[Cite as State v. Harrison, 2011-Ohio-5823.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95666
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
LORENZO HARRISON DEFENDANT-APPELLANT
JUDGMENT: APPLICATION DENIED
Application for Reopening Motion No. 446804 Cuyahoga County Court of Common Pleas Lower Court Case No. CR-513945
RELEASED AND JOURNALIZED: November 7, 2011 FOR APPELLANT
Lorenzo W. Harrison, pro se Inmate No. 563-687 Lebanon Correctional Institution P.O. Box 56 Lebanon, Oho 45036
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Mary McGrath Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
LARRY A. JONES, J.:
Lorenzo Harrison has filed a timely application for reopening pursuant to App.R.
26(B). Harrison is attempting to reopen the appellate judgment that was rendered in State
v. Harrison, Cuyahoga App. No. 95666, 2011-Ohio-3258, which affirmed the judgment of
the trial court that denied his pro se request for new counsel. We decline to reopen the
appellate judgment that was journalized on June 30, 2011.
Initially, we find that Harrison’s attempt to employ App.R. 26(B), in order to
reopen the appellate judgment as rendered in State v. Harrison, supra, is not permissible. App.R. 26(B)(1) specifically provides that “[a] defendant in a criminal case may apply for
reopening of the appeal from the judgment of conviction and sentence, based upon a
claim of ineffective assistance of counsel.” (Emphasis added.) Herein, Harrison is
attempting to reopen an appeal that did not deal with his prior judgment of conviction and
sentence. Harrison’s appeal dealt with the trial court’s denial of his pro se request for
new trial counsel. Thus, App.R. 26(B) may not be employed to reopen the appellate
judgment as previously rendered in State v. Harrison, supra. See State v. Loomer, 76
Ohio St.3d 398, 1996-Ohio-59, 667 N.E.2d 1209. See, also, State v. Halliwell (Dec. 30,
1996), Cuyahoga App. No. 70369, reopening disallowed (Jan. 28, 1999), Motion No.
300187; State v. White (Jan. 7, 2002), Cuyahoga App. No. 78190, reopening disallowed
(May 13, 2004), Motion No. 357536; State v. Shurney (Mar. 10, 1994), Cuyahoga App.
No. 64670, reopening disallowed (May 15, 1995), Motion No. 260758.
It must also be noted that Harrison’s attempt to reopen his appeal must fail despite
the inability to apply App.R. 26(B) to his prior appeal. In order to establish a claim of
ineffective assistance of appellate counsel, Harrison must demonstrate that appellate
counsel’s performance was deficient and that, but for his 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, Harrison 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).
“In State v. Reed [supra] we 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, at 25.
It is also 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. Appellate counsel cannot be considered ineffective for failing to
raise every conceivable assignment of error on appeal. Jones, supra; 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, 630 N.E.2d 339.
In Strickland, supra, 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 to 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
established that appellate counsel possesses the discretion to decide which issues he or she
believes are the most fruitful arguments and the importance of winnowing out weaker
arguments on appeal and focusing on one central issue or at most a few key issues. Jones,
supra.
In support of his claim of ineffective assistance of appellate counsel, Harrison
raises a single proposed assignments of error:
“The trial court erred by finding that appellant’s reasons for wanting to replace
counsel were insufficient and by failing to fully inquire into appellant’s concerns about the
effectiveness of his trial counsel.”
Harrison, through his proposed assignment of error, argues that he was prejudiced
as a result of the trial court’s failure to appoint new trial counsel.
This assignment of error, however, is barred from further review, since it was
previously raised and addressed through two separate prior appeals. The doctrine of res
judicata prevents further review. See, generally, State v. Perry (1967), 10 Ohio St.2d 175,
226 N.E.2d 104, paragraph one of the syllabus. The Supreme Court of Ohio has also
established that a claim of ineffective assistance of appellate counsel may be barred from
further review, in an App.R. 26(B) application for reopening, by the doctrine of res
judicata. State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204.
In the case sub judice, the issue of whether the trial court erred by denying
Harrison’s request to appoint new trial counsel was originally addressed through the fourth assignment of error as raised in State v. Harrison, Cuyahoga App. No. 93132,
2010-Ohio-2778. This court held that:
“In this case, the trial court summarily dismissed Harrison’s request for replacement
counsel without permitting him to explain his reasons for the request. The state argues
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[Cite as State v. Harrison, 2011-Ohio-5823.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95666
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
LORENZO HARRISON DEFENDANT-APPELLANT
JUDGMENT: APPLICATION DENIED
Application for Reopening Motion No. 446804 Cuyahoga County Court of Common Pleas Lower Court Case No. CR-513945
RELEASED AND JOURNALIZED: November 7, 2011 FOR APPELLANT
Lorenzo W. Harrison, pro se Inmate No. 563-687 Lebanon Correctional Institution P.O. Box 56 Lebanon, Oho 45036
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Mary McGrath Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
LARRY A. JONES, J.:
Lorenzo Harrison has filed a timely application for reopening pursuant to App.R.
26(B). Harrison is attempting to reopen the appellate judgment that was rendered in State
v. Harrison, Cuyahoga App. No. 95666, 2011-Ohio-3258, which affirmed the judgment of
the trial court that denied his pro se request for new counsel. We decline to reopen the
appellate judgment that was journalized on June 30, 2011.
Initially, we find that Harrison’s attempt to employ App.R. 26(B), in order to
reopen the appellate judgment as rendered in State v. Harrison, supra, is not permissible. App.R. 26(B)(1) specifically provides that “[a] defendant in a criminal case may apply for
reopening of the appeal from the judgment of conviction and sentence, based upon a
claim of ineffective assistance of counsel.” (Emphasis added.) Herein, Harrison is
attempting to reopen an appeal that did not deal with his prior judgment of conviction and
sentence. Harrison’s appeal dealt with the trial court’s denial of his pro se request for
new trial counsel. Thus, App.R. 26(B) may not be employed to reopen the appellate
judgment as previously rendered in State v. Harrison, supra. See State v. Loomer, 76
Ohio St.3d 398, 1996-Ohio-59, 667 N.E.2d 1209. See, also, State v. Halliwell (Dec. 30,
1996), Cuyahoga App. No. 70369, reopening disallowed (Jan. 28, 1999), Motion No.
300187; State v. White (Jan. 7, 2002), Cuyahoga App. No. 78190, reopening disallowed
(May 13, 2004), Motion No. 357536; State v. Shurney (Mar. 10, 1994), Cuyahoga App.
No. 64670, reopening disallowed (May 15, 1995), Motion No. 260758.
It must also be noted that Harrison’s attempt to reopen his appeal must fail despite
the inability to apply App.R. 26(B) to his prior appeal. In order to establish a claim of
ineffective assistance of appellate counsel, Harrison must demonstrate that appellate
counsel’s performance was deficient and that, but for his 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, Harrison 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).
“In State v. Reed [supra] we 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, at 25.
It is also 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. Appellate counsel cannot be considered ineffective for failing to
raise every conceivable assignment of error on appeal. Jones, supra; 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, 630 N.E.2d 339.
In Strickland, supra, 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 to 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
established that appellate counsel possesses the discretion to decide which issues he or she
believes are the most fruitful arguments and the importance of winnowing out weaker
arguments on appeal and focusing on one central issue or at most a few key issues. Jones,
supra.
In support of his claim of ineffective assistance of appellate counsel, Harrison
raises a single proposed assignments of error:
“The trial court erred by finding that appellant’s reasons for wanting to replace
counsel were insufficient and by failing to fully inquire into appellant’s concerns about the
effectiveness of his trial counsel.”
Harrison, through his proposed assignment of error, argues that he was prejudiced
as a result of the trial court’s failure to appoint new trial counsel.
This assignment of error, however, is barred from further review, since it was
previously raised and addressed through two separate prior appeals. The doctrine of res
judicata prevents further review. See, generally, State v. Perry (1967), 10 Ohio St.2d 175,
226 N.E.2d 104, paragraph one of the syllabus. The Supreme Court of Ohio has also
established that a claim of ineffective assistance of appellate counsel may be barred from
further review, in an App.R. 26(B) application for reopening, by the doctrine of res
judicata. State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204.
In the case sub judice, the issue of whether the trial court erred by denying
Harrison’s request to appoint new trial counsel was originally addressed through the fourth assignment of error as raised in State v. Harrison, Cuyahoga App. No. 93132,
2010-Ohio-2778. This court held that:
“In this case, the trial court summarily dismissed Harrison’s request for replacement
counsel without permitting him to explain his reasons for the request. The state argues
that Harrison was very proactive during the proceedings (i.e. by filing pro se motions) and
never expressed his displeasure with counsel throughout the four-day trial. But his court
held in Beranek that a defendant should not be penalized for ‘failing to press the issue
before the judge when [the judge] made it clear that she would not consider [the
defendant’s complaints and did not inquire into their nature.’
“Accordingly, on the authority of Beranek, Deal, Prater, and Keith, supra, the
fourth assignment of error is sustained, and the case is remanded to the trial court for the
limited purpose of inquiring into Harrison’s allegations, with instructions to re-enter the
judgment of conviction if the allegations are unfounded.” Harrison, supra, ¶41.
On August 20, 2010, the trial court conducted a hearing pursuant to this court’s
order of remand and provided Harrison with the opportunity to demonstrate the basis for
his request for new trial counsel. At the conclusion of the hearing, the trial court
determined that Harrison had failed to present sufficient reasons for the replacement of
trial counsel and then denied his request for new counsel.
Harrison filed a second appeal and raised two assignments of error that challenged
the trial court’s denial of his request for new trial counsel. Harrison argued the following
issues though his second appeal: (1) the trial court failed to provide a full and fair hearing on remand and erred when it failed to appoint new counsel; (2) trial court failed to inquire
into the attorney-client relationship during the hearing; (3) trial court erred by allowing his
trial counsel to represent him in the remand hearing and further erred when it failed to
place himself and his trial counsel under oath; and (4) trial counsel erred when it failed to
appoint new counsel for the remand hearing. This court, in State v. Lorenzo, Cuyahoga
App. No. 95666, 2011-Ohio-3258, ¶16, held that:
“* * * the judge on remand should attempt to determine those issues for which the
defendant sought to discharge his attorney initially, and acknowledged that ‘in the
aftermath of trial,’ a defendant ‘might assert numerous errors of his trial counsel,’ but
cautioned that ‘it is unlikely that he would foresee each error prior to trial.’ Beranek.
“It was on the above authority that this court in [C.A. 93132] remanded this case for
a hearing. On remand, the trial court properly conducted a hearing and allowed Harrison
to place on the record, his reasons for the request for new counsel. After reviewing the
record and all evidence adduced at the hearing, we find that the trial court made sufficient
inquiry into the allegation to provide this court with meaningful review. We also agree
with the trial court that Harrison’s reasons supporting his request for new counsel were
insufficient.
“* * *.
“Again, as stated above, on remand, the trial court was merely required to allow
Harrison to state his reasons for wanting to discharge counsel. * * *. If Harrison’s
allegations were found to be vague and general, as in the instant case, no further investigation was warranted. Moreover, this Court specifically rejected Harrison’s
arguments concerning his right to testify and the lack of a medical expert. See [C.A.
93132].”
Clearly, this court has previously determined that the trial court did not err by
denying Harrison’s request for new counsel and that Harrison was not prejudiced by the
decision to refuse the appointment of new counsel. Res judicata bars any further
litigation of the question of whether Harrison was prejudiced by the trial court’s refusal to
appoint new counsel. State v. Segines, Cuyahoga App. No. 89915, 2010-Ohio-5112,
reopening disallowed, 2011-Ohio-1579, Motion No. 441247; State v. Pratt, Cuyahoga
App. No. 93123, 2010-Ohio-1426, reopening disallowed, 2010-Ohio-4998, Motion No.
434932.
Thus, we are prevented from considering the proposed assignment of error and find
that Harrison has failed to establish the claim of ineffective assistance of appellate
counsel.
Accordingly, Harrison’s application for reopening is denied.
LARRY A. JONES, JUDGE
MARY EILEEN KILBANE, A.J., and SEAN C. GALLAGHER, J., CONCUR