[Cite as State v. Grant, 2011-Ohio-2254.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA




                                JOURNAL ENTRY AND OPINION
                                         No. 94101


                                        STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                                   vs.


                                       VINCENT GRANT

                                                    DEFENDANT-APPELLANT



                                        JUDGMENT:
                                    APPLICATION DENIED


                                Cuyahoga County Common Pleas Court
                                       Case No. CR-518679
                                     Application for Reopening
                                        Motion No. 440509

RELEASE DATE:              May 10, 2011
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FOR APPELLANT

Vincent Grant, Pro Se
No. 570-720
North Central Correctional Institution
P.O. Box 1812
Marion, Ohio 43302

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
By:    Katherine Mullin, Esq.
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, J.:

      {¶ 1} In State v. Grant, Cuyahoga County Court of Common Pleas Case

No. CR-518679, the grand jury indicted applicant, Vincent Grant, on four

counts: rape, kidnapping and two counts of felonious assault. He pled guilty

to sexual battery with a sexually violent predator specification (amended from

rape) and the state nolled the other three counts. The trial court imposed a

five-year prison sentence.      This court affirmed that judgment in State v.

Grant, Cuyahoga App. No. 94101, 2010-Ohio-5241. The Supreme Court of
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Ohio dismissed Grant’s appeal for want of prosecution. State v. Grant, Case

No. 2010-2182, 03/09/2011 Case Announcements, 2011-Ohio-1030.

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

for reopening.   He asserts that he was denied the effective assistance of

appellate counsel because his appellate counsel did not assign as error that:

1) trial counsel was ineffective for failing to adequately cross-examine

witnesses; 2) the verdict was against the manifest weight of the evidence; 3)

the verdict was against the sufficiency of the evidence; and 4) Grant was

denied a fair trial through judicial bias.     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 Grant 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]
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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.   Grant cannot satisfy either

prong of the Strickland test. We must, therefore, deny the application on the

merits.

      {¶ 4} Grant’s first three proposed assignments of error refer to

proceedings during trial: cross-examination of witnesses as well as the

sufficiency and weight of the evidence. The docket in Case No. CR-518679

does not reflect that the court of common pleas ever commenced trial.

Rather, after continuances of several scheduled trial dates, Grant pled guilty

to one amended count and the state nolled the other counts.        Obviously,

appellate counsel was not ineffective for failing to assign errors related to

proceedings during “trial.”

      {¶ 5} Additionally, the state argues that Grant’s plea waived these

errors. We agree. A guilty plea waives errors that occurred at trial. See,

e.g., State v. Lenard, Cuyahoga App. No. 95317, 2011-Ohio-1571, ¶17.

Specifically, a guilty plea waives errors based on the sufficiency or manifest
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weight of the evidence.    See, e.g., State v. Weakley, Cuyahoga App. No.

93282, 2011-Ohio-304, ¶4. Grant was not prejudiced and appellate counsel

was not deficient by the absence of these proposed assignments of error on

direct appeal. As a consequence, Grant’s first, second and third proposed

assignments of error are not well-taken.

     {¶ 6} In his fourth proposed assignment of error, Grant complains that

he “was denied a fair trial through judicial bias * * *.”         Application,

unnumbered page 8. The trial court scheduled trial in the underlying case to

begin on March 3, 2009. On that date and in open court, Grant’s counsel

asked to be removed due to communication problems between counsel and

Grant.   During the ensuing colloquy, the court stated: “The issue is he

[Grant] is an intimidator.”    Tr. 5.      Grant complains that original trial

counsel did not request the trial court to recuse herself. He also contends

that new counsel should have requested that the Supreme Court of Ohio

disqualify the trial court judge. Application, unnumbered page 8.

     {¶ 7} On direct appeal, appellate counsel’s first assignment of error

asserted that Grant was denied due process based upon ineffective assistance

of counsel because his trial court attorney did not comply with the proper

procedure to have a trial court judge removed from the case. On March 17,

2009, Grant filed a pro se motion to dismiss the trial judge. In the motion,
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he stated:     “On 3/11/09 A Complaint was filed with Ohio State Bar

Association for bias [sic] Statement at trial on 3/09/09. I believe doue [sic]

Process will be denied in Furture [sic] Court Proceedings, and Request to

dismiss said Judge from the bench for my trial.” Motion to Dismiss Judge,

Pagination of Record #22 (capitalization in original).

       {¶ 8} On direct appeal, this court acknowledged that R.C. 2701.03

governs the procedure for seeking the disqualification of a judge of the court

of common pleas. The court also noted that a claim of ineffective assistance

of trial counsel is waived by a guilty plea unless the purported ineffectiveness

caused the plea to be involuntary. State v. Grant, Cuyahoga App. No. 94101,

2010-Ohio-5241, ¶10.      “Notwithstanding the waiver, we find that trial

counsel’s decision not to proceed with a formal motion for disqualification

could be deemed a trial tactic, one that this court will not second-guess.” Id.,

¶11.

       {¶ 9} Clearly, this court has already considered whether trial counsel

was ineffective for failing to file an affidavit of disqualification under R.C.

2701.03.     Res judicata, therefore, bars our considering this issue.    As a

consequence, Grant’s fourth proposed assignment of error is not well-taken.

       {¶ 10} We also note that Grant’s application does not contain a “sworn

statement of the basis for the claim that appellate counsel’s representation
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was deficient” as required by App.R. 26(B)(2)(d). The absence of a sworn

statement is a sufficient basis for denying an application for reopening. See,

e.g., State v. Fortson, Cuyahoga App. No. 92337, 2010-Ohio-2337, reopening

disallowed, 2011-Ohio-698.

      {¶ 11} Grant has not met the standard for reopening.   Accordingly, the

application for reopening is denied.



_______________________________________________
JAMES J. SWEENEY, JUDGE


MARY EILEEN KILBANE, A.J., CONCURS;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY
