[Cite as State v. Marcum, 2012-Ohio-2721.]
                         STATE OF OHIO, COLUMBIANA COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


STATE OF OHIO                                )    CASE NO. 10 CO 17
                                             )
        PLAINTIFF-APPELLEE                   )
                                             )
VS.                                          )    OPINION AND
                                             )    JUDGMENT ENTRY
J.C. JOHN MARCUM                             )
                                             )
        DEFENDANT-APPELLANT                  )

CHARACTER OF PROCEEDINGS:                         Motion to Reopen Direct Appeal

JUDGMENT:                                         Overruled.

APPEARANCES:

For Plaintiff-Appellee:                           Atty. Robert Herron
                                                  Columbiana County Prosecutor
                                                  Atty. John E. Gamble
                                                  Assistant Prosecuting Attorney
                                                  105 South Market Street
                                                  Lisbon, Ohio 44432

For Defendant-Appellant:                          J.C. John Marcum, Pro se
                                                  #583-801
                                                  Belmont Correctional Institution
                                                  P.O. Box 540
                                                  St. Clairsville, Ohio 43950

JUDGES:

Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                                  Dated: June 13, 2012
[Cite as State v. Marcum, 2012-Ohio-2721.]
PER CURIAM


        {¶1}    Appellant, J.C. John Marcum, Jr., has already appealed his Columbiana

County convictions of assault on a peace officer and aggravated burglary. In his

original appeal, Appellant challenged the sufficiency and the weight of the evidence

against him on both charges. He also challenged the admission of what he alleged

to be hearsay evidence and claimed prosecutorial misconduct during trial and in

closing. On review, we found sufficient evidence on each element of the offenses

charged and that the conviction was not against the weight of the evidence. Because

the alleged hearsay evidence was not offered for the truth of the matter asserted, it

was not hearsay within the meaning of the rule. While the prosecutor’s conduct was

not ideal, it did not rise to the level of misconduct resulting in prejudice that

necessitated reversal. We affirmed the judgment of the trial court in full.

        {¶2}    Appellant has now filed a timely application to reopen his appeal, to

which the state has not responded. The time for response has passed and we will

consider the matter on Appellant’s motion alone. Appellant now contends that he

received ineffective assistance of appellate counsel because counsel did not

challenge the duration of his sentence and did not challenge the imposition of

consecutive sentences. Although in Appellant’s first assignment of error he refers to

the word “sentence” in the singular, he does not specify which of the two sentences

imposed he seeks to challenge.               Appellant offers no reason, argument, or law

supporting his contention that the “[s]everity of the sentence does not match the the

[sic] offense pursuant to [R.C.] 2929.11 et seq.” nor does he identify on what, within

the approximately forty-two subsections of R.C. 2929 encompassed by “2929.11 et
                                                                                    -2-

seq.,” he is relying in making his argument. (1/3/12 Motion to Reopen, Assignments

of Error Nos. 1 and 2.)    Similarly, Appellant does not offer any reason why the

imposition of consecutive sentences is unlawful in this instance. Appellant includes a

third assignment of error where he asserts that appellate counsel has not been in

regular contact with him. The presence, absence, or quality of contact between

attorney and client is not a legal or factual error properly before this Court on an

application to reopen an appeal. Hence, we address what Appellant identifies as

errors number one and two only to the extent that they refer to legal or factual issues

that may be considered by a reviewing court.

      {¶3}   Appellate Rule 26(B) governs applications for reopening.        The rule

provides: “A defendant in a criminal case may apply for reopening of the appeal from

the judgment of conviction and sentence, based on a claim of ineffective assistance

of appellate counsel.”   App.R. 26(B)(1).   The defendant seeking to reopen must

provide “[o]ne or more assignments of error * * * that previously were not considered

on the merits in the case by any appellate court or that were considered on an

incomplete record because of appellate counsel’s deficient representation.” App.R.

26(B)(2)(c). The applicant must also provide a “sworn statement of the basis for the

claim that appellate counsel’s representation was deficient with respect to the

assignments of error * * * and the manner in which the deficiency prejudicially

affected the outcome of the appeal.” App.R. 26(B)(2)(d).

      {¶4}   To justify reopening his appeal, Appellant “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 24,
                                                                                       -3-

25, 701 N.E.2d 696 (1998), accord State v. Sheppard, 91 Ohio St.3d 329, 744,

N.E.2d 770 (2001). “The two-pronged 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 whether [Appellant] has raised a ‘genuine issue’ as to the ineffectiveness of

appellate counsel in his request to reopen under App. R. 26(B).” Sheppard at 330.

To prevail on a claim of ineffective assistance of counsel Appellant must show not

only that counsel's performance was deficient, but also that he was prejudiced by that

deficiency. Strickland, supra; see also State v. Williams, 99 Ohio St.3d 493, 2003-

Ohio-4396, 794 N.E.2d 27, ¶107. “Deficient performance” is performance that falls

below an objective standard of reasonable representation.            “Prejudice,” in this

context, is defined as a reasonable probability that, but for counsel's errors, the result

of the proceeding would have been different. Strickland at 687-688, 694. Moreover,

in evaluating the performance of counsel, “strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional judgments

support the limitations on investigation.” Id. at 690-691. In support of an application

for reopening Appellant must “prove that his counsel [was] deficient for failing to raise

the issues he now presents and that there was a reasonable probability of success

had he presented those claims on appeal.” Sheppard, supra, at 330, citing State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.

       {¶5}   Appellant was charged with and convicted of assaulting a peace officer

while in the commission of his duties, a violation of R.C. 2903.13(C)(3), which
                                                                                    -4-

provides: “No person shall knowingly cause or attempt to cause physical harm to

another * * * [i]f the victim of the offense is a peace officer * * * while in the

performance of their official duties, assault is a felony of the fourth degree.”

       {¶6}   Appellant was also convicted of aggravated burglary, a violation of R.C.

2911.11(A), which provides: “No person, by force, stealth, or deception, shall

trespass in an occupied structure * * * when another person other than an accomplice

of the offender is present, with purpose to commit in the structure * * * any criminal

offence, if any of the following apply:       (1) The offender inflicts, or attempts or

threatens to inflict physical harm on another.”

       {¶7}   Pursuant to R.C. 2911.11, the distinction between “burglary” and

“aggravated burglary” is the element of physical harm in or accompanying the

criminal offense committed or to be committed within the occupied structure.         In

conjunction with the aggravated burglary, Appellant was charged with aggravated

menacing, a violation of R.C. 2903.21(A), which states, “[n]o person shall knowingly

cause another to believe that the offender will cause serious physical harm to the

person or property of the other person, the other person’s unborn, or a member of the

other person’s immediate family.” A conviction on aggravated menacing satisfies the

harm element of aggravated burglary. A guilty verdict on each count was returned by

the jury on May 4, 2010. Appellant was sentenced and judgment entered on May 5,

2010. Appellant received fourteen months of incarceration on the assault charge and

nine years on the aggravated burglary charge, to be served consecutively.

       {¶8}   Ohio sentencing ranges and sentencing goals are established by the

legislature. In 1996 the Ohio legislature passed a comprehensive sentencing reform
                                                                                    -5-

bill, intended to provide truth in sentencing by introducing certainty and

proportionality to felony sentencing. 146 Ohio Laws, Part IV, 7136, effective July 1,

1996 (“S.B. 2”); State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,

¶34.   The resulting scheme included both over-arching purposes for felony

sentencing, R.C. 2929.11, and factors for a court to consider, R.C. 2929.12, when

exercising its discretion in compliance with the principles and purposes established

by the legislature. Foster, ¶36-42. The legislation established presumptions for and

against prison terms and community control as well as requirements that the trial

court make specific findings before imposing more than a minimum or maximum

prison term and when imposing consecutive sentences. All provisions of S.B. 2 were

applicable only to offenses committed on or after July 1, 1996. State v. Rush, 83

Ohio St.3d 53, 697 N.E.2d 634 (1998), paragraph two of the syllabus.

       {¶9}   Subsequent to Ohio’s sentencing reform a majority of the United States

Supreme Court held, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000), that any fact used to increase the penalty for a crime beyond the

statutory maximum must be submitted to a jury and proven beyond a reasonable

doubt whether the sentence is imposed at the federal or at the state level. Id. at 476.

“[I]t is unconstitutional for a legislature to remove from the jury the assessment of

facts that increase the prescribed range of penalties to which a criminal defendant is

exposed.” Id. at 490. Applying these principles the United States Supreme Court

found unconstitutional a New Jersey hate crime statute that allowed a trial judge to

impose an extended term of imprisonment if the trial judge found by a preponderance

of the evidence at sentencing that the defendant was convicted of a crime committed
                                                                                         -6-

with the purpose to intimidate an individual or group due to his, her, or their, race,

color, ethnicity, gender, sexual orientation, religion, or disability. Id. at 468-469.

       {¶10} Subsequently, in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,

159 L.Ed.2d 403 (2004), the same majority invalidated a Washington state case in

which the trial court imposed an “exceptional” sentence after a judicial determination

that the defendant had acted with “deliberate cruelty” resulting in a total sentence of

ninety months, thirty-seven months longer than the maximum penalty that could

otherwise be imposed for a “Class-B” felony in Washington at that time. Id. at 297-

298. The Washington statute, like the New Jersey statute, required the trial judge to

make a specific factual finding before imposing a penalty beyond the statutory

maximum for the conviction and therefore violated the Sixth Amendment.                   The

Blakely Court emphasized that the relevant statutory maximum when evaluating the

constitutionality of a sentencing statute or sentence under Apprendi “is not the

maximum sentence a judge may impose after finding additional facts, but the

maximum he may impose without any additional findings.” (Emphasis sic.) Id. at

303-304.    Whether, under the relevant statutory scheme, a “judge’s authority to

impose an enhanced sentence depends on finding a specified fact * * * one of

several specified facts * * * or any aggravating fact * * * it remains the case that the

jury’s verdict alone does not authorize the sentence” because “[t]he judge acquires

that authority only upon finding some additional fact.” (Emphasis sic.) Id. at 305.

       {¶11} Both Apprendi and Blakely refute the use of sentencing enhancements

that require judicial fact-finding, however, both opinions also emphasize that while

judicial fact-finding is prohibited by the Sixth Amendment, judicial discretion is not. In
                                                                                     -7-

Apprendi the Court explained that “nothing in history suggests that it is impermissible

for judges to exercise discretion - taking into consideration various factors relating

both to offense and offender - in imposing a judgment within the range prescribed by

statute.    We have often noted that judges in this country have long exercised

discretion of this nature in imposing sentence within statutory limits in the individual

case.”     (Emphasis sic.) Apprendi at 481. In Blakely the majority reiterates that

statutory schemes that allow judicial discretion in sentencing but do not compel

judicial fact finding are constitutional. Blakely at 305.

         {¶12} Applying the principles of Apprendi and Blakely, the United States

Supreme Court determined that the sentencing guidelines promulgated by the federal

sentencing commission under the 1984 Sentencing Reform Act violated the Sixth

Amendment. U.S. v. Booker, 543 U.S. 220, 226, 125 S.Ct. 738, 160 L.Ed.2d 261

(2005). The Booker Court stated “[w]e have never doubted the authority of a judge to

exercise broad discretion in imposing a sentence within a statutory range;” “[i]f the

Guidelines as currently written could be read as merely advisory * * * their use would

not implicate the Sixth Amendment.” Id. at 233. The remedy the Booker Court

devised, having determined that the provisions of the statute were severable, was to

sever and invalidate the portions of the Sentencing Reform Act of 1984 that had the

effect of making the Guidelines mandatory. Id. As a result, the sentencing scheme

now grants full discretion to federal judges to impose any sentence allowed under the

statutory range without making specific findings. “[D]istrict courts, while not bound to

apply the Guidelines, must consult those Guidelines and take them into account

when sentencing” which helps “to avoid excessive sentencing disparities, while
                                                                                    -8-

maintaining flexibility sufficient to individualize sentences where necessary.” Id. at

264-265.

       {¶13} The Ohio Supreme Court applied Apprendi, Blakely, and Booker to

Ohio’s Sentencing Reform Act, S.B. 2, in State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, 845 N.E.2d 470. The Court conducted an analysis similar to that found in

Booker and held that the sections of Ohio’s Sentencing Reform Act governing the

imposition of more than minimum terms, maximum terms, consecutive terms, penalty

enhancements for repeat violent offenders and major drug offenders, and the

imposition of consecutive prison terms all violated the Sixth Amendment by requiring

judicial fact-finding.   The Court determined that these provisions were severable.

The purposes of felony sentencing, established by R.C. 2929.11, and the

seriousness and recidivism factors included in R.C. 2929.12, both of which were

stated in general terms and did not require findings, were undisturbed by the Foster

Court’s analysis.    The Court concluded its analysis by holding that “judicial fact-

finding is not required before a prison term may be imposed within the basic ranges

of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant”; “judicial

fact-finding is not required before imposition of consecutive prison terms”; and “trial

courts have full discretion to impose a prison sentence within the statutory range and

are no longer required to make findings or give their reasons for imposing maximum,

consecutive, or more than the minimum sentences.” Foster at ¶99-100. After Foster,

Ohio trial court judges “have full discretion to impose a prison sentence within the

statutory range and are no longer required to make findings or give their reasons for
                                                                                     -9-

imposing * * * consecutive [sentences].” State v. Mathis, 109 Ohio St.3d 54, 2006-

Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus.

      {¶14} Three years after the Ohio Supreme Court found the Ohio consecutive

sentencing provisions unconstitutional, the United States Supreme Court ruled in

Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), that a state

statute requiring judicial findings prior to the imposition of consecutive sentences did

not violate the Sixth Amendment under Blakely and Apprendi. The Court evaluated

the statutory scheme adopted by Oregon, which provides that sentences run

concurrently unless the judge finds statutorily described facts which permit, but do

not require, consecutive terms. The Court held that because the elements of the

individual sentences were found beyond a reasonable doubt, by a jury, the

sentencing provision did not implicate the due process concerns raised by the

sentencing enhancements involved in Blakely and Apprendi and their predecessors.

      {¶15} The Ohio State Supreme Court then revisited Foster in State v. Hodge,

and found “[t]he United States Supreme Court’s decision in Oregon v. Ice * * * does

not revive Ohio’s former consecutive-sentencing statutory provisions * * * which were

held unconstitutional in State v. Foster,” and therefore “[t]rial court judges are not

obligated to engage in judicial fact-finding prior to imposing consecutive sentences

unless the General Assembly enacts new legislation requiring that findings be made.”

(Internal citations omitted.) State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941

N.E.2d 768, paragraphs two and three of the syllabus. In 2011 the Ohio Legislature

passed H.B. 86, effective September 30, 2011, which re-codified the exact

conditional language severed from R.C. 2929.14(E)(4) by the Ohio Supreme Court in
                                                                                 -10-

Foster. No further decision on the issue of consecutive sentences has been released

by the Ohio Supreme Court since Hodge and the subsequent re-enactment of R.C.

2929.14(E)(4).

      {¶16} Appellant was tried and convicted of offenses committed on December

9, 2009.    The offenses occurred three years after the Ohio Supreme Court

invalidated the consecutive sentencing provisions of R.C. 2929.14(E)(4) and the

more than minimum sentencing requirements of R.C. 2929.14(B) in Foster and two

years before the consecutive sentencing provisions were re-codified by the

legislature. The sentencing provisions in effect when Appellant committed assault

and aggravated burglary and applicable to his sentence are those enacted by the

legislature in S.B. 2, as amended by the Supreme Court in Foster. At the time, under

R.C. 2929.14 the penalty range for assault on a peace officer, a fourth degree felony,

was six to eighteen months and the penalty range for aggravated burglary, a first

degree felony, was three to eleven years.      Appellant was sentenced to fourteen

months for the assault and nine years for the aggravated burglary. Both sentences

were within the applicable statutory ranges.

      {¶17} Under Foster, Mathis, Blakely, and Apprendi the trial court has

complete discretion to impose a sentence within the statutory range. The trial court

could have exercised its discretion in this instance to impose a maximum of eighteen

months for the assault and a maximum of eleven years for the aggravated burglary.

It did not choose to do so. There is nothing in this record that suggests error with

regard to sentences within the statutory range. Appellate counsel’s decision not to

challenge the duration of Appellant’s sentences and the application of consecutive
                                                                                 -11-

sentences is not error where, as here, the sentences were entirely compliant with

applicable law. Appellant was in no way prejudiced by the fact that appellate counsel

did not raise an argument that had no chance of success. Based on the record

before us, appellate counsel’s performance was not deficient.

      {¶18} Appellant received effective assistance of counsel in his appeal. There

was no reasonable probability of success had counsel challenged the duration and

consecutive application of Appellant’s sentences.          Accordingly, Appellant’s

application for reopening is denied.

Waite, P.J., concurs.

Vukovich, J., concurs.

DeGenaro, J., concurs.
