[Cite as State v. Kappenhagen, 2014-Ohio-4923.]



                Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 100798



                                           STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                  MICHAEL J. KAPPENHAGEN

                                                        DEFENDANT-APPELLANT




                                           JUDGMENT:
                                       APPLICATION DENIED



                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-12-567907-A
                                    Application for Reopening
                                        Motion No. 479574


        RELEASE DATE: November 5, 2014
FOR APPELLANT

Michael J. Kappenhagen
#650-982
Marion Correctional Institution
P.O. Box 57
Marion, OH 43301


ATTORNEYS FOR RESPONDENT

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Frank Romeo Zeleznikar
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




TIM McCORMACK, J.:
        {¶1}     On October 22, 2014, the applicant, Michael Kappenhagen, 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. Kappenhagen, 8th Dist. Cuyahoga No. 100798, 2014-Ohio-3916, in

which this court affirmed his convictions and sentences for kidnapping with repeat violent

offender and firearm specifications, tampering with evidence, and having weapons while under

disability.    Kappenhagen received a 19-year sentence, including eight years for the repeat

violent offender specification. 1   Kappenhagen now argues that his appellate counsel was

ineffective because he did not argue the validity of the repeat violent offender specification. On

November 3, 2014, the state of Ohio filed its brief in opposition. For the following reasons, this

court denies the application.

        {¶2}     Kappenhagen’s indictment for the kidnapping charge included a repeat violent

offender specification that he had pleaded guilty to aggravated robbery, a first-degree felony, in

2003 in State v. Kappenhagen, Cuyahoga C.P. No. CR-03-438484-ZA.         Before trial, the defense

stipulated to a certified notice of that prior conviction of aggravated robbery with a one-year

firearm specification.    A review of the docket in Case No. CR-03-438484-ZA confirms that

Kappenhagen pleaded guilty to that charge.    In the present case, the trial judge in his November

15, 2013 journal entry found Kappenhagen guilty of the repeat violent offender specification.

Given these facts, appellate counsel properly rejected arguing the validity of the repeat violent

offender specification as futile. Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77

L.Ed.2d 987 (1983), and State v. Allen, 77 Ohio St.3d 172, 672 N.E.2d 638 (1996).



         Kappenhagen, brandishing a rifle and a handgun, restrained his “girlfriend” in her home
        1


over unrequited love.
     {¶3} Accordingly, this court denies the application to reopen.



TIM McCORMACK, JUDGE

PATRICIA ANN BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR.
