[Cite as State v. Warner, 2012-Ohio-256.]




                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 95750




                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                             vs.

                                     DEREK WARNER
                                                       DEFENDANT-APPELLANT




                                      JUDGMENT:
                                  APPLICATION DENIED


                              Cuyahoga County Common Pleas Court
                                      Case No.CR-539458
                                   Application for Reopening
                                      Motion No. 448587

        RELEASE DATE: January 24, 2012
FOR APPELLANT

Derek Warner
Mansfield Correctional Inst.
Inmate #952-912
P. O. Box 8107
Mansfield, OH 44901

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Katherine Mullin
Justice Center, 8th Fl.
1200 Ontario Street
Cleveland, OH 44113



MARY EILEEN KILBANE, P.J.:

       {¶ 1} Derek Warner has filed a timely application for reopening pursuant to

App.R. 26(B). Warner is attempting to reopen the appellate judgment, as rendered in

State v. Warner, Cuyahoga App. No. 95750, 2011-Ohio-4096, which affirmed his

conviction for the offenses of burglary (R.C. 2911.12(A)(2)), theft (R.C. 2913.02(A)(1)),

vandalism (R.C. 2909.05), and criminal damaging (R.C. 2909.06). We decline to reopen

Warner’s original appeal.

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

Warner 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, Warner 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,

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

       {¶ 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, 463 U.S. 745, 77 L.Ed.2d 987,

103 S.Ct. 3308 (1983). Appellate counsel cannot be considered ineffective for failing to

raise every conceivable assignment of error on appeal. Id., 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, 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. Barnes, supra.

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

support of his claim of ineffective assistance of appellate counsel:

       {¶ 7} (1) “Appellate counsel, Michael Maloney was ineffective for failing to

bring up key points which occurred at trial which could have further supported appellant

Derek Warner defense.”; and

       {¶ 8} (2) “Trial counsel, Ms. Dobroshi was ineffective for failure to fully prepare

for trial, and for failure to bring up key evidence during the trial which could have further

supported defendant’s Derek Warner innocence and defense, which caused the trial

counsel to be ineffective during the trial.”

       {¶ 9} Warner, however, has failed to present any substantive argument, with

regard to his two proposed assignments of error, that demonstrates how appellate

counsel’s performance was deficient and that he was prejudiced by appellate counsel’s
claimed deficiency.

       {¶ 10} In State v. Kelly, 8th Dist. No. 74912, 1999 WL 1044494 (Nov. 18, 1999),

reopening disallowed (June 21, 2000), this court established that the mere recitation of

assignments of error, without substantive argument, is not sufficient to meet the burden to

prove that applicant’s appellate counsel was deficient for failing to raise the issues he

now presents or that there was a reasonable probability that he would have been

successful if the present issues were considered in the original appeal. State v. Gaughan,

8th Dist. No. 90523, 2009-Ohio-955, reopening disallowed, 2009-Ohio-2702. See, also,

State v. Mosely, 8th Dist. No. 79463, 2002-Ohio-1101, reopening disallowed,

2005-Ohio-4137; State v. Dial, 8th Dist. No. 83847, 2004-Ohio-5860, reopening

disallowed 2007-Ohio-2781; State v. Ogletree, 8th Dist. No. 86500, 2006-Ohio-2320,

reopening disallowed, 2006-Ohio-5592; State v. Huber, 8th Dist. No. 80616,

2002-Ohio-5839, reopening disallowed, 2004-Ohio-3951.           The failure of Warner to

present any substantive argument with regard to his two proposed assignments of error

results in the inability to demonstrate that his counsel was deficient and that he was

prejudiced by the alleged deficiencies.

       {¶ 11} It must also be noted that Warner’s claims of ineffective assistance of both

appellate counsel and trial counsel, as predicated upon the failure to introduce evidence

during the course of trial, failure to subpoena witnesses, and a request for continence of

trial, involved strategic choices of counsel that fell within the realm of trial strategy and

tactics that will not ordinarily be disturbed on appeal. State v. Pasqualone, 121 Ohio
St.3d 186, 2009-Ohio-315, 903 N.E.2d 270; State v. Frazier, 115 Ohio St.3d 139,

2007-Ohio-5048, 873 N.E.2d 1263. Warner has failed to demonstrate the prejudice that

resulted from the strategic decisions as made by trial counsel during the course of trial or

that the outcome of his appeal would have been different had the issues been raised on

appeal. State v. Spivey, supra, 701 N.E.2d 696; State v. Reed, supra, 660 N.E.2d 456.

Thus, we find that Warner has failed to establish that appellate counsel was ineffective on

appeal through his two proposed assignments of error.

       {¶ 12} Accordingly, the application for reopening is denied.




MARY EILEEN KILBANE, PRESIDING JUDGE

PATRICIA A. BLACKMON, A.J., AND
FRANK D. CELEBREZZE, JR., J., CONCUR
