[Cite as State v. Jones, 2012-Ohio-696.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 95284




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                      STANLEY JONES
                                                    DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-529670
                                   Application for Reopening
                                      Motion No. 447446


        RELEASE DATE: February 22, 2012
FOR APPELLANT

Stanley Jones, pro se
Inmate No. 584-132
Mansfield Correctional Inst.
P. O. Box 788
Mansfield, OH 44901

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Mark J. Mahoney
Assistant Prosecuting Attorney
The Justice Center, 8th Fl.
1200 Ontario Street
Cleveland, OH 44113




COLLEEN CONWAY COONEY, J.:

       {¶ 1} On September 6, 2011, the applicant, Stanley Jones, 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. Jones, 8th Dist. No. 95284, 2011-Ohio-2914, in which this court affirmed

Jones’s convictions for aggravated murder and kidnapping with three-year firearm specifications

and having a weapon under disability.      Jones maintains that his appellate counsel should have

argued that the trial court erred in requiring him to proceed pro se in presenting his oral motion to

withdraw his guilty plea without securing a knowing, intelligent, and voluntary waiver of his

right to counsel. For the following reasons, this court denies the application.

       {¶ 2} Jones faced the death penalty on two counts of aggravated murder with felony

murder specifications and one- and three-year firearm specifications, one count of kidnapping

with one- and three-year firearms specifications, and one count of having a weapon under
disability.   The state of Ohio offered a plea bargain:   in exchange for Jones pleading guilty to

the first count of aggravated murder with a three-year firearm specification, the kidnapping count

with a three-year firearm specification, and the disability charge, it would nolle the felony murder

specification on the first count, all one-year firearm specifications and the second count of

aggravated murder. Thus, Jones would escape the death penalty, but would receive a life

sentence.

        {¶ 3} Jones accepted the plea agreement on the day of trial, and the trial court conducted

a full Crim.R. 11 hearing in which Jones admitted that this was his own choice, that he was not

being pressured, and that he was pleading guilty because he committed the crimes.

Nevertheless, at the sentencing hearing later that day, Jones orally moved to withdraw his guilty

plea. The trial judge conducted a full hearing on the motion the next day.       After being sworn

as a witness, Jones explained that he wanted to withdraw his guilty plea because he was

pressured into it by his attorneys and his brother to avoid the death penalty and because he really

did not want to plead guilty, but proceed to trial. That was what he always wanted to do.

Jones presented his own case. His attorneys did speak, but only to clarify the record. The one

attorney contradicted Jones by stating that after the plea hearing, they did not discuss

withdrawing the plea.     The state reviewed the evidence for Jones’s guilt and argued that he

should not be permitted to withdraw his plea. The trial court then denied the motion and

proceeded to sentencing. Jones’s counsel continued to represent him during the sentencing.

        {¶ 4} On appeal, counsel argued that the trial judge erred in denying the motion to

withdraw the guilty plea and by failing to appoint counsel for Jones at the hearing on the motion

to withdraw. This court rejected both assignments of error and affirmed.
       {¶ 5} Jones now claims that his appellate counsel was ineffective for not arguing that

the trial court erred by requiring him to proceed pro se during the hearing on the motion to

withdraw without securing a knowing, intelligent, and voluntary waiver of the right to counsel.

Jones reasons that when he made his motion, the trial judge forced him to proceed pro se. In

doing so, the judge did not follow well-established law that he must ensure that a defendant is

making a knowing, voluntary, and intelligent waiver of the right to counsel. This would include

a warning on the dangers of self-representation, an apprehension of the nature of the charges, the

range of allowable punishments, and possible defenses. Von Moltke v. Gillies, 332 U.S. 708, 68

S.Ct. 316, 92 L.Ed.2d 309 (1948); State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976);

and Crim.R. 44.    Jones maintains that the judge’s failure prejudiced him because he did not

know that he could call witnesses, such as his brother, because he did not know the criteria for

deciding a motion to withdraw, and because he did not know how to present his case. Jones

concludes that the judge’s failure “to protect appellant’s Sixth Amendment right to counsel

caused prejudice to appellant and entitles the court to reopen this direct appeal.” (Pg. 9 of the

Application.)

       {¶ 6} 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), cert. denied,

497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768 (1990); State v. Reed, 74 Ohio St.3d 534,

1996-Ohio-21, 660 N.E.2d 456.

       {¶ 7} 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 2065.

       {¶ 8} 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, 103

S.Ct. 3308, 3313, 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

Ohio Supreme Court reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172,

1996-Ohio-366, 672 N.E.2d 638.

       {¶ 9} 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.

       {¶ 10} In the present case, appellate counsel, after making a strong argument that the

motion to withdraw should have been granted, chose to frame the issue regarding counsel during

the hearing on the motion to withdraw the guilty plea in terms of appointment of counsel: the

trial court should have appointed counsel for this particular hearing.    After reviewing the

authorities cited by Jones, this court will follow the admonition of the Supreme Court and not

second-guess counsel’s professional judgment in deciding strategy and tactics. The case law

better supports the argument for the appointment of counsel. For example, in State v. Meadows,

6th Dist. L-05-1321, 2006-Ohio-2622, which both Jones and appellate counsel cited, the court of

appeals stated: “We have held that a criminal defendant is entitled to appointed counsel to

represent him at a hearing on a motion to withdraw a plea, where the motion was made prior to

sentencing * * *.” Id. at ¶11. Meadows relied on State v. Dellinger, 6th Dist. H-02-007,

2002-Ohio-4652, in which counsel raised and won the same arguments that appellate counsel

raised in the instant case.    Therefore, appellate counsel, in the exercise of professional

judgment, could chose to argue appointment of counsel over knowing, voluntary, and intelligent

waiver of counsel.

       Accordingly, this court denies the application to reopen.

COLLEEN CONWAY COONEY, JUDGE
Melody J. Stewart, P.J., and Eileen A. Gallagher, J., Concur
