[Cite as State v. Conner,
2023-Ohio-3485.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111889
v. :
KENDLE CONNER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: September 22, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-21-661251-B and CR-21-661269-A
Application for Reopening
Motion No. 565924
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Alan F. Dowling, Assistant Prosecuting
Attorney, for appellee.
Kendle Conner, pro se.
EILEEN A. GALLAGHER, P.J.:
{¶ 1} Kendle Conner has filed a timely application for reopening pursuant to
App.R. 26(B). Conner is attempting to reopen the appellate judgment rendered in
State v. Conner, 8th Dist. Cuyahoga No. 111889, 2023-Ohio-1220, that affirmed the
pleas of guilty and sentences imposed in State v. Conner, Cuyahoga C.P. Nos. CR-
21-661269-A and CR-21-661251-B, for the offenses of involuntary manslaughter
(R.C. 2903.04(A)), felonious assault (R.C. 2903.11(A)(1)) and having weapons while
under disability (R.C. 2923.13(A)(2)). We decline to reopen Conner’s appeal.
I. Standard of Review Applicable to App.R. 26(B) Application for
Reopening
{¶ 2} An application for reopening will be granted if there exists a genuine
issue as to whether an appellant 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, Conner 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).
{¶ 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. 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).
{¶ 4} Even if Conner establishes that an error by his appellate counsel was
professionally unreasonable, Conner 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
{¶ 5} Conner raises three proposed assignments of error in support of his
application for reopening:
Trial counsel provided ineffective assistance of counsel, pursuant to
State v. Anthony, 2015-Ohio-2267,
37 N.E.3d 751 (8th Dist.), where
counsel advised appellant to waive the allied offense application of R.C.
2941.25(a) relating to the involuntary manslaughter and felonious
assault counts.
Trial counsel provided ineffective assistance of counsel where he
waived the issue of allied offenses by agreeing with the state that the
involuntary manslaughter and felonious assault counts are not allied
offenses.
Appellant’s guilty plea was not entered knowingly, intelligently, or
voluntarily due to ineffective assistance of trial counsel where counsel
incorrectly advised appellant on allied offense R.C. 2941.25(a), thereby
causing appellant to waive the application of allied offense sentencing
R.C. 2941.25(a) on the involuntary manslaughter and felonious assault
offenses.
{¶ 6} Conner’s three proposed assignments of error essentially involve the
issues of 1) whether the offenses of involuntary manslaughter and felonious assault,
to which he plead guilty, were allied offenses of similar import that required merger
for purposes of sentencing and 2) the pleas of guilty were not made voluntarily,
knowingly, and intelligently.
A. Waiver
{¶ 7} This court has held that when the transcript demonstrates the state and
defense counsel specifically agreed that the offenses were not allied, the issue of
allied offenses is waived. State v. Booker, 8th Dist. Cuyahoga No. 101886, 2015-
Ohio-2515; State v. Adams, 8th Dist. Cuyahoga No. 100500, 2014-Ohio-3496; State
v. Yonkings, 8th Dist. Cuyahoga No. 98632,
2013-Ohio-1890; State v. Carman, 8th
Dist. Cuyahoga No. 99463,
2013-Ohio-4910; State v. Ward, 8th Dist. Cuyahoga No.
97219,
2012-Ohio-1199. Herein, the transcript of the sentencing hearing clearly
demonstrates that the state and defense counsel specifically agreed that the felony
offenses, to which Conner plead guilty, were not allied offenses: “Your Honor, part
and parcel of this plea agreement in this case, Counts 1 and — amended Count 1
[involuntary manslaughter] and Count 4 [felonious assault] will not merge for
purposes of sentencing.” Tr. 5.
{¶ 8} In addition, Conner bargained with the state to achieve a desired
outcome — that is to avoid a potential longer term of incarceration with regard to
the offenses of aggravated murder, murder, and felonious assault as originally
charged in the indictments. In CR-21-661269-A, the state amended Count 1 from
aggravated murder to involuntary manslaughter, nolled the offense of murder in
Count 2, nolled the offense of murder in Count 3 and nolled the offense of felonious
assault in Count 5. In CR-21-661251-B, the state nolled the offense of having
weapons while under disability in Count 2, nolled the offense of tampering with
evidence in Count 4 and nolled the offense of carrying a concealed weapon in Count
5. Conner accepted and received the benefit of amended indictments and reduced
sentences and is not permitted to challenge the plea of guilty based upon the
argument of allied offenses. State v. Underwood, 124 Ohio St.3d 365,
2010-Ohio-1,
922 N.E.2d 923; State v. Haser, 5th Dist. Muskingum No. CT2020-0029, 2021-
Ohio-460; State v. Styles, 8th Dist. Cuyahoga No. 71052,
1997 Ohio App. LEXIS
4547 (Oct. 9, 1997).
B. Res Judicata
{¶ 9} The doctrine of res judicata prevents further review of the issues of
allied offenses and defective guilty pleas pursuant to Crim.R. 11 because the issues
have already been addressed by this court on direct appeal and found to be without
merit. State v. Perry, 10 Ohio St.2d 175,
226 N.E.2d 104 (1967). Claims of
ineffective assistance of appellate counsel in an application for reopening may be
barred from further review by the doctrine of res judicata unless circumstances
render the application of the doctrine unjust. State v. Murnahan,
63 Ohio St.3d 60,
584 N.E.2d 1204 (1992); State v. Logan, 8th Dist. Cuyahoga No. 88472, 2008-Ohio-
1934; State v. Tate, 8th Dist. Cuyahoga No. 81682,
2004-Ohio-973.
{¶ 10} This court, in the appellate opinion journalized April 13, 2023,
reviewed the issues of allied offenses and whether Conner’s guilty pleas were
voluntary, knowing, and intelligent and found no error of law. See State v. Conner,
supra, ¶ 23, 24, 26, and 37. We further find that circumstances do not render the
application of the doctrine of res judicata unjust. State v. Tyford,
106 Ohio St.3d
176,
2005-Ohio-4380,
833 N.E.2d 289; State v. Robinson, 8th Dist. Cuyahoga No.
110467,
2022-Ohio-3033; State v. Pratt, 8th Dist. Cuyahoga No. 93123, 2010-Ohio-
4998.
C. Effect of Guilty Plea
{¶ 11} 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.
{¶ 12} By entering pleas of guilty, Conner waived all appealable errors that
might have occurred at trial unless the errors prevented Conner 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). Our
additional review of the plea transcript clearly demonstrates that the trial court
meticulously complied with the mandates of Crim.R. 11 and that Conner entered a
knowing, intelligent, and voluntary plea of guilty. Because Conner’s pleas were
knowingly, intelligently and voluntarily made and the claimed error raised by
Conner is not based upon any jurisdictional defects, the raised proposed assignment
of error is waived. We further find that no prejudice can be demonstrated by Conner
based upon appellate representation on appeal. State v. Bates, 8th Dist. Cuyahoga
No. 100365,
2015-Ohio-297.
D. No Reasonable Probability of Different Outcome
{¶ 13} Finally, there exists no reasonable probability that, but for appellate
counsel’s claimed error on appeal, the results of Conner’s appeal would have been
different. Conner has failed to establish any prejudice through the three proposed
assignments 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.
{¶ 14} Accordingly for reopening is denied.
__________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR
