[Cite as State v. Burton, 2020-Ohio-375.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 107054 v. :
JERMAEL BURTON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: January 31, 2020
Cuyahoga County Court of Common Pleas Case No. CR-17-620576-A Application for Reopening Motion No. 531662
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Jennifer M. Meyer, Assistant Prosecuting Attorney, for appellee.
Jermael Burton, pro se.
MICHELLE J. SHEEHAN, J.:
On September 5, 2019, the applicant, Jermael Burton, pursuant to
App.R. 26(B), applied to reopen this court’s judgment in State v. Burton, 8th Dist.
Cuyahoga No. 107054, 2019-Ohio-2431, appeal not accepted, 157 Ohio St.3d 1408, 2019-Ohio-3731, 131 N.E.3d 83, in which this court affirmed his convictions for drug
trafficking, possession of criminal tools, and having weapons while under disability.
Burton now argues that his appellate counsel was ineffective by not arguing directly
the impropriety of the search warrant, rather than through the lens of ineffective
assistance of trial counsel. The state of Ohio filed its brief in opposition on
October 7, 2019. For the following reasons, this court denies the application to
reopen.
Dontaurus Kemp testified that on August 12, 2017, he accompanied a
friend to a three-story house to “chill” with some women. When they arrived at the
house, they began knocking on the second-floor door to an apartment. Kemp
further stated that Burton emerged from a doorway, probably the one across the hall
that led to the third floor, and shot him. Kemp ran from the house and with the help
of a stranger flagged down a police officer, who helped take him to a hospital. Kemp
described the house to the officer and told him what happened.
Another officer began investigating at the house and talked to Burton,
who informed the officer that no shooting had taken place. This officer said that
Burton admitted living at the house; the officer’s body-camera footage confirmed
that Burton said multiple times that he lived there. This officer further testified that
when he sought to examine the third floor for any more victims or evidence of the
shooting, Burton refused entrance and locked the door.
Accordingly, the police officers obtained a search warrant. The
detective who drafted the warrant swore “the victim advised the uniform officers that he was at [the house] attempting to purchase drugs. Victim stated that he was
in the upstairs hallway knocking on his drug dealer’s door when he opened the door
and shot him.” (Pg. 2. Affidavit for search warrant.) Upon executing the search
warrant, the police found cocaine, large amounts of methamphetamine and
marijuana, an AR-15, a pistol, ammunition, tools for preparing drugs, and several
pieces of correspondence addressed to Burton.
At trial, residents of the house testified that they did not hear a
gunshot. The detective admitted that what he swore to in the affidavit was not well-
founded. Burton testified and denied shooting Kemp and denied living at the house.
The jury found Burton not guilty of attempted murder and two counts of felonious
assault, but guilty of three counts of drug trafficking, one count of possessing
criminal tools, and two counts of having a weapon while under disability. The trial
judge sentenced him to a total of 11 years.
Burton’s appellate counsel first argued that his trial counsel was
ineffective for failing to move to suppress the fruits of the search warrant.1 The
foundation of the argument is that the statement that Kemp went to the house to
obtain drugs was false. Furthermore, the detective must have acted in reckless
disregard of the truth because he discussed the case with one of the investigating
officers and because under the collective knowledge principle, the group’s
knowledge of a fact may be considered by the court. These factors would have led to
1 Appellate counsel also argued that there was insufficient evidence to support the verdicts and that the verdicts were against the manifest weight of the evidence. a hearing in which the court would have struck the supporting affidavit and
suppressed the drugs, tools, and weapons. Appellate counsel bolstered this
assignment of error by arguing that trial counsel failed to investigate Kemp’s
statements and the body-camera footage. These investigations would have
impressed defense counsel with the need to move for a suppression hearing.
This court rejected the assignments of error and affirmed the
convictions. In overruling the first assignment of error, on ineffective assistance of
trial counsel for failing to move to suppress, this court noted that moving to suppress
the search warrant would have contradicted Burton’s trial strategy that because he
did not live in the house, he could not be guilty of charges. In order to have standing
to raise the suppression issue, he would have had to admit he lived in or occupied
the house. As this court stated: “Because counsel did not file a motion to suppress,
which would necessarily be predicated on an expectation of privacy in the premises,
Burton retained the ability to deny on the witness stand that he did not stay or live
in the attic, refuting the state’s claim he came from the attic apartment and shot
Kemp.” 2019-Ohio-2431, ¶ 66. This court also noted the speculative nature of this
argument: Whether there was enough evidence that the detective made the
statement in reckless disregard of the truth to compel the trial court to hold a
hearing and then to convince the trial court that the false statement was made with
sufficient scienter to suppress the fruits of the search. Now Burton argues that his
appellate counsel was ineffective for framing this issue indirectly through the lens of
ineffective assistance of trial counsel. In order to establish a claim of ineffective assistance of appellate
counsel, the applicant must demonstrate that the counsel’s performance was
deficient and that the deficient performance prejudiced the defense. Strickland 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 v. Reed, 74 Ohio St.3d 534,
1996-Ohio-21, 660 N.E.2d 456.
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 unsuccessful 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 must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Strickland at 689.
Specifically, in regard to claims of ineffective assistance of appellate
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[Cite as State v. Burton, 2020-Ohio-375.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 107054 v. :
JERMAEL BURTON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: January 31, 2020
Cuyahoga County Court of Common Pleas Case No. CR-17-620576-A Application for Reopening Motion No. 531662
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Jennifer M. Meyer, Assistant Prosecuting Attorney, for appellee.
Jermael Burton, pro se.
MICHELLE J. SHEEHAN, J.:
On September 5, 2019, the applicant, Jermael Burton, pursuant to
App.R. 26(B), applied to reopen this court’s judgment in State v. Burton, 8th Dist.
Cuyahoga No. 107054, 2019-Ohio-2431, appeal not accepted, 157 Ohio St.3d 1408, 2019-Ohio-3731, 131 N.E.3d 83, in which this court affirmed his convictions for drug
trafficking, possession of criminal tools, and having weapons while under disability.
Burton now argues that his appellate counsel was ineffective by not arguing directly
the impropriety of the search warrant, rather than through the lens of ineffective
assistance of trial counsel. The state of Ohio filed its brief in opposition on
October 7, 2019. For the following reasons, this court denies the application to
reopen.
Dontaurus Kemp testified that on August 12, 2017, he accompanied a
friend to a three-story house to “chill” with some women. When they arrived at the
house, they began knocking on the second-floor door to an apartment. Kemp
further stated that Burton emerged from a doorway, probably the one across the hall
that led to the third floor, and shot him. Kemp ran from the house and with the help
of a stranger flagged down a police officer, who helped take him to a hospital. Kemp
described the house to the officer and told him what happened.
Another officer began investigating at the house and talked to Burton,
who informed the officer that no shooting had taken place. This officer said that
Burton admitted living at the house; the officer’s body-camera footage confirmed
that Burton said multiple times that he lived there. This officer further testified that
when he sought to examine the third floor for any more victims or evidence of the
shooting, Burton refused entrance and locked the door.
Accordingly, the police officers obtained a search warrant. The
detective who drafted the warrant swore “the victim advised the uniform officers that he was at [the house] attempting to purchase drugs. Victim stated that he was
in the upstairs hallway knocking on his drug dealer’s door when he opened the door
and shot him.” (Pg. 2. Affidavit for search warrant.) Upon executing the search
warrant, the police found cocaine, large amounts of methamphetamine and
marijuana, an AR-15, a pistol, ammunition, tools for preparing drugs, and several
pieces of correspondence addressed to Burton.
At trial, residents of the house testified that they did not hear a
gunshot. The detective admitted that what he swore to in the affidavit was not well-
founded. Burton testified and denied shooting Kemp and denied living at the house.
The jury found Burton not guilty of attempted murder and two counts of felonious
assault, but guilty of three counts of drug trafficking, one count of possessing
criminal tools, and two counts of having a weapon while under disability. The trial
judge sentenced him to a total of 11 years.
Burton’s appellate counsel first argued that his trial counsel was
ineffective for failing to move to suppress the fruits of the search warrant.1 The
foundation of the argument is that the statement that Kemp went to the house to
obtain drugs was false. Furthermore, the detective must have acted in reckless
disregard of the truth because he discussed the case with one of the investigating
officers and because under the collective knowledge principle, the group’s
knowledge of a fact may be considered by the court. These factors would have led to
1 Appellate counsel also argued that there was insufficient evidence to support the verdicts and that the verdicts were against the manifest weight of the evidence. a hearing in which the court would have struck the supporting affidavit and
suppressed the drugs, tools, and weapons. Appellate counsel bolstered this
assignment of error by arguing that trial counsel failed to investigate Kemp’s
statements and the body-camera footage. These investigations would have
impressed defense counsel with the need to move for a suppression hearing.
This court rejected the assignments of error and affirmed the
convictions. In overruling the first assignment of error, on ineffective assistance of
trial counsel for failing to move to suppress, this court noted that moving to suppress
the search warrant would have contradicted Burton’s trial strategy that because he
did not live in the house, he could not be guilty of charges. In order to have standing
to raise the suppression issue, he would have had to admit he lived in or occupied
the house. As this court stated: “Because counsel did not file a motion to suppress,
which would necessarily be predicated on an expectation of privacy in the premises,
Burton retained the ability to deny on the witness stand that he did not stay or live
in the attic, refuting the state’s claim he came from the attic apartment and shot
Kemp.” 2019-Ohio-2431, ¶ 66. This court also noted the speculative nature of this
argument: Whether there was enough evidence that the detective made the
statement in reckless disregard of the truth to compel the trial court to hold a
hearing and then to convince the trial court that the false statement was made with
sufficient scienter to suppress the fruits of the search. Now Burton argues that his
appellate counsel was ineffective for framing this issue indirectly through the lens of
ineffective assistance of trial counsel. In order to establish a claim of ineffective assistance of appellate
counsel, the applicant must demonstrate that the counsel’s performance was
deficient and that the deficient performance prejudiced the defense. Strickland 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 v. Reed, 74 Ohio St.3d 534,
1996-Ohio-21, 660 N.E.2d 456.
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 unsuccessful 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 must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Strickland at 689.
Specifically, 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 key 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-Ohio-366, 672 N.E.2d 638.
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 undermine 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. State v. White, 8th Dist. Cuyahoga No. 104224, 2017-Ohio-8056, ¶ 11.
In the present case, appellate counsel did argue the search warrant
issue, analyzing the issue fully in an eight-page discourse. In framing the issue as
one of ineffective assistance of trial counsel, he was also able to bolster the argument
with a claim that trial counsel failed to investigate the victim and the police body-
camera footage. Following the Supreme Court’s admonitions to give deference to
counsel’s professional judgments in deciding strategy and tactics, this court will not
second-guess appellate counsel’s decision on framing the issues. State v. Conner, 8th Dist. Cuyahoga No. 99557, 2014-Ohio-4669, and State v. Barrow, 8th Dist.
Cuyahoga No. 101356, 2015-Ohio-4579.
Accordingly, this court denies the application.
MICHELLE J. SHEEHAN, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and RAYMOND C. HEADEN, J., CONCUR