Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-17-615121-B
Application for Reopening Motion No. 528061
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting
Attorney, for appellee.
Antonio Powell, pro se.
JOURNAL ENTRY AND OPINION
MICHELLE J. SHEEHAN, JUDGE
1} Antonio Powell has filed a timely application to
reopen his direct appeal pursuant to App.R. 26(B). Powell
seeks to reopen the appellate judgment, rendered in State
v. Powell, 8th Dist. Cuyahoga No. 107006, 2019-Ohio-346,
alleging ineffective assistance of appellate counsel.
Specifically, Powell alleges his appellate counsel failed to
appeal (1) the improper sentence of a 5-year-firearm
specification for Count 5, and (2) the failure to merge
attempted murder charges. For the reasons stated below, we
decline to reopen Powell's original appeal.
of Review Applied to an App. R. 26(B) Application for
2} In order to establish a claim of ineffective
assistance of appellate counsel, Powell is required to
establish that the performance of his appellate counsel was
deficient and the deficiency resulted in prejudice.
Strickland v. Washington, 466 U.S. 688, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989), cert denied,
497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990).
3} In Strickland, the United States Supreme
Court held that a court's scrutiny of an attorney's
work must be highly deferential. The court further stated
that it is all too tempting for a defendant to second-guess
his attorney after conviction and that it would be too easy
for a court to conclude that a specific act or omission was
deficient, especially when examining the matter in hindsight.
Thus, a court must indulge in 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
Proposed Assignment of Error
4} Powell alleges the following proposed assignment
Appellant's Fifth and Fourteenth Amendment Rights
against Double Jeopardy were violated when he was sentenced
to five years on a firearm specification that was deleted
on count five.
5} Powell argues that appellate counsel was
ineffective by failing to argue on appeal a void sentence.
Specifically, Powell argues that the trial court erred by
imposing a five-year term of incarceration on a firearm
specification associated with Count 5 because the firearm
specification had been allegedly deleted by the state.
6} Contrary to Powell's claim, the record
demonstrates that the five-year firearm specification was not
deleted by the state and Powell entered a voluntary and
knowing plea of guilty to Count 5 with the appurtenant
five-year firearm specification. See tr. 1-7 and tr.
14-27. In fact, the trial court's February 6, 2018
journal entry specifically states that Powell agreed to plead
guilty to Count 5, attempted murder, as well as ...