[Cite as State v. Vanderhorst, 2013-Ohio-1785.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97242



                                      STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                            QUENTIN VANDERHORST
                                                        DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-540773
                                   Application for Reopening
                                      Motion No. 458684


        RELEASE DATE: April 29, 2013
ATTORNEYS FOR APPELLANT

Timothy Young
State Public Defender
Francisco E. Luttecke
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215

ATTORNEYS FOR APPELLEES

Timothy J. McGinty
Cuyahoga County Prosecutor
Mark J. Mahoney
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Quentin Vanderhorst has filed a timely application for reopening pursuant

to App.R. 26(B). Vanderhorst is attempting to reopen the appellate judgment that was

rendered in State v. Vanderhorst, 8th Dist. No. 97242, 2012-Ohio-2762, which affirmed

his conviction for two counts of kidnapping, two counts of aggravated robbery, one count

of attempted murder, and two counts of felonious assault, but vacated the sentence

imposed for the offenses of aggravated robbery and kidnapping based upon allied

offenses of similar import or merger, and remanded for resentencing. For the following

reasons, we decline to reopen Vanderhorst’s original appeal.

       {¶2} In order to establish a claim of ineffective assistance of appellate counsel,

Vanderhorst must demonstrate that appellate counsel’s performance was deficient and

that, but for the deficient performance, the result of his appeal would have been different.

 State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.               Specifically,

Vanderhorst must establish that “there is a genuine issue as to whether he was deprived of

the effective assistance of counsel on appeal.” App.R. 26(B)(5).

       {¶3} In State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588, the

Supreme Court of Ohio held that:

       Moreover, to justify reopening his appeal, [applicant] “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 25, 1998-Ohio-704, 701 N.E.2d 696.

       Strickland [v. Washington] charges us to “appl[y] a heavy measure of
       deference to counsel’s judgments,” 466 U.S. [668] at 691, 104 S.Ct. 2052,
       80 L.Ed.2d 674 [1984], and to “indulge a strong presumption that counsel’s
       conduct falls within the wide range of reasonable professional assistance,”
       Id. at 689, 104 S.Ct. 2052, 80 L.Ed. 674. Moreover, we must bear in mind
       that appellate counsel need not raise every possible issue in order to render
       constitutionally effective assistance. See Jones v. Barnes, 463 U.S. 745,
       103 S.Ct 3308, 77 L.Ed.2d 987 (1983); State v. Sander, 94 Ohio St.3d 150,
       761 N.E.2d 18 (2002).

Smith at ¶ 7-8.

       {¶4} In addition, the Supreme Court of Ohio in Spivey held that:

       In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we
       held that the two prong analysis found in Strickland * * * is the appropriate
       standard to assess a defense request for reopening under App.R. 26(B)(5).
       [Applicant] must prove that his counsel were deficient for failing to raise
       the issues he now presents, as well as showing that had he presented those
       claims on appeal, there was a “reasonable probability” that he would have
       been successful. Thus [applicant] 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.

Id.

       {¶5} It is also well settled that appellate counsel is not required to raise and argue

assignments of error that are meritless. Jones at 752.        Appellate counsel cannot be

considered ineffective for failing to raise every conceivable assignment of error on

appeal. Id.; State v. Grimm, 73 Ohio St.3d 413, 1995-Ohio-24, 653 N.E.2d 253; State v.

Campbell, 69 Ohio St.3d 38, 1994-Ohio-492, 630 N.E.2d 339.

       {¶6} In Strickland, the United States Supreme Court also stated that a court’s

scrutiny of an attorney’s work must be deferential.    The court further stated that it is too

tempting for a appellant to second-guess his attorney after conviction and appeal and that

it would be all too easy for a court to conclude that a specific act or omission was

deficient, especially when examining the matter in hindsight.        Accordingly, “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.” Id. at 689. Finally, the United States Supreme Court has firmly established

that appellate counsel possess the sound discretion to decide which issues are the most

fruitful arguments on appeal.     Appellate counsel possesses the sound discretion to

winnow out weaker arguments on appeal and to focus on one central issue or at most a

few key issues. Jones at 752.

       {¶7} In support of his claim of ineffective assistance of appellate counsel,

Anderson raises one proposed assignments of error:

       The trial court erred when it imposed consecutive sentences for gun
       specifications that were committed as part of the same act or transaction
       under R.C. 2929.14(B)(1)(b), or alternatively, are allied offenses of similar
       import under R.C. 2941.25 (Tr. 908-910).

       {¶8} Vanderhorst, though his sole proposed assignment of error, argues that the

trial court erred by sentencing him to multiple consecutive three-year terms of

incarceration for firearm specifications.     Specifically, Vanderhorst argues that the

three-year firearm specifications should have been merged for purposes of sentencing

because R.C. 2929.14(B)(1)(g), formerly R.C. 2929.14(D)(1)(g), does not mandate the

imposition of consecutive sentences for gun specifications.      Vanderhorst’s argument

lacks merit.

       {¶9} This court, in State v. Glenn, 8th Dist. No. 97314, 2012-Ohio-3075, held that:

       R.C. 2929.14(D)(1)(b), as it existed at the time of sentencing, prohibited a
       trial court from imposing more than one prison term for multiple firearm
       specifications if the specifications were committed as part of the same act
       or transaction. However, R.C. 2929.14(D)(1)(g) provided an exception for
       certain felonies including felonious assault and aggravated robbery. R.C.
       2929.14(D)(1)(g) stated: * * *.

       The sentencing entry states that [defendant] was found guilty of four counts
       of felonious assault (Counts 4, 5, 11, and 12) and two counts of aggravated
       robbery (Counts 6 and 7). All of these charges included one- and
       three-year firearm specifications. Under R.C. 2929.14(D)(1)(g), the court
       was required to impose prison terms for the two most serious firearm
       specifications * * * and had discretion to impose a sentence for the third
       firearm specification.     State v. Worth, 10th Dist. No. 10AP-1125,
       2012-Ohio-666, ¶ 96. * * *. (Footnote omitted.)

Id. at ¶ 31.

       {¶10} In addition, the 12th District Court of Appeals, in State v. Israel, 12th Dist.

No. CA2011-11-115, 2012-Ohio-4876, addressed the issue of whether the imposition of

two firearm specification under R.C. 2929.14(B)(1)(g), must be imposed consecutively or

concurrently to each other and held that:

       [Defendant] argues that because he committed his crimes as part of a single
       criminal objective, mainly to flee from the police, his sentences should be
       run concurrently. As support, [defendant] cites several cases in which courts
       analyze whether crimes were committed as part of a single transaction, and
       then hold that sentences imposed for firearm specifications must run
       concurrently if committed as part of a single criminal objective. See, e.g.,
       State v. Moore, 161 Ohio App.3d 778, 2005-Ohio-3311 (7th Dist.).
       However, regardless of whether [defendant]’s crimes were a single
       transaction, R.C. 2929.14(B)(1)(g) specifically states that when a defendant
       is sentenced to more than one felony, including murder or felonious assault,
       the sentencing court “shall impose” the two most serious gun specifications
       and then may, in its discretion, impose additional sentences for additional
       firearm specifications. See also State v. Cassano, 8th Dist. No. 97228,
       2012-Ohio-4047.

       [Defendant] further argues that the case law he cites is controlling because
       the statute does not address whether the trial court is required to order the
      sentences consecutive or concurrent. However, we disagree and find that
      pursuant to R.C. 2929.14(B)(1)(g), sentences for multiple gun
      specifications should be run consecutive to each other. See Glenn, 8th Dist.
      No. 97314, 2012-Ohio-3075; and State v. Fischer, 9th Dist. No. 26110,
      2012-Ohio-3665.

      While the General Assembly did not include the word “consecutive” in R.C.
      2929.14(B)(1)(g), it nonetheless carved out an exception to the general rule
      that a trial court may not impose multiple firearm specifications for crimes
      committed within a single transaction. The mandatory language of the
      statute (“the court shall impose”) also indicates the General Assembly’s
      intention that the defendant serve multiple sentences for firearm
      specifications associated with the enumerated crimes, such as murder or
      felonious assault. Had the Legislature intended a per se rule that sentences
      for firearm specifications must be served concurrent with one another, it
      could have stated as much. Or, the Legislature could have chosen not to
      codify R.C. 2929.14(B)(1)(g), which serves as an exception to the rule that
      multiple firearm specifications must be merged for purposes of sentencing
      when the predicate offenses were committed as a single criminal
      transaction.
      [Defendant] did not argue that the trial court abused its discretion in
      ordering the third firearm specification as set forth in R.C.
      2929.14(B)(1)(g), we nonetheless find that the trial court did not abuse its
      discretion in ordering the additional firearm specification in addition to the
      other two required by statute. The trial court took into consideration the
      fact that [defendant] had a lengthy criminal past, and that his actions during
      the police chase caused the death of [victim] and placed countless other
      officers and civilians in danger. The fact that [defendant] had a gun on his
      person during the chase only heightened the potential danger. The trial
      court’s decision to impose the additional firearm specification was not
      unreasonable, arbitrary, or unconscionable.

Id. at ¶ 71; see also State v. Savage, 7th Dist. No. 11-MA-163, 2012-Ohio-2435;

Cassano, 8th Dist. No. 97228, 2012-Ohio-4047; State v. Bushner, 9th Dist. No. 26532,

2012-Ohio-5996,

      {¶11} Accordingly, we find that Vanderhorst has failed to establish that he was

prejudiced by the conduct of appellate counsel on appeal.    The trial court was required
to impose multiple and consecutive three-year terms of incarceration upon Vanderhorst.

The fact that some of the offenses were allied offenses of similar import did not obviate

the multiple and consecutive sentencing requirements of R.C. 2929.14(B)(1)(g), formerly

R.C. 2929.14(D)(1)(g). Thus, appellate counsel was not required to raise the issue of the

need to merge the firearm specifications on appeal, and appellate counsel was not

ineffective upon appeal.




      {¶12} Application for reopening is denied.




MARY EILEEN KILBANE, JUDGE


FRANK D. CELEBREZZE., JR., P.J., and
TIM McCORMACK, J., CONCUR
