Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-17-613373-A
Application for Reopening Motion No. 523722
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting
Attorney, for appellee.
Ravonte Carter, pro se.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, J.:
1} On December 11, 2018, the applicant, Ravonte
Carter, pursuant to App.R. 26(B) and State v.
Murnahan, 62 Ohio St.3d 60, 584 N.E.2d 1204 (1992),
applied to reopen this court's judgment in State v.
Carter, 8th Dist. Cuyahoga No. 106462, 2018-Ohio-3671,
in which this court affirmed his conviction for murder.
Carter claims that his appellate counsel should have argued
that trial counsel was ineffective for inadequate
cross-examination and for failing to move to strike a
witness's testimony. The state filed its brief in
opposition on December 27, 2018. For the following reasons,
this court denies the application.
2} On the night of December 22, 2016, Carter
confronted Donovan Alexander outside of a bar. While various
individuals tried to separate the two men, Carter shot
Donovan, who ran into the bar. Carter fled the scene. Several
eyewitnesses, including Donovan's brother, Dominic
Alexander; the bar owner; and an Alexander family friend
testified that Carter shot Donovan. When Donovan ran into the
bar, he made a dying declaration that Carter had shot him.
The grand jury indicted Carter for aggravated murder, murder,
and two counts of felonious assault, all with one- and
three-year firearm specifications.
3} During the trial an investigating police officer
testified that he had seen a firearm in Dominic's car. He
secured Dominic's written consent to search the car and
obtained the gun. The officer also testified that Dominic had
told him that the firearm was his. Dominic testified that the
gun belonged to Donovan and that he had not fired the gun
that night, even though he tested positive for gun residue
that night. Ballistics testing showed that shell casings
found by the bar that night were not fired from the gun in
Dominic's car and that the morgue pellet retrieved from
Donovan's body was not fired from the gun in
4} A jury found Carter guilty of murder and the two
counts of felonious assault. The judge merged the three
offenses; the state elected to sentence on the murder charge,
and the judge sentenced Carter to 18 years to life.
5} Carter's appellate counsel argued that (1)
the trial court erred in admitting the testimony of
Donovan's dying declaration; (2) the trial court erred in
admitting evidence of "other acts" by Carter; (3)
the trial court erred by failing to give a limiting
instruction that the "other acts" evidence could
not be considered as evidence of Carter's character; (4)
the trial court violated Carter's constitutional rights
when it found him guilty of felony murder with the felonious
assault of the murder victim as the predicate offense; (5)
the trial court erred by failing to give jury instructions on
the lesser-included offenses of aggravated assault and
involuntary manslaughter; (6) trial counsel was ineffective
for failing to request the lesser-included jury instructions,
for failing to object to the dying declaration, and for
failing to request the limiting instruction; and (7) the
verdict was against the manifest weight of the evidence.
6} Carter now claims that his appellate counsel
should have argued that his trial counsel was ineffective for
failing to cross-examine Dominic and the police officers
effectively. Carter continues that effective
cross-examination would have revealed such inconsistencies
that Dominic would have been so impeached that defense
counsel could have had his testimony stricken from the
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