[Cite as State v. Sheffey, 2014-Ohio-200.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA




                               JOURNAL ENTRY AND OPINION
                                       No. 98944



                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                      JAMES SHEFFEY
                                                      DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-560852
                                   Application for Reopening
                                      Motion No. 468212

RELEASE DATE:                January 17, 2014
FOR APPELLANT

James Sheffey, pro se
Inmate No. 631-444
Lorain Correctional Institution
2075 South Avon-Belden Road
Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By:   Maxwell M. Martin
         Joseph J. Ricotta
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:

       {¶1} On September 11, 2013, the applicant, James Sheffey, 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. Sheffey, 8th Dist. Cuyahoga No. 98944,

2013-Ohio-2463, in which this court affirmed Sheffey’s convictions and sentences for

four counts of felonious assault and one count each of improperly discharging a weapon

into a habitation, having a weapon while under disability, and criminal damaging.    The

felonious assault and improper discharge counts also carried one- and three-year firearm

specifications and a five-year specification for drive-by shooting.   Sheffey argues that

his appellate counsel should have argued that the trial court erred by not granting his

motion for a new trial based on newly discovered evidence.      On October 11, 2012, the

state of Ohio filed its brief in opposition. For the following reasons, this court denies

the application to reopen.

       {¶2} On the evening of July 23, 2011, Wilson Clark, Leigh Clark, who is

Wilson’s aunt and Sheffey’s former girlfriend, Wilson’s daughter, Dominique Hearn, who

was Wilson’s girlfriend, and Hearn’s daughter were together on Wilson’s front porch.

Sheffey, who lived nearby, stopped at Wilson’s house and wanted Leigh Clark to talk and

come with him. When Leigh refused to talk with Sheffey, Wilson and Sheffey got into

an altercation, during which Sheffey fell down and cut his head. Sheffey then left in his

car, and Wilson also left.       Approximately ten minutes later, Sheffey returned.

Dominique saw Sheffey pull out a gun, and all four women raced into the house. They
barely had entered the house, when the women heard shots fired.                          The police

investigation found bullet holes in the house and Sheffey’s blood on the driveway.

       {¶3} At trial, Hearn was the sole witness who identified Sheffey as the person

with the gun.     Leigh Clark was subpoenaed as a witness but never appeared.               After the

trial, Sheffey’s attorney moved for a new trial based on newly discovered evidence, Leigh

Clark’s “affidavit” that Sheffey’s mother gave to defense counsel. This document is

dated July 19, 2012, and states as follows: “To whom it may concern: (In regards to

James Sheffey.) I Leigh Clark is [sic] writing this letter to inform you that Dominique

Hearn, the children and I were in the house when the shooting took place. We were

unable to see anything.         Thank you, Leigh Clark.”          Beneath Clark’s signature is a

telephone number and the following jurat: “This statement was written before me on the

above date 7-19-12 by affiant.”           Below that is the apparent signature of a notary.

After a hearing on the matter, the trial judge denied the motion for new trial.               Sheffey

now argues that his appellate counsel should have argued that the trial court erred when it

denied the motion for new trial based on Leigh Clark’s affidavit.1

       {¶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, 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


       1  Appellate counsel raised six assignments of error: (1) the firearm specifications should have
merged, (2) the trial court should have accepted Sheffey’s Alford plea, (3) inconsistencies in the
sentence, (4) manifest weight, (5) insufficient evidence, and (6) prosecutorial misconduct.
373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.

       {¶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 at 689.

       {¶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, 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, 672 N.E.2d

638 (1996).

       {¶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}   Sheffey’s argument on ineffective assistance of appellate counsel is not

well taken. First, under Crim.R. 33(A)(6), the defense must proffer the affidavits of

witnesses who would present the new evidence.          In the present case, Leigh Clark’s

statement is not an authentic affidavit.         The jurat does not affirm that Clark’s

statements were made under oath.      It merely states that statement was written before the

notary.   That is insufficient for an affidavit. Chaney v. East, 97 Ohio App.3d 431, 646

N.E.2d 1138 (8th Dist.1994), and Occhionero v. Cox, 8th Dist. Cuyahoga No. 92334,

2009-Ohio-3891.

       {¶9} Moreover, in order to grant a motion for a new trial, the new evidence must

disclose a strong probability that it will change the result of the trial.    Evidence that

merely impeaches is insufficient to grant a new trial. State v. Petro, 148 Ohio St.3d 505,

76 N.E.2d 370 (1947). However, Clark’s affidavit does not necessarily even impeach
Hearn’s testimony, but may be cumulative. Hearn testified that the four women ran into

the house, and then the shots were fired.    Thus, Clark’s statement that they were in the

house when the shooting took place is consistent with Hearn’s testimony.               Even

accepting the inference from the statement none of the women could have seen the

shooter, Clark’s evidence merely impeaches Hearn’s testimony, which is an insufficient

basis to grant a motion for a new trial.   Finally, there was uncertainty as to the author of

the statement.     Even defense counsel initially conceded: “We have no idea whose letter

that is really.”   (Tr. 454.)

         {¶10} In Petro, the Supreme Court of Ohio enunciated that a motion for a new trial

based on newly discovered evidence “is necessarily committed to the wise discretion of

the court, and a court of error cannot reverse unless there has been a gross abuse of that

discretion.” 148 Ohio St.3d at 507-508, 76 N.E.3d 370.          Given the high standard of

review, the uncertainty surrounding the statement, the questionable form of the

“affidavit,” and the merely impeaching effect of the statement, appellate counsel in the

exercise of professional judgment properly rejected this argument as an assignment of

error.

         {¶11} Application denied.




______________________________________________
MARY J. BOYLE, ADMINISTRATIVE JUDGE

KENNETH A. ROCCO, J., and
MARY EILEEN KILBANE, J., CONCUR
