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Date: 06-16-2019
Case Style:
STATE OF OHIO v. MONTEZ COBB
Case Number: 106928
Judge: FRANK D. CELEBREZZE
Court: COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
Plaintiff's Attorney: Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Jennifer M. Meyer, Assistant Prosecuting Attorney
Defendant's Attorney: Timothy Young, Ohio Public Defender, and Timothy B. Hackett, Assistant State Public Defender
Description:
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As set forth in the appellate decision, Cobb was charged with
numerous offenses related to a string of robberies, including burglaries and armed
robberies. Id. at ¶ 2. He was bound over from juvenile court and tried in the
common pleas court. Id. He eventually pled guilty to 8 of the counts contained in
the 26-count indictment. Id. at ¶ 5. Cobb received an aggregate 30-year prison
sentence.
On appeal, Cobb raised three assignments of error dealing with the
length of sentence, the consecutive nature of sentences, and ineffective assistance of
trial counsel for failing to offer mitigating evidence during sentencing. Id. at ¶ 10.
These assignments of error were overruled, and the convictions were affirmed in this
court’s decision released December 13, 2018. Id. at ¶ 22.
On March 13, 2019, Cobb filed the instant application to reopen his
appeal. He claims that appellate counsel was ineffective because counsel failed to
include the juvenile-court transcript as part of the record on appeal. As a result, counsel failed to raise any issues or arguments pertaining to the juvenile court’s probable cause and amenability determinations; and, in fact, it is unclear whether counsel even reviewed the juvenile court record to determine whether there were appealable issues.
(Citations omitted.) Application for Reopening at page 4. The state timely opposed
the application pointing out that Cobb failed to include a sworn affidavit as required
by App.R. 26(B)(2)(d), failed to include any proposed assignments of error as
required by App.R. 26(B)(2)(c), and failed sufficiently to show ineffective assistance
of appellate counsel.
II. Law and Analysis
A. Standard for Reopening
App.R. 26(B) provides a limited means for a criminal defendant to
reopen a direct appeal based on a claim of ineffective assistance of appellate counsel.
A defendant must establish a colorable claim of ineffective assistance of counsel in
order to prevail on an application for reopening. State v. Smith, 95 Ohio St.3d 127,
2002-Ohio-1753, 766 N.E.2d 588, ¶ 7, citing State v. Spivey, 84 Ohio St.3d 24, 25,
701 N.E.2d 696 (1998). The test for ineffective assistance of counsel requires a
defendant to prove (1) that counsel’s performance was deficient, and (2) that the
deficient performance prejudiced the defendant. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). Under this test, a criminal
defendant seeking to reopen an appeal must demonstrate that appellate counsel was
deficient for failing to raise the issue presented in the application for reopening and
that there was a reasonable probability of success had that issue been raised on
appeal. Spivey at 25.
The defendant must set forth “[o]ne or more assignments of error or
arguments in support of assignments of error that previously were not considered
on the merits in the case by any appellate court or that were considered on an
incomplete record because of appellate counsel’s deficient representation.” App.R.
26(B)(2)(c).
The state argues that Cobb’s application fails to specifically delineate
an assignment of error and should be dismissed. However, the application makes
clear that the alleged ineffective assistance of appellate counsel arises in appellate
counsel’s failure to include transcripts from the juvenile bindover hearings with the
record on appeal. While the failure to include proposed assignments of error in an
application is grounds for denial, Cobb’s application should not be dismissed based
on this where sufficient argument is made to discern the proposed issue. Cobb is
arguing that “appellate counsel was ineffective because she failed to include the
juvenile-court transcripts as part of the record on appeal.” Application for
Reopening at 4. He has sufficiently complied with App.R. 26(B)(2)(c).
The application must also include “[a] sworn statement of the basis
for the claim that appellate counsel’s representation was deficient with respect to
the assignments of error or arguments raised pursuant to division (B)(2)(c) of this
rule and the manner in which the deficiency prejudicially affected the outcome of
the appeal * * *.” App.R. 26(B)(2)(d). Cobb’s failure to include a sworn statement
verifying the claims made in support of reopening in the application is sufficient
grounds to deny it. State v. Harris, 8th Dist. Cuyahoga No. 90699, 2009-Ohio
5962, ¶ 22.
After the state pointed out Cobb’s lack of compliance with App.R.
26(B)(2)(d), Cobb belatedly filed a motion for leave to file the required affidavit.
This was done after the state responded to the application and after the 90-day
period to file the application had expired. For these reasons, we denied the motion
to amend the application.
B. Colorable Claim of Ineffective Assistance of Counsel
Cobb asserts that the failure to provide the transcript on appeal
deprived this court of its ability to afford a meaningful opportunity to review the
merits of the bindover proceedings. However, that is not the role of this court. This
court does not scour the record to determine every possible error. State v.
Patterson, 2017-Ohio-8318, 99 N.E.3d 970, ¶ 37 (8th Dist.), citing Mayfair Village
Condominium Owners Assn. v. Grynko, 8th Dist. Cuyahoga No. 99264, 2013-Ohio
2100, ¶ 6.
Appellate counsel is afforded deference in determining which issues
to argue on appeal. State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776 N.E.2d
79, ¶ 7.
With respect 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 the most promising arguments and focusing on one central issue or, at most, a few key issues. State v. Barrow, 8th Dist. Cuyahoga No. 101356, 2015Ohio-4579, ¶ 7, citing Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). See also State v. Ware, 8th Dist. Cuyahoga No. 99374, 2014-Ohio-815, ¶ 5 (“Appellate counsel cannot be considered ineffective for failing to raise every conceivable assignment of error on appeal.”).
State v. Doumbas, 8th Dist. Cuyahoga No. 100777, 2016-Ohio-956, ¶ 6.
Cobb does not assert that any error occurred, only that an error could
have occurred. Cobb’s application asserts, without support, that appellate counsel
failed to review the juvenile bindover proceedings for error. The record in this case
does not provide anything to indicate that appellate counsel failed to review records
from the bindover proceedings and found no error sufficient to raise on appeal. The
trial court entered an order on January 31, 2018, ordering the transcript from the
probable cause hearing held on September 18, 2017, and September 19, 2017, to be
filed with the court. There is no information properly in the record that indicates
this was not done. Unsupported assertions in the application do not constitute
sufficient demonstration of a colorable claim of ineffective assistance of appellate
counsel where they rely on information outside of the record in this case. See State
v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776 N.E.2d 79, ¶ 11.
Further, Cobb does not assert that any error made by appellate
counsel would result in a different outcome, but merely that the alleged failure of
appellate counsel to provide the transcript of the bindover hearings could have
resulted in ineffective assistance of counsel. It is generally within the prerogative of
appellate counsel to focus on certain issues while winnowing out those that are less
meritorious. Barrow at ¶ 7. “Appellate counsel is not necessarily ineffective for
failing to raise a claim of error and has no constitutional duty to raise every
conceivable assignment of error on appeal.” State v. Kaszas, 8th Dist. Cuyahoga
Nos. 72546 and 72547, 1998 Ohio App. LEXIS 4227 (Sept. 10, 1998), reopening
disallowed, 2000 Ohio App. LEXIS 3755, 7-8 (Aug. 14, 2000), citing Jones v.
Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); State v. Gumm, 73
Ohio St.3d 413, 428, 653 N.E.2d 253 (1995).
Cobb does not argue a different outcome is likely had appellate
counsel included the transcripts from the bindover hearings or demonstrate why
appellate counsel’s discretion to determine which issues to raise on appeal was
professionally unreasonable. This is not a case where an assignment of error was
raised, but due to a lack of transcript, the assigned error was overruled. See, e.g.,
State v. Cook, 6th Dist. Wood No. WD-04-029, 2005-Ohio-4174; State v.
Carpenter, 6th Dist. Erie No. E-00-033, 2002-Ohio-4824.
Cobb has not raised a colorable claim of ineffective assistance of
appellate counsel. Therefore, his application to reopen is denied.
Outcome: Application denied.
Plaintiff's Experts:
Defendant's Experts:
Comments: