[Cite as State v. Minifee, 2014-Ohio-694.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99202



                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                 PATRICK A. MINIFEE
                                                    DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-562160
                                   Application for Reopening
                                      Motion No. 468799

        RELEASE DATE: February 26, 2014
ATTORNEY FOR APPELLANT

Richard Agopian
1415 West Ninth Street - 2nd Floor
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

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

       {¶1} On October 2, 2013, the applicant, Patrick Minifee, 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. Minifee, 8th Dist. Cuyahoga No. 99202,

2013-Ohio-3146, in which this court affirmed his convictions for attempted murder,

aggravated robbery, carrying a concealed weapon, improperly handling a firearm in a

motor vehicle, and tampering with evidence.         Minifee maintains that his appellate

counsel was ineffective for not arguing allied offenses.   On December 2, 2013, the state

of Ohio, through the Cuyahoga County Prosecutor, filed its brief in opposition. For the

following reasons, this court denies the application to reopen.

       {¶2} On April 26, 2012, an off-duty Cleveland police officer exited his car at a

private residence in Cleveland.     Minifee, brandishing a pistol, approached the officer

and attempted to rob him.   The officer produced his firearm, and the two men exchanged

shots. The officer was shot in the back, and Minifee was shot in the chest.       Minifee

was able to get back to a car, which contained two acquaintances who drove him to a

nearby hospital.   The acquaintances abandoned Minifee in the car at the hospital, where

lifesaving measures allowed his survival.       Police officers discovered two firearms

underneath the car’s gear box.    The wounded officer was treated and released.

       {¶3} Consequently, the grand jury indicted Minifee and his two acquaintances

with the following charges: (1) kidnapping, (2) attempted murder, (3) felonious assault by

knowingly causing serious physical harm to the police officer, (4) felonious assault by
means of a deadly weapon, (5) aggravated robbery by brandishing a deadly weapon, (6)

aggravated robbery by causing serious physical harm to the officer, (7) discharge of a

firearm on or near a prohibited premises, (8) carrying a concealed weapon, (9) improperly

handling a firearm in a motor vehicle, and (10) tampering with evidence.    The first seven

counts also carried one- and three-year firearm specifications, and Minifee’s codefendants

also faced charges of having a weapon while under disability.

      {¶4} After a change of defense counsel, discovery, and extensive negotiations,

Minifee and the state reached a plea bargain.        Minifee would plead guilty to all the

charges and specifications, and the court would impose an agreed sentence of 19.5 years.1

 Minifee pleaded guilty, and the judge scheduled a separate sentencing hearing.

      {¶5} At the sentencing hearing, Minifee initially made a pro se oral motion to

withdraw his guilty plea and argued that his attorney had coerced him into the plea and

that he was deprived of due process.     The trial judge conducted a hearing and denied the

motion to withdraw.

      {¶6} The trial judge then asked the prosecutor to address the issue of allied

offenses.   The prosecutor stated that the kidnapping charge and the two aggravated

robbery charges would merge and that the state would elect to sentence on the deadly

weapon version of the aggravated robbery charge.          He also stated that the attempted

murder and the two felonious assault charges would merge and that the state would elect



      1
       The maximum potential sentence for the charges was 47.5 years.
to sentence on the attempted murder charge.2

       {¶7} The prosecutor acknowledged that felonious assault and aggravated robbery

could merge.     However, he argued that they should not in this case, because the peculiar

facts of this case showed a different animus motivated the aggravated robbery from the

attempted murder/felonious assault.        Minifee’s initial animus was to rob the officer

when Minifee approached brandishing his weapon.            That animus changed to escape and

avoiding detection when the officer produced his weapon and the firing began.                 The

judge accepted this version of the facts.       At the end of the allied offense hearing, the

judge asked defense counsel for his input, and defense counsel replied: “Nothing further,

your Honor.”      (Tr. 71-77.)      The judge then imposed the agreed 19.5 year prison

sentence.

       {¶8} On appeal, Minifee’s attorney argued the following: (1) Minifee’s plea was

not knowingly and voluntarily made, (2) the trial judge abused his discretion in denying

the motion to withdraw, (3) trial counsel was ineffective for not aiding Minifee’s motion

to withdraw, and (4) the trial judge erred in imposing court costs.

       {¶9} Minifee now argues that his appellate counsel was ineffective for not

arguing that the aggravated robbery charges should have merged with the felonious

assault charges as allied offenses.          Minifee relies on the appeal of one of his

acquaintances, State v. Collins, 8th Dist. Cuyahoga No. 99111, 2013-Ohio-3726. Devin

       2
           Although the prosecutor argued that the attempted murder and felonious assault charges
should not merge with the discharge of a firearm in a prohibited place because the elements were so
different, the trial judge merged them.
Collins pleaded guilty to felonious assault, aggravated robbery, having a weapon while

under disability, and tampering with evidence.        On appeal, this court reversed and

remanded on the issue of allied offenses, reasoning the record was

       insufficient to properly determine if the offenses were committed by the
       same conduct. * * * [N]either account adequately detailed the felonious
       assault such that the court could properly determine if it was committed
       with a separate animus from the aggravated robbery. * * * Although the
       state argued that the felonious assault occurred subsequent to, and separate
       from the aggravated robbery, the state’s recitation of facts failed to explain
       precisely when during the course of events the victim was shot.

  Id. at ¶ 12.

Minifee concludes that because the prosecutor made “essentially the same argument” in

his case that he did in Collins’s case, this court should follow Collins and grant his

application to reopen.

       {¶10} 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

373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.

       {¶11} 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.

       {¶12} 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,

1996-Ohio-366, 672 N.E.2d 638.

       {¶13} 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.

       {¶14} Minifee’s argument is not persuasive.      The trial judge conducted an allied

offenses hearing in Minifee’s case, and merged seven of the ten offenses to which he

pleaded guilty.   The prosecutor showed that a different animus motivated the aggravated

robbery and kidnapping charges than the attempted murder and felonious assault charges.

 Minifee’s animus changed from robbery to escape “when the officer produced his

weapon and began to fire at them.”       (Tr. 73.)   Thus, Minifee is distinguishable from

Collins. The prosecutor provided more than in Collins’s case. When confronted with

the allied offenses hearing, the multiple mergers, and the prosecutor’s proffer of different

animuses dependent on the officer’s action, appellate counsel in the exercise of

professional judgment could reject the allied offenses argument.

       {¶15} Accordingly, this court denies the application for reopening.




MARY EILEEN KILBANE, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR
