[Cite as State v. Williams, 2012-Ohio-352.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 95853




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                 RICHARD WILLIAMS
                                                    DEFENDANT-APPELLANT




                                      JUDGMENT:
                                  APPLICATION DENIED


                               Cuyahoga County Common Pleas Court
                                      Case No. CR-534090
                                    Application for Reopening
                                       Motion No. 447136


        RELEASED AND JOURNALIZED: January 30, 2012
FOR APPELLANT

Richard Williams, pro se
Inmate #592-040
Marion Correctional Inst.
P. O. Box 57
Marion, OH 43301

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Mary McGrath
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




EILEEN A. GALLAGHER, J.:

      {¶ 1} In State v. Williams, Cuyahoga Cty. Court of Common Pleas Case No.

CR-534090, applicant, Richard Williams, pled guilty to gross sexual imposition and rape.

This court affirmed that judgment in State v. Williams, 8th Dist. No. 95853,

2011-Ohio-2551.

      {¶ 2} Williams has filed with the clerk of this court a timely application for

reopening. He argues that he was denied the effective assistance of appellate counsel
and asserts seven proposed assignments of error. We deny the application for reopening.

 As required by App.R. 26(B)(6), the reasons for our denial follow.

      {¶ 3} Having reviewed the arguments set forth in the application for reopening in

light of the record, we hold that Williams 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). In State v. Spivey, 84 Ohio St.3d

24, 1998-Ohio-704, 701 N.E.2d 696, the Supreme Court specified the proof required of

an applicant. “In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we

held that 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. Williams cannot satisfy either prong of the Strickland

test. We must, therefore, deny the application on the merits.

      {¶ 4} In his first proposed assignment of error, Williams contends that his

appellate counsel failed to assert Williams’s “actual innocence.” Williams pled guilty to

Count 3 (gross sexual imposition). During the lengthy plea colloquy, the trial court

asked Williams how he pled to Count 4, rape, and mistakenly identified B.U., the victim
of Count 3 (grosss sexual imposition), as the victim of Count 4. Williams stated on the

record that he did not rape B.U. and the trial court ultimately correctly associated the

victims with Counts 3 and 4 respectively.

       {¶ 5} The trial court actually acknowledged Williams’s claim of innocence of the

rape of B.U. He, however, did not assert innocence of gross sexual imposition with

respect to B.U. The record does not support Williams’s claim of “actual innocence.”

We cannot, therefore, conclude that appellate counsel was deficient or that Williams was

prejudiced by the absence of this proposed assignment of error on direct appeal. As a

consequence, Williams's first proposed assignment of error is not well-taken.

       {¶ 6} In his second proposed assignment of error, Williams complains that the

trial court did not render a final appealable order. In support of this argument, Williams

quotes part of R.C. 2929.19(A) which requires a sentencing hearing and provides, in part:

“The court shall inform the offender of the verdict of the jury or finding of the court and

ask the offender whether the offender has anything to say as to why sentence should not

be imposed upon the offender.” The trial court did ask: “Mr. Williams, what did you

wish to say before the court imposes sentence?” Tr. at 63.

       {¶ 7} Additionally, the trial court’s August 31, 2010 sentencing entry “sets forth

(1) the fact of the conviction, (2) the sentence, (3) the judge's signature, and (4) the time

stamp indicating the entry upon the journal by the clerk.” (Citations deleted.) State v.

Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the

syllabus. In light of Lester, therefore, Williams has not demonstrated that his judgment
of conviction is not a final appealable order. As a consequence, Williams's second

proposed assignment of error is not well-taken.

       {¶ 8} In his third proposed assignment of error, Williams contends that his

appellate counsel was ineffective for failing to assign as error that the trial court denied

Williams trial counsel of his choice. During the plea negotiations, Williams expressed

concern that his counsel was not going to “fight” for him and Williams told counsel that

he wanted to be represented by the public defender. Counsel explained to the trial court

that he was retained counsel. The trial court denied Williams’s motion to appoint the

public defender as his counsel.

       {¶ 9} Williams has not provided this court with any controlling authority

requiring a trial court to replace retained counsel with the public defender. Furthermore,

his reliance on State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785, 947 N.E.2d 651,

is misplaced. In Chambliss, the Supreme Court held that a trial court’s order removing

retained defense counsel is immediately appealable. Obviously, the trial court did not

remove Williams’s retained counsel.       As a consequence, Williams's third proposed

assignment of error is not well-taken.

       {¶ 10} In his fourth proposed assignment of error, Williams asserts that his

appellate counsel was ineffective for not assigning as error that his waiver of jury trial

was not voluntary, knowing or intelligent. Initially, we note that the trial court docket

does not reflect the filing of a jury trial waiver. During the colloquy with the trial court,

when Williams indicated that he would like to go to trial, the court responded: “Okay.
We’ll see you tomorrow morning in civilian clothes.” Tr. 48. See also Tr. 51. The

portions of the transcript cited by Williams do not include a waiver of jury trial.

Appellate counsel was not deficient and Williams was not prejudiced by the absence of

this proposed assignment of error.       As a consequence, Williams's fourth proposed

assignment of error is not well-taken.

       {¶ 11} In his fifth proposed assignment of error, Williams claims that his appellate

counsel was deficient for failing to assign on direct appeal that his sentence was void.

Count 4 of the indictment included a furthermore clause referring to his prior conviction

for rape under R.C. 2907.02. The notice of prior conviction in Count 4 specifically

referred to Cuyahoga Cty. Court of Common Pleas Case No. CR-226563. Williams

asserts that he did not have counsel in Case No. CR-226563.

       {¶ 12} Williams appealed his conviction in Case No. CR-226563. See State v.

Williams, 8th Dist. No. 56726, 1993 WL 27620 (Feb. 4, 1993), appeal dismissed 67 Ohio

St.3d 1409, 1993-Ohio-300, 615 N.E.2d 1043. In Case No. 56726, Williams’s appellate

counsel assigned as error that trial counsel was ineffective and that trial counsel failed to

request an instruction on gross sexual imposition. Indeed, this court discussed various

aspects of trial counsel’s representation. Clearly, Williams had counsel in Case No.

CR-226563. As a consequence, Williams's fifth proposed assignment of error is not

well-taken.

       {¶ 13} In his sixth proposed assignment of error, Williams argues that appellate

counsel was ineffective for failing to assign that trial counsel was ineffective. Williams
contends that the cumulative effect of trial counsel’s purported shortcomings with respect

to: trial counsel’s failure to object to the plea colloquy because Williams asserted his

“actual innocence” (first proposed assignment of error ); his prior conviction being

“uncounseled” (fifth proposed assignment of error); and trial counsel’s permitting him to

plead guilty where the plea was not voluntary because the furthermore clause in Count 4

referring to his prior conviction is unconstitutional (fifth proposed assignment of error).

       {¶ 14} Yet, as discussed above, Williams’s fourth and fifth proposed assignments

of error lack merit. He was not, therefore, prejudiced by the “cumulative effect” of the

absence of these assignments of error from his direct appeal.           As a consequence,

Williams's sixth proposed assignment of error is not well-taken.

       {¶ 15} In his seventh proposed assignment of error, Williams contends that the trial

court judge participated in plea negotiations. Our review of the portions of the plea and

sentencing transcript cited by Williams reflects the trial court’s repeated statements to

Williams that he could go to trial and that the trial court would not make any promises

regarding his sentence. The record does not reflect that the trial court participated in plea

negotiations. Rather, the trial court endeavored to establish whether Williams wished to

go to trial or enter a plea of guilty. Appellate counsel was not deficient and Williams

was not prejudiced by the absence of this assignment of error.           Williams's seventh

proposed assignment of error is not well-taken.

       {¶ 16} As a consequence, Williams has not met the standard for reopening.

Accordingly, the application for reopening is denied.
EILEEN A. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and
LARRY A. JONES, J., CONCUR
