[Cite as State v. Wulff, 2011-Ohio-5146.]


                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA




                               JOURNAL ENTRY AND OPINION
                                        No. 94087



                                       STATE OF OHIO
                                                  PLAINTIFF-APPELLEE

                                                  vs.

                                            ALEX WULFF
                                                  DEFENDANT-APPELLANT



                       JUDGMENT:
   APPLICATION FOR REOPENING GRANTED IN PART
 (MOTION NO. 444348), SENTENCE VACATED IN PART, AND
          REMANDED FOR RESENTENCING


                               Cuyahoga County Common Pleas Court
                                      Case No. CR-518412
                                    Application for Reopening
                                       Motion No. 444348

RELEASE DATE:                October 4, 2011
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FOR APPELLANT

Alex Wulff, Pro Se
No.A571-010
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Mary McGrath, Esq.
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, J.:

       {¶ 1} Alex Wulff has filed a timely application for reopening pursuant to App.R.

26(B). Wulff is attempting to reopen the appellate judgment, as rendered in State v.

Wulff, Cuyahoga App. No. CA-94087, 2011-Ohio-700, which affirmed his conviction for

the offenses of murder, tampering with evidence, and abuse of a corpse.        For the

following reasons, we grant the application for reopening in part, reinstate Wulff’s

appeal, vacate his sentence as to postrelease control, and remand for resentencing on

postrelease control consistent with this opinion.
                                            3
       {¶ 2} In order to establish a claim of ineffective assistance of appellate counsel,

Wulff 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, Wulff must

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

counsel on appeal.” App.R. 26(B)(5).

       {¶ 3} “In State v. Reed [supra, at 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 was deficient for failing to raise the issue 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.” State v. Spivey, 84 Ohio St.3d 24,

1998-Ohio-704, 701 N.E.2d 696, at 25.

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

assignments of error that are meritless.      Jones v. Barnes (1983), 463 U.S. 745, 77

L.Ed.2d 987, 103 S.Ct. 3308. Appellate counsel cannot be considered ineffective for

failing to raise every conceivable assignment of error on appeal. Jones v. Barnes, supra;
                                            4
State v. Grimm, 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.

       {¶ 5} In Strickland v. Washington, supra, 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 to 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 upheld the appellate attorney’s discretion to decide which issues he or she believes

are the most fruitful arguments and the importance of winnowing out weaker arguments

on appeal and focusing on one central issue or at most a few key issues. Jones v.

Barnes, supra.

       {¶ 6} In the case sub judice, Wulff raises three proposed assignments of error in

support of his claim of ineffective assistance of appellate counsel. Specifically, Wulff

argues that his appellate counsel was ineffective for failing to assign as error the trial

court’s failure to inquire into his competency to enter a plea of guilty, the trial court’s
                                            5
failure to advise him of his right to compulsory process, and the trial court’s imposition of

five years of postrelease control.

       {¶ 7} Initially, we find that the plea colloquy, that occurred during the hearing

conducted on June 8, 2009, demonstrates that Wulff was lucid when entering his plea of

guilty to the offenses of murder, tampering with evidence, and abuse of a corpse. In

addition, the competency evaluation of Wulff established that he was able to understand

the nature and objectives of the court proceedings and that he was able to assist in his

defense. State v. Taylor, Lake App. No. 2002-L-005, 2003-Ohio-6670. It must also be

noted that Wulff is not rendered incompetent to stand trial or enter a plea of guilty

because he is being treated with medicinal drugs. State v. Borchers, 101 Ohio App.3d

157, 655 N.E.2d 225. Wulff’s first proposed assignment of error is not well taken and

consideration of the issue of competency on appeal would not have resulted in a different

outcome.

       {¶ 8} Wulff, through his second proposed assignment of error, argues that the

trial court failed to advise him of his right to compulsory process. An additional review

of the plea hearing of June 8, 2009, demonstrates that the trial court explained the

constitutional right of compulsory process in a manner reasonably intelligent to Wulff.

State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621; State v. Ballard

(1981), 66 Ohio St.2d 473, 423 N.E.2d 115. Wulff’s second proposed assignment of
                                            6
error is not well taken and consideration of the issue of compulsory process on appeal

would not have resulted in a different outcome.

       {¶ 9} Wulff, through his third proposed assignment of error, argues that the trial

court erred by imposing a term of five years of postrelease control with regard to the

offenses of tampering with evidence and abuse of a corpse. We agree.

       {¶ 10} R.C. 2967.28(B) and (C) provide in pertinent part that: “a period of

post-release control required by this division for an offender shall be of the following

periods: * * * (3) For a felony of the third degree that is not a felony sex offense and in

the commission of which the offender caused or threatened physical harm to a person,

three years. * * *.” (Emphasis added.) Herein, the offenses of tampering with evidence

and abuse of a corpse are felonies of the third degree. The imposition of five years of

postrelease control for third degree felonies constitutes reversible error. It must also be

noted that the trial court is required to inform Wulff that a violation of postrelease control

could allow the parole board to impose an additional prison term of up to one-half of the

stated prison term originally imposed at sentencing. See State v. Singleton, 124 Ohio

St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958.

       {¶ 11} Accordingly, we grant the application for reopening in part, reinstate this

appeal to the active docket, vacate the sentence of the trial court solely as to the

imposition of postrelease control, and remand to the trial court for the proper imposition

of postrelease control. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d
                                            7
332; State v. Street, Cuyahoga App. No. 85020, 2005-Ohio-1976, reopening granted,

2006-Ohio-21.

         It is, therefore, ordered that appellant recover of the appellee his costs herein

taxed.

         It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas to carry this judgment into execution.

         A certified copy of this entry shall constitute the mandate pursuant to Rule 27, of

the Rules of Appellate Procedure.



_______________________________________________
JAMES J. SWEENEY, JUDGE


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