[Cite as State v. Cruz, 2014-Ohio-297.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98264



                                          STATE OF OHIO
                                                  PLAINTIFF-APPELLEE

                                                      vs.

                                          ANDRES CRUZ
                                                  DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-542079
                                   Application for Reopening
                                      Motion No. 466205


                RELEASE DATE:               January 27, 2014
FOR APPELLANT

Andres Cruz, pro se
No. 623-804
Lake Erie Correctional Institution
501 Thompson Road
P.O. Box 8000
Conneaut, OH 44030

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant County Prosecutor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:

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

26(B). Cruz is attempting to reopen the appellate judgment, rendered in State v. Cruz,

8th Dist. Cuyahoga No. 98264, 2013-Ohio-1889, that affirmed his conviction for the

offenses of drug trafficking, drug possession, and tampering with evidence. For the

following reasons, we decline to grant the application for reopening.

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

Cruz 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, Cruz 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, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588, 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} It is 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, 103 S.Ct. 3308,

77 L.Ed.2d 987 (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.

      {¶6} 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.

       {¶7} In the case sub judice, Cruz raises three proposed assignments of error.

Cruz’s first proposed assignment of error is that:

       The trial court’s imposition of consecutive sentences was contrary to law
       and abuse of discretion.

       {¶8} The trial court did not abuse its discretion by imposing consecutive sentences

of incarceration with regard to the conviction for trafficking. The standards that are to be

applied by this court when reviewing the imposition of consecutive sentences can be

found in R.C. 2953.08. State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891,

¶ 8-10. Pursuant to R.C. 2953.08, there exists only two grounds that would allow this

court to overturn the imposition of consecutive sentences: (1) the sentence is “otherwise

contrary to law”; or (2) this court, upon review, clearly and convincingly finds that the
record does not support the trial court’s findings under R.C. 2929.14(C)(4). Id. at ¶ 11;

R.C. 2953.08(G)(2).

      {¶9} When imposing consecutive sentences of incarceration under R.C.

2929.14(C)(4), the trial court must find that the consecutive sentences are “necessary to

protect the public from future crime or to punish the offender.” The trial must next find

that the consecutive sentences are “not disproportionate to the seriousness of the

offender’s conduct and to the danger the offender poses to the public.” Finally, the trial

court must find the existence of one of three statutory factors as set forth in R.C.

2929.14(C)(4)(a)-(c):

      (a) The offender committed one or more of the multiple offenses while the
      offender was awaiting trial or sentencing, was under a sanction imposed
      pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
      was under postrelease control for a prior release.

      (b) At least two of the multiple offenses were committed as part of one or
      more courses of conduct, and the harm caused by two or more of the
      multiple offenses so committed was so great or unusual that no single prison
      term for any of the offenses as committed as part of any of the courses of
      conduct adequately reflects the seriousness of the offender’s conduct.

      (c) The offender’s history of criminal conduct demonstrates that consecutive
      sentences are necessary to protect the public from future crime by the
      offender.

      {¶10} The trial court’s compliance with R.C. 2929.14(C)(4) “requires separate and

distinct findings in addition to any findings relating to purposes and goals of criminal

sentencing.” Venes at ¶ 17, citing State v. Jones, 93 Ohio St.3d 391, 2001-Ohio-1341,

754 N.E.2d 1252. Herein, the record clearly demonstrates that the trial court made the
necessary findings and fully complied with the requirements of R.C. 2929.14(C)(4) prior

to the imposition of consecutive sentences of incarceration.

       In consideration of the record, oral statements made today, the presentence
       report, the purposes and principles of sentencing, the seriousness and
       recidivism factors relevant to the offense and this offender and the need for
       deterrence, incapacitation, rehabilitation and restitution, the Court finds that
       Counts 12 and 13 merge for the purpose of sentencing and that the State has
       elected to have the defendant sentenced under the trafficking conviction as
       stated in Count 12.

       ***

       The Court finds that pursuant to Ohio revised code Section 2929.14(C)(4),
       the defendant is required to serve these prison terms consecutively because
       consecutive service is necessary to protect the public from future crime and
       that consecutive sentences are not disproportionate to the seriousness of the
       offender’s conduct and to the danger the offender poses to the public.
       Furthermore, this sentence is necessary because the harm caused by this
       defendant was so great and unusual that a single term does not adequately
       reflect the seriousness of his conduct in that he took part in five separate
       drug transactions culminating in the attempted sale of a kilo of cocaine, and
       a half kilo of black tar heroin, which he was able to order with relative ease
       from Columbus, Ohio and was promptly delivered by two of his
       co-defendants in this case.

       The defendant also clearly stated on the tape to the officer directing this
       case that he was able to easily orchestrate the sale and distribution of several
       kilos of drugs from his and through his various drug connections and that
       one kilo was actually far below the normal amount of drugs that he handles,
       thus the defendant has established himself by word and deed as a major
       player in the illegal drug distribution in this region.

       For all these reasons the defendant’s sentences must be consecutive.

(Tr. 1040 - 1043.)

       {¶11} The trial court, during the sentencing, spread upon the record that: (1) it
considered all of the information gleaned from the hearing, the presentence report, and

oral statements; (2) consecutive sentences were necessary to protect the public from future

crime; (3) consecutive sentences were not disproportionate to the seriousness of Cruz’s

conduct and to the danger the offender posed to the public; and (4) consecutive sentences

were necessary because multiple offenses were committed as part of one or more courses

of conduct, and the harm caused by two or more of the multiple offenses was so great or

unusual that no single prison term for any of the offenses committed adequately reflected

the seriousness of Cruz’s conduct.

       {¶12} The trial court made the necessary statutorily mandated findings and the

record demonstrates that the court engaged in the necessary analysis to support those

findings. The trial court, in sentencing Cruz to consecutive sentences, fully complied

with R.C. 2929.14(C)(4) and Venes. Cruz’s first proposed assignment of error is not well

taken and fails to establish ineffective assistance of appellate counsel.

       {¶13} Cruz’s second proposed assignment of error is that:

       Appellant contends that the language used in the indictment was insufficient
       to establish venue or jurisdiction, or subject matter jurisdiction because it
       did not specifically state that the offenses occurred in Lake or Medina
       County.

       {¶14} Cruz, through his second proposed assignment of error, argues that the trial

court erred by denying his motion to dismiss as premised upon the failure of the

indictment to specify that the charged offenses were not committed in Cuyahoga County,

but actually committed in Lake and Medina Counties.                Cruz’s second proposed
assignment of error is without merit.

        {¶15} In State v. Ahmed, 8th Dist. Cuyahoga No. 84220, 2005-Ohio-2999, this

court held that:

        R.C. 2901.11 grants jurisdiction to Ohio courts over criminal offenses
        which occur in Ohio. The statute provides that “[a] person is subject to
        criminal prosecution and punishment in this state if * * * the person
        commits an offense under the laws of this state, any element of which takes
        place in the state.” R.C. 2901.11(A)(1). [Footnote omitted.] In the instant
        case [defendant] was indicted on 53 counts of sexual offenses, all occurring
        in Ohio. Accordingly, pursuant to R.C. 2901.11, the trial court had
        jurisdiction to proceed on all counts.

        ***

        Ohio’s venue statute, R.C. 2901.12, provides that “the trial of a criminal
        case in this state shall be held in a court having jurisdiction of the subject
        matter, and in the territory of which the offense or any element of the
        offense was committed.” R.C. 2901.12(A). However, in recognizing the
        modern mobility of criminal offenders and the interest of judicial economy,
        the statute further provides:

               “When an offender, as part of a course of criminal
               conduct, commits offenses in different jurisdictions,
               the offender may be tried for all of those offenses in
               any jurisdiction in which one of those offenses or any
               element of one of those offenses occurred.”

Id. at ¶ 6.

        {¶16} Herein, Cruz clearly committed offenses within Cuyahoga County and thus

jurisdiction and venue were proper within Cuyahoga County. Cruz’s second proposed

assignment of error is not well taken and fails to establish ineffective assistance of

appellate counsel.
       {¶17} Cruz’s third proposed assignment of error is that

       The charging instrument failed to meet the third mandate of Russell v.
       United States (1962), 369 U.S. 749 on the grounds that the carbon-copy
       count(s) of the indictment violated his due process rights under the
       Fourteenth Amendment.

       {¶18}   Cruz, through this third proposed assignment of error, argues that the

counts of his indictment were each identical to each other. Specifically, Cruz argues that

his due process rights were violated by the failure of each count to provide adequate

notice of the particular charge and permit an adequate defense. Cruz’s third proposed

assignment of error is without merit.

       {¶19} A review of the indictment returned against Cruz demonstrates that he was

charged with seven counts of trafficking, two counts of drug possession, and one count of

tampering with evidence. Each separate count involved a different offense, a different

date of commission of the charged offense, and a different drug associated with each

count. Cruz was provided adequate notice of each charged offense and his due process

rights were not violated vis-a-vis the indictment. State v. Lewis, 11th Dist. Lake No.

2012-L-074, 2013-Ohio-3974; State v. Nolan, 11th Dist. Portage No. 2012-P-0047,

2013-Ohio-2928; State v. Hendrix, 11th Dist. Lake No. 2011-L-043, 2012-Ohio-2832.

Cruz’s third proposed assignment of error is not well taken and fails to establish

ineffective assistance of appellate counsel.

       {¶20} Application for reopening is denied.
EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR

                                      KEY WORDS

App.R. 26(B) Application for Reopening, ineffective assistance of appellate counsel,
consecutive sentencing, R.C. 2929.14(C)(4), venue and jurisdiction, “carbon-copy”
indictments. When imposing consecutive sentences under R.C. 2929.14, the trial court
must find that the consecutive sentences are necessary to protect the public from future
crime or to punish the offender, the trial court must find that the consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public, and the trial court must find the existence of one of the three
statutory findings under R.C. 2929.14(C)(4)(a)-(c). The trial court fully complied with
R.C. 2929.14(C)(4) upon sentencing the defendant to consecutive sentences.
