[Cite as State v. Newton, 2020-Ohio-376.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                              No. 107200
                 v.                               :

ERIC S. NEWTON, JR.,                              :

                 Defendant-Appellant.             :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: APPLICATION DENIED
                 RELEASED AND JOURNALIZED: January 31, 2020


                           Cuyahoga County Court of Common Pleas
                                 Case No. CR-17-620243-A
                                 Application for Reopening
                                     Motion No. 534033


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Mary M. Frey, Assistant Prosecuting
                 Attorney, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 Noelle A. Powell, Assistant Public Defender, for appellant.


MICHELLE J. SHEEHAN, J.:

                   Applicant, Eric S. Newton, Jr., seeks to reopen his appeal, State v.

Newton, 8th Dist. Cuyahoga No. 107200, 2019-Ohio-3653 (“Newton I”). Newton
claims appellate counsel was ineffective because, within the assignment of error

challenging the trial court’s denial of the motion to suppress, counsel failed to raise

the validity of a search warrant affidavit requesting to search Newton’s cell phone.

The same suppression issue was argued and overruled in a companion appeal, State

v. Newton, 8th Dist. Cuyahoga No. 107195, 2019-Ohio-3566 (“Newton II”).

Therefore, the application to reopen is denied.

                                   I. Procedural History

               A thorough recitation of the background of the present case is set

forth in Newton I. A summary of those facts and the procedural history of the

present application follows.

               Newton was involved in a traffic stop where police officers recovered

evidence pertaining to incidents of breaking and entering commercial buildings. He

was charged in a 47-count indictment in Cuyahoga C.P. No. CR-16-605078-B.

Following his arrest, police officers obtained a search warrant for a cell phone

belonging to Newton. From a search of the phone, police discovered evidence of the

exchange of child pornography. Evidence recovered from the phone and other

subsequent searches of Newton’s computer equipment and digital resources

resulted in a 31-count indictment in Cuyahoga C.P. No. CR-17-620243-A.

               During the lower court cases, Newton filed a motion to suppress in

the breaking and entering case and incorporated it into the child pornography case.

The motion challenged the initial stop of the vehicle as well as the affidavit used to

obtain the warrant to search Newton’s cell phone because Newton alleged the
affidavit contained materially false statements. The second issue is commonly

referred to as a Franks issue, so named because of the seminal case of Franks v.

Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The trial court denied

the suppression motion finding that the search of the vehicle and cell phone were

proper. (Tr. 147-148.) Newton was subsequently convicted of multiple counts in the

breaking and entering case and the child pornography case.

               Newton filed separate notices of appeal from each case.            Those

appeals were treated as companion cases — briefed, argued, and decided separately

by the same panel of judges. In Newton I, the child pornography case, Newton

challenged the denial of his motion to suppress, arguing: “The trial court erred when

it overruled the defendant-appellant’s motion to suppress where the arresting

officer lacked probable cause and specific, articulable facts to justify an investigatory

stop.” Newton I at ¶ 6. In the appeal from the breaking and entering case, Newton

argued: “The trial court erred when it overruled Eric Newton’s Motion to Suppress

when, one, the initial stop was improper and, two, the warrant affidavit used to

search the contents of Mr. Newton’s cell phone contained false information.”

Newton II at ¶ 25. This court rejected both arguments and affirmed Newton’s

convictions on September 5, 2019 (Newton II) and September 12, 2019 (Newton I).

               On December 2, 2019, Newton timely filed an application for

reopening pursuant to App.R. 26(B) to reopen the appeal in Newton I. Newton did

not specifically set forth any proposed assignments of error, but argued that

appellate counsel was ineffective for failing to address the legitimacy of the warrant
affidavit in the assignment of error dealing with the denial of the motion to suppress.

The state timely filed a brief in opposition pointing out that this court addressed the

validity of the warrant in both appeals even though it was not raised in the

assignment of error in Newton I.

                               II. Law and Analysis

               App.R. 26(B) provides a limited means of asserting a claim of

ineffective assistance of appellate counsel. The application shall be granted if “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). The Supreme Court of Ohio has held that

the two-pronged analysis found in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984), is the appropriate standard in assessing whether

an applicant has raised a “genuine issue” as to the effectiveness of appellate counsel

in a request to reopen an appeal per App.R. 26(B)(5). State v. Myers, 102 Ohio St.3d

318, 2004-Ohio-3075, 810 N.E.2d 436, ¶ 8. Pursuant to Strickland, Newman bears

the burden of showing “that his counsel [was] 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.” State v.

Spivey, 84 Ohio St.3d 24, 24, 701 N.E.2d 696 (1998).

               As stated above, under the Strickland standard, a successful claim of

ineffective assistance of counsel turns, in part, on whether there is a reasonable

probability of success.    Here, there is no such probability because this court

addressed whether the search warrant affidavit was defective and whether the
search of Newton’s cell phone was improper. These are the same arguments Newton

now advances.

               In the breaking and entering appeal, Newton II, Newton argued that

“the trial court erred when it overruled his motion to suppress because the initial

stop was improper and the warrant affidavit used to search his cell phone contained

false information.” Newton II at ¶ 27. This court analyzed the warrant affidavit used

to secure the search warrant for the cell phone. Id. at ¶ 34-38. This court rejected

the argument that the search of the phone was improper. Id. at ¶ 38. Specifically,

we found that the statement attributing ownership of the phone to a different

individual did not invalidate the affidavit. Id. at ¶ 35-37. We went on to find:

“Because of the circumstances in which the phones were obtained, probable cause

existed to search the phones.” Id. at ¶ 37. This analysis was specifically incorporated

into Newton I: “For purposes of this appeal, we adopt the analysis and conclusion

made in the companion appeal regarding Newton’s motion to suppress and

incorporate the same in this appeal.” Newton I at ¶ 29.

               All of Newton’s arguments in his application go to the first prong of

the Strickland analysis — whether counsel’s performance was deficient. He does

not address the second prong of the Strickland analysis — a showing that there is a

reasonable probability of a different outcome — in light of this court overruling the

same arguments in Newton II. In his application for reopening, Newton argues that

the search warrant affidavit used to obtain a search warrant from his cell phone

contained false information and the warrant affidavit did not demonstrate probable
cause. Although appellate counsel did not raise the precise issues argued in the

application for reopening, they were fully considered in the companion appeal and

incorporated into Newton I. Newton acknowledges that the arguments were already

addressed by this court. (Application for reopening at 3.) Therefore, whether the

issues were raised by appellate counsel in Newton I is immaterial because those

issues were addressed, and there is no probability of a different outcome. This does

not present a genuine issue of ineffective assistance of appellate counsel.

              The validity of the search warrant affidavit was fully briefed and

considered by this panel and resolved contrary to Newton’s position. Therefore, the

application for reopening is denied.

              Application denied.



________________________________
MICHELLE J. SHEEHAN, JUDGE

ANITA LASTER MAYS, P.J., and
RAYMOND C. HEADEN, J., CONCUR
