[Cite as State v. Wells, 2014-Ohio-1507.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98388


                                       STATE OF OHIO
                                                PLAINTIFF-APPELLEE

                                                  vs.

                                            ERIC WELLS
                                                DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-10-536779-A
                                   Application for Reopening
                                 Motion Nos. 470171 and 470206


        RELEASE DATE: April 8, 2014
ATTORNEY FOR APPELLANT

Carrie Wood
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215

APPELLANT

Eric Wells, pro se
Inmate Number 624-216
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430-0901

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kristen L. Sobieski
Assistant County Prosecutor
1200 Ontario Street, 9th Floor
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} On November 25, 2013, the applicant, Eric Wells, pursuant to App.R. 26(B)

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

court’s judgment in State v. Wells, 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722,

which affirmed Wells’s convictions for aggravated murder with a three-year firearm

specification and having a weapon while under disability. Wells’s new lawyer argues

that appellate counsel was ineffective for not making a full federal constitutional

argument on speedy trial. On November 26, 2013, Wells, pro se, filed another App.R.

26(B) application claiming that his appellate counsel was ineffective for not arguing that

the trial judge violated his right to a public trial by excluding his mother and family

members from the trial and that trial counsel was ineffective for not challenging a

probation hold. On December 26, 2013, the state of Ohio filed its brief in opposition.

For the following reasons, this court denies the applications.

       {¶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 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989); 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 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 (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} Wells was arrested for murder on April 21, 2010, and remained in jail until

his trial on April 24, 2012, 734 days later.1 He raised the speedy trial issue pro se at least

five times. Thus, his appellate counsel’s first assignment of error was that Wells’s

“constitutional rights were violated when the charges were not dismissed when he was

not brought to trial within the statutory time period for speedy trial.” 2 R.C. 2945.71

requires a defendant charged with a felony to be tried within 270 days.              If he is

incarcerated, each day counts as three. However, if the defendant is in jail pursuant to

other charges or has a pending parole or probation violation, this triple court provision

does not apply.       Throughout the proceedings, Wells had an outstanding probation

violation. In State v. Wells, Cuyahoga C.P. CR-10-525073-A, he was found guilty of

drug trafficking and placed on one year of community control sanctions including random


       1
           The murder was committed in August 2006.
       2 The other assignments of error were (1) the trial court erred in denying
motions to suppress identifications, (2) the trial court failed to give a jury
instruction on the failure to comply with R.C. 2933.83 photo lineup procedures, (3)
the trial court allowed inadmissible evidence, (4) the verdict was against the
manifest weight of the evidence, and (5) there was insufficient evidence to support
the conviction.
drug testing. On April 19, 2010, Wells was arrested for a drug-positive urinalysis.

Nothing was done on this probation hold until the judge terminated the community

control sanctions after Wells’s murder conviction. Thus, the probation hold precluded

the triple count throughout the murder proceedings.

       {¶7} In crafting the speedy trial argument, appellate counsel stated the governing

principles and then gave a detailed day-by-day analysis of which days counted toward the

270-day period and which did not.         He concluded that even after allowing for

continuances caused by defendant’s requests and motions, at least 279 days had elapsed

and that Wells was, thus, entitled to a discharge.       Although he had invoked the

constitutional right to a speedy trial, he did not provide a corresponding constitutional

analysis.

       {¶8} This court conducted its own day-by-day analysis, subtracting the

continuances at defendant’s requests, the delays caused by the defendant’s motions

including a request for new counsel, the days witnesses were unavailable because of

health conditions, and joint requests for continuances for DNA analysis. This court

concluded that only 226 speedy trial days had elapsed, and, thus, Wells was tried within

the statutory period.

       {¶9} Wells’s new counsel argues that the original appellate counsel should have

made a constitutional speedy trial argument pursuant to Barker v. Wingo, 407 U.S. 514,

92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).       In Barker, the United State Supreme Court

repeatedly noted the nebulous nature of the right and how it cannot be precisely defined.
Rather, in determining whether a defendant’s speedy trial right has been violated, a court

must use a balancing test involving such factors as the length of the delay, the reasons for

the delay, the defendant’s assertion of the right, and prejudice to the defendant. In

considering the multiple reasons for the continuances and the overwhelming evidence

against the defendant, it is understandable that appellate counsel in the exercises of

professional judgment could decide to eschew an imprecise argument in favor of the

statutory analysis. Following the admonition of the United State Supreme Court, this

court declines to second-guess the reasonable strategic and tactical decisions of counsel.

       {¶10} Wells’s first pro se argument is that the trial court committed structural

error by excluding his mother and other family members during the testimony of Stacy

Jarrell and all other trial proceedings. A review of Jarrell’s testimony shows that before

his testimony began, the court excluded a woman, identified as “his mother,” on the basis

of separation of witnesses. Similarly, at an earlier hearing, the court ordered the removal

of some individuals on the basis of separation of witnesses. (Tr. 19-20.) Appellate

counsel in the exercise of professional judgment could decline an argument challenging

the long-standing principle of separation of witnesses.

       {¶11} Wells’s other pro se argument is that trial counsel should have challenged

the probation violation hold. Wells reasons that if his trial counsel had challenged the

probation violation hold, then the hold would have been vacated, the triple count would

have resumed, and he would have been released because the speedy trial time would have

lapsed.   However, this argument is subject to too much speculation to be viable,
especially as to when trial counsel would have challenged the hold, what the result would

have been, and what effect vacating the probation hold would have had on scheduling the

murder trial. Speculation does not establish prejudice. State v. Thompson, 8th Dist.

Cuyahoga No. 79334, 2002-Ohio-5957, reopening disallowed 2003-Ohio-4336.

Furthermore, this argument is a variant of the speedy trial argument.        Again, it is

understandable that appellate counsel in the exercise of professional judgment could

decline to make an argument based on speculation in favor of the precise statutory speedy

trial argument.

       {¶12} In State v. Martin, 103 Ohio St.3d 385, 391, 2004-Ohio-5471, 816 N.E.2d

227, the Supreme Court of Ohio ruled that a criminal defendant has the right to

representation by counsel or to proceed pro se, but the two rights are independent of each

other and may not be asserted simultaneously. In the present application to reopen,

Wells is represented by counsel who filed an application first. Therefore, this hybrid

representation principle provides an additional and independent reason for denying

Wells’s pro se application.

       {¶13} Accordingly, this court denies the applications to reopen.




KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
