Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case Nos.
CR-17-624178-A and CR-18-626972-B Application for Reopening
Motion No. 530946
Mancino, Jr., for appellant
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Anthony T. Miranda, Assistant Prosecuting
Attorney, for appellee.
JOURNAL ENTRY AND OPINION
MICHELLE J SHEEHAN, JUDGE
1} Justin Lewis has filed a timely application for
reopening pursuant to App.R. 26(B). Lewis is attempting to
reopen the appellate judgment rendered in State v.
Lewis, 8th Dist. Cuyahoga No. 107552, 2019-Ohio-1994,
that affirmed his plea of guilty and the sentence of
incarceration imposed for the offenses of trafficking in
cocaine, trafficking in heroin, possession of drugs,
possessing criminal tools, and child endangering. We decline
to reopen Lewis's original appeal because he has failed
to establish that he was prejudiced by the claim of
ineffective assistance of appellate counsel.
Standard of Review Applicable to App.R. 26(B) Application for
2}In order to establish a claim of ineffective
assistance of appellate counsel, Lewis 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
First Proposed Assignment of Error
4} Lewis's first proposed assignment of error is
Defendant was denied due process of law when the court failed
to inform defendant that he was waiving certain rights by
entering a plea of guilty.
5} Lewis, through his first proposed assignment of
error, argues that appellate counsel failed to assert on
appeal that he was prejudiced by the trial court's
failure "to ascertain from [Lewis] whether he knew he
was waiving certain rights when he entered a plea of
guilty." Specifically, Lewis argues that his plea of
guilty was not knowing, voluntary, and intelligent.
6} Initially, we find that Lewis has failed to
establish that the trial court did not properly advise him of
the waiver of any constitutional right. Lewis simply recounts
the colloquy that occurred at the guilty plea hearing. Lewis
has failed to establish any prejudice that resulted from
representation by appellate counsel. State v.
Jackson, 8th Dist. Cuyahoga No. 100125, 2015-Ohio-1946;
State v. Jones, 8th Dist. Cuyahoga No. 99703,
2014-Ohio-4467; State v. Hawkins, 8th Dist. Cuyahoga
No. 90704, 2009-Ohio-2246.
7} In addition, the principles of res judicata may
be applied to bar the further litigation of issues that were
raised previously or could have been raised previously in an
appeal. State v. Perry,10 Ohio St.2d 175, 226
N.E.2d 104 (1967). Claims of ineffective assistance of
appellate counsel in an application for reopening may be
barred from further review by the doctrine of res judicata
unless circumstances render the application of the doctrine