Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-16-611757-A
Application for Reopening Motion No. 530102
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Oscar Albores, Assistant Prosecuting Attorney,
Michael Knox, pro se.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, JUDGE
Michael Knox timely seeks to reopen his appeal pursuant to
App.R. 26(B), claiming that appellate counsel was ineffective
for failing to raise a number of issues on appeal. For the
following reasons, the application is denied.
2} According to Knox, in 2017 he was incarcerated in the
state of Michigan when he caused a notice of availability to
be sent to officials in Cuyahoga County pursuant to the
Interstate Agreement on Detainers ("IAD"). He was
subsequently extradited to Ohio to face charges related to
the rape of two women that occurred in 1999. State v.
Knox, 8th Dist. Cuyahoga No. 107414, 2019-Ohio-1246,
¶ 2. He was found guilty of numerous counts, but after
the merger of allied offenses he was sentenced to 8 years to
life for each of two counts of rape - for an aggregate prison
term of 16 years to life. That aggregate term was ordered to
be served consecutive to the existing prison sentence he was
serving in Michigan.
3} Knox appealed his convictions to this court, raising four
assignments of error. This court overruled each assigned
error and affirmed the convictions, but remanded the matter
for Knox to be classified as a Tier III sex offender pursuant
to a stipulation Knox entered on the record before the trial
court. Id. at ¶ 72-73.
On June 4, 2019, Knox timely filed an application for
reopening. There, he did not specifically set forth
any proposed assignments of error, but did include a number
of issues that appellate counsel should have raised in the
direct appeal. The state did not respond in opposition.
Standard Applicable to Applications for Reopening
App.R. 26(B) allows a criminal defendant to assert a claim of
ineffective assistance of appellate counsel following the
disposition of the direct appeal. The rule states, "[A]
defendant in a criminal case may apply for reopening of the
appeal from the judgment of conviction and sentence, based on
a claim of ineffective assistance of appellate counsel."
App.R. 26(B)(1). The rule goes on to provide that "[a]n
application for reopening shall be granted if there is a
genuine issue as to whether the applicant was deprived of the
effective assistance of counsel on appeal." A claim of
ineffective assistance of appellate counsel is analyzed under
the same standard for a claim of ineffective assistance of
trial counsel set forth in Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5277,
896 N.E.2d 699, ¶ 10. Therefore, the applicant must
establish that appellate counsel was deficient for failing to
raise a claim or issue, and there is a reasonable probability
of success had it been raised in the appeal. Further, the
applicant "bears the burden of establishing that there
was a 'genuine issue' as to whether he has a
'colorable claim' of ineffective assistance of
counsel on appeal." State v. Spivey, 84 Ohio
St.3d 24, 25, 701 N.E.2d 696 (1998).
6} The rule further requires the applicant to assert
"[o]ne or more assignments of error or arguments in
support of assignments of error that previously were not
considered on the merits in the case by any appellate court
or that were considered on an incomplete record because of
appellate counsel's deficient representation[.]"
App.R. 26(B)(2)(c). Knox's application fails to set forth
any proposed assignments of error. This is sufficient grounds
to deny the application. State v. Lewis, 8th Dist.
Cuyahoga Nos. 88627, 88628, and 88629, 2008-Ohio-679, ¶
17. However, this court will address the arguments that can
be gleaned from the application to the extent that they can
The Interstate Agreement on Detainers
7} R.C. 2963.30 implements the IAD in Ohio. The statute
provides one imprisoned in a state (the "holding
state") and accused of a crime in another state (the
"receiving state") the opportunity to have charges
adjudicated in a timely fashion. It provides that once
initiated by the prisoner, the receiving state must bring the
individual to trial within 180 days of the request.
Id., Article III(a).
Under the prisoner-initiated procedure outlined in the
statute, the "warden, commissioner of corrections or
other officials having custody of the prisoner" must
promptly inform the prisoner of any detainer as well as the
prisoner's rights in making a request for final
disposition. R.C. 2963.30, Article III(c). The prisoner may
then provide a written notice for final disposition to the
warden, commissioner of corrections, or other official having
custody of him, who must forward it to the "appropriate
prosecuting official and court" in the receiving state,
that is, the state where the detainer is pending.
Id., Article II(c) and III(b). The receiving state
must bring the prisoner to trial within 180 days of receiving
the prisoner's request for disposition, or the charges
will be dismissed with prejudice for good cause shown.
Id., Article III(a) and (d). A prisoner invoking the
IAD also waives any objection to extradition. Id.,
Article III(e). Because a prisoner's request under the
statute operates as a request for final disposition of any
untried indictments on which a detainer from the receiving
state is based, the authorities with custody of the prisoner
must notify all the prosecuting officers and courts in the
receiving state of any request for final disposition by the
prisoner. Id., Article III(d).
State v. Johnson, 4th Dist. Scioto No. 16CA3733,
2016-Ohio-7036, ¶ 16, citing State v. Black,
142 Ohio St.3d 332, 2015-Ohio-513, 30 N.E.3d 918, ¶ 9.
8} An indictment was filed charging Knox with several
offenses on November 28, 2016. Knox asserts that he complied
with the IAD when he caused a notice of availability to be
sent to Cuyahoga County on March 23, 2017. Knox did not point
to any evidence in the record to support this, but included
attachments to his application that do not indicate where in
the record this information can be found. An independent
review of the record reveals that the only evidence relating
to Knox's IAD claim is an unauthenticated attachment to a
pro se motion to dismiss Knox filed early in the case. Knox
asserts that this shows he was not brought to trial within
9} Assuming Knox's assertions about the timing of his
notice of availability are accurate, the record indicates
that Knox's refusal to accept the delivery of paperwork
resulted in significant delay. The IAD provides that when
inmates initiate this process they waive any objection to
extradition to the receiving state. R.C. 2963.30, Article
III(e). Knox did not do so in the present case. The
information provided by Knox in support of his IAD claim
indicates that Knox refused paperwork that would have
resulted in his transportation to Ohio. As a result, Knox had
to be extradited to Ohio through Michigan's court system.
Knox sets forth that extradition proceedings were conducted
by a Michigan court that did not conclude until October 6,
10} Even whn validly invoked, delay in bringing a defendant
to trial caused by defendants tolls the period the receiving
state has to bring them to trial.
IAD speedy trial time tolls in the same manner as time tolls
under the Federal Speedy Trial Act, 18 U.S.C. §3161.
U.S. v. Collins (C.A. 9, 1996), 90 F.3d 1420,
1426-27; U.S. v. Cephas (C.A. 2, 1991), 937 F.3d
816, 819, cert. denied, (1992), 502 U.S. 1037, 112 S.Ct. 884,
116 L.Ed.2d 788; U.S. v. Odom (C.A. 4, 1982), 674
F.2d 228, 231, cert. denied, (1982), 457 U.S. 1125, 102 S.Ct.
2946, 73 L.Ed.2d 1341; U.S. v. Robinson (E.D. Mich.
2003), 290 F.Supp.2d 808, 817, aff d by, U.S. v.
Robinson (C.A. 6, 2006), 455 F.3d 602; U.S. v.
Ellerbe (C.A. D.C., 2004), 362 U.S.App.D.C. 95, 372 F.3d
462, 468 (IAD speedy trial time tolls for periods of delay
caused by defendant's own actions, including
defendant's motions as provided in Speedy Trial Act).
See also, Young v. Mabry (C.A. 8, 1979), 596 F.2d
339, 343 (IAD speedy trial time tolls when defendant is
"legally or administratively" unavailable for
trial); U.S. v. Roy (C.A. 7, 1987), 830 F.2d 628,
635 (same). Under the Speedy Trial Act, time is tolled for
"delay resulting from any pretrial motion, from the
filing of the motion through the conclusion of the hearing
on, or other prompt disposition of, such motion[.]" 18
State v. Golden, 177 Ohio App.3d 771,
2008-Ohio-3227, 896 N.E.2d 170, ¶ 18 (3d Dist.).
11} The delay caused by Knox's refusal to accept service
and waive extradition proceedings is properly attributable to
him. This tolls the time Ohio had to bring Knox to trial.
Ellerbe (IAD speedy trial time tolls for periods of
delay caused by defendant's own actions, including
defendant's motions as provided in Speedy Trial Act);
Mabry (IAD speedy trial time tolls when defendant is
"legally or administratively" unavailable for
trial). Knox's IAD calculations set forth in his
application fail to account for this tolling.
12} Further, Knox's assertions rely on information not
contained within the appellate record on appeal.
Appellate review is strictly limited to the record. The
Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio
St. 77, 50 N.E. 97 (1898). Thus, "a reviewing
court cannot add matter to the record that was not part of
the trial court's proceedings and then decide the appeal
on the basis of the new matter." State v.
Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978),
paragraph one of the syllabus. "Nor can the
effectiveness of appellate counsel be judged by adding new
matter to the record and then arguing that counsel should
have raised these new issues revealed by the newly added
material." State v. Moore, 93 Ohio St.3d 649,
650, 2001-Ohio-1892, 758 N.E.2d 1130. "Clearly,
declining to raise claims without record support cannot
constitute ineffective assistance of appellate counsel."
State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310,
776 N.E.2d 79, ¶ 10.
State v. Stefan, 8th Dist. Cuyahoga No. 104979,
2018-Ohio-3493, ¶ 6. Therefore, Knox has not
demonstrated that appellate counsel was ineffective for
failing to ...