[Cite as State v. Ware, 2014-Ohio-815.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99374


                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     ABRAM D. WARE
                                                      DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-561300
                                   Application for Reopening
                                      Motion No. 469403



        RELEASE DATE:               March 4, 2014
FOR APPELLANT

Abram D. Ware
Inmate No. 633-801
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary McGrath
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Abram D. Ware has filed a timely application for reopening pursuant to

App.R. 26(B). Ware is attempting to reopen the appellate judgment rendered in State v.

Ware, 8th Dist. Cuyahoga No. 99374, 2013-Ohio-4492, that affirmed his conviction for

the offenses of drug trafficking and possessing criminal tools, but vacated the forfeiture

findings and remanded for a hearing on the issue of forfeiture.         For the following

reasons, we decline to grant the application for reopening.

       {¶2} In order to establish a claim of ineffective assistance of appellate counsel,

Ware must demonstrate that appellate counsel’s performance was deficient and that, but

for the deficient performance, the result of his appeal would have been different. State v.

Reed, 74 Ohio St.3d 534, 660 N.E.2d 456 (1996). Specifically, Ware must establish that

“there is a genuine issue as to whether he was deprived of the effective assistance of

counsel on appeal.” App.R. 26(B)(5).

       {¶3} In State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588, the

Supreme Court of Ohio held:

              Moreover, to justify reopening his appeal, [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.” State v.
       Spivey, 84 Ohio St.3d 25, 1998-Ohio-704, 701 N.E.2d 696.

              Strickland charges us to “appl[y] a heavy measure of deference to
       counsel’s judgments,” 466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674, and
       to “indulge a strong presumption that counsel’s conduct falls within the
       wide range of reasonable professional assistance,” Id. at 689, 104 S.Ct.
       2052, 80 L.Ed.2d 674. Moreover, we must bear in mind that appellate
       counsel need not raise every possible issue in order to render
       constitutionally effective assistance. See Jones v. Barnes, 463 U.S. 745,
       103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); State v. Sander, 94 Ohio St.3d 150,
       761 N.E.2d 18 (2002).

Smith at ¶ 7.

       {¶4} In addition, the Supreme Court of Ohio, in State v. Spivey, 84

Ohio St.3d 24, 1998-Ohio-704, 701 N.E.2d 696, held:

              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 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.

       {¶5} It is well settled that appellate counsel is not required to raise and argue

assignments of error that are meritless. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308,

77 L.Ed.2d 987 (1983). Appellate counsel cannot be considered ineffective for failing to

raise every conceivable assignment of error on appeal. Jones v. Barnes, supra; State v.

Gumm, 73 Ohio St.3d 413, 1995-Ohio-24, 653 N.E.2d 253; State v. Campbell, 69 Ohio

St.3d 38, 1994-Ohio-492, 630 N.E.2d 339.

       {¶6} In Strickland, the United States Supreme Court also stated that a court’s

scrutiny of an attorney’s work must be deferential. The court further stated that it is too

tempting for an appellant to second-guess his attorney after conviction and appeal and
that it would be all too easy for a court to conclude that a specific act or omission was

deficient, especially when examining the matter in hindsight. Accordingly, this court

must indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance, and the defendant must overcome the presumption

that the challenged action might be considered sound trial strategy. Id. at 689.

       {¶7} Finally, the United States Supreme Court has upheld the appellate attorney’s

discretion to decide which issues he or she believes are the most fruitful arguments and

the importance of winnowing out weaker arguments on appeal and focusing on one

central issue or at most a few key issues. Jones v. Barnes, supra.

       {¶8} In the case sub judice, Ware raises two proposed assignments of error in

support of his App.R. 26(B) application for reopening. Ware’s first proposed assignment

of error is that

       [a]ppellate counsel failed to raise in the assignments of error that the trial
       court erred in ordering a hearing for the appellant to waive trial counsel and
       represent himself pro se.
       {¶9} Ware, through his first proposed assignment of error, argues that appellate

counsel failed to argue on appeal the issue of self-representation during the course of

trial. The Sixth and Fourteenth Amendments of the United States Constitution guarantee

that a defendant in a criminal action must be afforded the right to assistance of counsel.

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v.

Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). A defendant may waive

representation of counsel and represent their own interests during a criminal trial. Reed,

74 Ohio St.3d 534, 535, 660 N.E.2d 456 (1996), citing Faretta v. California, 422 U.S.
806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A defendant’s right to self-representation,

however, is not absolute. Martinez v. Court of Appeal of California, 528 U.S. 152, 120

S.Ct. 684, 145 L.Ed.2d 597 (2000).       The dangers involved in waiving the right to

representation by counsel are significant, and because the right to self-representation can

be employed as a tactic to delay trial and to disrupt otherwise orderly legal proceedings,

the request for self-representation must be clearly and unequivocally asserted in a timely

manner or it will be waived. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772

N.E.2d 81.

      {¶10} In the case sub judice, a review of the record discloses that no motion for

self-representation was filed by Ware. A plea hearing was held on August 16, 2012.

Ware, however, rejected the negotiated plea and requested that he be allowed to represent

himself during any trial. The matter was continued and a new hearing was held on

October 17, 2012, at which time Ware waived his right to a jury trial and requested a

bench trial. No request for self-representation was made during the jury waiver hearing

of October 17, 2012. On October 19, 2012, Ware withdrew his request for a bench trial

and once again requested a jury trial, which was granted by the trial court. No request

was made for waiver of representation by counsel and self-representation. Finally, on

November 6, 2012, a jury trial was commenced.              Once again, no request for

self-representation was made by Ware.

      {¶11} Our review of the record demonstrates that Ware did not clearly and

unequivocally assert his request for self-representation. With the exception of any initial
inquiry into self-representation at the hearing of August 16, 2012, no further request for

self-representation can be found within the record before this court. Thus, we can only

conclude that Ware waived his right to self-representation.       Ware’s initial proposed

assignment of error is not well taken and fails to establish ineffective assistance of

appellate counsel.

       {¶12} Ware’s second proposed assignment of error is:

       Ineffective assistance of trial counsel for failure to move the courts for a
       suppression hearing to challenge the veracity of the search warrant,
       affidavit in support, and the police report.

       {¶13} Ware, through his second proposed assignment of error, argues that trial

counsel erred by failing to request a suppression hearing. Specifically, Ware argues that

trial counsel was ineffective by failing to request a suppression hearing with regard to the

affidavit employed to secure a search warrant. In addition, Ware argues that trial counsel

should have challenged the police report as completed with regard to the arrest of Ware

and several other individuals.

       {¶14} Initially, we find that there exists a lack of record support. The affidavit

and search warrant were not part of the appellate record. Because they are outside of the

record, we could not consider the affidavit and search warrant on direct appeal. State v.

Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978); State v. Martin, 151 Ohio App.3d

605, 2003-Ohio-735, 784 N.E.2d 1237 (3d Dist.). In addition, Ware’s allegation that the

police detective lied in the police report is unsupported by any demonstrative evidence.

Thus, Ware has failed to establish how he was prejudiced. State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989). Ware’s second proposed assignment of error is

without merit and fails to establish ineffective assistance of appellate counsel.

       {¶15} Accordingly, the App.R. 26(B) application for reopening is denied.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
PATRICIA A. BLACKMON, J., CONCUR
