[Cite as State v. Lockhart, 2011-Ohio-3381.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95093



                                     STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                 vs.

                                  ISAAC LOCKHART
                                               DEFENDANT-APPELLANT




                                   JUDGMENT:
                               APPLICATION DENIED


                           Cuyahoga County Common Pleas Court
                                   Case No. CR-353508
                                Application for Reopening
                                    Motion No. 443541



    RELEASE DATE:                      July 5, 2011
FOR APPELLANT
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Isaac Lockhart, pro se
Inmate No. 355-631
Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, Ohio 44044



ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Thorin Freeman
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




COLLEEN CONWAY COONEY, J.:

       {¶ 1} Isaac Lockhart has filed a timely application for reopening

pursuant to App.R. 26(B). Lockhart is attempting to reopen the appellate

judgment in State v. Lockhart, Cuyahoga App. No. CA-95093, 2011-Ohio-936,

which affirmed the trial court’s imposition of consecutive prison terms at a

resentencing hearing. We decline to reopen Lockhart’s appeal.

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

Lockhart must demonstrate that appellate counsel’s performance was deficient and that, but for
                                              3

his 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, Lockhart 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, * * * 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.”    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 (1983), 463 U.S. 745, 77 L.Ed.2d

987, 103 S.Ct. 3308.    Appellate counsel cannot be considered ineffective for failing to raise

every conceivable assignment of error on appeal. Jones v. Barnes; 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.
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       {¶ 5} In Strickland v. Washington, 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 too 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. Jones v. Barnes.

       {¶ 6} In the case sub judice, Lockhart raises one proposed assignment

of error in support of his claim of ineffective assistance of appellate counsel.

Specifically, he argues that his appellate counsel was ineffective for failing to

assign as error the trial court’s failure to advise at resentencing that the

parole board could extend the imposed consecutive prison terms for violations

of prison rules. Lockhart argues that his sentence was defective since he

was not advised of the “bad time” statute as required by R.C. 2929.19(B)(3)(b).
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      {¶ 7} The Ohio Adult Parole Authority possesses no authority,

pursuant to R.C. 2967.11 or 2929.19(B)(3)(B), to administratively extend the

stated sentence if an offender commits any criminal offense or violation of

prison rules while serving a prison term. The “bad time” statutes contained

in R.C. 2967.11 and 2929.19(B)(3)(b), have been declared unconstitutional

because they violated the separation of powers doctrine. State ex rel. Bray v.

Russell (2000), 89 Ohio St.3 132, 729 N.E.2d 359; State v. Wolford, Cuyahoga

App. No. 92607, 2010-Ohio-434; State v. Fleming, Cuyahoga App. No. 87773,

2006-Ohio-6773;    State   v.   Honzu,   Trumbull   App.   No.   2001-T-0005,

2002-Ohio-1165. Thus, the trial court possessed no duty to advise Lockhart

of the effect of “bad time” and appellate counsel was not required to raise the

issue on appeal.

      {¶ 8} Accordingly, we deny Lockhart’s application for reopening.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, J., CONCUR
