[Cite as State v. Cunningham, 2011-Ohio-2028.]


         Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 93167




                                   STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.


                             ANTHONY CUNNINGHAM
                                                       DEFENDANT-APPELLANT




                                  JUDGMENT:
                              APPLICATION DENIED


                              Criminal Appeal from the
                        Cuyahoga County Court of Common Pleas
                                 Case No. CR-521147
                              Application for Reopening
                                  Motion No. 437569

        BEFORE: Jones, J., Blackmon, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED:                        April 27, 2011
ATTORNEY FOR APPELLANT

Anthony Cunningham
Inmate No. 563-623
Lebanon Correctional Institution
P.O. Box 56
Lebanon, Ohio 45036-0056


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Daniel A. Cleary
         Mary McGrath
Assistant Prosecuting Attorneys
The Justice Center, 8 Floor
                    ht




1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, J.:

       {¶ 1} On September 16, 2010, the applicant, Anthony Cunningham (“Cunningham”),

pursuant to App.R. 26(B) and State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204,

applied to reopen this court’s judgment in State v. Cunningham, Cuyahoga App. No. 93167,
2010-Ohio-3183, in which this court affirmed Cunningham’s convictions for two counts of

aggravated robbery, and one count each of kidnapping, attempted rape, felonious assault,

robbery, gross sexual imposition and possession of criminal tools.      Cunningham maintains

that his appellate counsel was ineffective because he should have argued that (1) the trial court

erred by not suppressing the “cold stand” identification and (2) the trial court erred by failing

to merge the kidnapping charge with the attempted rape charge.      On September 27, 2010, the

State of Ohio filed a brief in opposition.    For the following reasons, this court denies the

application.

       {¶ 2} The evidence at trial showed the following: Early on the morning of July 3,

2008, as the victim approached an apartment complex, the assailant pointed a gun at her and

took her cell phone.     He demanded her money, but when she said she did not have any, he

attempted to rape her.     At this time, she screamed and struggled with the assailant.     This

attracted the attention of some of the apartment dwellers.     Devante Richmond came to her

aid, and another called “911.”   The assailant then fled.   The police quickly arrived and soon

thereafter arrested Cunningham as a suspect.     The police brought Cunningham back to the

apartment for a “cold stand” identification.      The victim and Richmond both identified

Cunningham as the assailant, but the victim did so only after hearing his voice.

       {¶ 3} Defense counsel moved to suppress the identification.              The trial court

conducted a hearing and denied the motion to suppress the “cold stand” identification.
Cunningham now submits that his appellate counsel should have assigned as error the denial

of that motion to suppress.

       {¶ 4} 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 (1984), 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, cert.

denied (1990), 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768.

       {¶ 5} 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, 104 S.Ct. at 2065.

       {¶ 6} 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 (1983), 463

U.S. 745, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987.       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.

       {¶ 7} 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.

       {¶ 8} In the present case, Cunningham’s appellate counsel chose to argue that the

verdict was against the manifest weight of the evidence because Cunningham was a victim of

mistaken identification.    As part of this argument, appellate counsel noted the inherent

vulnerabilities of a “cold stand” identification.     Cunningham was in the back of a police

cruiser and was the only black male brought to the scene for purposes of identification.

Appellate counsel also synthesized into this argument discrepancies between Richmond’s and
the victim’s initial descriptions of the assailant and Cunningham’s appearance when he was

arrested, the lack of physical evidence and investigation, inconsistencies among the witnesses

regarding the assailant’s hair style, and the fact that the victim’s and Richmond’s descriptions

of the assailant also matched other black males in the vicinity.    Appellate counsel chose to

incorporate the weakness of a “cold stand” identification into a larger, more comprehensive

argument on mistaken identity.    Following the Supreme Court’s admonition, this court will

not second guess counsel’s profession decisions on strategy and tactics.

       {¶ 9} Cunningham’s other assignment of error, that the kidnapping charge should

have merged into the attempted rape charge, is ill-founded.     A review of the docket shows

that the trial judge in the sentencing entry merged the attempted rape charge with the

kidnapping charge for purposes of conviction and sentencing.

       {¶ 10} Accordingly, this court denies the application to reopen.




LARRY A. JONES, JUDGE

PATRICIA A. BLACKMON, P.J., and
MARY J. BOYLE, J., CONCUR
