[Cite as State v. Bloom, 2013-Ohio-1171.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97535




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.


                                     ROBERT J. BLOOM
                                                      DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-552802
                                  Application for Reopening
                                     Motion No. 459511

        BEFORE:          Jones, J., Blackmon, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED: March 22, 2013
FOR APPELLANT

Robert Bloom
Inmate No. 620-205
Lorain Correctional Institution
2075 S. Avon-Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Mark J. Mahoney
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} On October 19, 2012, the applicant, Robert Bloom, pursuant to App.R. 26(B)

and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this

court’s judgment in State v. Bloom, 8th Dist. No. 97535, 2012-Ohio-3805, that affirmed

Bloom’s convictions and sentences for one count of felonious assault with a one-year

firearm specification, one count of felonious assault with a three-year firearm

specification, and one count of improperly discharging a firearm into a habitation with a

three-year firearm specification.    Broom claims that his appellate attorney was

ineffective for not arguing that the trial court erred when it proceeded to disposition

without holding a hearing on Bloom’s competency. On November 19, 2012, the state of

Ohio filed its brief in opposition. For the following reasons, this court denies the

application to reopen.

       {¶2} On the night of June 8, 2011, Bloom and his friend, Jesse Lester, were

drinking at a friend’s house. Lester got into an argument with people from the house

across the street, and one of those people showed a gun. Bloom then encouraged Lester

to retrieve his AK-47 from his car and helped him load it. Lester also indicated that

Bloom got a shotgun from the friend’s house. Lester then fired his assault rifle at the

house. Lester and Bloom left, but returned in the early hours of June 9, 2011, and shot

the AK-47 at the house again. Bullets also struck two other houses and caused injury to

an elderly woman.
       {¶3} The grand jury indicted Bloom and Lester on multiple counts of felonious

assault, discharging a weapon at a habitation or near a prohibited premises, vandalism,

and criminal damaging. Bloom also faced counts of having a weapon under disability.

Many of these charges included one- and three-year firearm specifications.

       {¶4} The prosecutor offered both Lester and Bloom a plea bargain: one count of

felonious assault with a one-year firearm specification, one count of felonious assault

with a three-year firearm specification, and one count of improperly discharging a firearm

into a habitation with a three-year firearm specification. Lester accepted the plea bargain

and promised that he would testify truthfully in this matter.

       {¶5} Bloom had filed a motion to disqualify his lawyer, because it seemed to him

that the lawyer was only interested in pursuing a plea bargain and not spending sufficient

time on the case.   After Lester pleaded guilty and before the start of trial, the judge held

hearing on the motion to disqualify. During this hearing, Bloom stated: “I also want to

put on the record that I am severely bipolar and I’ve been on medication for it, 1000

milligrams of Lithium a day, and I don’t understand why I’ve never been evaluated for a

psych judge.” (Tr. 30.) The trial judge denied the motion to disqualify and did not

order a competency hearing. Bloom expressed his desire to proceed to trial.

       {¶6} A jury was selected and sworn in on the afternoon of October 11, 2011.

Before the trial judge dismissed the jury for the day, Bloom indicated that he would

accept the plea bargain. The trial judge began the guilty plea colloquy during which

Bloom stated he was on mind-altering medication. As the judge was explaining the
possible penalties, Bloom said, “I can’t plead guilty to something I didn’t do.” (Tr. 167.)

The judge recalled the jury and dismissed them for the day.

       {¶7} On the morning of October 12, 2011, Bloom, through his lawyer, announced

that he would plead guilty. The lawyer explained that it had been difficult for Bloom to

understand his culpability through aiding and abetting; Bloom’s thinking had been that he

could not be guilty of these crimes if he had not shot the weapon.   This time Bloom and

the judge completed the Crim.R. 11 guilty plea colloquy, and Bloom pleaded guilty to the

three offenses. The judge postponed sentencing until the afternoon to allow all the

victims to be present.

       {¶8} Before the sentencing, Bloom moved to withdraw his guilty plea, because

“he didn’t do it.” The judge conducted a hearing on the motion and denied it. He then

sentenced Bloom and Lester each to a total of ten years in prison.

       {¶9} After reviewing the record, except for the isolated references to being bipolar

and taking medication, there is no indicia that Bloom was incompetent to stand trial or

could not aid in his defense.   Throughout the multiple colloquies between the judge and

Bloom, it is apparent that he understood the charges against him, the possible penalties,

and the proceedings.

       {¶10} Bloom’s appellate counsel argued that the trial judge erred in denying his

motion to withdraw his guilty plea and in imposing consecutive sentences.

       {¶11} Bloom now argues that his appellate counsel should have argued that the

trial court erred when it proceeded to disposition without holding a hearing on Bloom’s
competency once it was on notice that Bloom was mentally unstable and on medication.

He submits that R.C. 2945.37 requires a trial court to hold a hearing on competency if the

issue is raised before trial, including obtaining expert reports. Bloom concludes that the

failure of the trial court to follow the statute and make an explicit determination on

competency was reversible error.

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

the applicant must demonstrate that 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.

       {¶13} 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.

       {¶14} 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.

       {¶15} 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.

       {¶16} R.C. 2945.37(G) presumes that a defendant is competent to stand trial.

However,

       [i]f, after a hearing, the court finds by a preponderance of the evidence that,
      because of the defendant’s present mental condition, the defendant is
      incapable of understanding the nature and objective of the proceedings
      against the defendant or of assisting in the defendant’s defense, the court
      shall find the defendant incompetent to stand trial.

      {¶17} Nevertheless, the Supreme Court of Ohio has held “that the failure to hold a

mandatory competency hearing is harmless error where the record fails to reveal

sufficient indicia of incompetency. State v. Bock, 28 Ohio St.3d 108, 110, 205 N.E.2d

1016 (1986).    In Bock, defense counsel entered a plea of not guilty by reason of insanity,

and the court ordered a psychiatric report. However, the trial court never resolved the

matter. No report was filed, and the court did not conduct a hearing. The court of

appeals held that the failure to hold a hearing was reversible error. The Supreme Court

of Ohio reversed because the record did not reveal an indication of any behavior by the

defendant that might show incompetency.

      {¶18} This court followed Bock in State v. Fhiaras, 8th Dist. No. 97740,

2012-Ohio-3815. Fhiaras was charged with a sudden, unprovoked, violent attack on an

acquaintance.   Fhiaras had trouble getting along with his attorneys, and refused to

cooperate with the psychiatric clinic. Nevertheless, this court held that any error in not

holding a competency hearing was harmless because the record did not suggest a lack of

competency.     Fhiaras always addressed the court in an appropriate manner and

demonstrated a complete understanding of the proceedings.

      {¶19} Bloom tries to distinguish Bock on the grounds that Bock underwent a full

trial and offered his own testimony, but in the present case there is not sufficient
information in the record to determine that the failure to hold a competency hearing was

harmless error.    This argument is ill-founded. The judge and Bloom had at least four

colloquies, and in all of them Bloom showed an understanding of the charges, the

penalties, and the proceedings.   All of his answers were cogent, and he never displayed

any erratic behavior. Furthermore, the judge repeatedly asked if Bloom understood the

charges and the proceedings, and Bloom answered “Yes.”                  Therefore, it is

understandable how appellate counsel in the exercise of professional judgment could

decide not to argue the lack of a competency hearing, and instead argue error in denying

the motion to withdraw the guilty plea and in imposing consecutive sentences.

Moreover, appellate counsel noted Bloom’s difficulties with his attorney, his motion to

disqualify counsel, and the attorney’s failure to request a competency hearing as part of

the argument on the motion to withdraw the guilty plea. Following the United States

Supreme Court’s admonitions, this court will not second guess counsel’s decisions on

strategy and tactics.

       {¶20} Nor is Bloom’s failure to understand the scope of aiding and abetting

sufficient to show incompetence.        In State v. Jones, 1st Dist. No. C-50112,

2006-Ohio-2339, Jones may have been suffering from depression, and he did not

understand how his behavior of skipping required programs and moving to Kentucky

could constitute a violation of community control. The court rejected the argument that

his “confusion” showed incompetence; rather, he simply disagreed with what constituted

a violation. So too in the present case, Bloom disagreed with the principles of aiding and
abetting. Having a deeply held conviction of what the law should be does not show

incompetence.

      {¶21} Accordingly, this court denies the application to reopen.




                              LARRY A. JONES, SR., JUDGE

PATRICIA ANN BLACKMON, P.J., and
MARY J. BOYLE, J., CONCUR
