
investigating, saw Johnson walking to his car. Although the
ex-girlfriend and the uncle tried to extinguish the fire, the
Cleveland Fire Department arrived and was able to put out the
fire in approximately ten minutes.
4} The grand jury indicted Johnson on one count of
attempted murder, trying to cause the death of his
ex-girlfriend as a proximate result of committing the offense
of aggravated arson; and three counts of aggravated arson by
creating through fire a substantial risk of serious harm to
the ex-girlfriend, the uncle, and the house. After a bench
trial, the judge found Johnson guilty of all charges. At
sentencing, the judge merged the attempted murder count with
the aggravated arson count for the ex-girlfriend and imposed
a ten-year sentence. He then sentenced Johnson to ten years
for the aggravated arson count for the uncle, and seven years
for the aggravated arson charge for the house, all to be
served consecutively. The judge also ordered Johnson to pay
$5, 000 in restitution.
5} Johnson's appellate counsel argued (1) that
all of the convictions were against the manifest weight of
the evidence; (2) that there was insufficient evidence to
support the convictions for aggravated arson against the two
people, because there was no proof of risk of serious harm;
(3) that there was insufficient evidence to prove attempted
murder; (4) that an ersatz fire investigation produced
manifestly unreliable results because the state did not
establish that the fire investigator was an expert and that
he based his report on scientifically valid principles and
methods; (5) that the trial judge erred in imposing
consecutive sentences; and (6) that the restitution order was
not based on proper evidence. This court sua sponte vacated
the attempted felony murder charge on the basis of State
v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d
1016. Because the attempted murder charge had been merged
with the aggravated arson charge against the ex-girlfriend,
this court remanded for resentencing on that count. This
court also ruled that the judge had not correctly determined
the amount of restitution and remanded for a proper hearing.
The court overruled the other assignments of error and
affirmed the other convictions and sentences.
6} Johnson now claims that his appellate attorney
should have argued that all of the arson charges were allied
offenses and that the fire department investigation was not
based on scientific evidence but merely on the victims'
7} 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.
8} 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.
9} 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