[Cite as State v. Sheffey,
2014-Ohio-200.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98944
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMES SHEFFEY
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-560852
Application for Reopening
Motion No. 468212
RELEASE DATE: January 17, 2014
FOR APPELLANT
James Sheffey, pro se
Inmate No. 631-444
Lorain Correctional Institution
2075 South Avon-Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Maxwell M. Martin
Joseph J. Ricotta
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:
{¶1} On September 11, 2013, the applicant, James Sheffey, pursuant to App.R.
26(B), and State v. Murnahan, 63 Ohio St.3d 60,
584 N.E.2d 1204 (1992), applied to
reopen this court’s judgment in State v. Sheffey, 8th Dist. Cuyahoga No. 98944,
2013-Ohio-2463, in which this court affirmed Sheffey’s convictions and sentences for
four counts of felonious assault and one count each of improperly discharging a weapon
into a habitation, having a weapon while under disability, and criminal damaging. The
felonious assault and improper discharge counts also carried one- and three-year firearm
specifications and a five-year specification for drive-by shooting. Sheffey argues that
his appellate counsel should have argued that the trial court erred by not granting his
motion for a new trial based on newly discovered evidence. On October 11, 2012, the
state of Ohio filed its brief in opposition. For the following reasons, this court denies
the application to reopen.
{¶2} On the evening of July 23, 2011, Wilson Clark, Leigh Clark, who is
Wilson’s aunt and Sheffey’s former girlfriend, Wilson’s daughter, Dominique Hearn, who
was Wilson’s girlfriend, and Hearn’s daughter were together on Wilson’s front porch.
Sheffey, who lived nearby, stopped at Wilson’s house and wanted Leigh Clark to talk and
come with him. When Leigh refused to talk with Sheffey, Wilson and Sheffey got into
an altercation, during which Sheffey fell down and cut his head. Sheffey then left in his
car, and Wilson also left. Approximately ten minutes later, Sheffey returned.
Dominique saw Sheffey pull out a gun, and all four women raced into the house. They
barely had entered the house, when the women heard shots fired. The police
investigation found bullet holes in the house and Sheffey’s blood on the driveway.
{¶3} At trial, Hearn was the sole witness who identified Sheffey as the person
with the gun. Leigh Clark was subpoenaed as a witness but never appeared. After the
trial, Sheffey’s attorney moved for a new trial based on newly discovered evidence, Leigh
Clark’s “affidavit” that Sheffey’s mother gave to defense counsel. This document is
dated July 19, 2012, and states as follows: “To whom it may concern: (In regards to
James Sheffey.) I Leigh Clark is [sic] writing this letter to inform you that Dominique
Hearn, the children and I were in the house when the shooting took place. We were
unable to see anything. Thank you, Leigh Clark.” Beneath Clark’s signature is a
telephone number and the following jurat: “This statement was written before me on the
above date 7-19-12 by affiant.” Below that is the apparent signature of a notary.
After a hearing on the matter, the trial judge denied the motion for new trial. Sheffey
now argues that his appellate counsel should have argued that the trial court erred when it
denied the motion for new trial based on Leigh Clark’s affidavit.1
{¶4} In order to establish a claim of ineffective assistance of appellate counsel,
the applicant must demonstrate that 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 St.3d 136,
538 N.E.2d
1 Appellate counsel raised six assignments of error: (1) the firearm specifications should have
merged, (2) the trial court should have accepted Sheffey’s Alford plea, (3) inconsistencies in the
sentence, (4) manifest weight, (5) insufficient evidence, and (6) prosecutorial misconduct.
373 (1989); and State v. Reed,
74 Ohio St.3d 534,
1996-Ohio-21,
660 N.E.2d 456.
{¶5} In Strickland, the United States Supreme Court ruled that judicial scrutiny
of an attorney’s work must be highly deferential. The court noted that it is all too
tempting for a defendant to second-guess his lawyer after conviction and that it would be
all too easy for a court, examining an unsuccessful defense in hindsight, to conclude that
a particular act or omission was deficient. Therefore, “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.’”
Strickland at 689.
{¶6} Specifically, in regard to claims of ineffective assistance of appellate
counsel, the United States Supreme Court has upheld the appellate advocate’s prerogative
to decide strategy and tactics by selecting what he thinks are the most promising
arguments out of all possible contentions. The court noted: “Experienced advocates
since time beyond memory have emphasized the importance of winnowing out weaker
arguments on appeal and focusing on one central issue if possible, or at most on a few key
issues.” Jones v. Barnes, 463 U.S. 745, 751-752,
103 S.Ct. 3308,
77 L.Ed.2d 987 (1983).
Indeed, including weaker arguments might lessen the impact of the stronger ones.
Accordingly, the court ruled that judges should not second-guess reasonable professional
judgments and impose on appellate counsel the duty to raise every “colorable” issue.
Such rules would disserve the goal of vigorous and effective advocacy. The Supreme
Court of Ohio reaffirmed these principles in State v. Allen,
77 Ohio St.3d 172,
672 N.E.2d
638 (1996).
{¶7} Moreover, even if a petitioner establishes that an error by his lawyer was
professionally unreasonable under all the circumstances of the case, the petitioner must
further establish prejudice: but for the unreasonable error there is a reasonable probability
that the results of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome. A court need not
determine whether counsel’s performance was deficient before examining prejudice
suffered by the defendant as a result of alleged deficiencies.
{¶8} Sheffey’s argument on ineffective assistance of appellate counsel is not
well taken. First, under Crim.R. 33(A)(6), the defense must proffer the affidavits of
witnesses who would present the new evidence. In the present case, Leigh Clark’s
statement is not an authentic affidavit. The jurat does not affirm that Clark’s
statements were made under oath. It merely states that statement was written before the
notary. That is insufficient for an affidavit. Chaney v. East, 97 Ohio App.3d 431,
646
N.E.2d 1138 (8th Dist.1994), and Occhionero v. Cox, 8th Dist. Cuyahoga No. 92334,
2009-Ohio-3891.
{¶9} Moreover, in order to grant a motion for a new trial, the new evidence must
disclose a strong probability that it will change the result of the trial. Evidence that
merely impeaches is insufficient to grant a new trial. State v. Petro, 148 Ohio St.3d 505,
76 N.E.2d 370 (1947). However, Clark’s affidavit does not necessarily even impeach
Hearn’s testimony, but may be cumulative. Hearn testified that the four women ran into
the house, and then the shots were fired. Thus, Clark’s statement that they were in the
house when the shooting took place is consistent with Hearn’s testimony. Even
accepting the inference from the statement none of the women could have seen the
shooter, Clark’s evidence merely impeaches Hearn’s testimony, which is an insufficient
basis to grant a motion for a new trial. Finally, there was uncertainty as to the author of
the statement. Even defense counsel initially conceded: “We have no idea whose letter
that is really.” (Tr. 454.)
{¶10} In Petro, the Supreme Court of Ohio enunciated that a motion for a new trial
based on newly discovered evidence “is necessarily committed to the wise discretion of
the court, and a court of error cannot reverse unless there has been a gross abuse of that
discretion.” 148 Ohio St.3d at 507-508,
76 N.E.3d 370. Given the high standard of
review, the uncertainty surrounding the statement, the questionable form of the
“affidavit,” and the merely impeaching effect of the statement, appellate counsel in the
exercise of professional judgment properly rejected this argument as an assignment of
error.
{¶11} Application denied.
______________________________________________
MARY J. BOYLE, ADMINISTRATIVE JUDGE
KENNETH A. ROCCO, J., and
MARY EILEEN KILBANE, J., CONCUR
