[Cite as State v. Collier,
2011-Ohio-6154.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95572
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DOUGLAS COLLIER
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-534548
Application for Reopening
Motion No. 447247
RELEASE DATE: November 30, 2011
FOR APPELLANT
Douglas Collier, pro se
Inmate No. 590-984
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Douglas Collier has filed a timely application for reopening pursuant to
App.R. 26(B). Collier is attempting to reopen the appellate judgment rendered in State v.
Collier, Cuyahoga App. No. 95572, 2011-Ohio-2791, which affirmed his conviction and
sentence of incarceration for the offenses of pandering sexually oriented matter involving
a minor, importuning, and possessing criminal tools. We decline to reopen Collier’s
original appeal.
{¶ 2} In order to establish a claim of ineffective assistance of appellate counsel,
Collier must demonstrate that appellate counsel’s performance was deficient and that, but
for his deficient performance, the result of his appeal would have been different. State v.
Reed, 74 Ohio St.3d 534,
1996-Ohio-21,
660 N.E.2d 456. Specifically, Collier must
establish that “there is a genuine issue as to whether he was deprived of the assistance of
counsel on appeal.” App.R. 26(B)(5).
{¶ 3} “In State v. Reed [supra, at 535] we held that the two-prong analysis found
in Strickland v. Washington (1984), 466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674, is the
appropriate standard to assess a defense request for reopening under App.R. 26(B)(5).
[Applicant] must prove that his counsel was deficient for failing to raise the issue he now
presents, as well as showing that had he presented those claims on appeal, there was a
‘reasonable probability’ that he would have been successful. Thus, [applicant] bears the
burden of establishing that there was a ‘genuine issue’ as to whether he has a ‘colorable
claim’ of ineffective assistance of counsel on appeal.” State v. Spivey,
84 Ohio St.3d 24,
1998-Ohio-704,
701 N.E.2d 696, at 25.
{¶ 4} It is also well settled that appellate counsel is not required to raise and argue
assignments of error that are meritless. Jones v. Barnes (1983), 463 U.S. 745,
103 S.Ct.
3308,
77 L.Ed.2d 987. Appellate counsel cannot be considered ineffective for failing to
raise every conceivable assignment of error on appeal. Jones v.
Barnes, supra; State v.
Grimm,
73 Ohio St.3d 413,
1995-Ohio-24,
653 N.E.2d 253; State v. Campbell,
69 Ohio
St.3d 38,
1994-Ohio-492,
630 N.E.2d 339.
{¶ 5} In Strickland, the United States Supreme Court also stated that a court’s
scrutiny of an attorney’s work must be deferential. The court further stated that it is too
tempting for a defendant/appellant to second-guess his attorney after conviction and
appeal and that it would be all to easy for a court to conclude that a specific act or
omission was deficient, especially when examining the matter in hindsight. Accordingly,
“a court must indulge 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.” Id. at 689. Finally, the United States Supreme Court has firmly
established that appellate counsel possesses the discretion to decide which issues are of
greatest importance and that appellate counsel must be allowed to winnow out weaker
arguments on appeal while focusing on one central issue or, at most, a few key issues.
Jones v. Barnes, supra.
{¶ 6} In the case sub judice, Collier raises two proposed assignments of error in
support of his claim of ineffective assistance of appellate counsel:
{¶ 7} “Trial counsel provided ineffective assistance of counsel in violation of the
Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Ohio
Constitution for failing move to suppress or object to evidence having nothing to do with
the crimes charge, which permitted the state to improperly tar the appellant as a
degenerate and prejudice his lifestyle and character during the pivotal sentencing phase of
proceedings.”
{¶ 8} “Appellant’s counsel provided ineffective assistance of counsel in violation
of the Sixth Amendment to the United States Constitution and Article 1, Section 10 of the
Ohio Constitution for failing to request a delay from this honorable court in light of the
recent decision in House Bill 86 that re-instates the language in ORC § 292914(E).”
{¶ 9} Through his first proposed assignment of error, Collier argues that he was
prejudiced by appellate counsel’s failure to argue on appeal that he was prejudiced by
trial counsel’s omission to file “a motion to suppress the evidence unassociated (sic) with
the crimes charged.” Appellate counsel, however, was not permitted to raise on appeal
the failure to file a motion to suppress because Collier entered a plea of guilty to the
offenses of pandering sexually oriented matter involving a minor, importuning, and
possessing criminal tools. A plea of guilty waives the right to challenge a conviction on
the ground that a motion to suppress should have been granted and constitutes a waiver of
alleged errors by the trial court in not suppressing evidence. State v. Elliot (1993), 86
Ohio App.3d 792,
621 N.E.2d 1272; State v. Bogan, Cuyahoga App. No. 84468,
2005-Ohio-3412; State v. Shabazz (Dec. 30, 1993), Cuyahoga App. No. 63826; State v.
Johnson (Aug. 28, 1997), Cuyahoga App. No. 70889. In addition, R.C. 2929.19(A)
permits a prosecutor, during the sentencing hearing, to “present information relevant to
the imposition of sentence in the case.” The information presented by the prosecutor
during the sentencing hearing was relevant to the imposition of sentence, and the sentence
imposed fell within the allowable sentencing range. State v. Maas, Greene App. No.
06-CA-117,
2007-Ohio-6265; State v. Payne, Cuyahoga App. No. 86367,
2006-Ohio-2085; State v. James, Cuyahoga App. No. 85638,
2005-Ohio-5562. Thus,
Collier has failed to establish that he was prejudiced by appellate counsel’s failure to raise
the issue of suppression of evidence on appeal.
{¶ 10} Through his second proposed assignment of error, Collier argues that
appellate counsel was ineffective on appeal by failing to anticipate a change in the law
that potentially affected the sentence imposed by the trial court. Specifically, Collier
argues that appellate counsel should have sought a delay of consideration of his appeal so
that the change in R.C. 2929.14(E), with regard to the imposition of consecutive
sentences of incarceration, would have resulted in a reversal of the consecutive sentence
of incarceration imposed by the trial court.
{¶ 11} Appellate counsel is not ineffective for failing to anticipate future changes
in the law and argue such changes on appeal. State v. Williams (1991), 74 Ohio App.3d
686,
600 N.E.2d 298; State v. Sharp, Cuyahoga App. No. 87709,
2008-Ohio-5096. In
addition, Collier has failed to provide this court with any legal authority that demonstrates
that appellate counsel possesses a duty to anticipate future changes in the law. Finally,
Collier has failed to present any evidence that the trial court would not have imposed a
consecutive sentence of incarceration had he been sentenced under the legislative revision
that occurred in R.C. 2929.14(E). The record before this court clearly supports the
judgment of the trial court to impose consecutive sentences of incarceration under the
previous version or the revision of R.C. 292914(E) vis-a-vis the predatory nature of the
offenses committed by Collier upon a minor child. Thus, Collier has failed to establish
ineffective assistance of appellate counsel through his second proposed assignment of
error.
{¶ 12} Accordingly, the application for reopening is denied.
FRANK D. CELEBREZZE, JR., JUDGE
MARY EILEEN KILBANE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
