[Cite as State v. Durham, 2012-Ohio-2053.]




                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 94747




                                     STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                                ROY A. DURHAM, JR.
                                                   DEFENDANT-APPELLANT




                                     JUDGMENT:
                                 APPLICATION DENIED


                   Cuyahoga County Common Pleas Court
                          Case No. CR-525549
                        Application for Reopening
                           Motion No. 449591
        RELEASE DATE: May 4, 2012
ATTORNEY FOR APPELLANT

Gregory Scott Robey
Robey & Robey
14402 Granger Road
Maple Heights, Ohio 44137

ATTORNEYS FOR RESPONDENT

William D. Mason
Cuyahoga County Prosecutor

By: Kristen L. Sobieski
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Applicant, Roy A. Durham, Jr., is the defendant in State v. Durham,

Cuyahoga C.P. No. CR-525549 (Feb. 1, 2010). This court affirmed his conviction in

State v. Durham, 8th Dist. No. 94747, 2011-Ohio-2256.

       {¶2} Durham filed an application for reopening pro se.      Durham then retained

counsel who filed a notice of appearance and a motion to supplement the application.

On October 25, 2011, this court issued an order striking the 17-page pro se application

and granting counsel leave to file an application in compliance with App.R. 26(B).

       {¶3} Durham 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 appellate counsel did not adequately support arguments made on direct appeal.

We deny the application for reopening. As required by App.R. 26(B)(6), the reasons for

our denial follow.

       {¶4} Having reviewed the arguments set forth in the application for reopening in

light of the record, we hold that Durham 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] 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.

       {¶5} Durham was living with the victim in her apartment.        He was accused of

holding her captive in the apartment and inflicting various wounds upon her beginning on

a Tuesday morning until the following Sunday when Cornelius White, the pastor of the

victim’s church, and two other members of the church came to the apartment inquiring

after her.

       {¶6} During his testimony at trial, White stated that the victim’s father (who was

dying) told him “to keep an eye out for her [the victim].”   Tr. at 199.   White explained

that “ever since then that’s all I been doing is making sure she [is] okay.” Id.

       {¶7} On direct appeal, appellate counsel argued in the second assignment of error

that it was error to admit White’s testimony regarding the father’s statements because they

were hearsay. This court rejected that argument.

       {¶8} In his first claim in the application for reopening, Durham argues that his

appellate counsel was ineffective because appellate counsel should have argued that the

father’s request “to keep an eye out for her” was unfairly prejudicial. See Evid. R.

403(A).      That is, Durham contends that the testimony suggested that he was “a bad guy”

and was inconsistent with his trial defense that the victim was uncooperative with the

police. Application, at unnumbered 5.
       {¶9} Other than citing Evid.R. 403(A), Durham does not provide this court with

any other authority for concluding that appellate counsel’s challenge to the admission of

White’s testimony was either deficient or prejudicial to Durham.        Merely asserting error

is not sufficient to demonstrate either appellate counsel’s deficiency or prejudice.

Durham’s first claim is not well taken.

       {¶10} In the fifth assignment of error on direct appeal, appellate counsel asserted

the ineffective assistance of trial counsel.   In his second claim, Durham complains that

appellate counsel did not identify specific instances of trial counsel’s conduct. Although

Durham challenges trial counsel’s failure to object when the trial court did not strike

testimony or give a limiting instruction, the trial court did sustain trial counsel’s objection

to White’s testimony that he was familiar with Durham’s “antics.”        Tr. at 204.

       {¶11} Similarly, trial counsel objected to White’s saying he thought Durham was

trying to get away from the police when Durham drove away from the apartment after

White and others intervened.      Trial counsel also asked that the testimony be stricken.

Tr. at 216.   The trial court sustained the objection.   Nevertheless, Durham contends that

trial counsel was ineffective for failing to insist that the court strike the testimony or issue

a limiting instruction.

       {¶12} In both instances, trial counsel objected and the trial court sustained the

objection.    Whether trial counsel could have requested the trial court to strike the

testimony and/or issue a limiting instruction “involved strategic choices of counsel that

fell within the realm of trial strategy and tactics that will not ordinarily be disturbed on
appeal.”    (Citations deleted.) State v. Warner, 8th Dist. No. 95750, 2011-Ohio-4096,

reopening disallowed, 2012-Ohio-256, at ¶ 11.        Durham’s second claim of ineffective

assistance of appellate counsel is not well taken.

       {¶13} In his third claim of ineffective assistance of appellate counsel, Durham

again refers to witness testimony.      Witness Deborah Hayden testified that she had

observed the victim as “physically abused.” Tr. at 260. Trial counsel did not object.

Hayden also stated that the victim had come to church wearing sunglasses.      Tr. at 261.

Although trial counsel’s objection to the testimony regarding the victim’s wearing

sunglasses was sustained, Durham complains that trial counsel did not seek a limiting

instruction.

       {¶14} Durham also contends that White’s testimony that Durham was mean and

appeared to be living off the victim was inadmissible character evidence.          Tr. at

223-224. See Evid.R. 404(A)(1). Trial counsel did not object.

       {¶15} Once again, this court cannot presume to second-guess trial counsel’s

tactics.   For example, White’s testimony occurred during cross-examination.      Shortly

after the testimony which Durham now challenges, his trial counsel elicited from White

that there was nothing unusual about Durham driving the victim’s car.

       {¶16} Durham has not provided this court with any controlling authority which

requires that conclusion that appellate counsel was deficient or that Durham was

prejudiced.    Durham’s third claim of ineffective assistance of appellate counsel is not

well taken.
         {¶17} In his final claim of ineffective assistance of appellate counsel, Durham

observes that trial counsel requested a two-minute recess to interview a witness.    Tr. at

486.     Durham contends that “trial counsel made a hasty, uninformed and pressured

decision not to present a defense.”   Application, at unnumbered 7.     Durham does not,

however, indicate anywhere in the record which substantiates his claim that trial counsel’s

decision was “hasty, uninformed and pressured.”      Id. “Matters outside the record do

not provide a basis for reopening.”           State v. Foster, 8th Dist. No. 95209,

2011-Ohio-2781, reopening disallowed, 2012-Ohio-916, ¶ 16. Additionally, Durham

has not demonstrated how counsel’s trial strategy was deficient or prejudiced him.

Durham’s fourth and final claim of ineffective assistance of appellate counsel is not well

taken.

         {¶18} As noted above, this court previously issued an order striking Durham’s

original 17-page pro se application and granting counsel leave to file an application in

compliance with App.R. 26(B). Appellant’s counsel filed a “Notice of Defendant’s Pro

Se Supplemental Brief in Support [of] Motion to Re-Open Appeal” [supplemental brief]

on March 22, 2012. Appellant’s counsel also filed a supplemental affidavit on April 4,

2012.

         {¶19} App.R. 26(B) does not authorize the filing of a supplemental brief and

affidavit, both of which were filed without leave of court.         Regardless, we have

reviewed the arguments raised in the supplemental brief and find them to be without

merit.
       {¶20} Applicant cannot satisfy either prong of the Strickland test. We must,

therefore, deny the application on the merits.




MARY J. BOYLE, JUDGE

PATRICIA ANN BLACKMON, A.J., and
JAMES J. SWEENEY, J., CONCUR
