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State v. Robinson

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 13, 2020

STATE OF OHIO, Plaintiff-Appellee,
MICHAEL D. ROBINSON, Defendant-Appellant.

          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.



         {¶ 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.

         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 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 strategy. Strickland.

         {¶ 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, 2012-Ohio-5504.

         II. 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 ...

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