State v. Burst
This text of 2011 Ohio 2253 (State v. Burst) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[Cite as State v. Burst, 2011-Ohio-2253.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 94080
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
WALTER BURST DEFENDANT-APPELLANT
JUDGMENT: APPLICATION DENIED
Cuyahoga County Court of Common Pleas Case No. CR-519920 Application for Reopening Motion No. 442170
RELEASE DATE: May 9, 2011 FOR APPELLANT
Walter Burst, pro se Inmate No. 572-963 Marion Correctional Institution P.O. Box 57 Marion, OH 43301-0057
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor Daniel T. Van Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Walter Burst has filed a timely application for reopening
pursuant to App.R. 26(B). He is attempting to reopen the appellate
judgment that was rendered in State v. Burst, Cuyahoga App. No. 94080,
2010-Ohio-5773, which affirmed his conviction for one count of aggravated
robbery, one count of robbery, two counts of kidnapping, and one count of theft. For the following reasons, we decline to reopen Burst’s original
appeal.
{¶ 2} In order to establish a claim of ineffective assistance of appellate counsel, Burst
must demonstrate that appellate counsel’s performance was deficient and that, but for
counsel’s 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, Burst 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, the Ohio Supreme Court 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, 1998-Ohio-704, 701 N.E.2d 696.
{¶ 4} It is 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, 103 S.Ct. 3308, 77 L.Ed.2d 987. Further, 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,
{¶ 5} In Strickland v. Washington, supra, the United States Supreme Court stated that
a court’s scrutiny of an attorney’s work must be deferential. The court stated further that it is
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 when examining the matter in hindsight. Id. at 689. 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. 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 to focus on one central issue or, at most, a few key issues.
Jones, supra.
{¶ 6} Burst has not raised any proposed assignments of error in support of his claim
of ineffective assistance of appellate counsel. He simply makes three assertions in support of
his claim of ineffective assistance of appellate counsel: (1) an alleged conflict of interest between the trial judge and a juror; (2) the failure of defense counsel to produce “live camera
footage” of a car or van; and (3) an alleged “secret meeting” in the judge’s chambers.
Burst’s failure to state any proposed assignments of error renders his application for reopening
fatally defective.
{¶ 7} As this court has previously stated, “[applicant] inserts in his application
statements indicating that some witnesses committed perjury and complains that his trial and
appellate counsel did not raise the issue of the truthfulness of their testimony. He does not
identify where in the record this purported perjury occurred. He also has not set forth a
proposed assignment of error related to his assertions.
{¶ 8} “This court has previously held that the failure to clearly state proposed
assignments of error is ‘fatally defective.’ See, e.g. State v. Lewis, Cuyahoga App. Nos.
88627, 88628, and 88629, 2007-Ohio-3640, reopening disallowed, 2008-Ohio-679, at ¶17;
State v. Jackson, Cuyahoga App. No. 88345, 2007-Ohio-2925, reopening disallowed,
2007-Ohio-5431, at ¶3.” State v. Fryerson, Cuyahoga App. No. 91960, 2009-Ohio-4227,
reopening disallowed, 2010-Ohio-1852, Motion No. 428670, at ¶7.
{¶ 9} Notwithstanding the aforesaid fatal defect, a substantive review of the three
assertions made by Burst, even if considered as assignments of error, fails to demonstrate that
appellate counsel was ineffective. {¶ 10} First, Burst fails to demonstrate through citation to the record that the trial judge
was biased because she knew a juror. State v. Stewart, Cuyahoga App. No. 93428,
2010-Ohio-3869, reopening disallowed, 2011-Ohio-1667, Motion No. 439406. In addition,
the assertion that Burst was not involved in the theft of a car or van was previously addressed
upon direct appeal in the assignments of error regarding the manifest weight and sufficiency of
the evidence. Thus, any proposed assignment of error pertaining to the theft of a car or van
is barred from further review by the doctrine of res judicata. State v. Murnahan (1992), 63
Ohio St.3d 60, 584 N.E.2d 1204; State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104;
State v. Williams (Mar. 4, 1991), Cuyahoga App. No. 57988, reopening disallowed (Aug. 15,
1994), Motion No. 252164.
{¶ 11} Finally, Burst fails to allege any prejudicial error as a result of the trial judge’s
meeting in chambers with the prosecutor and a co-defendant’s trial counsel. The mere
recitation of a proposed assignment of error, without a demonstration from the record of any
prejudicial error, is insufficient to meet an applicant’s burden of demonstrating that his
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