[Cite as State v. Logan, 2012-Ohio-5713.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 97022




                                        STATE OF OHIO
                                             PLAINTIFF-APPELLEE

                                               vs.


                                       MONTEZ LOGAN

                                             DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-540250
                                    Application for Reopening
                                        Motion No. 457035
       RELEASE DATE: November 30, 2012

APPELLANT

Montez Logan, pro se
Inmate No. A603004
Lorain Correctional Institution
2075 South Avon-Belden Road
Grafton, Ohio 44044



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
James M. Price
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, J.:
       {¶1} On July 23, 2012, the applicant, Montez Logan, pursuant to

App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204

(1992), timely applied to reopen this court’s judgment in State v. Logan, 8th

Dist. No. 97022, 2012-Ohio-1944, in which this court affirmed Logan’s

convictions and sentences for two counts of aggravated murder, three counts

of attempted aggravated murder, with one and three-year firearm

specifications, and one count of having a weapon under disability.1 Logan

now maintains that his appellate counsel should have argued that his trial

counsel was ineffective in the following ways: (1) she did not request his

presence at a jury view of the crime scene; (2) she did not call various

witnesses to support his defense; (3) she did not have an investigator to

investigate his alibi defense; and (4) she did not seek to replace sleeping

jurors. On August 9, 2012, the state of Ohio filed its brief in opposition. For

the following reasons, this court denies Logan’s application to reopen.

       {¶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, 104 S.Ct. 2052, 80 L.Ed.2d 674



       1
          At approximately 8:30 p.m. on July 17, 2010, five men were socializing outside a house,
when two men approached and fired on them with an AK-47. The five men tried to flee. Two were
killed, one was shot in the foot, another injured his foot, and the other escaped unharmed. Two
(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); 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


eyewitnesses identified Demetrius Allen and Montez Logan as the two assailants.
(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} Furthermore, appellate review is strictly limited to the record.

The Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97

(1898).   “Nor can the effectiveness of appellate counsel be judged by adding

new matter to the record and then arguing that counsel should have raised

these new issues revealed by the newly added material.” State v. Moore, 93

Ohio St.3d 649, 650, 2001-Ohio-1892, 758 N.E.2d 1130. “Clearly, declining to
raise claims without record support cannot constitute ineffective assistance of

appellate counsel.” State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776

N.E.2d 79, ¶ 10.

      {¶7} Logan’s first argument is that his trial counsel was ineffective for

not requesting that he be present during the jury view. He claims that his

absence prevented him from requesting certain observations that would later

bolster his case that certain witnesses could not have seen what they claimed.

      {¶8} The record shows that the jury did view the crime scene.

However, it is silent as to who was or was not present, to what was observed,

and to what was requested.      In State v. Richey, 64 Ohio St.3d 353, 367,

1992-Ohio-44, 595 N.E.2d 915, the Supreme Court of Ohio ruled that a “court

cannot presume prejudice from an unrecorded visit to a crime scene.”

Therefore, this argument fails because Logan cannot establish prejudice.

Additionally, a “view of a crime scene is neither evidence nor a critical stage

in the proceedings.” Id. Thus, Logan did not have a right to be present at

the view.   Accordingly, it is understandable that appellate counsel in the

exercise of professional judgment would decline to argue this point.

      {¶9} Logan also argues that his trial counsel was ineffective for failing

to call additional witnesses on his behalf. He submits that these witnesses

would have testified that they “suspected Arsenio Smith of committing the

murders.” (Pg. 4 of application.)     During the cross-examination of the
investigating police officers, defense counsel elicited that various individuals

had told the officers that Arsenio might have been the perpetrator. Logan

now claims that these witnesses could have bolstered that evidence.

      {¶10} However, the record does not verify what the testimony of these

witnesses would have been. Without that, appellate counsel and this court

could only speculate what the testimony would have been and whether that

would have been helpful to Logan. Speculation is insufficient for making an

appellate argument and does not establish prejudice. State v. Addison, 8th

Dist. No. 90642, 2009-Ohio-221, reopening disallowed 2009-Ohio-2704; and

State v. Abdul, 8th Dist. No. 90789, 2009-Ohio-225, reopening disallowed,

2009-Ohio-6300. Moreover, the decisions on what evidence to present fall

within the realm of trial strategy and tactics that will ordinarily not be

disturbed on appeal. State v. Warner, 8th Dist. No. 95750, 2011-Ohio-4096,

reopening disallowed, 2012-Ohio-256.

      {¶11} Similarly, Logan’s next argument is also unpersuasive.             He

claims that his trial counsel did not have an investigator to investigate his

alibi defense or that she failed to investigate it herself.   During trial, Logan,

Allen, Allen’s brother, and a friend of Allen’s brother, all testified that on the

day of the shooting, Allen and Logan took Allen’s brother and his friend to a

shoe store at Lee and Harvard and then took them home. Allen, Logan, and

the brother indicated that this trip took place between 6:30 and 8:30 p.m., so
that Allen and Logan would not have had time to travel to East 123rd and

Signet, the location of the crime, to have committed it at approximately 8:30.

The friend indicated that the trip might have been earlier in the day. Logan

also maintained that after returning Allen’s brother and the friend to their

home, he and Allen stopped at a liquor store and went to a friend’s house.

Logan now complains that his trial counsel did not investigate this alibi

enough, such as seeking the film from the stores’ surveillance cameras.

      {¶12} However, the record shows that defense counsel did have an

investigator who participated in the preparation of the case. Nevertheless,

this argument is dependent on speculation.      The record does not indicate

whether either defense counsel or the investigator went to the stores, whether

anyone there had any recollection of that day, whether there were working

cameras, whether the films were preserved, or what they showed. Without

the answers to those questions, appellate counsel and this court could only

speculate on what the evidence would have shown. That is not the basis for

a sound appellate argument, and prejudice cannot be established.

      {¶13} Logan’s final argument is that “trial counsel was ineffective for

remaining silent to replace other sleeping jurors.” Toward the end of the

trial, defense counsel raised the issue with the judge that jurors 1 and 3 were

sleeping at various times during the trial. The judge questioned both jurors.

 Juror number 3 admitted to sleeping during the trial, and the judge replaced
him with an alternate. Juror number 1 denied sleeping, and defense counsel

did not ask for his removal.      Beyond this, the record is not clear as to

whether any other jurors may have been sleeping during the trial.

      {¶14} Appellate counsel addressed this issue in the third assignment of

error: “Appellant was denied a fair trial and his right to due process by at

least one juror sleeping during the testimony and the court not properly

dealing when it was brought to its attention.”          The gravamen of this

argument was that the trial court erred in waiting until the close of evidence

to investigate, instead of addressing the issue when defense counsel raised it.

 Following the admonition of the Supreme Court, this court will not question

the reasonable professional judgments of counsel in framing issues supported

by the record, as compared to others that have less support.        Moreover,

Logan did not explicitly argue this issue in his application.

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




MARY EILEEN KILBANE, JUDGE

PATRICIA A. BLACKMON, A.J., and
SEAN C. GALLAGHER, J., CONCUR
