[Cite as State v. Humphries, 2014-Ohio-5423.]




                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                          No. 99924



                                           STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                       DAVID L. HUMPHRIES

                                                      DEFENDANT-APPELLANT




                                           JUDGMENT:
                                       APPLICATION DENIED



                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-12-566544-C
                                    Application for Reopening
                                        Motion No. 476141

        RELEASE DATE: December 8, 2014




APPELLANT
David L. Humphries #641-267
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Frank Romeo Zeleznikar
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, J.:
         {¶1} David L. Humphries has filed a timely application for reopening pursuant to App.R.

26(B).       Humphries is attempting to reopen the appellate judgment, journalized in State v.

Humphries, 8th Dist. Cuyahoga No. 99924, 2014-Ohio-1230, which affirmed his conviction and

sentence for the offenses of kidnapping with firearm specifications, aggravated robbery with

firearm specifications, and having weapons while under disability with forfeiture specifications.

For the following reasons, we decline to reopen Humphries’s original appeal.

         {¶2}     Humphries has failed to meet his burden to demonstrate that “there is a genuine

issue as to whether the applicant was deprived of the effective assistance of counsel on appeal.”

App.R. 26(B)(5).

         {¶3}     In State v. Spivey, 84 Ohio St.3d 24, 701 N.E.2d 696 (1998), the Supreme Court

of Ohio specified the proof required of an applicant as follows:

         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 were deficient for failing to raise the issues 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.

Id. at 25.

         {¶4}     Appellate counsel cannot be considered ineffective for failing to raise every

conceivable assignment of error on appeal. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77

L.Ed.2d 987 (1983); State v. Gumm, 73 Ohio St.3d 413, 1995-Ohio-24, 653 N.E.2d 253; State v.

Campbell, 69 Ohio St.3d 38, 630 N.E.2d 339 (1994). Also, the United States Supreme Court

has established that appellate counsel possesses the discretion to decide which issues are the

most fruitful arguments and the importance of winnowing out weaker arguments on appeal, thus
focusing on one central issue or at most a few key issues. Jones.

        {¶5}     In the case sub judice, Humphries raises five proposed assignments of error in

support of his claim of ineffective assistance of appellate counsel.            Humphries’s initial

assignment of error is that

        [a]ppellate and trial counsel were ineffective when they failed to argue the
        violation of Humphries speedy trial right under the 6th Amendment to the U.S.
        Constitution and the Ohio Constitution, Art. I, § 10.

        {¶6} Specifically, Humphries argues that he was not brought to trial within 270 days of

his initial arrest.

        {¶7}     R.C. 2945.71(C)(2) and (E) require that a defendant charged with a felony offense

be brought to trial within 270 days of arrest or within 90 days if the accused is held in jail in lieu

of bail. The days that the defendant is incarcerated are subject to the triple-count provision of

R.C. 2945.71(E). However, the time period for bringing a defendant to trial may be extended

pursuant to R.C. 2945.72. Reasons for an extension of the period for a timely trial include any

delay necessitated by defendant’s motion, any continuances granted as a result of defendant’s

motion, and the period of any continuance granted other than upon the defendant’s own motion.

See R.C. 2945.72(A)-(I).

        {¶8}     Herein, a review of the docket in State v. Humphries, Cuyahoga C.P. No.

CR-12-566544-C, demonstrates that Humphries was arrested on September 1, 2012, and that trial

commenced on February 27, 2013. Thus, a period of 179 days elapsed between the date of

arrest and trial. Because Humphries was incarcerated in lieu of bail, the triple-count provision

must be applied to determine whether he was timely brought to trial within 270 days of arrest.

In addition, we must determine whether any of the 179 days were tolled pursuant to R.C.

2945.72.
       {¶9}    Further review of the docket demonstrates that a total of 154 days were tolled as a

result of Humphries’s request for a bill of particulars, his request for Crim.R. 16 discovery, and

11 continuances granted on his own motions. A total of 25 days were not tolled:

       1)      Humphries arrested on September 1, 2012, (incarcerated in lieu of bond)
               to the filing of Humphries’s motion for bill of particulars and Crim.R. 16
               motion for discovery filed on September 14, 2012 = 13 days NOT tolled;

       2)      Humphries’s motions for bill of particulars and demand for discovery filed
               September 14, 2012, and responses provided by state on September 18,
               2012 = 4 days tolled;

       3)      Humphries’s motion for continuance of pretrial from September 18, 2012
               to October 1, 2012 = 13 days tolled;

       4)      Humphries’s motion for continuance of pretrial from October 1, 2012 to
               October 12, 2012 = 11 days tolled;

       5)      Humphries’s motion for continuance of pretrial from October 12, 2012 to
               October 25, 2012 = 13 days tolled;

       6)      Humphries’s motion for continuance of pretrial from October 25, 2012 to
               November 7, 2012 = 13 days tolled;

       7)      Humphries’s motion for continuance of pretrial from November 7, 2012 to
               November 20, 2012 = 13 days tolled;

       8)      Humphries’s motion for continuance of pretrial from November 20, 2012
               to December 5, 2012 = 15 days tolled;

       9)      Humphries’s motion for continuance of pretrial from December 5, 2012 to
               December 19, 2012 = 14 days tolled;

       10)     Humphries’s motion for continuance of pretrial from December 19, 2012
               to January 3, 2013 = 15 days tolled;

       11)     Humphries’s motion for continuance of pretrial from January 3, 2013 to
               January 16, 2013 = 13 days tolled;

       12)     January 16, 2013 to January 22, 2013 = 6 days NOT tolled;

       13)     Humphries’s motion for continuance of pretrial/trial from January 22,
               2013 to January 30, 2013 = 8 days tolled;
       14)     Humphries’s motion for continuance of pretrial/trial from January 30,
               2013 to February 21, 2013 = 22 days tolled;

       15)     February 21, 2013 to start of trial on February 27, 2013 = 6 days NOT
               tolled


       {¶10} Based upon the aforesaid analysis, 179 days passed from the date of Humphries’s

arrest to the commencement of trial. Of those 179 days, 154 days were tolled with a total of 25

days chargeable to the speedy trial calculation. Humphries was brought to trial within 270 days

as required by R.C. 2945.71. State v. Bickerstaff, 10 Ohio St.3d 62, 461 N.E.2d 892 (1984).

Thus, the first proposed assignment of error is without merit and fails to establish ineffective

assistance of appellate counsel.

       {¶11} Humphries’s second proposed assignment of error is

       [a]ppellate counsel failed to argue against the conviction of the Appellant for
       crimes against an individual that was never officially identified (the name of the
       alleged victim was supposedly “Steve Harris”, although police never confirmed
       his identity or that the person even existed), who never made a statement against
       Appellant, and never appeared at trial. * * * The alleged victim’s testimony at trial
       was critical to the prosecution’s case, and without it, the charges should have been
       dismissed.

       {¶12} Humphries, through his second proposed assignment of error, argues that his Sixth

Amendment right to confront a victim was violated.             Specifically, Humphries raises a

sufficiency argument with regard to his conviction for the offenses of kidnapping and aggravated

robbery.

       {¶13} Humphries’s right to confrontation under the Sixth Amendment was not violated

because the victim-Harris never testified during the course of trial. In addition, the issue of

sufficiency of the evidence was previously addressed upon direct appeal and is barred from

further review by the doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104
(1967). See also State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992).

       In this matter, Wilson testified that he observed the defendants with black,
       semiautomatic handguns, and that they pointed the weapons at him and Harris,
       ordered them to lie down on the ground, and demanded their money. Eads also
       testified that [Humphries] and Trawick brandished a weapon, pointed it at
       Wilson and Harris, ordered them on the ground after Wilson sought payment of
       the marijuana, and that the [Humphries] had a weapon while he ransacked the
       SUV looking for valuables.

       This evidence, if believed, is sufficient to establish the elements of armed robbery
       and the elements of kidnaping in relation to the attacks on Wilson and Harris, both
       as principal offender and aider and abettor of Trawick; therefore, we find
       sufficient evidence to support the attack of Harris because he fled as money was
       demanded, there was sufficient evidence to establish that the conduct of defendant
       and Trawick was a substantial step in the armed robbery and kidnapping of Harris
       and sufficient evidence, therefore, supports this offense.

       Further, after reviewing the entire record, we cannot say that the jury clearly lost
       its way and created a manifest miscarriage of justice in that the conviction must be
       reversed and a new trial ordered. The evidence compellingly established that the
       defendant committed an armed robbery and kidnapping of Harris and Eads,
       attempted to rob and kidnap Harris, and that he also aided and abetted in
       Trawick’s armed robbery, kidnapping, and attempted offenses against Harris.

Humphries, 8th Dist. Cuyahoga No. 99924, 2014-Ohio-1230, ¶ 26.

       {¶14} Thus, Humphries’s second proposed assignment of error is without merit and fails

to establish ineffective assistance of appellate counsel.

       {¶15} Humphries’s third proposed assignment of error is

       [a]ppellate counsel failed to argue that there were inconsistent verdicts regarding
       the gun specifications. Appellant was acquitted of gun specifications for charges
       related to Eads, including aggravated robbery and [sic].

       {¶16} Humphries, through his third proposed assignment of error, argues that the verdicts

as to the gun specifications, aggravated robbery, and kidnapping are inconsistent. Specifically,

Humphries argues that his acquittal as to firearm specifications relating to victim-Eads prevented

any conviction relating to all other charged offenses of kidnapping and aggravated robbery as
related to victims Wilson and Harris.

       {¶17} This court has consistently held that an appellate court is not permitted to speculate

about the reason for inconsistent verdicts when it determines the validity of a verdict. State v.

Trewartha, 165 Ohio App.3d 91, 2005-Ohio-5697, 844 N.E.2d 1218 (10th Dist.2005). In a

criminal case, consistency between verdicts on several counts of an indictment is not necessary

where a defendant is convicted of one or some counts and acquitted on other counts; the

convictions will be upheld, irrespective of its rational incompatibility with the acquittals. State

v. Woodson, 24 Ohio App.3d 143, 493 N.E.2d 1018 (10th Dist.1985).                 The reason the

inconsistency does not matter is because “several counts of an indictment containing more than

one count are not interdependent and an inconsistency in a verdict does not arise out of

inconsistent responses to different counts, but only arises out of inconsistent responses to the

same count.” State v. Lovejoy, 79 Ohio St.3d 440, 1997-Ohio-371, 683 N.E.2d 1112. Herein,

the indictment charged Humphries with three separate counts of kidnapping with firearm

specifications and three separate counts of aggravated robbery with firearm specifications, each

count relating to a different victim. The fact that Humphries was acquitted of the firearms

specifications relating to Eads does not create an inconsistent verdict with regard to the

independent counts of aggravated robbery and kidnapping vis-a-vis victims Wilson and Harris.

The counts were not interdependent upon each other. State v. Adams, 53 Ohio St.2d 223, 374

N.E.2d 137 (1978).

       {¶18} Thus, Humphries’s third proposed assignment of error is without merit and fails to

establish ineffective assistance of appellate counsel.

       {¶19} Humphries’s fourth proposed assignment of error is

       [u]nder allegations of complicity * * *, appellate counsel was ineffective for not
       raising the issue that Appellant did not know his co-defendant possessed a firearm
       prior to the crime being committed. Appellant did not know that [the
       codefendant] had a gun.

       {¶20} Humphries, through his fourth proposed assignment of error, argues that his

conviction as an aider and abetter was not supported by sufficient evidence with regard to the

offenses of armed robbery and kidnapping. As previously dealt with through Humphries’s

second proposed assignment of error, this court found in the original appeal that sufficient

evidence was adduced at trial “to establish the elements of armed robbery and the elements of

kidnapping in relation to the attacks on victims Wilson and Harris, both as a principal offender

and an aider and abetter * * *.” Humphries, 8th Dist. Cuyahoga No. 99924, 2014-Ohio-1230, ¶

27. Humphries’s fourth proposed error is barred from further review by the doctrine of res

judicata. Thus, the fourth proposed assignment of error is without merit and fails to establish

ineffective assistance of appellate counsel.

       {¶21} Humphries’s fifth proposed assignment of error is

       [a]ppellate counsel was ineffective for failing to communicate to Appellant when
       the appellate record was transferred to the Court of Appeals triggering the 180
       days for filing post conviction relief in violation of [citation omitted.] This
       deprived Appellant of being able to file a timely post conviction petition of any
       issues outside the appellate record and is ineffective assistance of appellate
       counsel.

       {¶22} Humphries’s fifth proposed assignment of error concerns issues not directly

involved with his original appeal. App.R. 26(B)(1) provides that Humphries may only apply for

reopening of the appeal from the judgment of conviction and sentence, based upon a claim of

ineffective assistance of counsel. The fifth proposed assignment of error is not related to the

judgment of conviction and sentence as considered within Humphries’s original appeal. State v.

Perry, 8th Dist. Cuyahoga No. 90497, 2009-Ohio-2245. In addition, appellate counsel cannot be
expected to argue their own ineffectiveness on appeal.      State v. Hook, 92 Ohio St.3d 83,

2001-Ohio-150, 784 N.E.2d 528; State v. Lentz, 70 Ohio St.3d 527, 639 N.E.2d 784 (1994).

       {¶23} Thus, Humphries’s fifth proposed assignment of error is without merit and fails to

establish ineffective assistance of appellate counsel.

       {¶24} Accordingly, the application for reopening is denied.




MARY EILEEN KILBANE, JUDGE

KENNETH A. ROCCO, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
