[Cite as State v. Driscoll, 2020-Ohio-27.]

                                COURT OF APPEALS OF OHIO

                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                              No. 107165
                 v.                                :

LOUIS DRISCOLL,                                    :

                 Defendant-Appellant.              :


                                 JOURNAL ENTRY AND OPINION

                 JUDGMENT: APPLICATION DENIED
                 RELEASED AND JOURNALIZED: January 8, 2020


                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-18-624907-A
                                  Application for Reopening
                                     Motion No. 529406


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Frank Romeo Zeleznikar, Assistant
                 Prosecuting Attorney, for appellee.

                 Louis Driscoll, pro se.


EILEEN T. GALLAGHER, A.J.:

                    On June 14, 2019, the applicant, Louis Driscoll, pursuant to App.R.

26(B), applied to reopen this court’s judgment in State v. Driscoll, 8th Dist.

Cuyahoga No. 107165, 2019-Ohio-1124, in which this court affirmed his convictions
for felonious assault; abduction; discharge of a firearm near prohibited premises;

drug possession, all with firearms specifications; and having weapons while under

disability. Driscoll now argues that his appellate counsel was ineffective for failing

to argue the impropriety of maximum and consecutive sentences, instead of only

raising an unreviewable Fourth Amendment issue that his guilty plea waived. The

state filed its brief in opposition on July 11, 2019. For the following reasons, the court

denies the application to reopen.

       {¶ 2} On September 27, 2017, Driscoll had a physical altercation on a

populated Cleveland street with one of his victims, E.H. Driscoll pulled his firearm

as E.H. was fleeing the scene and fired two shots, with one hitting E.H. in the back

of the leg and severing a major blood vessel. As a result, E.H. required surgery,

followed by a three-month inpatient hospital stay. E.H. continues to suffer the

effects of the gunshot injury and requires physical therapy.

      {¶ 3} Approximately 12 hours later several 911 calls reported that Driscoll

was standing in the middle of the street, near the location of the first incident,

shooting his gun in the air and talking to himself. When police arrived, Driscoll was

no longer there. While on scene, they heard screaming from the next street over and

immediately responded. The officers found Driscoll on a front porch holding P.B. at

gunpoint where she feared for her life as a result of his verbal threats. Police then

apprehended Driscoll and found that he was highly intoxicated and in possession of

cocaine, bath salts, $752, and a firearm.
      {¶ 4} In March 2018 during trial, Driscoll entered into a plea agreement and

pled guilty to felonious assault with firearm specifications; abduction with firearm

specifications; discharge of a firearm near prohibited premises with firearm

specifications; drug possession with firearms specifications; and having weapons

while under disability. After an extensive Crim.R. 11 colloquy, the court accepted his

plea and found him guilty of the foregoing offenses.

      {¶ 5}    At sentencing, neither victim appeared, but Driscoll addressed the

court acknowledging the extent of his wrongs and apologizing for what he had done

to his victims. Driscoll sought to excuse his conduct by stating he was highly

provoked, in hopes of a reduced sentence. After both parties had expressed their

opinions for and against lengthy sentences, the court imposed the maximum

sentence on all 5 counts to which Driscoll plead guilty, to be served consecutively,

for an aggregate prison term of 23 years.

      {¶ 6} The judge justified the maximum consecutive sentences as necessary

to protect the public based on the seriousness of the conduct, and she had no

expectation Driscoll would follow the law because he was on postrelease control for

similar conduct at the time of the instant conduct.

       {¶ 7} Driscoll’s appellate counsel argued in the sole assignment of error that

the evidence supporting his convictions was obtained in violation of his Fourth

Amendment right against unreasonable search and seizures. This court noted that

appellate counsel raised issues regarding sentencing, but because they were not

included as assignments of error, the sentencing arguments would not be heard.
This court affirmed the convictions based on State v. Ketterer, 111 Ohio St.3d 70,

2006-Ohio-5283, 855 N.E.2d 48, ¶ 105, because Driscoll’s guilty plea waived any

complaint as to claims of constitutional violations not related to the guilty plea.

      {¶ 8} Driscoll now claims that his appellate attorney did not consult with him

before filing for appeal, and that she should have argued reviewable issues regarding

maximum and consecutive sentencing, rather than nonreviewable constitutional

claims.

       {¶ 9} In order to establish a claim of ineffective assistance of appellate

counsel, the applicant must demonstrate that the 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 373 (1989); and State v. Reed, 74 Ohio St.3d 534,

1996-Ohio-21, 660 N.E. 2d 456.

      {¶ 10} 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.
       {¶ 11} 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, 1996-Ohio-366, 672 N.E.2d 638.

       {¶ 12} 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. State v. White, 8th Dist. Cuyahoga No. 104224, 2017-Ohio-8056, ¶ 11.
        {¶ 13} Driscoll’s argument that his sentence was contrary to law is not well

taken. Driscoll argues that his conduct should be considered less serious because it

was strongly provoked. For the incident with E.H., Driscoll said that he had just

learned that E.H. had molested his eight-year-old niece. For the incident of shooting

in the street, defense counsel indicated that some witnesses would state that Driscoll

was being robbed. For the incident with P.B., defense counsel said that Driscoll had

sought refuge on his uncle’s porch after being robbed and then was startled by P.B.

coming onto the porch.

       {¶ 14} The trial judge during the sentencing hearing reviewed the severity

of the offenses and Driscoll’s criminal history. She noted that there were three

separate incidents for the indictments. The injury to E.H. was grievous, nearly

killing him, requiring a three-month hospital stay and prolonged recovery and

therapy, which was still not finished at the time of the hearing. Indeed, E.H.’s

condition prevented him from being at the hearing. The judge also noted the danger

posed by discharging a firearm in the street risking injury to anyone there. The

prosecutor stated that Driscoll firing his gun caused people to cower on the floor of

their homes. The judge further noted that Driscoll was under the influence of a drug

and that he possessed more than the bulk amount of a Schedule I drug. The judge

also recounted Driscoll threatening to shoot P.B. and causing her to fear for her life.

      {¶ 15} The judge highlighted Driscoll’s extensive criminal history. In 2001,

he was convicted of robbery, felonious assault, and receiving stolen property. In

2007, he received 37 months in a federal prison for being a felon in possession of
drugs, and in 2012, he received another federal sentence for being a felon in

possession of a firearm. Noting other criminal cases interspersed among those

matters, the judge found his record to be deplorable. The judge stated: “I have no

expectation that you will ever follow the law, and so I find that it’s necessary to

protect the public and to punish you.” (Tr. 239.) She then fulfilled her duty to make

the required findings to impose consecutive sentences.         Given the severity of

multiple harms, the multiple criminal acts, and Driscoll’s criminal history, the

imposition of maximum sentences was not an abuse of discretion, and there is no

prejudice arising from the failure to make such an argument.

      {¶ 16} Driscoll’s second argument is that consecutive sentences were

improper because the trial court failed to make all of the required findings under

R.C. 2929.14(C)(4) and because the record failed to support those findings. A review

of the record shows that the trial judge took all factors into account before imposing

sentencing, made the necessary findings during the hearing, and entered them into

record.   The record fully supported the imposition of consecutive sentences.

Therefore, his arguments are not more persuasive than his appellate counsel’s

argument and would not have changed the outcome of his appeal.

       {¶ 17} Accordingly, this court denies the application for reopening.



                                      ___
EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE

PATRICIA ANN BLACKMON, J., and
MICHELLE J. SHEEHAN, J., CONCUR
