[Cite as State v. Glenn, 2013-Ohio-1652.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97314
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JERREL T. GLENN DEFENDANT-APPELLANT
JUDGMENT APPLICATION DENIED
Cuyahoga County Court of Common Pleas Case No. CR-535072 Application for Reopening Motion No. 459018
RELEASE DATE: April 19, 2013 FOR APPELLANT
Jerrel T. Glenn Inmate No. 603-951 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43302
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor By: T. Allan Regas Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:
{¶1} Jerrel T. Glenn has filed a timely application for reopening pursuant to
App.R. 26(B). Glenn is attempting to reopen the appellate judgment that was rendered in
State v. Glenn, 8th Dist. No. 97314, 2012-Ohio-3075, which affirmed his conviction on
four counts of felonious assault and two counts of aggravated robbery. For the following
reasons, we decline to reopen Glenn’s original appeal.
{¶2} In order to establish a claim of ineffective assistance of appellate counsel,
Glenn must demonstrate that appellate counsel’s performance was deficient and that, but
for the 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, Glenn must
establish that “there is a genuine issue as to whether he was deprived of the effective
assistance of counsel on appeal.” App.R. 26(B)(5).
{¶3} In State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588, the
Supreme Court of Ohio held that:
Moreover, to justify reopening his appeal, [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.
State v. Smith, supra, at ¶ 7.
{¶4} In addition, the Supreme Court of Ohio, in Spivey, supra, at 25, held that:
In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we held that the two prong analysis found in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct 2052, 80 L.Ed 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.
{¶5} It is also well settled that appellate counsel is not required to raise and argue
assignments of error that are meritless. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308,
77 L.Ed.2d 987 (1983). Appellate counsel cannot be considered ineffective for failing to
raise every conceivable assignment of error on appeal. Jones at 752; State v. Gumm, 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.
{¶6} In Strickland v. Washington, supra, at 691, 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 firmly established that appellate counsel possesses the sound discretion to decide
which issues are the most fruitful arguments on appeal. Appellate counsel possesses the sound discretion to winnow out weaker arguments on appeal and to focus on one central
issue or at most a few key issues. Jones at 752.
{¶7} In support of his claim of ineffective assistance of appellate counsel, Glenn
raises three proposed assignments of error. Glenn’s first proposed assignment of error
states:
Trial counsel was ineffective for failure to object at trial to the multiple firearm sentences imposed on appellant at trial.
{¶8} Glenn, through his first proposed assignment of error, argues that the trial
court erred by imposing three separate three-year consecutive terms of incarceration with
regard to three firearms specifications. Specifically, Glenn argues that all of the
three-year firearm specifications should have merged for sentencing under “R.C.
2929.71(B) [sic]”.
{¶9} The issue of multiple consecutive terms of incarceration, vis-a-vis conviction
for multiple firearms specifications, was previously raised and addressed through Glenn’s
original appeal. This court held,
In his fourth assignment of error, Glenn argues the trial court erred by sentencing him to three consecutive three-year terms on the firearm specifications. He contends the court was required by law to merge multiple firearm specifications for sentencing if the specifications involve the same “act or transaction.” In support of this argument, Glenn relies upon R.C. 2929.14(D)(1).
R.C. 2929.14(D)(1)(b), as it existed at the time of resentencing, prohibited a trial court from imposing more than one prison term for multiple firearm specifications if the specifications were committed as part of the same act or transaction. However, R.C. 2929.14(D)(1)(g) provided an exception for certain felonies including felonious assault and aggravated robbery. * * * The sentencing entry states that Glenn was found guilty of four counts of felonious assault (Counts 4, 5, 11, and 12) and two counts of aggravated robbery (Counts 6 and 7). All of these charges included one- and three-year firearm specifications. Under R.C. 2929.14(D)(1)(g), the court was required to impose prison terms for the two most serious firearm specifications against that victim and had discretion to impose a sentence for the third firearm specification. State v. Worth, 10th Dist. No. 10AP-1125, 2012-Ohio-666, ¶ 96. * * *.
Glenn, supra, at ¶ 30.
{¶10} The doctrine of res judicata prevents this court from reopening Glenn’s
original appeal based on his first proposed assignment of error. Errors of law that were
previously raised through an appeal are barred from further review based on the operation
of res judicata. See generally State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).
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[Cite as State v. Glenn, 2013-Ohio-1652.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97314
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JERREL T. GLENN DEFENDANT-APPELLANT
JUDGMENT APPLICATION DENIED
Cuyahoga County Court of Common Pleas Case No. CR-535072 Application for Reopening Motion No. 459018
RELEASE DATE: April 19, 2013 FOR APPELLANT
Jerrel T. Glenn Inmate No. 603-951 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43302
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor By: T. Allan Regas Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:
{¶1} Jerrel T. Glenn has filed a timely application for reopening pursuant to
App.R. 26(B). Glenn is attempting to reopen the appellate judgment that was rendered in
State v. Glenn, 8th Dist. No. 97314, 2012-Ohio-3075, which affirmed his conviction on
four counts of felonious assault and two counts of aggravated robbery. For the following
reasons, we decline to reopen Glenn’s original appeal.
{¶2} In order to establish a claim of ineffective assistance of appellate counsel,
Glenn must demonstrate that appellate counsel’s performance was deficient and that, but
for the 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, Glenn must
establish that “there is a genuine issue as to whether he was deprived of the effective
assistance of counsel on appeal.” App.R. 26(B)(5).
{¶3} In State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588, the
Supreme Court of Ohio held that:
Moreover, to justify reopening his appeal, [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.
State v. Smith, supra, at ¶ 7.
{¶4} In addition, the Supreme Court of Ohio, in Spivey, supra, at 25, held that:
In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we held that the two prong analysis found in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct 2052, 80 L.Ed 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.
{¶5} It is also well settled that appellate counsel is not required to raise and argue
assignments of error that are meritless. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308,
77 L.Ed.2d 987 (1983). Appellate counsel cannot be considered ineffective for failing to
raise every conceivable assignment of error on appeal. Jones at 752; State v. Gumm, 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.
{¶6} In Strickland v. Washington, supra, at 691, 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 firmly established that appellate counsel possesses the sound discretion to decide
which issues are the most fruitful arguments on appeal. Appellate counsel possesses the sound discretion to winnow out weaker arguments on appeal and to focus on one central
issue or at most a few key issues. Jones at 752.
{¶7} In support of his claim of ineffective assistance of appellate counsel, Glenn
raises three proposed assignments of error. Glenn’s first proposed assignment of error
states:
Trial counsel was ineffective for failure to object at trial to the multiple firearm sentences imposed on appellant at trial.
{¶8} Glenn, through his first proposed assignment of error, argues that the trial
court erred by imposing three separate three-year consecutive terms of incarceration with
regard to three firearms specifications. Specifically, Glenn argues that all of the
three-year firearm specifications should have merged for sentencing under “R.C.
2929.71(B) [sic]”.
{¶9} The issue of multiple consecutive terms of incarceration, vis-a-vis conviction
for multiple firearms specifications, was previously raised and addressed through Glenn’s
original appeal. This court held,
In his fourth assignment of error, Glenn argues the trial court erred by sentencing him to three consecutive three-year terms on the firearm specifications. He contends the court was required by law to merge multiple firearm specifications for sentencing if the specifications involve the same “act or transaction.” In support of this argument, Glenn relies upon R.C. 2929.14(D)(1).
R.C. 2929.14(D)(1)(b), as it existed at the time of resentencing, prohibited a trial court from imposing more than one prison term for multiple firearm specifications if the specifications were committed as part of the same act or transaction. However, R.C. 2929.14(D)(1)(g) provided an exception for certain felonies including felonious assault and aggravated robbery. * * * The sentencing entry states that Glenn was found guilty of four counts of felonious assault (Counts 4, 5, 11, and 12) and two counts of aggravated robbery (Counts 6 and 7). All of these charges included one- and three-year firearm specifications. Under R.C. 2929.14(D)(1)(g), the court was required to impose prison terms for the two most serious firearm specifications against that victim and had discretion to impose a sentence for the third firearm specification. State v. Worth, 10th Dist. No. 10AP-1125, 2012-Ohio-666, ¶ 96. * * *.
Glenn, supra, at ¶ 30.
{¶10} The doctrine of res judicata prevents this court from reopening Glenn’s
original appeal based on his first proposed assignment of error. Errors of law that were
previously raised through an appeal are barred from further review based on the operation
of res judicata. See generally State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).
The Supreme Court of Ohio has also established that a claim of ineffective assistance of
counsel will be barred by the doctrine of res judicata unless circumstances render the
application of the doctrine unjust. State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d
1204 (1992).
{¶11} Since the issue of multiple and consecutive three-year terms of
incarceration, with regard to the three-year firearm specifications, has already been raised
and found to be without merit on direct appeal, we find that the doctrine of res judicata
prevents further review of the issue. We further find that the application of the doctrine
is not unjust.
{¶12} Glenn’s second proposed assignment of error in support of his application
for reopening states: Trial counsel was ineffective for failing to request for complicity or a lessor [sic] included offenses of attempted as the underlying offense.
{¶13} Glenn, through his second proposed assignment of error, argues that
appellate counsel was ineffective on appeal by failing to raise an assignment of error that
dealt with lesser included offenses. Specifically, Glenn argues that trial counsel was
ineffective for failing to request a jury instruction with regard to “attempt” as to the
offenses of felonious assault and aggravated robbery.
{¶14} The decision to request instructions on lesser included offenses is a matter
of trial strategy and does not establish ineffective assistance of counsel. State v. Griffie,
74 Ohio St.3d 332, 1996-Ohio-71, 658 N.E.2d 764; State v. Clayton, 62 Ohio St.2d 45,
402 N.E.2d 1189 (1980), cert. denied, 449 U.S. 879, 101 S.Ct. 227, 66 L.Ed.2d 102
(1980).
{¶15} It must also be noted that a criminal defendant is not entitled to a jury
instruction on the lesser included offenses of felonious assault and aggravated robbery
where the defendant has denied participation in the originally charged offenses. State v.
Lewis, 8th Dist. No. 95964, 2011-Ohio-6155; State v. Jordan, 8th Dist. No. 91413,
2009-Ohio-4037; State v. Gholston, 8th Dist. No. 88742, 2007-Ohio-4053. Herein, a
review of the record clearly demonstrates that Glenn vehemently denied any
responsibility for the charged offenses of felonious assault and aggravated robbery.
Thus, jury instructions as to the lesser included offenses of felonious assault and
aggravated robbery were not mandated, and appellate counsel was not ineffective for not raising the issue on appeal. Compare State v. Kidder, 32 Ohio St.3d 279, 513 N.E.2d
311 (1987); State v. Wilkins, 64 Ohio St.2d 382, 415 N.E.2d 303 (1980).
{¶16} Glenn’s third proposed assignment of error in support of his application for
reopening states:
Trial counsel was ineffective for failing to raise at trial the multiple offenses R.C. 2941.25 that were all committed at the same time which were allied offenses or the trial committed plain error 52(B).
{¶17} Glenn, through his third proposed assignment of error, argues that appellate
counsel was ineffective by failing to argue improper sentencing by the trial court.
Specifically, Glenn argues that the offenses of felonious assault and aggravated robbery
should have merged for sentencing. Glenn’s third proposed assignment of error lacks
merit.
{¶18} This court has established that separate crimes committed against separate
victims are not subject to merger. State v. Collins, 8th Dist. No. 95415, 2011-Ohio-3241.
In addition, the offenses of aggravated robbery and felonious assault do not merge for
purposes of sentencing where there is a break in the causal chain of events. State v.
Burton, 8th Dist. No. 94449, 2011-Ohio-198.
{¶19} Glenn committed the offenses of felonious assault against two separate
victims, the acts of shooting Kenneth L. Elsleger and Joseph D. Elsleger, which involved
two separate and distinct animi. State v. Lanier, 192 Ohio App.3d 762, 2011-Ohio-898,
950 N.E.2d 600 (1st Dist.); State v. Stall, 3d Dist. No. 3-10-12, 2011-Ohio-5733; State v.
McCullough, 12th Dist. Nos. CA2010-04-006 and CA2010-04-008, 2011-Ohio-992. In addition, we have previously determined that the offenses of felonious assault and
aggravated robbery were not subject to merger on the application of R.C.
2929.14(B)(1)(g), formerly R.C. 2929.14(D)(1)(g). Thus, appellate counsel was not
required to argue on appeal the need to merge the sentences imposed for the offenses of
felonious assault and aggravated robbery.
{¶20} Accordingly, we find that Glenn has failed to demonstrate a “genuine issue”
as to whether he possesses a “colorable claim” of ineffective assistance of appellate
counsel. Clearly, appellate counsel was not ineffective on appeal.
{¶21} Application for reopening is denied.
EILEEN T. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and MARY EILEEN KILBANE, J., CONCUR