[Cite as State v. Boyd,
2023-Ohio-271.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
ROBERT BOYD,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 20 MA 0131
Application to Reopen
BEFORE:
Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.
JUDGMENT:
Denied.
Atty. Ralph M. Rivera, Assistant Chief, Criminal Division, Office of the Mahoning County
Prosecutor, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503 for Plaintiff-Appellee and
Robert Boyd, pro se, Lake Erie Correctional Institution, P.O. Box 300, Columbus, Ohio
43146, Defendant- Appellant.
Dated: January 26, 2023
–2–
PER CURIAM.
{¶1} Defendant-Appellant Robert Boyd has filed an application to reopen his
direct criminal appeal under App.R. 26(B). For the following reasons, the application for
reopening is denied.
{¶2} After a jury trial in the Mahoning County Common Pleas Court, Appellant
was convicted of: rape (anal sex with victim A, who was 17 years old at the time of the
March 31, 2017 incident); rape (anal sex with victim B, who was 14 years old at the time
of the April 17, 2016 incident); gross sexual imposition (victim B); two counts of
disseminating matter harmful to juveniles (texting photographs of his penis to victim C,
who was 16 years old at the time of texts in March 2017); and nine counts of illegal use
of a minor in nudity-oriented material (photographs on a hard drive recovered during the
execution of search warrants). His brief on appeal raised arguments related to the denial
of his suppression motion, sufficiency of the evidence, weight of the evidence, ineffective
assistance of counsel, and sentencing. On September 30, 2022, this court affirmed his
convictions. State v. Boyd, 7th Dist. Mahoning No. 20 MA 0131, 2022-Ohio-3523. On
November 10, 2022, Appellant filed this timely application for reopening.
{¶3} A criminal defendant may apply for reopening of his direct appeal based on
a claim of ineffective assistance of appellate counsel by raising an assignment of error or
an argument in support of an assignment of error that previously was not considered on
the merits (or that was considered on an incomplete record) because of appellate
counsel's deficient representation. App.R. 26(B)(1),(2)(c). Pursuant to the rule, in order
to warrant reopening for further briefing, the application must demonstrate a “genuine
issue as to whether the applicant was deprived of the effective assistance of counsel on
appeal.” App.R. 26(B)(5). If a genuine issue on ineffectiveness is established and further
briefing is thus ordered, then the appellant must fully prove the ineffectiveness of
appellate counsel by demonstrating deficient performance and prejudice. App.R.
26(B)(7)-(9).
{¶4} The traditional two-pronged test of deficiency and prejudice also provides
the underlying framework for assessing whether Appellant raised a genuine issue as to
the ineffectiveness of appellate counsel under App.R. 26(B)(5). State v. Tenace, 109
Case No. 20 MA 0131
–3–
Ohio St.3d 451, 2006-Ohio-2987,
849 N.E.2d 1, ¶ 5, applying Strickland v. Washington,
466 U.S. 668, 687,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); State v. Adams,
146 Ohio
St.3d 232,
2016-Ohio-3043,
54 N.E.3d 1227, ¶ 2. This is supported by the rule’s
requirement that the application for reopening be accompanied by “[a] sworn statement
of the basis for the claim that appellate counsel's representation was deficient with respect
to the assignments of error or arguments raised pursuant to division (B)(2)(c) of this rule
and the manner in which the deficiency prejudicially affected the outcome of the appeal,
which may include citations to applicable authorities and references to the record ….”
App.R. 26(B)(2)(d). Appellant submitted a one-sentence affidavit generally swearing to
the truthfulness of the allegations in the ten-page application and saying he was denied
effective assistance of appellate counsel.
{¶5} The deficiency prong of the test evaluates whether the representation fell
below an objective standard of reasonableness. Strickland, 466 U.S. at 688. In assessing
the cited deficiency, we heavily defer to counsel’s judgments and strongly presume the
contested conduct was in the wide range of reasonable representation. Tenace,
109
Ohio St.3d 451 at ¶ 7. Courts refrain from second-guessing the strategic decisions of
counsel. State v. Carter,
72 Ohio St.3d 545, 558,
651 N.E.2d 965 (1995). Prejudice is a
reasonable probability the result of the proceedings would have been different in the
absence of the cited deficiency. Tenace,
109 Ohio St.3d 451 at ¶ 5. A reasonable
probability is more than “some conceivable effect on the outcome of the proceeding.”
Strickland,
466 U.S. at 69. See also Carter,
72 Ohio St.3d at 558 (unreliable results or
fundamentally unfair proceedings due to counsel’s lacking performance).
{¶6} More specifically to the first stage in App.R. 26(B), for the applicant “to justify
reopening his appeal” for further briefing, it has been said he must meet “the burden of
establishing there was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of
ineffective assistance of counsel on appeal.” Tenace, 109 Ohio St.3d 451 at ¶ 6, quoting
State v. Spivey,
84 Ohio St.3d 24, 25,
701 N.E.2d 696 (1998). See also State v. Were,
120 Ohio St.3d 85,
2008-Ohio-5277,
896 N.E.2d 699, ¶ 11. In considering this test, it has
been emphasized, “appellate counsel need not raise every possible issue in order to
render constitutionally effective assistance.” Tenace,
109 Ohio St.3d 451 at ¶ 7, citing
Jones v. Barnes,
463 U.S. 745, 751,
103 S.Ct. 3308,
77 L.Ed.2d 987 (1983) and State v.
Sanders,
94 Ohio St.3d 150, 151-152,
761 N.E.2d 18 (2002).
Case No. 20 MA 0131
–4–
{¶7} “An error-free, perfect trial does not exist, and is not guaranteed by the
Constitution.” State v. Italiano, 7th Dist. Mahoning No. 19 MA 0095, 2021-Ohio-1283, ¶
35, citing State v. Hill,
75 Ohio St.3d 195, 212,
661 N.E.2d 1068 (1996). “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, to avoid diluting the force of stronger arguments.” Jones,
463 U.S. at
751-752. Accordingly, constitutionally effective appellate counsel need not raise every
non-frivolous argument the client wishes to present.
Id. at 751. Making choices on the
appellate arguments is a strategical decision used to avoid diluting the strength of
stronger arguments.
Id. at 752. Appellant raises at least twelve additional arguments he
believes appellate counsel should have briefed.
{¶8} First, Appellant argues appellate counsel should have contested the trial
court’s refusal to sever the charges, emphasizing the inflammatory nature of sex offenses
involving juveniles. He suggests severance was required as the other offenses would be
inadmissible other acts evidence if there had been a separate trial for each of the following
groups: count one, rape of victim A; counts two and three, rape and gross sexual
imposition of victim B; counts five and six, disseminating matter harmful to a juvenile
(victim C); and counts seven through fifteen, illegal use of a minor in nudity-oriented
material.
{¶9} When a defendant moves to sever counts, he must furnish the trial court
with sufficient information to weigh the benefits of joinder against the prejudice it may
cause, and the trial court’s decision must be upheld in the absence of an abuse of
discretion. State v. Clinton, 153 Ohio St.3d 422,
2017-Ohio-9423,
108 N.E.3d 1, ¶ 44,
46. Even if the weighing favors severance, a defendant's claim can be overcome if either
(1) the state could have introduced other acts evidence under Evid.R. 404(B) in the trial
of the other offense or (2) the evidence of each crime is simple and direct.
Id., citing State
v. Lott,
51 Ohio St.3d 160, 163,
555 N.E.2d 293 (1990). If “the evidence of each crime is
uncomplicated,” then the jury is “capable of segregating the proof of multiple charges”
which are tried together. Id. at ¶ 52. The evidence of each set of offenses was simple
and direct with no complicated evidence. Appellant’s argument fails to recognize that
“[u]nder the second method, the ‘joinder’ test, the state is not required to meet the stricter
Case No. 20 MA 0131
–5–
‘other acts’ admissibility test, but is merely required to show that evidence of each crime
joined at trial is simple and direct.” Lott, 51 Ohio St.3d at 163.
{¶10} Second, Appellant argues appellate counsel should have raised speedy trial
arguments. In addition to arguing the 270-day period for felonies expired, he points to
the 90-day period for misdemeanors in counts five and six and says they would be subject
to the felony period only if they arose out of the same act or transaction as the felonies.
See R.C. 2945.71(D). However, this misdemeanor issue was not raised to the trial court.
Moreover, Appellant ignores the various tolling events before his time waiver, except to
argue time should not be held against him for the withdrawals of various attorneys if he
had a good reason for terminating counsel; however, this is incorrect if the withdrawals
necessitated continuances. His fourth attorney filed a statutory speedy trial motion to
dismiss based on the total time exceeding 270 days prior to his time waiver, seeking to
invoke the state’s burden to prove tolling events. The state’s response explained some
of the applicable tolling events, including discovery requests, a withdrawal request, and
the continuances extending through his speedy trial waiver. Upon reviewing the
calculations, appellate counsel could reasonably refrain from briefing the issue (which
was only close for the unraised misdemeanors but still under 90 days).
{¶11} As to his January 29, 2019 time waiver (which said it did not waive any prior
violation), Appellant claims his December 9, 2019 pro se motion to dismiss on speedy
trial grounds constituted his revocation of the waiver. As the state points out, the
revocation must demand trial with no further continuances, which did not occur until
March 13, 2020. In any event, a reasonableness test replaces statutory time after a
speedy trial waiver has been adequately revoked. State v. O'Brien, 34 Ohio St.3d 7, 9,
516 N.E.2d 218 (1987). In arguing the constitutional reasonableness test was violated,
Appellant cites to the February 2020 death of a non-victim juvenile without discussing the
reasons the trial did not occur as scheduled in the months before (or after) that date. After
his third attorney’s last-minute motions (including to sever and suppress) caused delays
in various 2019 trial dates, Appellant filed the December 2019 pro se motion he claims
should equate with a revocation (and other letters). His attorney withdrew, and his fourth
attorney was appointed on January 9, 2020. A jury trial was reasonably set for April 2020
but was later continued due to pandemic orders. (4/17/20 J.E.). Appellant moved to
dismiss on speedy trial grounds in May 2020, which the trial court overruled on July 27,
Case No. 20 MA 0131
–6–
2020. The jury trial was set for August, but commenced in September 2020 after defense
counsel obtained a continuance. There are no indications the reasonableness test was
violated. The facts and arguments set forth do not demonstrate there is a genuine issue
of ineffective appellate counsel for failing to raise a speedy trial argument.
{¶12} Third, Appellant argues appellate counsel should have specifically argued
there was only probable cause to search for evidence of alcohol and tobacco offenses
under the first search warrant (rather than adopting an “all or nothing approach” arguing
against probable cause). Appellant says the affiant admitted a lack of probable cause for
importuning or sexual conduct (repeating an argument in his prior application to
reconsider). On appeal, appellate counsel broadly argued the trial court erred in
overruling the suppression motion; he also specifically argued the affidavit to obtain the
search warrant for his social media account lacked probable cause and the warrant was
overbroad by authorizing a general exploratory search. Boyd, 2022-Ohio-3523 at ¶ 6, 12.
We set forth the law, recited the facts in the warrants, and found probable cause
supported the warrant, which was not overbroad. Id. at ¶ 6-22. We concluded not only
was there probable cause on alcohol and tobacco offenses, but there was also probable
cause to believe he asked juveniles for nude photographs and to engage in sexual
conduct with him. Id. at ¶ 22. An applicant fails to show a genuine issue of prejudice if
the issue was addressed by the appellate court in the direct appeal, despite a lack of
precise briefing of the particular argument. State v. Adams,
146 Ohio St.3d 232, 2016-
Ohio-3043,
54 N.E.3d 1227, ¶ 11.
{¶13} Fourth, Appellant argues appellate counsel should have raised an
assignment of error on prosecutorial misconduct and on trial counsel’s failure to object to
it. He claims the state essentially vouched for the victim’s credibility and called Appellant
a liar by cross-examining him as to whether he was saying victim A and B were lying and
asking why they would do so. As the state points out, the victims testified at trial, and the
prosecutor can cross-examine the testifying defendant on relevant topics under Evid.R.
611(B). Appellant’s defense was the victims were lying about consent (victim A) or the
extent of the sexual relationship (victim B). There is also no indication of misconduct in
the prosecutor asking victim A if he thought Appellant owned the car he posed with in the
photograph on his social media page. Appellant additionally says the nurse practitioner
vouched for victim A’s credibility by testifying she would label the case as “concerning for
Case No. 20 MA 0131
–7–
sexual abuse.” Instead of objecting, defense counsel utilized the nurse practitioner’s
testimony to emphasize victim A did not inform her he initially consented to the anal sex.
Appellate counsel could reasonably believe trial counsel’s failure to object was a tactical
decision and lacking in prejudicial effect where the victim testified on anal rape and the
defense was the victim was lying.
{¶14} Fifth, Appellant complains the state incompletely quoted the law during the
opening statement and closing argument without objection from trial counsel. As for the
opening statement, Appellant notes the state said gross sexual imposition involved the
touching of an erogenous zone without mentioning the force or threat; however, at the
contested point, the state was merely contrasting one element to distinguish it from rape.
He also suggests the state should have fully defined nudity in the opening statement when
it summarized the last counts as “illegal use of a minor in nudity-oriented material for
possessing nude photographs of children” and elsewhere called these counts “child
pornography.” (Tr. 184). However, this was just a preview of the charges, and using the
term child pornography was not incorrect. See Osborne v. Ohio, 495 U.S. 103,
109
L.Ed.2d 98,
110 S.Ct. 1691 (1990) (calling the charges child pornography if they meet
this definition).
{¶15} As for closing arguments, Appellant points out the prosecutor is quoted as
defining nudity as “nude or graphically focused on the genitals” instead of “lewd or
graphically focused on the genitals.” If this was not a mishearing, then it was a brief
misstatement quickly followed by an explanation that it was for the jury to determine
whether the display was “lewd” (and the state noted the jury would receive a lengthy
definition later). (Tr. 736). In the direct appeal, we already found it was valid to consider
where “your eyes immediately go” for the graphic focus portion of the definition. Boyd,
2022-Ohio-3523, ¶ 73. Next, the state’s closing argument saying Appellant “should have
known” the age of the victim (in counts five and six) was not at variance with the statute
Appellant cites, which includes the option, “or reason to believe that the person receiving
the information is a juvenile.” (Tr. 733); R.C. 2907.31(D). See also Boyd at ¶ 13-15
(reconsideration denied, explaining our evaluation of “good reason for belief” was akin to
the statute’s “reason to believe”). As the state alternatively observes, the court correctly
charged the jury, and “it is presumed that the jury followed the court's instructions.” State
v. Neyland,
139 Ohio St.3d 353,
2014-Ohio-1914,
12 N.E.3d 1112, ¶ 195 (where the
Case No. 20 MA 0131
–8–
defendant argued the prosecutor misstated the law in a death penalty case). None of
Appellant’s examples raise a genuine issue that appellate counsel was ineffective by
failing to claim the prosecutor committed misconduct or trial counsel was ineffective for
failing to object.
{¶16} Sixth, Appellant says appellate counsel should have claimed an expert
report was required to support the school resource officer’s unobjected-to testimony
defining delayed disclosure (before he noted what victim B disclosed after Appellant was
arrested). However, the record does not indicate the defense was surprised or prejudiced
by the officer defining delayed disclosure. Rather, defense counsel took advantage of
the topic on cross-examination where he utilized the officer to point out victim A did the
opposite of incremental disclosure, as he reported a rape and later disclosed consensual
sex turned into rape. (Tr. 588). Regardless, both trial and appellate counsel could have
reasonably concluded the officer was not testifying as an expert merely because his
general answer relied on his training and experience. See State v. Baker, 2020-Ohio-
7023, 166 N.E.3d 601, ¶ 34-35 (7th Dist.) (a police officer can still provide a lay opinion
even if it is based on training and experience), citing State v. McKee,
91 Ohio St.3d 292,
296,
744 N.E.2d 737 (2001) (drug user can provide lay opinion on identity of drugs). A
genuine issue does not exist as to appellate counsel’s effectiveness on this issue.
{¶17} Seventh, Appellant argues the prosecutor improperly impeached him with
evidence that was not in the record. After Appellant testified about having consensual
anal sex with victim A, the prosecutor sought to impeach his credibility by asking if he
remembered telling the officer he did not have sex with victim A while saying it would not
matter anyway because the victim was of legal age. (Tr. 684). However, it is permissible
to impeach Appellant by examining him about his own prior statement. See Evid.R. 613.
We also note the officer had already testified Appellant initially said he merely went to get
fast food with victim A and subsequently said it would have been legal even if they had
sex. (Tr. 567-568). Next, the prosecutor pointed to Appellant’s testimony that victim C
claimed he went to a particular college and asked Appellant about text messages the
interviewing officer showed him during the interview, inquiring whether he noticed the
texts mentioned school but not college. (Tr. 679). Notably, the text messages were an
exhibit used during victim C’s testimony by the state and the defense. (Tr. 394, 409);
(St.Ex. 19). In any event, Appellant incorrectly argues he could not be impeached with
Case No. 20 MA 0131
–9–
questioning about facts not in evidence. See Evid.R. 608(B); Evid.R. 616(C). There is
no genuine issue of appellate counsel effectiveness in refraining from presenting this
issue on appeal.
{¶18} Eighth, Appellant says counsel should have raised an argument about the
state’s failure to disclose evidence, citing Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194,
10 L.E.2d 215 (1963) (due process violation if state withholds favorable evidence which
is material to guilt or punishment). At trial, defense counsel pointed out he thought the
anal sex with victim A started as rape. Two days before trial, the prosecutor explained
she met with victim A, who clarified that he originally consented to anal sex but Appellant
refused to stop when asked. The prosecutor offered notes of the recent discussion.
Defense counsel expressed he was satisfied with this. He said he was not arguing the
witness’s testimony should be excluded and was content with the available time to
prepare his cross-examination. (Tr. 284). Considering these remarks, there was no
reason for appellate counsel to raise the issue. In fact, Appellant’s ineffectiveness
argument relies on the failure to raise this item in conjunction with a different alleged
Brady violation. Appellant says he believed victim B would be claiming he was anally
penetrated with a finger and learned at trial victim B was claiming he was anally
penetrated with a penis. Both methods of penetration are the same type of rape.
Regardless, this subject was not raised below. The record contains testimony that victim
B’s testimony was consistent with his January 9, 2019 statement to police. (Tr. 552-553).
There is no indication of a lacking pretrial disclosure in the record, which was required
before appellate counsel could raise the issue, as discussed next.
{¶19} Ninth, Appellant claims the prosecutor allowed witnesses to present false
testimony. A defendant who alleges prosecutorial misconduct by presenting perjured
testimony must show the prosecutor knew the testimony was false. State v. Iacona, 93
Ohio St.3d 83, 97,
752 N.E.2d 937 (2001). The cited Napue case involved a postconviction relief petition which established the state failed to correct testimony the state
knew to be false (as it dealt with the very promise the state made to the witness). Napue
v. Illinois,
360 U.S. 264, 269,
79 S.Ct. 1173,
3 L.Ed.2d 1217 (1959). In this reopening
application, Appellant cannot rely on facts outside of the record. Although App.R. 26(B)
allows an appellate court to inquire into the effectiveness of appellate counsel through
affidavit (and an evidentiary hearing can be ordered after reopening), this does not allow
Case No. 20 MA 0131
– 10 –
for additions to the trial record for briefing. In the direct appeal of a criminal conviction,
counsel cannot rely on items outside of the record to prove facts or to show a deficiency
in representation or a resulting prejudicial impact. State v. Hartman, 93 Ohio St.3d 274,
299,
754 N.E.2d 1150 (2001). See also State v. Ishmail, Ohio St.2d 402, 406,
377 N.E.2d
500 (1978) (appellate court is limited to what transpired as reflected by the record on
direct appeal). Accordingly, appellate counsel cannot render ineffective assistance of
counsel by failing to raise items on direct appeal that could not have been considered by
the appellate court. State v. Clark, 7th Dist. Mahoning No. 08 MA 15,
2015-Ohio-2584, ¶
23.
{¶20} As for an allegation relying on an item in the record to claim false testimony
(on whether victim B returned to Appellant’s house in the year after the sexual encounter),
we notice the affidavit in support of the warrant indicates victim B reported he obtained
fireworks from Appellant’s house almost a year after the date at issue. When defense
counsel asked victim B if he returned to Appellant’s house after the sexual encounter, he
said no (but he then immediately said counsel was trying to confuse his words). (Tr. 507).
Appellant also complains the officer testified he was “not specifically aware” whether
victim B returned to the house (in the year after the rape); however, the officer then agreed
messages indicated Appellant and victim B had subsequent contact and said he “wouldn’t
be surprised if [victim B] had been at the house ….” (Tr. 599). Notably, these instances
of testimony were not presented by the state but were elicited during cross-examination
by defense counsel. As discussed in the direct appeal, defense counsel addressed the
topic to challenge victim B’s answer. Boyd, 2022-Ohio-3523 at ¶ 117-121 (finding no
deficiency or prejudice). Prosecutorial misconduct is not indicated on the record.
{¶21} Tenth, Appellant says the affidavit in support of the second search warrant
for electronic devices demonstrated a reason to believe he had computers at his
Lockwood Boulevard home but did not cite a reason to believe there was a computer at
his West Boulevard home (the location of the hard drive containing the nine photographs
of naked children). Initially, we note the police saw multiple desktops and a laptop at the
Lockwood house several days before the warrant. Laptops are highly portable, and a
warrant for the residence under renovation need not be limited to a laptop when there is
probable cause Appellant owns and regularly uses electronic devices. Moreover, the
search warrant affidavit pointed out Appellant moved to the Lockwood house after his
Case No. 20 MA 0131
– 11 –
home on West Boulevard suffered a fire six months earlier. It also revealed Appellant
had a hard drive for security cameras at his West Boulevard house at the time of the fire.
{¶22} As we observed in the direct appeal, the police seeking the second warrant
had probable cause to believe Appellant hired a juvenile for sex (from the evidence
obtained in executing the first warrant). Id. at ¶ 41. The affiant relayed how Appellant
told this juvenile he was working on his West Boulevard home and suggested they use
the bedroom for oral sex. Although the prior hard drive was provided to the fire
department at the time of the fire, the existence of security cameras was a consideration.
A more specific probable cause argument would not have assisted appellate counsel’s
suppression argument addressed in the direct appeal. Appellant also claims a clearer
argument should have been made about the lack of probable cause for child pornography.
However, we rejected this contention based on the argument of a lacking nexus and
upheld the search warrants for the computers. Id. at ¶ 24, 38-46; Adams, 146 Ohio St.3d
232 at ¶ 11 (no genuine issue on prejudice if the issue was addressed by the appellate
court in the direct appeal, despite a lack of precise briefing of the particular argument).
{¶23} Eleventh, Appellant generally refers to the sufficiency of the evidence on
counts one, two, and three. Counsel challenged the sufficiency of the evidence for count
one, and we rejected the argument. Boyd, 2022-Ohio-3523 at ¶ 50-60. Although counsel
did not brief a sufficiency argument on counts two and three, counsel did challenge the
weight of the evidence as to those counts, arguing victim B’s testimony lacked credibility;
we rejected the argument. Id. at ¶ 81-89. Although the concepts are different, the finding
that a conviction is not against the manifest weight of the evidence necessarily includes
a finding of sufficiency. State v. McGowan, 7th Dist. Jefferson No. 14 JE 37, 2016-Ohio-
48, ¶ 4 (denying reopening). Appellant contends appellate counsel should have raised
items outside of the record, such as his medical history, to prove he could not rape victim
A or B. However, as discussed supra, appellate counsel cannot render ineffective
assistance of counsel by failing to raise items on direct appeal that could not have been
considered by the appellate court. Clark, 7th Dist. No. 08 MA 15 at ¶ 23. See also
Hartman,
93 Ohio St.3d at 299 (appellate counsel cannot rely on items outside of the
record to prove facts or to show a deficiency in representation or a resulting prejudicial
impact).
Case No. 20 MA 0131
– 12 –
{¶24} Lastly, Appellant contends appellate counsel could have presented an
assignment of error on cumulative error if he had raised Appellant’s fourth, fifth, seventh,
eighth, and ninth reopening arguments. Those arguments did demonstrate a genuine
issue of ineffective assistance of appellate counsel for various reasons, including the
reliance on evidence outside of the record and lack of error. This final argument does not
strengthen the application to show a genuine issue as to counsel’s effectiveness on
appeal. See State v. Dumas, 7th Dist. Mahoning No. 12 MA 0031, 2016-Ohio-4799, ¶ 12
(denying reopening).
{¶25} We conclude Appellant did not demonstrate a “genuine issue as to whether
the applicant was deprived of the effective assistance of counsel on appeal” as required
by App.R. 26(B)(5). Counsel reasonably selected the arguments to brief on appeal, and
we issued a thirty-four-page opinion addressing those arguments, broadly and
specifically. As explained supra, it is a valid appellate strategy for counsel to limit the
amount of arguments in order to avoid diluting the strength of the favored arguments.
Tenace, 109 Ohio St.3d 451 at ¶ 7, citing Jones,
463 U.S. at 751 (appellate counsel does
not render ineffective assistance by “focusing on one central issue if possible, or at most
on a few key issues, to avoid diluting the force of stronger arguments.”). For the foregoing
reasons, the application for reopening is denied.
JUDGE CAROL ANN ROBB
JUDGE GENE DONOFRIO
JUDGE CHERYL L. WAITE
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 20 MA 0131
