[Cite as State v. Philpotts,
2023-Ohio-1810.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110607
v. :
DELVONTE PHILPOTTS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: May 26, 2023
Cuyahoga County Court of Common Pleas
Case No. CR-20-649537-A
Application for Reopening
Motion No. 559557
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecutor, and
Brandon A. Piteo, Assistant Prosecuting Attorney, for
appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Robert B. McCaleb, Assistant Public Defender, for
appellant.
LISA B. FORBES, J.:
Delvonte Philpotts has filed a timely App.R. 26(B) application for
reopening. Philpotts is attempting to reopen the appellate judgment, rendered in
State v. Philpotts, 8th Dist. Cuyahoga No. CA-19-110607, 2022-Ohio-2865, which
affirmed the convictions rendered in State v. Philpotts, Cuyahoga C.P. No. CR-20-
649537-A, for the offenses of aggravated murder (R.C. 2903.01(B)), aggravated
robbery (R.C. 2911.01(A)(3)), murder (R.C. 2903.02(B)), felonious assault
(R.C. 2903.11(A)(1)), involuntary manslaughter (R.C. 2903.04), and discharge of a
firearm on or near prohibited premises (R.C. 2923.162(A)(3)). We decline to reopen
Philpotts’s appeal.
I. Standard of Review Applicable to App.R. 26(B) Application for
Reopening
An application for reopening shall be granted if there exists a genuine
issue as to whether an applicant was deprived of the effective assistance of appellate
counsel on appeal. See App.R. 26(B)(5). To establish a claim of ineffective
assistance of appellate counsel, Philpotts 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. 668,
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 768 (1990).
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. Id. at
689. 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.’” Id., quoting Michel v.
Louisiana, 350 U.S. 91, 101,
76 S.Ct. 158,
100 L.Ed. 83 (1955).
Moreover, even if Philpotts establishes that an error by his appellate
counsel was professionally unreasonable, Philpotts 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,
regarding 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. Argument
The sole assignment of error raised by Philpotts, in support of his
application for reopening, is that
[t]here was insufficient evidence to support the conviction of
aggravated murder when the facts found by the trial court amounted
only to felony murder.
Pursuant to Strickland, Philpotts must demonstrate that (1) his
appellate counsel’s performance was objectively unreasonable, and (2) there exists
a reasonable probability that, but for appellate counsel’s unprofessional conduct on
appeal, the results of his appeal would have been different. Id.,466 U.S. at 664,
104
S.Ct. 2052,
80 L.Ed.2d 674. See also Smith v. Robbins,
528 U.S. 259, 285-286,
120
S.Ct. 746,
145 L.Ed.2d 756 (2000). Herein, there exists no reasonable probability
sufficient to undermine confidence in this court’s original appellate decision.
Strickland at 694.
In the appellate opinion journalized August 18, 2022, this court
reviewed the issue of sufficiency of the evidence to support Philpotts’s convictions
for the offenses of aggravated murder and felony murder. Contrary to Philpotts’s
argument, this court did not gloss over the distinction between felony murder and
complicity to commit aggravated murder. This court focused its analysis on the
issue of complicity and held
[t]he crux of this case lies in the complicity statute. Under Ohio’s
complicity statute, “[n]o person, acting with the kind of culpability
required for the commission of an offense, shall … [a]id or abet
another in committing the offense.” R.C. 2923.03(A)(2). A defendant
guilty of complicity “shall be prosecuted and punished as if he were a
principal offender. A charge of complicity may be stated … in terms
of the principal offense.” R.C. 2923.03(F).
To support a conviction for complicity by aiding and
abetting pursuant to R.C. 2923.03(A)(2), the evidence
must show that the defendant supported, assisted,
encouraged, cooperated with, advised, or incited the
principal in the commission of the crime, and that the
defendant shared the criminal intent of the principal. Such
intent may be inferred from the circumstances
surrounding the crime.
State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302, 2015-
Ohio-4074, ¶ 33, quoting State v. Johnson, 93 Ohio St.3d 240,
754
N.E.2d 796 (2001), syllabus.
Upon review, we find that the state produced sufficient evidence to
support all of Philpotts’s convictions. His arguments that there was no
evidence that he intended to kill Thomas nor that he fired a gun are not
well taken.
Philpotts, 8th Dist. Cuyahoga No. 110607, 2022-Ohio-2865, at ¶ 100-101.
There exists no reasonable probability that, but for appellate
counsel’s claimed error on appeal, the results of Philpotts’s appeal would have been
different. Philpotts has failed to establish any prejudice through the sole assignment
of error raised in support of his claim of ineffective assistance of appellate counsel.
State v. Gulley, 8th Dist. Cuyahoga No. 109045, 2020-Ohio-4746; State v. Lester,
8th Dist. Cuyahoga No. 105992,
2018-Ohio-5154.
Application for reopening is denied.
LISA B. FORBES, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
