apr 14 ?014 - sconet.state.oh.usapr 14 ?014 clerk of court iee cou ry. it of ®hio ... this consti...
TRANSCRIPT
IN THE SUPRE11E COURT OF OHIO
STATE OF OHIO,
Plain^iff-Appet 1 eeg
V.
PATRICK MINIFEE,
Defetidant- Appellant.
,Case INa.
J,
On ^^^^^^ from theCuyahoga County Courtof Appeals, EighthAppellate District
Court of Appeals,Case t? oz CA-99202
MEMORANDUM IN SUPPORT OF JURISDICTI4NOF APPET PATRICK MINIFEE
Patrick Minifee#A6^^-751Mansfield Correctional inst.P.O. Box 788Mansfield, Ohio 44901
C64JR5EL FOR APPELLANTIN PRO SE
Cuyahoga County Prosecutorxianothy McGinty1200 Ontario St.Cleveland, Ohio 44113
^OUNS^L FOR APPELLEE
APR 14 ?014
CLERK OF COURTIEE COU
ry
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TABLE QF C4NT^ITS
P^ eEXPLANATION Oi" WHY THIS ^,^:Jt: T SHOULD ACCEPT THIS CASE ... ................
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ARGtMENTS IN S:.^PPOaT #.;r OR^^^^ITIONS Of LAWp,,.Vqa4p4..,,b4,p}..b64YwAa46. 6
Proposition of Law 3L4444aY@tppp46Yptim+i4ARpO%6aPk4Qbn44b>v:-Y4a4@48Yi?Y44MYNW'
Pro}/a3.e7 i dy A'u3 n of Law 11 ..... .... ........ ....... ... .... ........... ........ 7
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APP
3our°n'Cal Entry and Opinion of the Eighth District Court of Appeals'^
•ur+° Y;itt February k^ ,
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iS
EXP@."ANAfION OF WHY THIS COURT SHOULD ACCEPT THIS CASE
The appellant, Patrick Minifee, preserats to this court an '^ ^sue of i neffecti ve
assi stance of appellate counsel on appeal, which the United States Supreme Court
determined is a Due °rocess Violation. See Evitts v» Lucel 469 U.S. 387(1985)(ciue
process requires effective assistance of counsel during first appeal of right).
Id. at 396. This Consti tutional entitlement will only be satisfied when 'uhe
evidence, law and circumstances of a particular case, viewed ir^ their totality and
as of the i<£me of the representation, demonstrate that a defendant received
44meaningfu^ representation" from his appellate counsel. This requires an
appellate counsel to undertake a thorough revnew of ^^^e trial record and select
t{io .€iost promising issties for a°eview. Jones v. Barnes 103 SXt. 3308., 3313 (1983).
Gounsel ' s fa^ ^ ^^^ to raise an ^ ^su^ which if raised, would have resulted in a
reversal oC, modification to his conviction constituted a sufficter^^ ground to find
i ^effecti ve assistance of app?^ ^ ^^te ^^unael. See Gr, vm Artuz 831 F.Supp 1048,
1061 (SONY 1966).
The apK7ellan°t' s appw^ ^ ^^^ cof, i ^^l was i neff vcti v>W for not rai :;i ng an. g
+^^..^^^"^^^^f^.'i"',^'ts?"^ i ssue on d'^i-ree , r '' C^a r`a{:s f^=s' ^s^tLS^^tnP i ^.
s', C4 ^^ ^^^^,! '2
cou;ss<;l t"^.^i.^'+.:ci' and an ^,^^l'E$ed offr::nMwe issue E7ti t;-n: C"iau ,`f'''c, 'S of F;^lorsiou^'s Assault
and ^^gra°,ra'wk r Itate v. Collins St'n r:;Ost, au^ahoca 99111, 2,313-
Ohfo - 37:"=.^^,'^ at l12) y whit,.?h are t±lk. " wf;f' chGrges that flne ^p:^"^a'r +? lI s^^..;i"Tl e>s ,,iressed are
allied t^llief^ c^ff€^tispe in .^#::. Ap%^,w Rw 2'(8) }:°^p^lw>rtio^t^. ,°€^t" orit ^'
recogni^,^..e and raA.^.^<&,.'^' u^d^Al Sied in a c:... . ,.h:3t shraV';ar,
^ ^r;ifi" a:ll i;','^^:° ,y
^^^^sel was ^^ear,y inwyffectiv: "
tri sti+Kte of 01hif; it hu."t.} become c^ll t£) Co6t`cii3C'.n for attorneys tci
overl ook atl tkpr°'^;'tell tiiit's allied offense issue, and Ciio9`"e frE?E4 tly^ Sp ;^ q" '^."^. wfji^,y ^;;jfw^i^ i # ^i
i E^ se`i , and sa }9 idw+ii'ig so, they ai"e fJltEs'rlS,7t"3 k i ng their clients protecti on fi"oIB Df1u^le
-1-
Jeopardy. i,^1s 11onGrai?^e court has determined that +,R.,C.29'11,25 c^^^ifir's?a the
protections o'T V ;^^^^le Jeopardy Clause of ^^•.;' Fifth Amendment to ^^^ Uni;^^
States ^^nswitu`^i2,^,,(i and Section 10, Article I of t<: Ohio ;onst^tutAofl, i=,ahich
prohibits multiple pi'f^^sh:ilent:> fcj:" t.`3f:^ 5c"2"me offft ins'.^^,.`^ See State v. Underwood
(2010), 124 Ohio stA3+^ 165 at 1e3.
The Double ^, - Clause pro^}ij^itic^r ag^fi^. )? nish.f tµnts for thej
same offense ^^^ver^ts state courts f^ori ii+ipt^^^^^ a pu-r:'ishls;^nt greater than ^gha ;.
^^^ ^ tatee :^ ^ ^^^ ^lature intended. See Mi ssouri v. Hunter (1983), 45-0, U.. S. 3159 at
366; 1.723 SrCt. 673; 74 a.,>Ed 2d 535. n^^^lhen a 1^^^^^a"I"ure signals its ^^^^^^^t to
either prohibit or prevent cusrful^^^^^ punishments for coi^du^^ that k^^^ qUalify as
two crimes„. <^`'s,^e, expressed `[ntFa{it is dispositive." State v. Rance
^1999^^ 85 Ohio St^ 3( :`52 at 635,(Citing Onia v. Johnson (1984), 467 U.S. 493', at
499, overruled on other grounds by State v. Johnson ( ?010), 128 Ohio S* > w c^ 153 at
161. Therefore, a violation of Ohio Revised Code 2941.25 is a vi^latio€^ of tne
Double Jeopardy Clause o'f the FifWh Arr^endI^^^^t of the United States Constitution
and the Double Jeopardy Clause of ttie Fifth Amendment is inac^^ applicable to the
states through the Fourteenth Amendment which provides that no person shall z'be
subject for the same offense to ^^ twice pt^^ in jeopardy of life c4 lililb." U.S.
Const. Amend, V; See Benton v. Mar.- ^ and 395 C.t. S. 784, 794
The appel1 atit has clearly demonstrated that his case presents two very
i;^^portant coqstitutional issues, and coc^^^^d wd th thesp denials of his
constitutional r^^^-t to effective assistance of counsel on appeal and his
protection against Double jeopardy is clearly of a great general public interest.
T4^^^^e has been a multitude of pr°eviatis cases that demonstrate the appellant's
point, how many cases have passed through this ^^urt, making the sasise claims, and
because of all t."^^ previous appellan1:, ° s appeals we3'e. not through the
APP.R. 26(3) application do to appellate districts iricorrect opinions and rulings,
which ^ ^ turn harred appe1 lanus fr^:,3^1 presen^^^ ^^^ their issues in future appeals,
-:1».
and rria;a tiave deemed "Chat these appellant's have procedurally defaulted 'thpir
constitutional claims in Federal Habeas Corpus proceedingsa The appellant, along
witli future appellants should not suffer the same fate as the others previa^^llv
discussed, in this case this honorable court has the opportunity to correct the
injustice that the appel ^ ate districts and appellate attore^^^s have been
inflicting on appellants, especially whan it ca,,meu to gi^^lt^ plea appeals.
Ir^ this case appai 1 ate counse1 p s conduct fell well below the acceptable
standards of representation, as enc^nIciated in Strickland v. Wa^^^^ 456 U.S.
668, and cannot be explained away as sound appellate tactics, strategies, or
reasoriable professional judgment. Appellate co+inse3's errors were so serious that
counsel was not ftinct7 oning as counsel as guaranteed to a defendant by the Sixth:
and Fourteenth Amendments and because of this the appellant was prejudiced by the
deficient performance of appellate counsel in that he was deprived of the proper
revieva of his case, and now he requests for this cotirt to accept jurisdiction to
correct the 4fncorrect determination that appel i ate counsel was not i neffecti ve and
further deterfaine that the Eighth District Court of Appeals i ncorrectl y determined
the #t[the appellant] is distinguishable from Collins."(Appxa Opinion at 514),
STATEMENT OF THE CASE AND FACTS
kOn ADri 1 26, 2012& the appellant, along with co-defendant, Devin Col1 i ns ^
attempted to rob an off-duty Clevelend Police Officery. During the incident, a
nur^.ber of shots were exchanged between the officer and the appellant and Mr..
Co] 1 insn The Off i cer was shot iri the back, the appellant was shot in the :hest r
The officer was treated and released in connection ^^^^i his gunshot wound, and tiie
appellant, seriously injured, survived the incident after he was taken to a nearby
hospital.
As a resul't of the incident, the Cuyahoga County Grand Jury returned a true
bi1l on a fftulti-count ifadictnient charging the appellant with kidnapping in
violation 2905,0i(B)(2), a felony of 'the first degree; a^^empLed murder in
^^^
violation of ZW923.02 and 29" 3,02^^'^), a felony of the first degree; 'reloi3iGui
assault in violation or R.Ca2903.11(A)(1)9 a felony of the first degree; fe1onies
assault in violation of RA2903a02(4)(2)s a felony of the first d:;rr<„ey
agg{ _:4ated robbery in violation of R*C02931,01(Q(I)a a felony of ^ts; firsi::,
(:'.=gree; aggravated robbery iri violation of R.C,291101',^^ ^ ^,ti^'.}s,.r:), ^ of 3i^:;
fa rw°'r, ' . 3s'Aey and dinharge of a firearm on or near ^^^ ohi1)ited prerr}^ ^es in
violation of Ry:$2923a1620)(3), a felony of the first degree; all of which also
included one and thre4 -year firearm specif'^cataor^^ and forfeiture of
weapons/^^^^ifieationY^ ^ The appellant +., _: 1 V^^ charged with carrying a concealed
weapon in violation of "t.C,2323.12(A)(2), a felony of the fourth degree;
improperly handling firearms in a motor vehicle in violation of r,.Ca2921j2(A)(1),
a felony of tht.,,,,, third degree; all of lwthich also incl^^^^t forfrai'tur^ of ^^^^ori
specificationS.
Mr. Collins was charged in the same indictment, with the same ct;argesg with
addition of having weapons while under disability, a felony of the third degree,
The appellant tqtered a plea to all charges in the indictment and was gi ven a
39 1 year sentence, which oaas agreed to, recommended by 'the State of ()^^^^ and
accepted by the trial court.
Mr. Collins plead::c, guilty to felonious assault in violation of
Rq02 00^11^^^^(1) otitn a one-ywar f^^^^rui specification; wiggr5>v^ted robbery in
violation of R.C.2911.010)(1) with a one-year fireasm specification; having
weapons while under disability; and tampering with evide1"scea
The trial co€^ri. sentenced tirM Collins "to prison terins of ten years for
felonious Assault and aggravated robbery with consecutive one year seG,tenV^s for
the f,^^arr,r slf',ifirationsy three years for having weapons while under disability;
and three years for tampering with evidencee The trial court ordered the prison
terms for felonious assault and aggravated robbery to be served concurrently with
-4,
each other, but consecutively 'to ttie prison ter^^ of having weapons under
^^^abilttyq and consecutively to the prison term for ^araperir^g with evidence for a
cuTnola-f: ive sentence of seventeen yearsx
Mr. Collins appealed his conviction and sentence and, on August 29, 2013, the
Eightfi District Court of appeals remanded the c^^se back to th^^ trie'l court in
order to atake a determination of whether aggravated robbery and felonious assault
vier- allied r^ffw«^^es. See State v. C^^ ^ in^ ^^^ 3-0hi o-3726b
The appellant also appealed his vonvictiori and sentence, but appellate counsel
failed to raise the allied offense issue as an assignr;-^nt of er°rar. Coauequer^^^^,
his conviction and sentence was affirmed on July 18, 2013, under a set of facts
that arc- td^ntIcal to Mr® Col1 ins' , the appe1 lgr^^^ ^^-W^^^pnt, with the sz^4;Ie
trial judge. See State v. Mini^^e 2013•.Ohic+--3146.
On O^tr^^er 2, 2013, t^^e appellant filed gn application tc reopen his appeal
under App.R. 26(8), raising that appellate counsel was ineffective for not
assigning as an assignment of error that aggravated robbery and felonious assault
are allied offenses which nust merge for purposes of sentencing.
On February 26, 2014, the Eighth District Court of Appeals deniecs the
"°ppli'u ft7on0('MFee App(t 0 Op9 Yi !on )a
The appe1 ^ ant rsnw files this appeal of the denial of the apolication and
presents the following two propositions of ^^ti in support of review by tMs court.
-5-
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Pritf ort of Law I ; A defendant is denied his constitutionalra g `^^ ^^^^ive as.,istance : f appeilcite counsel on directappeal when counsel c 'iits r^:i^ing an error that c-.;Id 1,a:^^effected the result of the ap; , . I in favor of t;.
While appellate counsel has no constitutional duty to raise every single ^ona
-f^ivo1ous issue, ^ourisel fa:iu4` still exercise rease3na^ie professional ^^^g-qtent in
presenting the appeal . see J€anes v. Barnes 163 U.S. T531
Appp-11 ate eou€isel may choose which issues to appeal as long as his perforinariwe
is "within the range of eompeetenve demanded of a ttorney ; in cr ir::^inal cases ^^d
assures ';h' lc€d1gWant defendant an adequate &..l oi"ttlnit,f to h`Ia ^lai;a'rs
fairly 1 ^ the context of the sta""eF s appellate proceS a' Jones, supra a"t 755, SeC-
al.so Aivord v. WainwriEht 725 Fb2d 123,2 ^^lt^^ ^ir. 1934)y Su13ivan v. ^^^nwri2Lt
695 F.2d 1306, 1309 (11th, Cir. 1983); Cunningham v. Henderson 725 Fs^d 32, 36 (2nd
Cir. 193A)a
The failure 'to raise Meritorious issues, especially when wea!:er claims are
raised, coiist3 tutes ineffective assistance of appellate eourisel aMapies v. S2yle
171 F.3d 488, 427w428 (6th Cir. 1999). rurtherniore, omitting a ff^^ad-bang 4iinner°:t
from an appeal is not objectively reasonableO United States v. Cook 45 Fd3d 388,
395 (10th Cir. 1995). See Also Matire v. Wainwri h^ 811 F.2d 14,30 (^^^h Clirt
19 ,87); V. Bowen 791 Fx^^ 861 (llth Cir. 1986); Ra,;an v. D^€^cer 544 So. 2d
1052 (p 1a. Diste I Ct. App. 1989); Whitt v. Holland 432 S.E. 2d 292 NI,Va. 1986$.
Rased on these established princi p1 es , the appellant was unconsr ^ tutt ona1 ly
denied his right to effective assistance of counsel on direct appeal b::cause
counsel failed to raise a critical issue ^^^t, was later discovered by other
counsel and brought in a application for reopening under App.R. 26(6) upon wi3ich
relief should have been based, therefore making his performance deficient and
prejudicial.
.6 -
^ro osin of Law I T : the trial court erred by imposi<3gconsecutive sen°^nc^s for °the allied offenses of AggravatedRobbf,"ey and Fefloniokas Assault, a violation of th^.^ Double3eoptardy Cla^use to the ^r^^^^d States "'OrISLitUtiorly
The Double Jeopar(.r;y Clause "proti. ^^ ^ aglf^inyt a second proiec;^ ^^ on for the
off ew.W;. af^er ^cq^ittF:^^ It pr^^tee^s against a second r1wr the same
offense after conviction. And it protects against multiple for the
s&!Ie ofsense^}° See Brown v. Uhio 432 U.S. 1€:1, 165 (1977), (quoting North Carolina
v. Pearce 395 U.S. 711, 717 (1969), overruled on other groQnds by Alabama v. Smith
..'k^ U.S. 4 w"*'i 9 4^ !^ ^« Only t,i^w Y 5^ "J 4 t`^.», ^.1^G.^ats the ^,1F ^.7tC:' Ln P qa^! .C^'ixgL^' i4#st 11^G^l ti^%4^
punishments, is at ^ ^su.e here.
In State v. Johnson 128 01hio St.3d 153, this court eWtrblis^^ed, a s^^^^li^^^^
standar^j in determining z^^^^^ther offenses are allied, and of similar import. In
Johnson, this court r°edirecte^, its focus to condtict of a defendant which may have
been one act, but resuli.;^.,: in two separate c6 impsw As ex}^^^^n-ed previously, the
app.z11 antg ^ co-defendant appealed to the Eighth €^^ str°? ^t Court of Appeals on thi s
very issue and was succcassfulM1 In Collins, supra, the prosecutor atter{tpted to
argue that the felonious assault had occurred ^^^^eciraent to, and separ^te, from the
aggravaltea^ ^olf.)bery, but the Eig;it^ District noted, "the ^^ate`s recitation of the
facts failed to explain precisely when during the ^ours^.x of everats the victim was
shota " Ttiis is essentially the sariie argtir^^^^t which vias itiade by the state during
the appellant°s hearing. See (TrmT. pg 73).
The Eigh-tli Di^. trict Court of Appeals ruled incorrectly w'her€ it c^^ter€^^^^^^ ^^^^t
the appellants case is distinguisha..^le from, Collins by simply stating that the
prosecutor provided ^^iar^, thw^:^ in Co11iraso(^^e AppXa Opinion at 111). what the
Ei ,C,ahth Di 5trE Ct rel ied on was Transcript 71 ^ TahiCh does not ^ `the cc se;;
tf:istinguishable, it ai{.;ke; the^'^ ii'ientica?,.
Basec^ on tLi;^ foregoing, the appellant should have bee.n granted the same as his
co-defendant, consideo ing both convictions relied on the ^amne facts, circumsta€^^es
and victif1i.
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CQNC^^^^ON
The appellanw prays that this court ser.s the ^^^^pact h is case will m4ake on
fixing and clari fy'd tig thr? issue of allied offenses her4? in the state of Ohio,
alorig with the consistent ineffectiveness of appellate counsel deferdant's in this
state continuously rnr1ure, becas.is^ of 'this continuing inef"^^ctiveness of rot
raising meritorious claims C+ri appellants appeals, i,hey are possibly I-odv1ng their
cleintsf appel I ant s procedurally defaulted ^ ^ the federal ^ourts. This case gives
this court the c'^^nc^ to m;iedy this i s^^ie3 for the appellant and future appellants
of the state of Ohio, and he prays that this honor^,°ale court accepts jurisdiction
and orders briefing on the rt^^^terb
: spectf^a^9l;^ ;^^bR;^i^,te^^:,
^^ ^;^^f
}n<^ ^ o;
Pati iWk mini^ ee ^. . .
riA632.-751
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing was sesrt to counsel for theappellee, T imathy J. McGinty, Cuyaf^^^a Coun#;y 'Pros:^cutor, At the J. ^^^ic; Cen'^^,.^^inth Fl., 1200 Ontario St. Cleveland, Ohio 44113, on thisI^a^ c^ 1 2r14u
atricrc mini T ee#A632-751
-8-
FEB 26 Z014
Court of Appeals of Ohio, Eighth District
County of CuyahogaAndrea Rocco, Clerk of Courts
STATE OF OHIO
Appellee
-vs-
PATRICK A. MINIFEE
Appellant
Date 02/26/14
MOTION NO. 468799
Journal Entry
Application by appellant for reopening pursuant to App. R. 26(B) is denied. (See journal entry and opinion
of same date.)
FILED AND JOURNAL{ZEDPER-APP,Rr 22(C)
q 2014FEB 2 p
^ 'C TYt.C'RKOF Tti ^^^; APPEALSBy^^ Deputy
Presiding Judge FRANK D. CELEBREZZE, JR.,Concurs
Judge EfLEEN A. GALLAGHER, Concurs !. "" 514_A
iillARY EIS' EEN KILBANEJudge
COA NO. LOWER COURT NO.99202 CP CR-562160
-- -COMMON PLEAS COURT
FEB 26 2014
(ourt of ppcaL,5 of 1JjtoEIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY A.ND OPINIONNo. 99202
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PATRICK A. MINIFEE
DEFENDANT-APPELLANT
JLTDGMEN'T:APPLICATION DENIED
Cuyahoga County Court of Common PleasCase No. CR-562160
Application for ReopeningMotion No. 468799
RELEASE DATE: February 26, 2014
-1-
ATTORNEY FOR APPELLANT
Richard Agopian1415 West Ninth Street - 2nd FloorCleveland, Ohio 44113
ATTORNEYS FOR, APPELLEE
Timothy J. McGintyCuyahoga County ProsecutorKatherine MullinAssistant County ProsecutorThe Justice Center - 8th Floor1200 Ontario StreetCleveland, Ohio 44113
FILED AND JOURNALIZED
PER APP,R. 22(C)
EB 2 6 Z014
CUYA, ^TY CLeRKOF fHE ^. 0 APPEAi SBy I V Deputy
MARY EILEEN KILBANE, J.:
{ql( l) On October 2, 2013, the applicant, Patrick Minifee, pursuant to
App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584N.E.2d 1204 (1992),
applied to reopen this court's judgzn.ent in State v. 1Utnifee, 8th Dist. Cuyahoga
No. 99202, 2013-Ohio-3146, in which this court affirmed his convictions for
attempted murder, aggravated robbery, carrying a concealed weapon, improperly
handling a fires.rm in aniotor vehicle, and tampering with evidence. Minifee
maintains that his appellate counsel was 'ineffective for not arguing allied.
offenses. On .December 2, 2013, the state of Ohio, through the Cuyahoga Count,y
Prosecutor, filed its brief in opposition. For the following reasons, th:is court
denies the application to reopen.
(¶2} On April 26, 201.2, an off-duty Cleveland police officer exited his car
at a private residence in Cleveland. Minifee, brandishing a pistol, approached
the officer and attempted to rob him. The officer produced his firearm, and the
two men exchanged shots. The officer was shot in the back, and Minifee was
shot in the chest. Minifee was able to get back to a car, which contained two
acquaintances who drove him to a nearby hospital. The acquaintances
abandoned Minifee in the car at the hospital, where lifesaving measures allowed
his survival. Police officers discovered two firearms underneath the car's gear
box. The wounded officer was treated and released.
ۦ3} Consequently, the grand jury indicted Minifee and his two
acquaintances with the following charges: (1) kidnapping, (2) attempted xnurder,
(3) felonious assault by knowingly causing serious physical harm to the police
officer, (4) felonious assault by means of a deadly weapon, (5) aggravated robbery
by brandishing a deadly weapon, (6) aggravated robbery by causing serious
physical harm to the officer, (7) discharge of a firearm on or near a prohibited
premises, (8) carrying a concealed weapon, (9) improperly handling a firearm in
a motor vehicle, and (10) tampering with evidence. The first seven counts also
carried one- and three-year firearm specifications, and Minifee's codefendants
also faced charges of having a weapon while under disability.
{^41 After a change of defense counsel, d.iscovery, and extensive
negotiations, Minifee and the state reached a plea bargain. 1Vlinrfee would plead
guilty to all the charges and specifications, and the court would impose an
agreed sentence of 19.5 years.' Minifee pleaded guilty, and the judge scheduled
a separate sentencing hearing.
It 5} At the sentencing hearing, Minifee initially made a pro se oral
motion to withdraw his guilty plea an.d argued that his attorney had coerced him
into the plea and that he was deprived of due process. The trial judge conducted
a hearing and denied the motion to withdraw.
(¶fi} The trial judge then asked the prosecutor to address the issue of
allied offenses. The prosecutor stated that the kidnapping charge and the two
'The maximum potential sentence for the charges was 47.5 years.
aggravated robbery charges would merge and that the state would elect to
sentence on the deadly weapon version of the aggravated robbery charge. He
also stated that the attempted murder and the two felonious assault charges
would merge and that the state would elect to sentence on the attempted murder
charge.'
11j7} The prosecutor acknowledged that felonious assault and aggravated
robbery could merge. However, he argued that they should not in this case,
because the peculiar facts of this case showed a different animus motivated the
aggravated robbery from. the attempted murder/felonious assault, Minifee's
initial animus was to rob the officer when Minifee approached brandishing his
weapon. That animus changed to escape and avoiding detection. when the officer
produced his weapon. and the firing began. The judge accepted this version of
the facts. At the end of the al.lied offense hearing, the judge asked defense
counsel for his input, and defense counsel replied: "Nothing further, your
Honor." (Tr. 71-77.) The judge then imposed the agreed :19.5 year prison.
sentence.
J¶ 81 On appeal,'1Vlinifee's attorney argued the following: (1)1Vlinifee's plea
was not knowingly and voluntarily made, (2) the trial judge abused his
discretion in denying the motion to withdraw, (3) trial counsel was ineffective for
' Although the prosecutor argued that the attempted murder and feloniousassault charges should not merge with the discharge of a firearm in a prohibited placebecause the elements were so different, the trial judge merged them.
not aiding Minifee's motion to withdraw, and (4) the trial jtadge erred in
imposing court costs.
J¶ 9} Minifee now argues that his appellate counsel was ineffective for not
arguing that the aggravated robbery charges should have merged with the
felonious assault charges as allied offenses. Minifee relies on the appeal of one
of his acquaintances, Stute u. Collins, 8th Dist. Cuyahoga No. 99111, 2013-Ohio-
3726. Devin Collins pleaded guilty to felonious assault, aggravated robbery,
having a weapon. while under disability, and tampering with evidence. On
appeal, this court reversed and remanded on the issue of allied offenses,
reasoning the record was
insufficient to properly determine if the offenses were committed bythe same conduct. * * * [N]either account adequately detailed thefelonious assault su:ch that the court could properly determine if itwas committed with a separate animus from the aggravatedrobbery. * * * Although the state argued that the felonious assaultoccurred subsequent to, and separate from the aggravated robbery,the state's recitation of factsfailed to explain precisely when duringthe course of events the victim was shot.
Id. at 1112.
Minifee concludes that because the prosecutor made "essentially the same
argument" i.n his case that he did in Collins's case, this court should follow
Collins and grant his application to reopen.
{¶101 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. Str•ickland
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 u. Reed, 74 Ohio
St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.
I1) 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 unsuccessfixl 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 mu.st overcome the presumption that, under the circumstances, the
challenged action `might be considered sound trial strategy."' Strickland at 689.
{¶12} Specifzcally, 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 kev 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-Uhio-366, 672 N.E.2d 638.
{113} 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 underm.ine
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.
{¶ 14} Minifee's argument is not persuasive. The trial judge conducted an
allied offenses hearing in Minifee's case, and merged seven of the ten offenses
to which he pleaded guilty. The prosecutor showed that a different animus
motivated the aggravated robbery and kidnapping charges than the attempted
murder and felonious assault charges. Minifee's animus changed from robbery
to esca-pe "when the of'ficerproducedhis weapon and began to fire at them." (Tr.
73.) Thus, Minifee is distinguishable from Collins. The prosecutor provided
more than in Collins's case. When confronted with the allied offenses hearing,
the multiple mergers, and the prosecutor's proffer of different animuses
depend.ent on the officer's action, appellate counsel in the exercise of professional
judgment could reject the allied offenses argument.
{¶151 Accordingly, this court denies the application for reopening.
1 r3,, ti ^r' L6r ^ ^ ^ t^ ^- :^r3^>
IvIARY :EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. fi' ALLAG-HER, J., CONCUR