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State v. Johnson

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 9, 2019

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

          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.

          W.E.B. Norman Law, Inc., and William N. Norman, for appellant.



         {¶ 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' statements.

         {¶ 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 ...

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