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State v. Hopper

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 20, 2019

STATE OF OHIO, Plaintiff-Appellee,
CHARLES E. HOPPER, JR., Defendant-Appellant.

          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.


          EILEEN 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 ...

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