[Cite as State v. Makin, 2017-Ohio-8569.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 104010



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                            HAKEEN K. MAKIN

                                                        DEFENDANT-APPELLANT




                                            JUDGMENT:
                                        APPLICATION DENIED



                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-15-594103-A
                                    Application for Reopening
                                        Motion No. 509162

        RELEASE DATE: November 13, 2017
FOR APPELLANT

Hakeen Makin
Inmate No. A683089
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




ANITA LASTER MAYS, P.J.:
       {¶1} Hakeen Makin has filed a timely application for reopening pursuant to App.R.

26(B). Makin seeks to reopen the appellate judgment rendered in State v. Makin, 8th Dist.

Cuyahoga No. 104010, 2017-Ohio-2649, that affirmed his convictions and sentence for multiple

drug-related offenses. For the reasons that follow, we decline to reopen Makin’s appeal.

       A.      Standard of Review

       {¶2} The appropriate standard to determine whether a defendant has received ineffective

assistance of appellate counsel is the two-pronged analysis found in Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Were, 120 Ohio St.3d 85,

2008-Ohio-5277, 896 N.E.2d 699, ¶ 10.            Applicant “must prove that his counsel [was]

deficient for failing to raise the issues he now presents and that there was a reasonable probability

of success had he presented those claims on appeal.” Id., quoting State v. Sheppard, 91 Ohio

St.3d 329, 330, 744 N.E.2d 770 (2001). 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, 25, 701 N.E.2d 696 (1998).

       {¶3} 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.

         {¶4} With this standard in mind, we turn to the arguments raised by Makin.

         B. Arguments Not Meritorious

         {¶5} Makin raises three proposed assignments of error in support of his application to

reopen his direct appeal. Having reviewed the arguments in light of the record, we hold that

Makin cannot satisfy either prong of the Strickland test.          We must, therefore, deny the

application on the merits.

         1.     Imposition of postrelease control

         {¶6} In his first proposed assignment of error, Makin argues that his appellate counsel

was ineffective in failing to challenge his sentence as to the imposition of postrelease control.

According to Makin, the trial court failed to properly impose separate terms of postrelease

control for each conviction, thereby rendering his sentence void. This argument, however, lacks

merit.

         {¶7} Under R.C. 2967.28(F)(4)(c), if a defendant may be subject to multiple terms of

postrelease control, “the period of post-release control for all of the sentences shall be the period

of post-release that expires last, as determined by the parole board or court. Periods of

post-release control shall be served concurrently and shall not be imposed consecutively to each

other.” Relying on this statutory language, “Ohio appellate courts have held that trial courts are

permitted only to impose one term of post-release control even when the defendant has been

convicted of multiple felony offenses.” State v. Brown, 2d Dist. Montgomery No. 25653,

2014-Ohio-2551, ¶ 23, citing State v. Orr, 8th Dist. Cuyahoga No. 96377, 2011-Ohio-6269, ¶ 50;

State v. Reed, 2012-Ohio-5983, 983 N.E.2d 394, ¶ 12 (6th Dist.); see also State v. Tharp, 8th
Dist. Cuyahoga No. 104216, 2016-Ohio-8316, reopening disallowed, 2017-Ohio-2750, ¶ 3- 5

(rejecting the exact argument raised by Makin).

       {¶8} The record reflects that the trial court properly notified Makin that he was subject to

a mandatory five-year period of postrelease control.    Among Makin’s multiple convictions, he

was convicted of trafficking in violation of R.C. 2925.03(A)(2), a first-degree felony. Under

R.C. 2967.28(B)(1), a five-year term of postrelease control is mandatory for a felony of the first

degree. Therefore, in ordering the imposition of a five-year postrelease control term, the trial

court had no obligation to impose shorter terms for the remaining offenses. Tharp at ¶ 5, citing

State v. Morris, 8th Dist. Cuyahoga No. 97215, 2012-Ohio-2498, ¶ 18 (recognizing that the trial

court’s imposition of a single term of postrelease control was proper and that R.C.

2967.28(F)(4)(c) precludes the court or the parole board from imposing more than one period of

postrelease control in cases that involve multiple convictions).

       {¶9} Because this proposed assignment of error has no merit, appellate counsel cannot be

deemed ineffective in refraining from raising it.

       2. Fabricated Evidence

       {¶10} In his second and third proposed assignments of error, Makin argues that the

prosecutor presented “fabricated evidence,” which his trial counsel should have challenged and

that his appellate counsel should have raised assignments of error relating to prosecutorial

misconduct and ineffective assistance of counsel. Makin argues that the prosecutor lied about

the confidential informant being fitted with “two separate devices” as opposed to just one

recording device.   Makin further contends that the prosecutor coerced the CI to commit perjury

as to the recording devices and that the prosecutor introduced a “fabricated” audio-recording.

But our review of the record does not support Makin’s argument.
       {¶11} The record reflects that the state presented several exhibits evidencing the meetings

and controlled buys, which included both audio and video recordings, spanning from March

through July 2014. The authenticity or admissibility of these exhibits, including the recording

that Makin now challenges, were not questioned at trial. The record, however, does not reveal

any grounds to challenge the recording.    Indeed, the CI directly testified as to the recording that

Makin challenges. We find no basis to support Makin’s claim that the prosecutor “fabricated”

evidence. Moreover, Makin’s argument fails to demonstrate any prejudice that would support

an ineffective assistance of appellate counsel. Accordingly, we find appellate counsel was not

ineffective in refusing to raise such a baseless argument.

       {¶12} Application denied.




ANITA LASTER MAYS, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
