[Cite as State v. Banks, 2013-Ohio-255.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97299


                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.


                                       WILLIE BANKS
                                                    DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                               Cuyahoga County Common Pleas Court
                                      Case No. CR-545495
                                    Application for Reopening
                                       Motion No. 457724



        RELEASED: January 25, 2013
FOR APPELLANT

Willie Banks, pro se
Inmate No. 604-615
Lorain Correctional Institution
2075 S. Avon Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Denise J. Salerno
        James M. Price
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, J.:

      {¶1} Willie Banks has filed a timely application for reopening pursuant to App.R.

26(B). Banks is attempting to reopen the appellate judgment that was rendered in State v.

Banks, 8th Dist. No. 97299, 2012-Ohio-2304, which affirmed his conviction for the

offenses of trafficking in drugs with a juvenile specification (R.C. 2925.03(A)(2) and R.C.

2925.01(BB)), possession of drugs (R.C. 2925.11(A)(1)), endangering children (R.C.

2919.22(A)(1)), possessing criminal tools (R.C. 2923.24(A)(1)), and tampering with

records (R.C. 2913.42(A)(1)). We decline to reopen the appellate judgment that was

journalized on May 24, 2012.

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

Banks 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, Banks 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 that:

      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. 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).

State v. Smith, supra, 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 that:

       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} Herein, Banks has raised two proposed assignments of error in support of his

claim of ineffective assistance of appellate counsel. Banks argues that consideration of

his two proposed assignments of error would have resulted in a reversal of his conviction

for the offenses of trafficking in drugs with a juvenile specification, possession of drugs,

endangering children, possessing criminal tools, and tampering with records. A review of

Banks’s two proposed assignments of error, however, fails to support the claim of

ineffective assistance of appellate counsel.

       {¶6} Banks’s first assignment of error is that:

       The evidence was insufficient and against the manifest weight, as a matter of
       law, to convict Willie Banks of Drug Trafficking.
       {¶7} Banks, through his first proposed assignment of error, argues the issues of

manifest weight and sufficiency of the evidence with regard to his conviction for the

offense of trafficking in drugs. We find that Banks’s conviction for the offense of

trafficking in drugs was supported by sufficient evidence and that his conviction was not

against the manifest weight of the evidence.

       {¶8} Sufficiency of the evidence and weight of the evidence are legally distinct

issues. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. This

court, when reviewing the issue of sufficiency of the evidence, must examine the evidence

adduced at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt. Thus, this court must

determine whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt. Id.; State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148

(1955).

       {¶9} Whereas sufficiency requires a determination of whether the prosecution has

meet its burden of proof beyond a reasonable doubt as to each and every element of the

crime charged, manifest weight questions whether the state has met its burden of

persuasion. Thompkins; State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.

1983). When reviewing a manifest weight challenge, the court must review the record,

weigh the evidence and all reasonable inferences, examine the credibility of the witnesses,

and determine whether, in resolving conflicts, if the jury or trier of fact clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered. Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652

(1982), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In other words, the question raised through a manifest weight issue is whether there is

substantial evidence upon which a jury could conclude that all elements of the charged

crime have been proven beyond a reasonable doubt. State v. Getsy, 84 Ohio St.3d 180,

702 N.E.2d 866 (1998), citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978).

In addition, finding that a conviction is supported by the weight of the evidence must

necessarily include a finding of sufficiency.     State v. Dowell, 8th Dist. No. 83575,

2004-Ohio-3870.

       {¶10} Herein, the evidence adduced at trial clearly demonstrated, beyond a

reasonable doubt, that Banks did knowingly prepare for shipment, ship, transport, deliver,

prepare for distribution, a controlled substance, crack cocaine, when he knew or had

reasonable cause to believe that the crack cocaine was intended for sale or resale, a

violation of R.C. 2925.03(A)(2). The evidence adduced at trial demonstrated that: (1)

Banks was sitting in a motor vehicle parked in the lot of a vacant gas station located at the

corner of Woodhill Road and Woodland Avenue; (2) a Confidential Reliable Informant

(“CRI”) recognized the parked motor vehicle as the van used by Banks when selling drugs

in the Woodhill Estates neighborhood; (3) the CRI contacted Detective Ovalle of the

Cleveland Metropolitan Housing Authority (“CMHA”) and provided information that

Banks was parked across the street from CMHA property; (4) Det. Ovalle and another

CMHA detective located the van and observed Banks enter and exit the van on several

occasions; (5) Det. Ovalle approached the van and asked Banks to identify himself; (6)
Banks identified himself as “Tyrone Banks” and provided a birth date and social security

number; (7) the other detective went to the passenger side of the van and observed Martina

Jackson holding a baby, two other young children, suspected crack cocaine, and a scale all

in plain view; (8) Banks and Jackson were informed of their Miranda rights; (9) Banks

admitted that the crack cocaine was his property and provided a written statement; (10) in

the written statement, Banks admitted that he purchased the crack cocaine for $2,000 and

that of the $345 in his possession, $100 was drug money; (11) Jackson confirmed that the

crack cocaine belonged to Banks and also made a written statement; (12) 51.25 grams of

crack cocaine and a digital scale were recovered from Banks’s van; (13) at trial, Jackson

testified that she was with her three children and Banks in the van the day of the arrest;

(14) Jackson testified that Banks had made one sale of crack cocaine prior to their arrest;

and (15) Jackson testified that the crack cocaine belonged to Banks.

       {¶11} Based upon the evidence and testimony adduced at trial, we find that

sufficient evidence was produced by the prosecution to support each and every element of

the charged offense of trafficking in drugs. In addition, we find that the conviction for

trafficking in drugs was not against the manifest weight of the evidence. Banks’s first

assignment of error is without merit and thus does not support his claim of ineffective

assistance of appellate counsel on appeal.

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

       Appellant’s counsel was ineffective for failing to show that Mr. Banks’s
       initial contact with police was non-consensual.

       {¶13} Banks, through his second proposed assignment of error in support of his
claim of ineffective assistance of counsel, argues that the initial encounter with the CMHA

police was not a consensual encounter and thus a violation of the Fourth Amendment.

The issue of whether the initial contact with Banks was consensual was previously

addressed on appeal, and found to be without merit. In State v. Banks, supra, this court

held that:

       The Fourth Amendment to the United States Constitution prohibits
       warrantless searches, rendering them per se unreasonable unless an
       exception applies. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19
       L.Ed.2d 576 (1967). An investigative stop, or Terry stop [Terry v. Ohio, 392
       U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)], is a common exception to the
       Fourth Amendment warrant requirement. It is well recognized that officers
       may briefly stop and detain an individual, without an arrest warrant and
       probable cause, in order to investigate a reasonable and articulable suspicion
       of criminal activity. State v. Carroll, 8th Dist. No. 96212, 2011-Ohio-5255,
       ¶ 16, citing Terry. * * *

       The record shows that Banks was parked in the parking lot of a vacant gas
       station having work done on his vehicle. The police received a tip from a
       CRI and went to the area. The police surveilled the area for several minutes
       and observed Banks getting in and out of the van several times and also saw
       another man working on the van. Detective Ovalle approached Banks on
       foot and asked him a few questions, which Banks answered. Once the other
       detective saw the suspected drugs and scale in plain view, he and his partner
       read Banks and Jackson their rights and continued to question him.
       Although a formal arrest is not necessary to trigger the protections of the
       Fourth Amendment, here, Banks is unable to show that his initial contact
       with police was non-consensual. (Emphasis added).

Banks, supra, ¶13.

       {¶14} Clearly, this court has previously determined that Bank’s initial contact with

the police was consensual and that his Fourth Amendment rights were not violated through

the initial stop and questioning.   Thus, the doctrine of res judicata bars any further

litigation of the question of whether Banks’s initial contact with police was
non-consensual.    State v. Segines, 8th Dist. No. 89915, 2010-Ohio-5112, reopening

disallowed, 2011-Ohio-1579, Motion No. 441247; State v. Pratt, 8th Dist. No. 93123,

2010-Ohio-1426, reopening disallowed, 2010-Ohio-4998, Motion No. 434932. Banks’s

second proposed assignment of error is without merit and thus does not support his claim

of ineffective assistance of appellate counsel on appeal.




       {¶15} Accordingly Banks’s application for reopening is denied.




LARRY A. JONES, SR., PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR
