[Cite as State v. May, 2012-Ohio-5504.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97354


                                      STATE OF OHIO
                                                 PLAINTIFF-APPELLEE

                                                    vs.

                                          DENNIS F. MAY
                                                 DEFENDANT-APPELLANT



                                      JUDGMENT:
                                  APPLICATION DENIED


                              Cuyahoga County Common Pleas Court
                                      Case No.CR-547913
                                   Application for Reopening
                                      Motion No. 457330


        RELEASE DATE:                 November 28, 2012
APPELLANT

Dennis F. May, Pro Se
No. 604-524
Grafton Correctional Institution
2500 S. Avon-Belden Road
Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:

       {¶1} On August 1, 2012, the applicant, Dennis May, pursuant to App.R. 26(B),

applied to reopen this court’s judgment in State v. May, 8th Dist. No. 97354,

2012-Ohio-2766, in which this court affirmed May’s convictions and sentences for five

counts of sexual battery.1 May now claims that his appellate counsel was ineffective for

not arguing the following: (1) the indictment was duplicitous because it did not provide

enough information in each count to allow May to defend against double jeopardy in

future prosecutions; (2) the guilty plea was not knowingly, intelligently, or voluntarily

made; (3) the sentence was contrary to law; (4) there was a disparity of treatment among

this offender and other offenders similarly situated; (5) trial counsel was ineffective; and

(6) May’s speedy trial rights were violated.         On October 2, 2012, the state of Ohio filed

its brief in opposition. For the following reasons, this court denies the application.

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

the applicant must demonstrate that counsel’s performance was deficient and that the

deficient performance prejudiced the defense.            Strickland v. Washington, 466 U.S. 668,

       1
           The grand jury indicted May on 12 counts of kidnapping with sexual motivation and
sexually violent predator specifications, 12 counts of rape with sexually violent predator
specifications, and 12 counts of gross sexual imposition with sexually violent predator specifications.
Pursuant to a plea bargain, the state amended five of the rape charges to sexual battery and nolled the
sexually violent predator specifications. May pleaded guilty to those five charges, and the state nolled
the remaining counts. The trial court sentenced May to a total of six years on the first three sexual
battery counts and five years community control on the other two counts.
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.

       {¶3} 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.

       {¶4} 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.

       {¶5} 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.

       {¶6} In the present case, May has not established a genuine issue as to whether

he was deprived of the effective assistance of appellate counsel.   App.R. 26(B)(5).

       {¶7} May’s first argument that the indictment did not provide enough

information in each count to allow him double jeopardy protection is ill-founded. A plea

of guilty waives a defendant’s right to challenge his or her conviction on all but the most

fundamental premises for the conviction, e.g., subject matter jurisdiction. Montpelier v.

Greeno, 25 Ohio St.3d 170, 495 N.E.2d 581 (1986). This applies to any alleged defects

in the indictment. State v. Szidik, 8th Dist. No. 95644, 2011-Ohio-4093. Similarly the

guilty plea waived May’s right to challenge his convictions on speedy trial grounds.
State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991).

        {¶8} May’s second argument is that his plea was not knowingly, intelligently, or

voluntarily made. The record does not support this argument. It shows that the trial

judge fully complied with Crim.R. 11 in accepting May’s guilty plea, including all the

rights waived.     The trial judge explained the possible penalties for sexual battery,

postrelease control, and the reporting requirements as a Tier III sex offender.   She also

noted that as charged May was facing a potential life sentence.   She confirmed that May

had discussed this matter with his counsel and that he was satisfied with the

representation.   She repeatedly asked him if he had any questions, and May replied,

“No.”    Finally, in accepting the plea for sexual battery she detailed the elements of the

offense using the words of R.C. 2907.03.

        {¶9} Between the time of the plea hearing and sentencing, May filed a motion to

withdraw the guilty plea on the grounds that he was not fully aware of the consequences

of his plea, and that he did not understand his rights, did not have the opportunity to

review discovery, and was too afraid to ask questions. He also obtained new counsel.

However, at the start of the     sentencing hearing, new counsel withdrew the motion.

Furthermore, when a question arose during the sentencing hearing as to whether May

exactly understood his plea, the judge completely reviewed the plea hearing and all of the

answers May made.       The judge then asked May if he wanted to withdraw his plea, and

May said, “No, your Honor.”          Then the judge opined that she was completely
unconvinced that May didn’t understand what was going on. Given the state of the

record, it is understandable that appellate counsel in the exercise of professional judgment

would decline to argue this point.

       {¶10}   May merely lists the other three arguments, that the sentence was contrary

to law, that he suffered disparate treatment compared to similarly situated offenders, and

that his trial counsel was ineffective.     He does not specify how his sentence was

contrary to law.   The court notes that the sentences come within the scope of permissible

sentences for third degree felonies and that appellate counsel argued the propriety of

consecutive sentences.     May provides this court with no comparisons to show that he

was treated more severely than similarly situated offenders.     Nor does he specify how

his trial counsel was ineffective or even which lawyer was ineffective.        Moreover, a

guilty plea generally waives a claim of ineffective assistance of counsel.         State v.

Character, 8th Dist. No. 93765, 2011-Ohio-4128. The failure to support arguments

renders them stillborn. App.R. 12(A)(2).

       {¶11}   Accordingly, the court denies the application to reopen.




JAMES J. SWEENEY, JUDGE


PATRICIA ANN BLACKMON, A.J., and
LARRY A. JONES, SR., J., CONCUR
