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State v. Lewis

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 4, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JUSTIN LEWIS, Defendant-Appellant.

          Cuyahoga County Court of Common Pleas Case Nos. CR-17-624178-A and CR-18-626972-B Application for Reopening Motion No. 530946

          Paul 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.

         I. Standard of Review Applicable to App.R. 26(B) Application for Reopening

         {¶ 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 strategy. Strickland.

         II. First Proposed Assignment of Error

         {¶ 4} Lewis's first proposed assignment of error is that:

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 ...


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