[Cite as State v. King, 2011-Ohio-5492.]


                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA




                               JOURNAL ENTRY AND OPINION
                                        No. 95233



                                       STATE OF OHIO
                                                  PLAINTIFF-APPELLEE

                                                  vs.

                                           DAVID KING
                                                  DEFENDANT-APPELLANT



                                      JUDGMENT:
                                  APPLICATION DENIED


                               Cuyahoga County Common Pleas Court
                                      Case No. CR-395587
                                    Application for Reopening
                                       Motion No. 444077

RELEASE DATE:               October 25, 2011
FOR APPELLANT

David King, Pro Se
Inmate No. 405-310
Marion Correctional Institution
P.O. Box 57
Marion, OH 43301



ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: T. Allan Regas
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113




MELODY J. STEWART, P.J.:

      {¶ 1} In State v. King, Cuyahoga County Court of Common Pleas Case No.

CR-395587, applicant, David King, pled guilty to two counts of rape, felonious assault,

and five counts of gross sexual imposition. The trial court initially imposed sentence in

a journal entry received for filing in 2001.   King appealed pro se but the appeal was

dismissed for failure to file a praecipe. State v. King, 8th Dist. No. 79412, Entry No.

327504, May 1, 2001 (“King I”).
       {¶ 2} In March 2010, King filed a motion to vacate void judgment entry arguing

that the trial court did not properly impose postrelease control.    The court of common

pleas held a hearing, determined that the original sentence was void because the court had

not advised King that postrelease control was mandatory and issued a new sentencing

entry including postrelease control.    King appealed and this court affirmed that judgment

in State v. King, 8th Dist. No. 95233, 2011-Ohio-1079 (“King II”).     The Supreme Court

of Ohio denied King’s motion for a delayed appeal and dismissed the appeal.         State v.

King, 129 Ohio St.3d 1447, 2011-Ohio-4217, 951 N.E.2d 1044.

       {¶ 3} King has filed with the clerk of this court a pro se application for reopening.

He asserts that he was denied the effective assistance of appellate counsel because

appellate counsel in King II did not assert several assignments of error regarding:

speedy trial; a complaint with affidavits was not filed in the municipal court; the

indictment was amended; and King’s reclassification as a sex offender under the Adam

Walsh Act (“AWA”) despite his having been convicted prior to the enactment of AWA.

       {¶ 4} We deny the application for reopening.       As required by App.R. 26(B)(6),

the reasons for our denial follow.

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

light of the record, we hold that King 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).        [Applicant] must prove that his counsel were

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 [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.”   Id. at 25.

       {¶ 6} As noted above, King II arose from King’s resentencing.      Necessarily, the

scope of an appeal from a resentencing is limited to issues arising from the resentencing.

State v. McKnight, 8th Dist. No. 96074, 2011-Ohio-4822. We have previously rejected

an attempt to challenge the propriety of a guilty plea and conviction when the application

for reopening is filed with respect to an appeal from a resentencing. State v. Smith, 8th

Dist. No. 91346, 2009-Ohio-1610, reopening disallowed, 2010-Ohio-897.                As a

consequence, King’s arguments and proposed assignments of error are beyond the scope

of an application for reopening from a resentencing.

       {¶ 7} Additionally, we note that King’s argument that a member of the executive

branch is reclassifying him under the AWA is not well-founded. Although King cites

State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, he fails to

recognize that the Supreme Court held that the relevant provisions of the AWA “may not
be applied to offenders previously adjudicated by judges under Megan’s Law, and the

classifications and community-notification and registration orders imposed previously by

judges are reinstated.”   Id., ¶66.   King also does not identify anywhere in the record

which reflects that he has been reclassified.

       {¶ 8} King cannot satisfy either prong of the Strickland test.         We must,

therefore, deny the application on the merits.




MELODY J. STEWART, PRESIDING JUDGE

JAMES J. SWEENEY, J., and
SEAN C. GALLAGHER, J., CONCUR
