Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-17-619109-A
Application for Reopening Motion No. 525154
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Callista Plemel, Assistant Prosecuting
Attorney, for appellee.
Charles E. Hopper, Jr., pro se.
JOURNAL ENTRY AND OPINION
A. GALLAGHER, P.J.:
1} On January 29, 2019, the applicant, Charles E.
Hopper, Jr., pursuant to App.R. 26(B) and State v.
Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992),
applied to reopen this court's judgment in State v.
Hopper, 8th Dist. Cuyahoga No. 106668, 2018-Ohio-4520,
in which this court affirmed his conviction for felonious
assault. Hopper maintains that his appellate counsel should
have argued (1) that his trial counsel failed to argue that a
witness was biased against Hopper, (2) that his trial counsel
was ineffective for not investigating a possible witness, and
(3) that the trial judge deprived him of his constitutional
right to be heard. The state of Ohio filed its brief in
opposition on March 8, and Hopper filed his reply brief on
March 20, 2019. For the following reasons, this court denies
the application to reopen.
2} On July 4, 2017, five friends held a party:
Stephen Little and Renee Savage, who were in a romantic
relationship; Jimmie Slaubaugh, who was residing and sleeping
with Danielle Gerard who was also at the party; and Charles
Hopper, a longtime friend of Danielle Gerard who was residing
in her apartment and soon became her fiancé. After
watching fireworks, all five friends went to Danielle
Gerard's apartment. Stephen Little and Renee Savage began
arguing about their relationship. Little was facing Savage
and Jimmie Slaubaugh; Charles Hopper was in the bathroom.
When Hopper emerged from the bathroom, he retrieved a
baseball bat which was by the front door and hit Little twice
in the back of the head with it. Danielle Gerard called 911
and tried to keep Hopper in the apartment. Nevertheless,
Hopper ran from the apartment followed by the others. The
police arrived, questioned everyone, took Little to the
hospital and arrested Hopper.
3} In Gerard's statement to police, she
mentioned that her brother, Marc, was also there and tried to
keep Hopper in the apartment's kitchen. Pursuant to the
police report attached to Hopper's application, the
police were unsuccessful in locating Marc.
4} The grand jury indicted Hopper for attempted
murder and two counts of felonious assault. During
discussions in open court but out of the presence of the
jury, the judge addressed Hopper: "I'm sorry, Mr.
Hopper, you need to speak through counsel for purposes of the
trial and all proceedings associated therewith." (Tr.
366.) However, the record is silent on what prompted the
judge to make those comments.
5} The jury found Hopper not guilty of attempted
murder but guilty of the two counts of felonious assault. At
the sentencing hearing, Hopper said that he would have liked
some things brought up during trial and tried to reach out to
the judge but that the judge told him he could only speak
through his attorney. The judge merged the two counts of
felonious assault as allied offenses and sentenced Hopper to
seven years in prison.
6} Hopper's appellate counsel argued that the
trial court erred in allowing the state to impeach Gerard
with a 12-year-old misdemeanor forgery conviction. Hopper now
argues that his appellate counsel was ineffective for
choosing such a weak argument and should have raised the
three aforementioned issues.
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 (s)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