[Cite as State v. Miller, 2011-Ohio-3239.]



          Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 93585



                                     STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                 vs.

                                     ELLIOT MILLER
                                               DEFENDANT-APPELLANT




                                    JUDGMENT:
                                APPLICATION DENIED


                            Cuyahoga County Common Pleas Court
                                    Case No. CR-513120
                                 Application for Reopening
                                     Motion No. 439396

        RELEASE DATE:                   June 24, 2011
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FOR APPELLANT

Elliott Miller, pro se
Inmate No. 570-436
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Kristen L. Sobieski
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




COLLEEN CONWAY COONEY, J.:

       {¶ 1} On November 17, 2010, the applicant, Elliot Miller, pursuant to App.R. 26(B)

and State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, applied to reopen this

court’s judgment in State v. Miller, Cuyahoga App. No. 93585, 2010-Ohio-4004, in which this

court affirmed his convictions for five counts of gross sexual imposition and one count of

kidnapping with a sexual motivation specification.   Miller claims that his appellate counsel
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was ineffective for not arguing (1) that the verdict was against the manifest weight of the

evidence and (2) that there was insufficient evidence to support the verdict.      On December

16, 2010, 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 (1984), 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, cert.

denied (1990), 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768; 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, 104 S.Ct. at 2065.
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       {¶ 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 (1983), 463

U.S. 745, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987.       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.
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       {¶ 6} The victim, MN, testified in the underlying case as follows: She and her

two-year-old son had recently moved into the home of her boyfriend in Cleveland.               The

house needed considerable repair, including the plumbing.        The boyfriend had hired Miller, a

next-door neighbor, to fix a leaking toilet.   In late afternoon, she was alone in the house with

Miller and her son.   Miller asked her for help in lifting the toilet.   After she finished helping

him, Miller started “coming on” to her.    He grabbed her by the arms, kissed her neck, rubbed

his body against hers, and felt her chest, legs, and buttocks.    He held her against the wall and

blocked her from leaving the bathroom.            MN protested and told Miller to stop, and

eventually she was able to get out of the bathroom which was on the ground floor.

       {¶ 7} After a short time, while MN was going through the kitchen to go upstairs to

her son, Miller grabbed her again and dragged her to the basement on the pretense of showing

her something wrong with the pipes.       Miller then pulled out his penis, picked up MN, and

pushed her against the wall between the washing machine and a sink.          Again, he kissed her,

partially disrobed her, forced her to touch his penis, and felt her vagina and breasts.      After

several minutes of protesting and struggling, MN got free.       She then took her son and left the

house to call her boyfriend and the police.       When she returned to await the arrival of her

boyfriend, Miller was next door, sitting on his porch.

       {¶ 8} Appellate counsel was not ineffective for failing to raise arguments relating to

the sufficiency or weight of the evidence.       MN’s testimony provided sufficient evidence,
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which if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.   The Supreme Court of Ohio in State v. Jenks (1991), 61 Ohio St.3d 259,

574 N.E.2d 492, paragraph two of the syllabus, ruled that the “relevant inquiry is 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.”

Given this rule of law and the evidence presented by the prosecution, appellate counsel in the

exercise of reasonable professional judgment could have concluded properly that such an

argument was not worth pursuing.

       {¶ 9} The test for determining whether the conviction was against the manifest weight

of the evidence is as follows: “The court reviewing the entire record, weighs the evidence and

all reasonable inferences, considers the credibility of the witnesses and determines whether in

resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.”   State v.

Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.           The prosecution’s case was

strong enough that appellate counsel in the exercise of reasonable professional judgment could

conclude that a manifest weight argument would not be persuasive.        The record does not

indicate that the jury lost its way.   As the court stated in State v. Napier (1995), 105 Ohio

App.3d 713, 719-720, 659 N.E.2d 314: “A verdict cannot be said as a matter of law to be

manifestly against the weight or sufficiency of the evidence where substantial evidence is
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offered by the state in support of all of the elements of the charged offense, and if such

evidence was of sufficient probative value to sustain a conviction, the reviewing court will not

reverse on the sufficiency or weight of the evidence.”   That ruling applies to this case.

       {¶ 10} Accordingly, this court denies the application.



______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR
