[Cite as State v. Glenn, 2013-Ohio-1652.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97314


                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                    JERREL T. GLENN
                                                    DEFENDANT-APPELLANT




                                       JUDGMENT
                                   APPLICATION DENIED



                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-535072
                                   Application for Reopening
                                      Motion No. 459018


        RELEASE DATE: April 19, 2013
FOR APPELLANT

Jerrel T. Glenn
Inmate No. 603-951
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43302


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: T. Allan Regas
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Jerrel T. Glenn has filed a timely application for reopening pursuant to

App.R. 26(B). Glenn is attempting to reopen the appellate judgment that was rendered in

State v. Glenn, 8th Dist. No. 97314, 2012-Ohio-3075, which affirmed his conviction on

four counts of felonious assault and two counts of aggravated robbery. For the following

reasons, we decline to reopen Glenn’s original appeal.

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

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

for the 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, Glenn must

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

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

       {¶3} In State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588, the

Supreme Court of Ohio held that:

       Moreover, to justify reopening his appeal, [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.

State v. Smith, supra, at ¶ 7.

       {¶4} In addition, the Supreme Court of Ohio, in Spivey, supra, at 25, held that:

       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 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.

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

assignments of error that are meritless. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308,

77 L.Ed.2d 987 (1983). Appellate counsel cannot be considered ineffective for failing to

raise every conceivable assignment of error on appeal. Jones at 752; State v. Gumm, 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.

       {¶6} In Strickland v. Washington, supra, at 691, 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 too 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 firmly established that appellate counsel possesses the sound discretion to decide

which issues are the most fruitful arguments on appeal. Appellate counsel possesses the
sound discretion to winnow out weaker arguments on appeal and to focus on one central

issue or at most a few key issues. Jones at 752.

          {¶7} In support of his claim of ineffective assistance of appellate counsel, Glenn

raises three proposed assignments of error. Glenn’s first proposed assignment of error

states:

          Trial counsel was ineffective for failure to object at trial to the multiple
          firearm sentences imposed on appellant at trial.

          {¶8} Glenn, through his first proposed assignment of error, argues that the trial

court erred by imposing three separate three-year consecutive terms of incarceration with

regard to three firearms specifications.        Specifically, Glenn argues that all of the

three-year firearm specifications should have merged for sentencing under “R.C.

2929.71(B) [sic]”.

          {¶9} The issue of multiple consecutive terms of incarceration, vis-a-vis conviction

for multiple firearms specifications, was previously raised and addressed through Glenn’s

original appeal. This court held,

          In his fourth assignment of error, Glenn argues the trial court erred by
          sentencing him to three consecutive three-year terms on the firearm
          specifications. He contends the court was required by law to merge
          multiple firearm specifications for sentencing if the specifications involve
          the same “act or transaction.” In support of this argument, Glenn relies
          upon R.C. 2929.14(D)(1).

          R.C. 2929.14(D)(1)(b), as it existed at the time of resentencing, prohibited a
          trial court from imposing more than one prison term for multiple firearm
          specifications if the specifications were committed as part of the same act
          or transaction. However, R.C. 2929.14(D)(1)(g) provided an exception for
          certain felonies including felonious assault and aggravated robbery. * * *
       The sentencing entry states that Glenn was found guilty of four counts of
       felonious assault (Counts 4, 5, 11, and 12) and two counts of aggravated
       robbery (Counts 6 and 7). All of these charges included one- and three-year
       firearm specifications. Under R.C. 2929.14(D)(1)(g), the court was
       required to impose prison terms for the two most serious firearm
       specifications against that victim and had discretion to impose a sentence
       for the third firearm specification. State v. Worth, 10th Dist. No.
       10AP-1125, 2012-Ohio-666, ¶ 96. * * *.

Glenn, supra, at ¶ 30.

       {¶10} The doctrine of res judicata prevents this court from reopening Glenn’s

original appeal based on his first proposed assignment of error. Errors of law that were

previously raised through an appeal are barred from further review based on the operation

of res judicata. See generally State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).

The Supreme Court of Ohio has also established that a claim of ineffective assistance of

counsel will be barred by the doctrine of res judicata unless circumstances render the

application of the doctrine unjust. State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d

1204 (1992).

       {¶11} Since the issue of multiple and consecutive three-year terms of

incarceration, with regard to the three-year firearm specifications, has already been raised

and found to be without merit on direct appeal, we find that the doctrine of res judicata

prevents further review of the issue. We further find that the application of the doctrine

is not unjust.

       {¶12} Glenn’s second proposed assignment of error in support of his application

for reopening states:
       Trial counsel was ineffective for failing to request for complicity or a lessor
       [sic] included offenses of attempted as the underlying offense.

       {¶13} Glenn, through his second proposed assignment of error, argues that

appellate counsel was ineffective on appeal by failing to raise an assignment of error that

dealt with lesser included offenses. Specifically, Glenn argues that trial counsel was

ineffective for failing to request a jury instruction with regard to “attempt” as to the

offenses of felonious assault and aggravated robbery.

       {¶14} The decision to request instructions on lesser included offenses is a matter

of trial strategy and does not establish ineffective assistance of counsel. State v. Griffie,

74 Ohio St.3d 332, 1996-Ohio-71, 658 N.E.2d 764; State v. Clayton, 62 Ohio St.2d 45,

402 N.E.2d 1189 (1980), cert. denied, 449 U.S. 879, 101 S.Ct. 227, 66 L.Ed.2d 102

(1980).

       {¶15} It must also be noted that a criminal defendant is not entitled to a jury

instruction on the lesser included offenses of felonious assault and aggravated robbery

where the defendant has denied participation in the originally charged offenses. State v.

Lewis, 8th Dist. No. 95964, 2011-Ohio-6155; State v. Jordan, 8th Dist. No. 91413,

2009-Ohio-4037; State v. Gholston, 8th Dist. No. 88742, 2007-Ohio-4053. Herein, a

review of the record clearly demonstrates that Glenn vehemently denied any

responsibility for the charged offenses of felonious assault and aggravated robbery.

Thus, jury instructions as to the lesser included offenses of felonious assault and

aggravated robbery were not mandated, and appellate counsel was not ineffective for not
raising the issue on appeal. Compare State v. Kidder, 32 Ohio St.3d 279, 513 N.E.2d

311 (1987); State v. Wilkins, 64 Ohio St.2d 382, 415 N.E.2d 303 (1980).

         {¶16} Glenn’s third proposed assignment of error in support of his application for

reopening states:

         Trial counsel was ineffective for failing to raise at trial the multiple offenses
         R.C. 2941.25 that were all committed at the same time which were allied
         offenses or the trial committed plain error 52(B).

         {¶17} Glenn, through his third proposed assignment of error, argues that appellate

counsel was ineffective by failing to argue improper sentencing by the trial court.

Specifically, Glenn argues that the offenses of felonious assault and aggravated robbery

should have merged for sentencing. Glenn’s third proposed assignment of error lacks

merit.

         {¶18} This court has established that separate crimes committed against separate

victims are not subject to merger. State v. Collins, 8th Dist. No. 95415, 2011-Ohio-3241.

 In addition, the offenses of aggravated robbery and felonious assault do not merge for

purposes of sentencing where there is a break in the causal chain of events. State v.

Burton, 8th Dist. No. 94449, 2011-Ohio-198.

         {¶19} Glenn committed the offenses of felonious assault against two separate

victims, the acts of shooting Kenneth L. Elsleger and Joseph D. Elsleger, which involved

two separate and distinct animi. State v. Lanier, 192 Ohio App.3d 762, 2011-Ohio-898,

950 N.E.2d 600 (1st Dist.); State v. Stall, 3d Dist. No. 3-10-12, 2011-Ohio-5733; State v.

McCullough, 12th Dist. Nos. CA2010-04-006 and CA2010-04-008, 2011-Ohio-992. In
addition, we have previously determined that the offenses of felonious assault and

aggravated robbery were not subject to merger on the application of R.C.

2929.14(B)(1)(g), formerly R.C. 2929.14(D)(1)(g). Thus, appellate counsel was not

required to argue on appeal the need to merge the sentences imposed for the offenses of

felonious assault and aggravated robbery.

      {¶20} Accordingly, we find that Glenn has failed to demonstrate a “genuine issue”

as to whether he possesses a “colorable claim” of ineffective assistance of appellate

counsel. Clearly, appellate counsel was not ineffective on appeal.

      {¶21} Application for reopening is denied.



EILEEN T. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR
