[Cite as State v. Bolan, 2012-Ohio-2381.]




                    Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 95807


                                      STATE OF OHIO
                                                 PLAINTIFF-APPELLEE

                                                   vs.

                                    RAYMOND BOLAN
                                                 DEFENDANT-APPELLANT



                                      JUDGMENT:
                                  APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-531193
                                   Application for Reopening
                                      Motion No. 450162

               RELEASE DATE:                May 29, 2012
                              -i-




ATTORNEY FOR APPELLANT

Robert A. Dixon
4403 St. Clair Avenue
Cleveland, Ohio 44103


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

Daniel T. Van
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:

       {¶1} In State v. Bolan, Cuyahoga C.P. No. CR-531193 (Sept. 30, 2010),

applicant, Raymond Bolan, was found guilty by a jury and convicted of aggravated

murder, murder, and felonious assault with respect to one victim and attempted murder

and felonious assault with respect to another victim. He was also found guilty of one-year

and three-year firearm specifications on each count.         This court affirmed Bolan’s

convictions but vacated his sentence in part and remanded the case for resentencing with

respect to the allied offenses of attempted murder and related felonious assault in State v.

Bolan, 8th Dist. No. 95807, 2011-Ohio-4501.         The Supreme Court of Ohio denied

Bolan’s motion for leave to appeal and dismissed the appeal as not involving any

substantial constitutional question. State v. Bolan, 131 Ohio St.3d 1414, 2012-Ohio-136,

959 N.E.2d 1058.

       {¶2} Bolan has filed with the clerk of this court a timely application for

reopening. He asserts that he was denied the effective assistance of counsel because his

counsel did not assign as error that trial counsel was ineffective.          We deny the

application for reopening. As required by App.R. 26(B)(6), the reasons for our denial

follow.

       {¶3} Having reviewed the arguments set forth in the application for reopening in

light of the record, we hold that applicant has failed to meet his burden to demonstrate
that “there is a genuine issue as to whether the applicant was deprived of the effective

assistance of counsel on appeal.” App.R. 26(B)(5). In State v. Spivey, 84 Ohio St.3d

24, 1998-Ohio-704, 701 N.E.2d 696, the Supreme Court specified the proof required of

an applicant. “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 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).” Bolan must prove that his counsel was 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, Bolan 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. at 25.    Applicant cannot satisfy either prong of the Strickland test.     We must,

therefore, deny the application on the merits.

       {¶4} Bolan argues that his trial counsel was ineffective because trial counsel did

not object to and/or acquiesced in the closure of the courtroom for the testimony of two

state’s witnesses and did not secure the attendance of a defense witness.

       {¶5} On direct appeal, the sixth assignment of error asserted by appellate counsel

challenged the propriety of the trial court’s closing the courtroom during the testimony of

two of the state’s witnesses, including the trial court’s instruction that Bolan was not to

look at one of those witnesses. Appellate counsel argued that the trial court abused its

discretion.
       {¶6} In his application for reopening, Bolan argues that appellate counsel should

have argued that trial counsel was ineffective because trial counsel did not object to the

trial court’s closure of the courtroom.     In State v. Drummond, 111 Ohio St.3d 14,

2006-Ohio-5084, 854 N.E.2d 1038, the Supreme Court upheld the partial closure of the

courtroom for the cross-examination of one prosecution witness and the examination of

two other prosecution witnesses. The trial court had determined that there was, among

other considerations, a fear of retaliation against the witnesses. The Supreme Court

determined that there was a substantial reason for the partial closure.

       {¶7} One of the two state’s witnesses in question stated that she was afraid.

Prior to the testimony of the other state’s witness later in the case, trial counsel stated:

“[I]t’s been demonstrated in this trial that people in the neighborhood and associated with

either family in this case have had a reluctance to be candid with witnesses, whether for

admitting different stories, or for fear of retribution.”        Tr. 856.    Clearly, these

circumstances suggest a “substantial reason” for the trial court’s partial closure of the

courtroom. In light of the evidence in the record for the partial closure, we cannot

conclude that appellate counsel was deficient or that Bolan was prejudiced by the absence

of the argument that his trial counsel was ineffective for failing to object to the partial

closure of the courtroom.

       {¶8} In his second argument, Bolan contends his trial counsel was ineffective

because trial counsel did not secure the attendance of a defense witness. In the fourth

assignment of error on direct appeal, appellate counsel argued that the trial court “violated
his right to present a meaningful trial by refusing to grant a continuance” to secure the

presence of a defense witness. 2011-Ohio-4501, ¶ 40.

       {¶9} Bolan now contends that trial counsel’s conduct provided the basis for this

court’s upholding of the trial court’s ruling. That is, trial counsel initially declined to

request a bench warrant for the defense witness and only on the next day — the day on

which the witness could have testified — did trial counsel request a bench warrant. The

trial court also complained regarding conflicting information provided to the trial court

regarding the status of law enforcement’s efforts to secure the attendance of the witness

on that day. Bolan argues, therefore, that trial counsel’s actions were at issue as well as

whether the trial court abused its discretion by refusing to grant the continuance.

       {¶10} As noted above, trial counsel was aware that witnesses on both sides were

afraid to testify. In response to the trial court’s observation that trial counsel did not

address the issue of a bench warrant a day earlier, trial counsel stated: “* * * I didn’t

want her coming in under those circumstances * * * .” Tr. 980. We recognize that trial

counsel could have been attempting to balance securing the attendance of the witness

with avoiding alienating the witness. “It is well established that sound trial strategy does

not provide a basis for reopening. See, e.g., State v. Warner, 8th Dist. No. 95750,

2011-Ohio-4096, reopening disallowed, 2012-Ohio-256, at ¶ 5.” State v. Foster, 8th

Dist. No. 95209, 2012-Ohio-916, ¶ 13. In Warner, this court observed that:

       [C]laims of ineffective assistance of both appellate counsel and trial
       counsel, as predicated upon the failure to introduce evidence during the
       course of trial, failure to subpoena witnesses, and a request for
       continuance of trial, involved strategic choices of counsel that fell
      within the realm of trial strategy and tactics that will not ordinarily be
      disturbed on appeal. 2012-Ohio-256, at ¶ 11.

      {¶4} Similarly, an appellate court cannot presume to second guess trial counsel’s

judgment regarding the risks and benefits of having law enforcement personnel secure the

attendance of this witness. Rather, we must conclude that appellate counsel was not

deficient and Bolan was not prejudiced by the absence of this argument from his direct

appeal. As a consequence, Bolan has failed to demonstrate that there is a “genuine

issue” whether he has a “colorable claim” of ineffective assistance of counsel on appeal.

Accordingly, the application for reopening is denied.



PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR
