[Cite as State v. Burton, 2020-Ohio-375.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                           No. 107054
                 v.                               :

JERMAEL BURTON,                                   :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: APPLICATION DENIED
                 RELEASED AND JOURNALIZED: January 31, 2020


                           Cuyahoga County Court of Common Pleas
                                 Case No. CR-17-620576-A
                                 Application for Reopening
                                     Motion No. 531662


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Jennifer M. Meyer, Assistant Prosecuting
                 Attorney, for appellee.

                 Jermael Burton, pro se.


MICHELLE J. SHEEHAN, J.:

                   On September 5, 2019, the applicant, Jermael Burton, pursuant to

App.R. 26(B), applied to reopen this court’s judgment in State v. Burton, 8th Dist.

Cuyahoga No. 107054, 2019-Ohio-2431, appeal not accepted, 157 Ohio St.3d 1408,
2019-Ohio-3731, 131 N.E.3d 83, in which this court affirmed his convictions for drug

trafficking, possession of criminal tools, and having weapons while under disability.

Burton now argues that his appellate counsel was ineffective by not arguing directly

the impropriety of the search warrant, rather than through the lens of ineffective

assistance of trial counsel.    The state of Ohio filed its brief in opposition on

October 7, 2019. For the following reasons, this court denies the application to

reopen.

               Dontaurus Kemp testified that on August 12, 2017, he accompanied a

friend to a three-story house to “chill” with some women. When they arrived at the

house, they began knocking on the second-floor door to an apartment. Kemp

further stated that Burton emerged from a doorway, probably the one across the hall

that led to the third floor, and shot him. Kemp ran from the house and with the help

of a stranger flagged down a police officer, who helped take him to a hospital. Kemp

described the house to the officer and told him what happened.

               Another officer began investigating at the house and talked to Burton,

who informed the officer that no shooting had taken place. This officer said that

Burton admitted living at the house; the officer’s body-camera footage confirmed

that Burton said multiple times that he lived there. This officer further testified that

when he sought to examine the third floor for any more victims or evidence of the

shooting, Burton refused entrance and locked the door.

               Accordingly, the police officers obtained a search warrant.         The

detective who drafted the warrant swore “the victim advised the uniform officers
that he was at [the house] attempting to purchase drugs. Victim stated that he was

in the upstairs hallway knocking on his drug dealer’s door when he opened the door

and shot him.” (Pg. 2. Affidavit for search warrant.) Upon executing the search

warrant, the police found cocaine, large amounts of methamphetamine and

marijuana, an AR-15, a pistol, ammunition, tools for preparing drugs, and several

pieces of correspondence addressed to Burton.

               At trial, residents of the house testified that they did not hear a

gunshot. The detective admitted that what he swore to in the affidavit was not well-

founded. Burton testified and denied shooting Kemp and denied living at the house.

The jury found Burton not guilty of attempted murder and two counts of felonious

assault, but guilty of three counts of drug trafficking, one count of possessing

criminal tools, and two counts of having a weapon while under disability. The trial

judge sentenced him to a total of 11 years.

               Burton’s appellate counsel first argued that his trial counsel was

ineffective for failing to move to suppress the fruits of the search warrant.1 The

foundation of the argument is that the statement that Kemp went to the house to

obtain drugs was false. Furthermore, the detective must have acted in reckless

disregard of the truth because he discussed the case with one of the investigating

officers and because under the collective knowledge principle, the group’s

knowledge of a fact may be considered by the court. These factors would have led to



      1 Appellate counsel also argued that there was insufficient evidence to support the
verdicts and that the verdicts were against the manifest weight of the evidence.
a hearing in which the court would have struck the supporting affidavit and

suppressed the drugs, tools, and weapons.          Appellate counsel bolstered this

assignment of error by arguing that trial counsel failed to investigate Kemp’s

statements and the body-camera footage.           These investigations would have

impressed defense counsel with the need to move for a suppression hearing.

               This court rejected the assignments of error and affirmed the

convictions. In overruling the first assignment of error, on ineffective assistance of

trial counsel for failing to move to suppress, this court noted that moving to suppress

the search warrant would have contradicted Burton’s trial strategy that because he

did not live in the house, he could not be guilty of charges. In order to have standing

to raise the suppression issue, he would have had to admit he lived in or occupied

the house. As this court stated: “Because counsel did not file a motion to suppress,

which would necessarily be predicated on an expectation of privacy in the premises,

Burton retained the ability to deny on the witness stand that he did not stay or live

in the attic, refuting the state’s claim he came from the attic apartment and shot

Kemp.” 2019-Ohio-2431, ¶ 66. This court also noted the speculative nature of this

argument: Whether there was enough evidence that the detective made the

statement in reckless disregard of the truth to compel the trial court to hold a

hearing and then to convince the trial court that the false statement was made with

sufficient scienter to suppress the fruits of the search. Now Burton argues that his

appellate counsel was ineffective for framing this issue indirectly through the lens of

ineffective assistance of trial counsel.
              In order to establish a claim of ineffective assistance of appellate

counsel, the applicant must demonstrate that the counsel’s performance was

deficient and that the deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley,

42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534,

1996-Ohio-21, 660 N.E.2d 456.

              In Strickland, the United States Supreme Court ruled that judicial

scrutiny of an attorney’s work must be highly deferential. The court noted that it is

all too tempting for a defendant to second-guess his lawyer after conviction and that

it would be all too easy for a court, examining an unsuccessful defense in hindsight,

to conclude that a particular act or omission was deficient. Therefore, “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.’” Strickland at 689.

               Specifically, in regard to claims of ineffective assistance of appellate

counsel, the United States Supreme Court has upheld the appellate advocate’s

prerogative to decide strategy and tactics by selecting what he thinks are the most

promising arguments out of all possible contentions. The court noted: “Experienced

advocates since time beyond memory have emphasized the importance of

winnowing out weaker arguments on appeal and focusing on one central issue if

possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-752, 103
S.Ct. 3308, 77 L.Ed.2d 987 (1983). Indeed, including weaker arguments might

lessen the impact of the stronger ones. Accordingly, the court ruled that judges

should not second-guess reasonable professional judgments and impose on

appellate counsel the duty to raise every “colorable” issue. Such rules would disserve

the goal of vigorous and effective advocacy. The Supreme Court of Ohio reaffirmed

these principles in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.

               Moreover, even if a petitioner establishes that an error by his lawyer

was professionally unreasonable under all the circumstances of the case, the

petitioner must further establish prejudice: but for the unreasonable error there is a

reasonable probability that the results of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome. A court need not determine whether counsel’s performance was deficient

before examining prejudice suffered by the defendant as a result of alleged

deficiencies. State v. White, 8th Dist. Cuyahoga No. 104224, 2017-Ohio-8056, ¶ 11.

               In the present case, appellate counsel did argue the search warrant

issue, analyzing the issue fully in an eight-page discourse. In framing the issue as

one of ineffective assistance of trial counsel, he was also able to bolster the argument

with a claim that trial counsel failed to investigate the victim and the police body-

camera footage. Following the Supreme Court’s admonitions to give deference to

counsel’s professional judgments in deciding strategy and tactics, this court will not

second-guess appellate counsel’s decision on framing the issues. State v. Conner,
8th Dist. Cuyahoga No. 99557, 2014-Ohio-4669, and State v. Barrow, 8th Dist.

Cuyahoga No. 101356, 2015-Ohio-4579.

             Accordingly, this court denies the application.




MICHELLE J. SHEEHAN, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
RAYMOND C. HEADEN, J., CONCUR
