Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-18-628485-A
Application for Reopening Motion No. 531338
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Anthony T. Miranda, Assistant Prosecuting
Attorney, for appellee.
Michael D. Robinson, pro se.
JOURNAL ENTRY AND OPINION
T. GALLAGHER, ADMINISTRATIVE JUDGE
1} Michael D. Robinson has filed a timely App.R.
26(B) application for reopening. Robinson is attempting to
reopen the appellate judgment rendered in State v.
Robinson, 8th Dist. Cuyahoga No. 107598, 2019-Ohio-2330,
that affirmed the consecutive sentences of incarceration
imposed by the trial court with regard to Count 3 (having
weapons while under disability) and Count 7 (drug possession)
of the indictment. We decline to grant Robinson's
application for reopening because he has failed to establish
that he was prejudiced by the performance of his appellate
counsel on appeal.
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 under App.R. 26(B), Robinson
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
4} Moreover, even if Robinson establishes that an
error by his appellate counsel was professionally
unreasonable, Robinson must further establish that he was
prejudiced; but for the unreasonable error there exists a
reasonable probability that the results of his appeal would
have been different. Reasonable probability, with regard to
an application for reopening, is defined as a probability
sufficient to undermine confidence in the outcome of the
appeal. State v. May, 8th Dist. Cuyahoga No. 97354,
Effect of plea of guilty on App.R. 26(B)
5} In State v. Robinson, Cuyahoga C.P. No.
CR-18-628485, Robinson entered a plea of guilty to the
charged offenses of assault on a police officer, resisting
arrest, having weapons while under disability, carrying a
concealed weapon, improper handling of a firearm in a motor
vehicle, receiving stolen property, and drug possession. A
plea of guilty waives a defendant's right to challenge
his or her conviction on all potential issues except for
jurisdictional issues and the claim that ineffective
assistance of counsel caused the guilty plea to be less than
knowing, intelligent, and voluntary. Montpelier v.
Greeno, 25 Ohio St.3d 170, 495 N.E.2d 581 (1986);
State v. Vihtelic, 8th Dist. Cuyahoga No. 105381,
2017-Ohio-5818; State v. Szidik, 8th Dist. Cuyahoga
No. 95644, 2011-Ohio-4093; State v. Salter, 8th
Dist. Cuyahoga No. 82488, 2003-Ohio-5652; and State v.
May, 8th Dist. Cuyahoga No. 97354, 2012-Ohio-2766,
reopening disallowed, 2012-Ohio-5504.
6} By entering a plea of guilty, Robinson waived all
appealable errors that might have occurred at trial unless
the errors prevented Robinson from entering a knowing and
voluntary plea. State v. Kelley, 57 Ohio St.3d 127,
566 N.E.2d 658 (1991); State v. Barnett, 73 Ohio
App.3d 244, 596 N.E.2d 1101 (2d Dist. 1991).
7} Our review of the plea transcript clearly
demonstrates that the trial court meticulously complied with
the mandates of Crim.R. 11 and that Robinson entered a
knowing, intelligent, and voluntary plea of guilty.
Specifically, the trial court informed Robinson that he would
be waiving numerous constitutional rights and further
informed him of the potential sentence and fine associated
with each charged offense: 1) the degree of each charged
felony offense (tr. 11); 2) the maximum sentence and fine
associated with each charged criminal offense (tr. 12); 3)
waiver of the right to a jury or bench trial (tr. 10); 4)
waiver of the right that the state must prove guilt beyond a
reasonable doubt (tr. 11); 5) waiver of the right to confront
and cross-examine each witness called by the state (tr. 10);
6) Robinson could not be compelled to testify against himself
(tr. 11); 7) the court could immediately proceed with
judgment and the imposition of sentence upon Robinson
entering a plea of guilty (tr. 11); 8) the possibility of
consecutive sentences with a maximum sentence as to each
count (tr. 12); 9) imposition of restitution, fees, and costs
(Tr. 15); 10) mandatory and permissive imposition of
postrelease control (tr. 16); 11) the effects of violation of
postrelease control (tr. 16); and 12) the possibility of a
driver's license ...