[Cite as State v. Glenn, 2012-Ohio-1530.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 94425



                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                     DEVANTE GLENN
                                                    DEFENDANT-APPELLANT




                                      JUDGMENT:
                                  APPLICATION DENIED


                               Cuyahoga County Common Pleas Court
                                      Case No. CR-525626
                                    Application for Reopening
                                       Motion No. 448730


        RELEASE DATE: April 2, 2012
ATTORNEYS FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, OH 44113

ATTORNEYS FOR RESPONDENT

William D. Mason
Cuyahoga County Prosecutor

By: Andrew J. Santoli
Matthew E. Meyer
Justice Center, 8th Fl.
1200 Ontario Street
Cleveland, OH 44113
JAMES J. SWEENEY, P.J.:

       {¶1} Devante Glenn has filed a timely application for reopening pursuant to

App.R. 26(B). Glenn is attempting to reopen the appellate judgment, as rendered in State

v. Glenn, Cuyahoga App. No. 94425, 2011-Ohio-3684, which affirmed his conviction for

two counts of aggravated robbery, with firearms specifications, and two counts of theft

with firearm specifications. We decline to reopen Glenn’s original appeal.

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

Glenn 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, 1996-Ohio-21, 660 N.E.2d 456. Specifically, Glenn must

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

counsel on appeal.” App.R. 26(B)(5).

       In State v. Reed [supra, at 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 was
       deficient for failing to raise the issue 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.
       State v. Spivey, 84 Ohio St.3d 24, 25,1998-Ohio-704, 701 N.E.2d 696.

       {¶3} It is also 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, 77 L.Ed.2d 987,

103 S.Ct. 3308 (1983). Appellate counsel cannot be considered ineffective for failing to
raise every conceivable assignment of error on appeal.     Jones v. Barnes, supra; State v.

Grimm, 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.

       {¶4} 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 a defendant/appellant to second-guess his attorney after conviction and

appeal and that it would be all to easy for a court to conclude that a specific act or

omission was deficient, especially when examining the matter in hindsight.

Accordingly, “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.”   Id. at 689. 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.

       {¶5} In the case sub judice, Glenn raises four proposed assignments of error in

support of his claim of ineffective assistance of appellate counsel:

       (1) “Defendant was denied due process of law when counsel failed to file a motion

to suppress and the prosecutor took inconsistent positions with any oral statements of

defendant.”;
       (2) “Defendant was denied due process of law and effective assistance of counsel

when counsel failed to file a motion to suppress of the identification.”;

       (3) “Defendant was subjected to unconstitutional and multiple punishments when

the court separately sentenced defendant for aggravated robbery and theft of the same

property.”; and

       (4) “Defendant was denied due process of law when the court convicted defendant

with firearm specifications.”

       {¶6} Glenn, however, has failed to demonstrate that appellate counsel’s

performance was deficient and that he was prejudiced by appellate counsel’s claimed

deficiencies.

       {¶7} Through his first and second proposed assignments of error, Glenn argues

that trial counsel was ineffective because he failed to file a motion to suppress based upon

the issues of an oral statement as made to a police officer and a tainted photographic

identification procedure.       The doctrine of res judicata, however, prevents our

consideration of Glenn’s first and second proposed assignments of error. Res judicata

involves the two related concepts of claim preclusion, also known as estoppel by

judgment, and issue preclusion, also known as collateral estoppel. O’Nesti v. DeBartolo

Realty Corp., et al, 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803; Grava v.

Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995).

       {¶8} The issues of Glenn’s oral statement to a police officer and the photographic

identification process, used to identify Glenn, were previously raised and argued on
appeal. Each issue was previously found to not form the basis of any error of law that

prejudiced Glenn. Thus, the doctrine of res judicata prevents any further examine of the

issues of an oral statement and photographic identification. State v. Murnahan, 63 Ohio

St.3d 60, 584 N.E.2d 1204 (1992); State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104

(1967). See also State v. Dehler, 73 Ohio St.3d 307, 1995-Ohio-320, 652 N.E.2d 987;

State v. Terrell, 72 Ohio St.3d 247, 1995-Ohio-54, 648 N.E.2d 1353.

       {¶9} Glenn, through his third proposed assignment of error, argues that his

conviction for the offenses of aggravated robbery and theft should have merged for

sentencing, because the offenses are allied offenses of similar import. However, based

upon our independent review of the record and the original appeal, we find that the

offenses of aggravated robbery and theft are not allied offenses of similar import subject

to merger under R.C. 2941.25.        The record and appeal clearly demonstrate that the

offenses of aggravated robbery and theft constituted separate acts. The two offenses of

aggravated robbery were related to the theft of a purse, keys and a wallet, while Glenn

was in the possession of a firearm. The two offenses of theft were related to the taking,

without the owners’ consent, of a 2009 Chevrolet Malibu and a 2003 Chevrolet Monte

Carlo. Herein, it is abundantly clear that Glenn possessed a separate animus for the

offenses of aggravated robbery and theft and that he “broke a temporal continuum”

started by the initial act of theft and culminating in the taking of the two motor vehicles.

       This court has previously found that in determining whether a separate
       animus exists for two offenses, a court may examine “case-specific factors
       such as whether the defendant at some point broke ‘a temporal continuum
       started by his initial act,” [or] whether facts appear in the record that
       “distinguish the circumstances or draw a line of distinction that enables a
       trier of fact to reasonably conclude separate and distinct crimes were
       committed.” State v. Roberts, 180 Ohio App.3d 666, 2009-Ohio-298, 906
       N.E.2d 1177, ¶ 14, quoting State v. Williams, 8th Dist. No. 89726,
       2008-Ohio-5286, 2008 WL 4531946, ¶ 37; State v. Hines, 8th Dist. No.
       90125, 2008-Ohio-4236, 2008 WL 3870669, ¶ 48. See also State v. Cronin,
       6th Dist. No. S–09–032, 2010-Ohio-4717, 2010 WL 3820598, ¶ 45; State v.
       Helms, 7th Dist. No. 08 MA 199, 2010-Ohio-4872, 2010 WL 3904121, ¶
       52; State v. Nuh, 10th Dist. No. 10AP–31, 2010-Ohio-4740, 2010 WL
       3820583, ¶ 16; Thompkins v. Ross (S.D.Ohio 2009), 2009 WL 4842247, fn.
       1. State v. Lee, 190 Ohio App.3d 581, 2010-Ohio-5672, 943 N.E.2d 602, ¶
       38.

As a consequence, Glenn’s third proposed assignment of error does not provide a basis

for reopening.

       {¶10} Glenn, through his fourth proposed assignment of error, argues that the

evidence adduced at trial was insufficient to prove beyond a reasonable doubt that he

possessed a firearm during the commission of the offenses of aggravated robbery and

theft. Specifically, Glenn argues that no evidence was adduced at trial to prove that the

alleged firearm was operable.      The Supreme Court of Ohio, however, has firmly

established that:

       In State v. Murphy (1990), 49 Ohio St.3d 206, 551 N.E.2d 932, we modified
       State v. Gaines (1989), 46 Ohio St.3d 65, 545 N.E.2d 678, with respect to
       the type of evidence required to prove a firearm specification beyond a
       reasonable doubt. Specifically, in Murphy, we held: “The state must
       present evidence beyond a reasonable doubt that a firearm was operable at
       the time of the offense before a defendant can receive an enhanced penalty
       pursuant to R.C. 2929.71(A). However, such proof can be established
       beyond a reasonable doubt by the testimony of lay witnesses who were in a
       position to observe the instrument and the circumstances surrounding the
       crime. (Emphasis added.) Id. at syllabus. State v. Thompkins, 78 Ohio
       St.3d 380, 383, 1997-Ohio-52, 678 NE2d 541.

       {¶11} Herein, both victims of the offenses of aggravated robbery and theft testified
to the following: (1) Glenn held a firearm in his hand during the commission of the

offenses; (2) the color of the firearm; (3) the size of the firearm; and (4) Glenn threatened

the victims with the firearm. Based upon all relevant facts and circumstances, we find

that sufficient evidence was adduced at trial to demonstrate that Glenn possessed a

firearm that was operable or capable of being made operable at the time of the offenses.

State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 158, 679 N.E.2d 1131; State v.

Johnson, 8th Dist. No. 90449, 2008-Ohio-4451. Glenn’s fourth proposed assignment of

error is not well taken and fails to establish ineffective assistance of appellate counsel.

       {¶12} Thus, we find that Glenn has failed to establish that appellate counsel was

ineffective on appeal through his four proposed assignments of error.

       Accordingly, the application for reopening is denied.




JAMES J. SWEENEY, PRESIDING JUDGE

LARRY A. JONES, SR., J., and
SEAN C. GALLAGHER, J., CONCUR
