Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Powell

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 27, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
ANTONIO POWELL, Defendant-Appellant.

          Cuyahoga County Court of Common Pleas Case No. CR-17-615121-B Application for Reopening Motion No. 528061

         JUDGMENT: APPLICATION DENIED

          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.

         Standard of Review Applied to an App. R. 26(B) Application for Reopening

         {¶ 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 strategy. Strickland.

         First Proposed Assignment of Error

         {¶ 4} Powell alleges the following proposed assignment of error:

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.