[Cite as State v. Holloway, 2019-Ohio-1575.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                          STATE OF OHIO,

                                          Plaintiff-Appellee,

                                                      v.

                          JERMAILL OR JERMAIL HOLLOWAY,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 17 MA 0048


                                               Motion to Reopen

                                          BEFORE:
                   Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                                JUDGMENT:
                                                  Denied



 Atty. Paul Gains, Mahoning County Prosecutor and Atty. Ralph Rivera, Assistant
 Prosecutor, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th
 Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee, and

 Jermaill or Jermail Holloway, (PRO SE), A693-841, P.O. Box 788, Mansfield, Ohio
 44901, for Defendant-Appellant.
                                       Dated:
                                    April 26, 2019
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 PER CURIAM.

       {¶1}   Defendant-appellant, Jermaill Holloway, has filed an application for
reopening of his direct appeal from his convictions for voluntary manslaughter and
felonious assault. State v. Holloway, 7th Dist. No. 17 MA 0048, 2018-Ohio-5393. For the
following reasons, the application is denied.
       {¶2}   An application to reopen an appeal must be filed “within ninety days from
journalization of the appellate judgment unless the applicant shows good cause for filing
at a later time.” App.R. 26(B). Our judgment in this case was filed on December 27,
2018. Appellant filed this application on March 11, 2018. Thus, the application is timely.
       {¶3}   Ineffective assistance of appellate counsel is the basis for an application to
reopen an appeal. App.R. 26(B)(1). When considering an application for reopening
pursuant to App.R. 26(B), we must first determine, based upon appellant’s application,
affidavits, and portions of the record before us, whether appellant has set forth a colorable
claim of ineffective assistance of appellate counsel. See e.g. State v. Milburn, 10th Dist.
No. 89AP-655, 1993 WL 339900 (Aug. 24, 1993); State v. Burge, 88 Ohio App.3d 91, 623
N.E.2d 146 (10th Dist.1993). In order to show ineffective assistance of appellate counsel,
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. State v. Goff, 98 Ohio St.3d 327, 2003-Ohio-1017, 784 N.E.2d 700,
¶5, (explaining that the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984),
test is used to determine if appellate counsel was ineffective).
       {¶4}   Appellant asserts his appellate counsel was ineffective for failing to raise
four assignments of error.
       {¶5}   First, appellant claims his appellate counsel was ineffective for failing to
assert:

              THE TRIAL COURT ERRED IN NOT ALLOWING APPELLANT TO
       WITHDRAW HIS GUILTY PLEA FOR A MANIFEST INJUSTICE
       OCCURRED IN HIS CASE.



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        {¶6}   Appellant argues his counsel should have argued that the trial court erred
in denying his motion to withdraw his guilty plea. He claims he suffered a manifest
injustice because his trial counsel and the prosecutor did not inform the trial court about
the “true facts” of the case, which he claims demonstrated reasonable doubt as to whether
he was guilty. Appellant asserts trial counsel should have informed the court that the
victim was firing a .32 revolver at him. And he contends counsel should have informed
the court that BCI could not identify from which gun the bullet that struck the victim was
fired. Appellant notes that he informed the trial court of these “facts” in his motion to
withdraw his guilty plea.
        {¶7}   Appellant’s appellate counsel made the same argument appellant now
raises in his third assignment of error in his direct appeal. In that assignment of error,
appellant’s counsel argued that the trial court should have granted appellant’s post-
sentence motion to withdraw his guilty plea. Holloway, at ¶ 37-38. We reviewed the issue
and concluded that the trial court did not abuse its discretion in denying appellant’s
motion. Id. at ¶ 42-44.
        {¶8}   Thus, appellant has not demonstrated that his appellate counsel was
ineffective for failing to raise an issue regarding his post-sentence motion to withdraw his
plea.
        {¶9}   Second, appellant claims his appellate counsel was ineffective for failing to
assert:

               APPELLANT[’]S      GUILTY     PLEA     WAS     NOT    VOLUNTARILY
        ENTERED BECAUSE IT WAS THE RESULT OF INEFFECTIVE
        ASSISTANCE OF TRIAL COUNSEL.

        {¶10} Appellant contends his appellate counsel should have argued that his guilty
plea was not voluntarily entered because his trial counsel was ineffective. Appellant
claims his trial counsel failed to provide him with the discovery in his case, failed to
withdraw as he requested, and failed to file a pre-sentence motion to withdraw his guilty
plea as he requested.
        {¶11} Appellant’s appellate counsel raised the voluntariness of his plea in his first
assignment of error in his direct appeal. Id. at ¶ 7. And although counsel did not


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specifically argue that appellant’s trial counsel was ineffective, this court conducted a
thorough review of appellant’s plea hearing and determined that he entered his plea
knowingly, voluntarily, and intelligently. Id. at ¶ 11-26.
       {¶12} Additionally, appellate counsel argued that trial counsel never filed a motion
to withdraw after appellant requested that he do so in his fourth assignment of error in his
direct appeal. Id. at ¶ 53. We addressed this issue and concluded trial counsel was not
ineffective in this regard because the trial court had informed him that it would deny such
a motion. Id.
       {¶13} Accordingly, appellant has not demonstrated that his appellate counsel was
ineffective for failing to raise an issue regarding the voluntariness of his plea or the lack
of a motion to withdraw.
       {¶14} Third, appellant claims his appellate counsel was ineffective for failing to
assert:

                TRIAL COURT ERRED BY NOT STOPPING THE SENTENCING
       HEARING AND HOLDING AN EVIDENTIARY HEARING AFTER
       LEARNING THE APPELLANT AND THE PROSECUTOR HAD TWO
       DIFFERENT VERSIONS OF EVENTS.

       {¶15} Here appellant argues his appellate counsel should have argued that the
trial court erred by failing to hold a pre-sentencing evidentiary hearing to determine what
actually happened in this case. Appellant claims such a hearing was necessary due to
differing versions of the facts.
       {¶16} Appellant chose to enter a guilty plea in this case. By doing so, he admitted
to shooting two people, one of whom died. Appellant decided to forego a trial, which
would have shed some light on the underlying facts and brought out any discrepancies in
the evidence. Because appellant pleaded guilty, the trial court had no obligation to hold
an evidentiary hearing.
       {¶17} Thus, appellant has not demonstrated his appellate counsel was ineffective
for failing to assert that the trial court should have held a pre-sentence evidentiary hearing.
       {¶18} Finally, appellant claims his appellate counsel was ineffective for failing to
assert:


Case No. 17 MA 0048
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                APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO
          RAISE, PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF A
          FAIR JUDGMENT AND SENTENCE.

          {¶19} Appellant asserts his appellate counsel should have argued that the
prosecutor engaged in misconduct by telling the court that every witness stated that they
heard appellant outside making threats that he would kill everyone in the house.
Appellant claims this statement was untrue. He asserts the trial court gave him an unfair
sentence based on the prosecutor’s comment.
          {¶20} The prosecutor did state at the sentencing hearing that all witnesses heard
appellant yelling and threatening to kill everyone in the house. (Tr. 8). Appellant claims
he has evidence that none of the witnesses actually said these things. But appellant does
not state what that evidence is and, even if he did, such evidence would be outside of the
record.
          {¶21} Moreover, appellate counsel did argue that appellant’s sentence was
contrary to law in his second assignment of error in his direct appeal. Id. at ¶ 28. We
reviewed appellant’s sentence and found it was not contrary to law. Id. at ¶¶ 31-35.
          {¶22} Thus, appellant has not demonstrated his appellate counsel was ineffective
for failing to assert that prosecutorial misconduct resulted in a sentence that was contrary
to law.
          {¶23} For the reasons stated above, appellant’s application to reopen his appeal
is hereby denied.




 JUDGE GENE DONOFRIO


 JUDGE CHERYL L. WAITE


 JUDGE CAROL ANN ROBB




Case No. 17 MA 0048
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                            NOTICE TO COUNSEL

This document constitutes a final judgment entry.




Case No. 17 MA 0048
