[Cite as State v. Foster, 2012-Ohio-916.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 95209


                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                     MICHAEL FOSTER
                                                     DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-514430
                                    Application for Reopening
                                       Motion No. 447325

        RELEASE DATE: March 7, 2012
FOR APPELLANT

Michael Foster, pro se
Inmate No. 423-695
Marion Correctional Inst.
P. O. Box 57
Marion, OH 43301

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Diane Smilanick
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

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

CR-514430, applicant, Michael Foster, was convicted of murder and two counts of

aggravated robbery, each with one-year and three-year firearm specifications and repeat

violent offender specifications, as well as receiving stolen property and having weapons

while under a disability. This court affirmed that judgment in State v. Foster, 8th Dist.

No. 95209, 2011-Ohio-2781. The Supreme Court of Ohio denied applicant’s motion for

leave to appeal and dismissed the appeal as not involving any substantial constitutional

question. State v. Foster, 130 Ohio St.3d 1418, 2011-Ohio-5605, 956 N.E.2d 309.

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

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

appellate counsel did not assign as error on appeal the trial court’s delay in responding to

Foster’s request for appointment of counsel and whether trial counsel was ineffective.

The state filed a brief in opposition to Foster’s application, but did not directly address

any of his five proposed assignments of error. Nevertheless, 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 Foster 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. Foster cannot satisfy either prong of the Strickland test.

We must, therefore, deny the application on the merits.

       {¶4} In his first proposed assignment of error, Foster complains that the trial court

did not timely rule on his request for appointment of new counsel filed on June 17, 2009.1

 In open court, the trial court considered Foster’s motion on March 9, 2010, prior to

commencing trial.     See Transcript, at 95-104.     The trial court provided Foster an

extensive opportunity to present argument supporting his request to remove his two

attorneys. The trial court denied the motion in open court and issued a journal entry

disposing of that motion and others on March 10, 2010.


       1
        Although Foster attaches a copy of a different motion to remove counsel to his
application for reopening, that motion was filed in State v. Foster, Cuyahoga Cty. Court of
Common Pleas Case No. CR-426781. See the discussion of Foster’s second proposed
assignment of error below.
       {¶5} Foster does not provide this court with any controlling authority which

requires the conclusion that he was prejudiced by the timing of the trial court’s ruling or

the ruling itself. Likewise, he does not provide this court with any authority requiring the

then-administrative judge of the court of common pleas to act on his request for new

counsel. As a consequence, Foster's first proposed assignment of error is not well taken.

       {¶6} Foster’s indictment stemmed from the robbery of Miles Eagle Supermarket

(“Miles store”). During the robbery, the victim, Anwar Hamed, was shot. Hamed told

police at least two men entered the store and “the men took his gun, wallet, and credit

cards.” State v. Foster, 8th Dist. No. 95208, 2011-Ohio-2781, at ¶ 14.

       {¶7} In his second proposed assignment of error, Foster argues that trial counsel

was ineffective for failing to assert prosecutorial misconduct because the state did not

provide Hamed’s statement to the defense until after Hamed died, more than five years

after the robbery. On direct appeal, this court considered in detail Hamed’s statement,

the evidence at trial regarding the investigation of the individual identified in the

statement as the shooter and the evidence which led to Foster’s prosecution. Id. at ¶ 13,

et seq.   Ultimately, this court concluded that “there was overwhelming evidence to

convict [Foster].” Id. at ¶ 65.

       {¶8} Foster acknowledges receiving the victim’s statement in 2008. His trial was

in 2010. He has not demonstrated that his appellate counsel was deficient or that he was

prejudiced by the absence of an assignment of error asserting the ineffectiveness of trial

counsel regarding the victim’s statement.
         {¶9} Foster also complains about events which occurred in a different case, State

v. Foster, Cuyahoga Cty. Court of Common Pleas Case No. CR-426781 after his

conviction in the underlying case in this appeal, Case No. CR-514430. In Case No.

CR-426781, Foster was indicted for attempted murder of Hamed prior to Hamed’s death.

See State v. Foster, 8th Dist. No. 95586, 2011-Ohio-3582, at ¶ 12. Foster entered a

guilty plea in Case No.CR-426781 and, through a convoluted procedural history, was

resentenced in Case No. CR-426781 after the trial court entered judgment in the

underlying case in this appeal, Case No. CR-514430.           Id. at ¶ 3.   Obviously, a

later-occurring event in Case No. CR-426781 does not provide a basis for reopening in

this appeal.

         {¶10} As a consequence, Foster's second proposed assignment of error is not well

taken.

         {¶11} As part of the investigation which led to Foster’s indictment, police

reviewed K-mart security camera videos showing individuals in the check-out line at

almost the exact time Hamed’s credit card was used. The prosecution contended that

Foster was the person wearing a Baltimore Ravens hat and using Hamed’s credit card. In

his third proposed assignment of error, Foster contends that trial counsel was ineffective

for failing to have a DNA test done on the hat.

         {¶12} The hat along with wigs were found above the ceiling tile in a motel room

where Foster’s brother, Lamont Foster, was staying. Id. at ¶ 25. Lamont Foster testified

that the Baltimore Ravens hat belonged to applicant, Michael Foster.                   On
cross-examination of a police officer who went to Lamont Foster’s motel room, Michael

Foster’s defense counsel noted that the sweat band in the Baltimore Ravens cap was

stained. Counsel asked the officer if DNA testing had been done on the cap. The

officer said he did not do DNA testing.

         {¶13} 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. Trial counsel could have been attempting to create

doubt as to who had worn the Baltimore Ravens hat by requiring the officer to admit that

DNA testing was not done. Counsel’s question necessarily challenges the state to prove

that Michael Foster did wear the hat. Yet, Michael Foster’s argument ignores the fact

that the burden of proof is on the state and suggests that it was his counsel’s duty to

affirmatively demonstrate that he did not wear the hat.

         {¶14} As a consequence, Foster's third proposed assignment of error is not well

taken.

         {¶15} In his fourth proposed assignment of error, Foster argues that trial counsel

was ineffective for failing to seek suppression of his statements regarding other robberies.

 The list of exhibits includes a statement by Michael Foster, Exhibit 146.            In the

statement, Foster describes his having watched his brothers Lamont Foster and Gilbert

Foster rob the Miles store from across the street. He stated that Lamont shot Hamed.

The list of exhibits also indicates that this statement was not received into evidence.
         {¶16} Foster relies on Exhibit 13 to his application, an affidavit filed in Case No.

CR-426781. Obviously, this filing is outside the record in the underlying case, Case No.

CR-514430. Matters outside the record do not provide a basis for reopening. See, e.g.,

State v. Waltzer, 8th Dist. No. 94444, 2011-Ohio-594, reopening disallowed,

2011-Ohio-5147, at ¶ 6.

         {¶17} As a consequence, Foster's fourth proposed assignment of error is not well

taken.

         {¶18} In his fifth proposed assignment of error, Foster contends that trial counsel

was ineffective for failing to object to the trial court’s instructions to the jury.

Specifically, Foster notes that the jury instructions did not include a cautionary instruction

regarding the testimony of Lamont Foster, an accomplice.

         {¶19} On direct appeal, this court held that the trial court’s failure to give the

instruction required by R.C. 2923.03(D) was harmless error. See 2011-Ohio-2781, ¶ 59,

et seq. In its analysis, this court noted that

         there was overwhelming evidence to convict Michael. Months after the
         Miles store robbery, police found several items in Michael's house that were
         purchased with Hamed's credit card on the day he was shot. Hamed told
         police that his shooter had taken his credit card out of his wallet. Police
         obtained sales receipts from two stores where Hamed's credit card was used
         that contained UPC codes of the items purchased; many of these exact items
         were found in Michael's house. UPC codes on products are similar to
         fingerprints on people.

Id. at ¶ 65. Foster contends that UPC codes are not “fingerprints” and argues that the

state did not prove that these household items were the exact items that were purchased
with Hamed’s credit card. Of course, that was a factual matter for consideration by the

jury.

        {¶20} On direct appeal, this court considered whether the verdict was against the

manifest weight of the evidence. Id. at ¶ 70, et seq. The judgment of this court was that

the evidence did not weigh heavily against conviction.           Foster's fifth proposed

assignment of error is not well taken.

        As a consequence, Foster has not met the standard for reopening. Accordingly,

the application for reopening is denied.



MELODY J. STEWART, PRESIDING JUDGE

LARRY A. JONES, SR., J. AND
EILEEN A. GALLAGHER, J., CONCUR
