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State v. Driscoll

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 8, 2020

STATE OF OHIO, Plaintiff-Appellee,
v.
LOUIS DRISCOLL, Defendant-Appellant.

          Cuyahoga County Court of Common Pleas Case No. CR-18-624907-A Application for Reopening Motion No. 529406

         JUDGMENT: APPLICATION DENIED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.

          Louis Driscoll, pro se.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, A.J.

         {¶ 1} On June 14, 2019, the applicant, Louis Driscoll, pursuant to App.R. 26(B), applied to reopen this court's judgment in State v. Driscoll, 8th Dist. Cuyahoga No. 107165, 2019-Ohio-1124, in which this court affirmed his convictions for felonious assault; abduction; discharge of a firearm near prohibited premises; drug possession, all with firearms specifications; and having weapons while under disability. Driscoll now argues that his appellate counsel was ineffective for failing to argue the impropriety of maximum and consecutive sentences, instead of only raising an unreviewable Fourth Amendment issue that his guilty plea waived. The state filed its brief in opposition on July 11, 2019. For the following reasons, the court denies the application to reopen.

         {¶ 2} On September 27, 2017, Driscoll had a physical altercation on a populated Cleveland street with one of his victims, E.H. Driscoll pulled his firearm as E.H. was fleeing the scene and fired two shots, with one hitting E.H. in the back of the leg and severing a major blood vessel. As a result, E.H. required surgery, followed by a three-month inpatient hospital stay. E.H. continues to suffer the effects of the gunshot injury and requires physical therapy.

         {¶ 3} Approximately 12 hours later several 911 calls reported that Driscoll was standing in the middle of the street, near the location of the first incident, shooting his gun in the air and talking to himself. When police arrived, Driscoll was no longer there. While on scene, they heard screaming from the next street over and immediately responded. The officers found Driscoll on a front porch holding P.B. at gunpoint where she feared for her life as a result of his verbal threats. Police then apprehended Driscoll and found that he was highly intoxicated and in possession of cocaine, bath salts, $752, and a firearm.

         {¶ 4} In March 2018 during trial, Driscoll entered into a plea agreement and pled guilty to felonious assault with firearm specifications; abduction with firearm specifications; discharge of a firearm near prohibited premises with firearm specifications; drug possession with firearms specifications; and having weapons while under disability. After an extensive Crim.R. 11 colloquy, the court accepted his plea and found him guilty of the foregoing offenses.

         {¶ 5} At sentencing, neither victim appeared, but Driscoll addressed the court acknowledging the extent of his wrongs and apologizing for what he had done to his victims. Driscoll sought to excuse his conduct by stating he was highly provoked, in hopes of a reduced sentence. After both parties had expressed their opinions for and against lengthy sentences, the court imposed the maximum sentence on all 5 counts to which Driscoll plead guilty, to be served consecutively, for an aggregate prison term of 23 years.

         {¶ 6} The judge justified the maximum consecutive sentences as necessary to protect the public based on the seriousness of the conduct, and she had no expectation Driscoll would follow the law because he was on postrelease control for similar conduct at the time of the instant conduct.

         {¶ 7} Driscoll's appellate counsel argued in the sole assignment of error that the evidence supporting his convictions was obtained in violation of his Fourth Amendment right against unreasonable search and seizures. This court noted that appellate counsel raised issues regarding sentencing, but because they were not included as assignments of error, the sentencing arguments would not be heard. This court affirmed the convictions based on State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 105, because Driscoll's guilty plea waived any complaint as to claims of constitutional violations not related to the guilty plea.

         {¶ 8} Driscoll now claims that his appellate attorney did not consult with him before filing for appeal, and that she should have argued reviewable issues regarding maximum and consecutive sentencing, rather than nonreviewable constitutional claims.

         {¶ 9} In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that the counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio ...


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