[Cite as State v. Freeman, 2011-Ohio-5151.]




                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 95511




                                     STATE OF OHIO
                                                        PLAINTIFF-RELATOR

                                              vs.

                                    JAMES FREEMAN
                                                    DEFENDANT-RESPONDENT




                                     JUDGMENT:
                                 APPLICATION DENIED


                              Cuyahoga County Common Pleas Court
                                     Case No. CR-353508
                                   Application for Reopening
                                      Motion No. 446563


        RELEASE DATE: October 3, 2011
FOR RELATOR

James Freeman, pro se
#590410
NCCI
P. O. Box 1812
Marion, OH 43301

ATTORNEYS FOR RESPONDENT

William D. Mason
Cuyahoga County Prosecutor

By: Pinkey S. Carr
Asst. County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

       {¶ 1} James Freeman has filed a timely application for reopening pursuant to

App.R. 26(B). Freeman is attempting to reopen the appellate judgment, rendered in State

v. Freeman, Cuyahoga App. No. 95511, 2011-Ohio-2663, which affirmed his conviction

for the offenses of rape and gross sexual imposition. We decline to reopen Freeman’s

original appeal.

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

Freeman must demonstrate that appellate counsel’s performance was deficient and that,

but for his 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, Freeman

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

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

       {¶ 3} “In State v. Reed [supra, at 458] we held that the two-prong analysis found

in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the

appropriate standard to assess a defense request for reopening under App.R. 26(B)(5).

[Applicant] must prove that his counsel was deficient for failing to raise the issue 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.” State v. Spivey, 84 Ohio St.3d 24,

1998-Ohio-704, 701 N.E.2d 696, at 25.

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

assignments of error that are meritless. Jones v. Barnes (1983), 463 U.S. 745, 103 S.Ct.

3308, 77 L.Ed.2d 987. Appellate counsel cannot be considered ineffective for failing to

raise every conceivable assignment of error on appeal.      Jones v. Barnes, supra; 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.

       {¶ 5} 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 defendant/appellant to second-guess his attorney after conviction and
appeal and that it would be all to 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 upheld the appellate attorney’s discretion to decide which issues he or she believes

are the most fruitful arguments and the importance of winnowing out weaker arguments

on appeal and focusing on one central issue or at most a few key issues. Jones v.

Barnes, supra.

       {¶ 6} In the case sub judice, Freeman raises three proposed assignments of error

in support of his claim of ineffective assistance of appellate counsel:

       {¶ 7} “(1) “The penalties and offenses assessed within this action, should have at

least resulted in some of the offenses of similar import being merged into one sentence,

while preserving the convictions.”

       {¶ 8} “(2) “The Appellate Counsel failed to adequately present a substantive

argument of how its constitutional to be convicted of both rape and gross sexual

imposition.”

       {¶ 9} “(3) “Appellate counsel failed to attack the veracity of the severity of such

an argument and assignment of error as manifest weight of the evidence and is

demonstrative of a failure to vigorously represent the appellant.”
       {¶ 10} However, Freeman has failed to present any argument, with regard to his

three proposed assignments of error, that demonstrates how appellate counsel’s

performance was deficient and that he was prejudiced by appellate counsel’s claimed

deficiency.

       {¶ 11} In State v. Kelly (Nov. 18, 1999), Cuyahoga App. No. 74912, reopening

disallowed (June 21, 2000), Motion No. 312367, this court established that the mere

recitation of assignments of error is not sufficient to meet the burden to prove that

applicant’s appellate counsel was deficient for failing to raise the issues he now presents

or that there was a reasonable probability that he would have been successful if the

present issues were considered in the original appeal. State v. Gaughan, Cuyahoga App.

No. 90523, 2009-Ohio-955, reopening disallowed, 2009-Ohio-2702, Motion No. 421223.

 See, also, State v. Mosely, Cuyahoga App. No. 79463, 2002-Ohio-1101, reopening

disallowed, 2005-Ohio-4137, Motion No. 365082; State v. Dial, Cuyahoga App. No.

83847, 2004-Ohio-5860, reopening disallowed, 2007-Ohio-2781, Motion No. 392410;

State v. Ogletree, Cuyahoga App. No. 86500, 2006-Ohio-2320, reopening disallowed,

2006-Ohio-5592, Motion No. 387497; State v. Huber, Cuyahoga App. No. 80616,

2002-Ohio-5839, reopening disallowed, 2004-Ohio-3951, Motion No. 356284.                The

failure of Freeman to present any argument with regard to his three proposed assignments

of error results in the failure to demonstrate that his counsel was deficient and that he was

prejudiced by the alleged deficiency.

       {¶ 12} Accordingly, the application for reopening is denied.
KATHLEEN ANN KEOUGH, JUDGE

COLLEEN CONWAY COONEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
