State v. Lenard

2017 Ohio 8570

• Court: Ohio Court of Appeals
• Decided: November 15, 2017
• Docket: 104986
• Status: Published

Opinion

[Cite as State v. Lenard, 2017-Ohio-8570.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104986

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

RICHARD MARCUS LENARD

DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-15-597800-A Application for Reopening Motion No. 509715

RELEASE DATE: November 15, 2017 FOR APPELLANT

Richard Marcus Lenard, pro se Inmate No. 700503 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor By: Katherine Mullin Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:

{¶1} Richard Marcus Lenard has filed a timely application for reopening pursuant to

App.R. 26(B). Lenard is attempting to reopen the appellate judgment, rendered in State v.

Lenard, 8th Dist. Cuyahoga No. 104986, 2017-Ohio-4074, that affirmed his conviction and

sentence for the offenses of theft and tampering with records. We decline to reopen Lenard’s

original appeal.

{¶2} In order to establish a claim of ineffective assistance of appellate counsel, Lenard is

required to establish that the performance of his appellate counsel was deficient and the

deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied,

497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990).

{¶3} In Strickland, the United States Supreme Court held that a court’s scrutiny of an

attorney’s work must be highly deferential. The court further stated that it is all too tempting

for a defendant to second-guess his attorney after conviction and that it would be too easy for a

court to conclude that a specific act or omission was deficient, especially when examining the

matter in hindsight. Thus, 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.

{¶4} Herein, Lenard has raised one proposed assignment of error in support of his

application for reopening. Lenard’s sole proposed assignment of error is that:

The trial court erred by imposing court costs in the entry without imposing them in open court. {¶5} Lenard, through his proposed assignment of error, argues that the trial court did not

impose costs during the sentencing hearing and thus was prohibited from including court costs

within the sentencing journal entry. Contrary to the appellant’s argument, the trial court did

address the issue of costs during sentencing hearing and did impose costs.

And on count 2, tampering with records, misdemeanor of the first degree, 6 months. Count 1 and 2 will run concurrent to one another. I am going to waive a fine, order that you do pay court costs. You may perform Court Community Work Service in lieu of costs which you can do in prison. And you are remanded.

Tr. 587 - 588.

{¶6} The appellant has failed to demonstrate that he was prejudiced through his sole

assignment of error, because the trial court did impose costs at the sentencing hearing.

Appellate counsel was not required to raise a frivolous argument on appeal. State v. Buford, 8th

Dist. Cuyahoga No. 75288, 2000 Ohio App. LEXIS 2623 (May 31, 2000). See also State v.

Anderson, 8th Dist. Cuyahoga No. 103490, 2015-Ohio-420; State v. Taylor, 8th Dist. Cuyahoga

No. 101368, 2015-Ohio-420.

{¶7} Accordingly, the application for reopening is denied.

EILEEN T. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and ANITA LASTER MAYS, J., CONCUR