[Cite as State v. Minifee, 2014-Ohio-694.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99202
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
PATRICK A. MINIFEE DEFENDANT-APPELLANT
JUDGMENT: APPLICATION DENIED
Cuyahoga County Court of Common Pleas Case No. CR-562160 Application for Reopening Motion No. 468799
RELEASE DATE: February 26, 2014 ATTORNEY FOR APPELLANT
Richard Agopian 1415 West Ninth Street - 2nd Floor Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor Katherine Mullin Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:
{¶1} On October 2, 2013, the applicant, Patrick Minifee, pursuant to App.R.
26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to
reopen this court’s judgment in State v. Minifee, 8th Dist. Cuyahoga No. 99202,
2013-Ohio-3146, in which this court affirmed his convictions for attempted murder,
aggravated robbery, carrying a concealed weapon, improperly handling a firearm in a
motor vehicle, and tampering with evidence. Minifee maintains that his appellate
counsel was ineffective for not arguing allied offenses. On December 2, 2013, the state
of Ohio, through the Cuyahoga County Prosecutor, filed its brief in opposition. For the
following reasons, this court denies the application to reopen.
{¶2} On April 26, 2012, an off-duty Cleveland police officer exited his car at a
private residence in Cleveland. Minifee, brandishing a pistol, approached the officer
and attempted to rob him. The officer produced his firearm, and the two men exchanged
shots. The officer was shot in the back, and Minifee was shot in the chest. Minifee
was able to get back to a car, which contained two acquaintances who drove him to a
nearby hospital. The acquaintances abandoned Minifee in the car at the hospital, where
lifesaving measures allowed his survival. Police officers discovered two firearms
underneath the car’s gear box. The wounded officer was treated and released.
{¶3} Consequently, the grand jury indicted Minifee and his two acquaintances
with the following charges: (1) kidnapping, (2) attempted murder, (3) felonious assault by
knowingly causing serious physical harm to the police officer, (4) felonious assault by means of a deadly weapon, (5) aggravated robbery by brandishing a deadly weapon, (6)
aggravated robbery by causing serious physical harm to the officer, (7) discharge of a
firearm on or near a prohibited premises, (8) carrying a concealed weapon, (9) improperly
handling a firearm in a motor vehicle, and (10) tampering with evidence. The first seven
counts also carried one- and three-year firearm specifications, and Minifee’s codefendants
also faced charges of having a weapon while under disability.
{¶4} After a change of defense counsel, discovery, and extensive negotiations,
Minifee and the state reached a plea bargain. Minifee would plead guilty to all the
charges and specifications, and the court would impose an agreed sentence of 19.5 years.1
Minifee pleaded guilty, and the judge scheduled a separate sentencing hearing.
{¶5} At the sentencing hearing, Minifee initially made a pro se oral motion to
withdraw his guilty plea and argued that his attorney had coerced him into the plea and
that he was deprived of due process. The trial judge conducted a hearing and denied the
motion to withdraw.
{¶6} The trial judge then asked the prosecutor to address the issue of allied
offenses. The prosecutor stated that the kidnapping charge and the two aggravated
robbery charges would merge and that the state would elect to sentence on the deadly
weapon version of the aggravated robbery charge. He also stated that the attempted
murder and the two felonious assault charges would merge and that the state would elect
1 The maximum potential sentence for the charges was 47.5 years. to sentence on the attempted murder charge.2
{¶7} The prosecutor acknowledged that felonious assault and aggravated robbery
could merge. However, he argued that they should not in this case, because the peculiar
facts of this case showed a different animus motivated the aggravated robbery from the
attempted murder/felonious assault. Minifee’s initial animus was to rob the officer
when Minifee approached brandishing his weapon. That animus changed to escape and
avoiding detection when the officer produced his weapon and the firing began. The
judge accepted this version of the facts. At the end of the allied offense hearing, the
judge asked defense counsel for his input, and defense counsel replied: “Nothing further,
your Honor.” (Tr. 71-77.) The judge then imposed the agreed 19.5 year prison
sentence.
{¶8} On appeal, Minifee’s attorney argued the following: (1) Minifee’s plea was
not knowingly and voluntarily made, (2) the trial judge abused his discretion in denying
the motion to withdraw, (3) trial counsel was ineffective for not aiding Minifee’s motion
to withdraw, and (4) the trial judge erred in imposing court costs.
{¶9} Minifee now argues that his appellate counsel was ineffective for not
arguing that the aggravated robbery charges should have merged with the felonious
assault charges as allied offenses. Minifee relies on the appeal of one of his
acquaintances, State v. Collins, 8th Dist. Cuyahoga No. 99111, 2013-Ohio-3726. Devin
2 Although the prosecutor argued that the attempted murder and felonious assault charges should not merge with the discharge of a firearm in a prohibited place because the elements were so different, the trial judge merged them. Collins pleaded guilty to felonious assault, aggravated robbery, having a weapon while
under disability, and tampering with evidence. On appeal, this court reversed and
remanded on the issue of allied offenses, reasoning the record was
insufficient to properly determine if the offenses were committed by the same conduct. * * * [N]either account adequately detailed the felonious assault such that the court could properly determine if it was committed with a separate animus from the aggravated robbery. * * * Although the state argued that the felonious assault occurred subsequent to, and separate from the aggravated robbery, the state’s recitation of facts failed to explain precisely when during the course of events the victim was shot.
Id. at ¶ 12.
Minifee concludes that because the prosecutor made “essentially the same argument” in
his case that he did in Collins’s case, this court should follow Collins and grant his
application to reopen.
{¶10} In order to establish a claim of ineffective assistance of appellate counsel,
the applicant must demonstrate that 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.
{¶11} 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
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Minifee, 2014-Ohio-694.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99202
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
PATRICK A. MINIFEE DEFENDANT-APPELLANT
JUDGMENT: APPLICATION DENIED
Cuyahoga County Court of Common Pleas Case No. CR-562160 Application for Reopening Motion No. 468799
RELEASE DATE: February 26, 2014 ATTORNEY FOR APPELLANT
Richard Agopian 1415 West Ninth Street - 2nd Floor Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor Katherine Mullin Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:
{¶1} On October 2, 2013, the applicant, Patrick Minifee, pursuant to App.R.
26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to
reopen this court’s judgment in State v. Minifee, 8th Dist. Cuyahoga No. 99202,
2013-Ohio-3146, in which this court affirmed his convictions for attempted murder,
aggravated robbery, carrying a concealed weapon, improperly handling a firearm in a
motor vehicle, and tampering with evidence. Minifee maintains that his appellate
counsel was ineffective for not arguing allied offenses. On December 2, 2013, the state
of Ohio, through the Cuyahoga County Prosecutor, filed its brief in opposition. For the
following reasons, this court denies the application to reopen.
{¶2} On April 26, 2012, an off-duty Cleveland police officer exited his car at a
private residence in Cleveland. Minifee, brandishing a pistol, approached the officer
and attempted to rob him. The officer produced his firearm, and the two men exchanged
shots. The officer was shot in the back, and Minifee was shot in the chest. Minifee
was able to get back to a car, which contained two acquaintances who drove him to a
nearby hospital. The acquaintances abandoned Minifee in the car at the hospital, where
lifesaving measures allowed his survival. Police officers discovered two firearms
underneath the car’s gear box. The wounded officer was treated and released.
{¶3} Consequently, the grand jury indicted Minifee and his two acquaintances
with the following charges: (1) kidnapping, (2) attempted murder, (3) felonious assault by
knowingly causing serious physical harm to the police officer, (4) felonious assault by means of a deadly weapon, (5) aggravated robbery by brandishing a deadly weapon, (6)
aggravated robbery by causing serious physical harm to the officer, (7) discharge of a
firearm on or near a prohibited premises, (8) carrying a concealed weapon, (9) improperly
handling a firearm in a motor vehicle, and (10) tampering with evidence. The first seven
counts also carried one- and three-year firearm specifications, and Minifee’s codefendants
also faced charges of having a weapon while under disability.
{¶4} After a change of defense counsel, discovery, and extensive negotiations,
Minifee and the state reached a plea bargain. Minifee would plead guilty to all the
charges and specifications, and the court would impose an agreed sentence of 19.5 years.1
Minifee pleaded guilty, and the judge scheduled a separate sentencing hearing.
{¶5} At the sentencing hearing, Minifee initially made a pro se oral motion to
withdraw his guilty plea and argued that his attorney had coerced him into the plea and
that he was deprived of due process. The trial judge conducted a hearing and denied the
motion to withdraw.
{¶6} The trial judge then asked the prosecutor to address the issue of allied
offenses. The prosecutor stated that the kidnapping charge and the two aggravated
robbery charges would merge and that the state would elect to sentence on the deadly
weapon version of the aggravated robbery charge. He also stated that the attempted
murder and the two felonious assault charges would merge and that the state would elect
1 The maximum potential sentence for the charges was 47.5 years. to sentence on the attempted murder charge.2
{¶7} The prosecutor acknowledged that felonious assault and aggravated robbery
could merge. However, he argued that they should not in this case, because the peculiar
facts of this case showed a different animus motivated the aggravated robbery from the
attempted murder/felonious assault. Minifee’s initial animus was to rob the officer
when Minifee approached brandishing his weapon. That animus changed to escape and
avoiding detection when the officer produced his weapon and the firing began. The
judge accepted this version of the facts. At the end of the allied offense hearing, the
judge asked defense counsel for his input, and defense counsel replied: “Nothing further,
your Honor.” (Tr. 71-77.) The judge then imposed the agreed 19.5 year prison
sentence.
{¶8} On appeal, Minifee’s attorney argued the following: (1) Minifee’s plea was
not knowingly and voluntarily made, (2) the trial judge abused his discretion in denying
the motion to withdraw, (3) trial counsel was ineffective for not aiding Minifee’s motion
to withdraw, and (4) the trial judge erred in imposing court costs.
{¶9} Minifee now argues that his appellate counsel was ineffective for not
arguing that the aggravated robbery charges should have merged with the felonious
assault charges as allied offenses. Minifee relies on the appeal of one of his
acquaintances, State v. Collins, 8th Dist. Cuyahoga No. 99111, 2013-Ohio-3726. Devin
2 Although the prosecutor argued that the attempted murder and felonious assault charges should not merge with the discharge of a firearm in a prohibited place because the elements were so different, the trial judge merged them. Collins pleaded guilty to felonious assault, aggravated robbery, having a weapon while
under disability, and tampering with evidence. On appeal, this court reversed and
remanded on the issue of allied offenses, reasoning the record was
insufficient to properly determine if the offenses were committed by the same conduct. * * * [N]either account adequately detailed the felonious assault such that the court could properly determine if it was committed with a separate animus from the aggravated robbery. * * * Although the state argued that the felonious assault occurred subsequent to, and separate from the aggravated robbery, the state’s recitation of facts failed to explain precisely when during the course of events the victim was shot.
Id. at ¶ 12.
Minifee concludes that because the prosecutor made “essentially the same argument” in
his case that he did in Collins’s case, this court should follow Collins and grant his
application to reopen.
{¶10} In order to establish a claim of ineffective assistance of appellate counsel,
the applicant must demonstrate that 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.
{¶11} 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.
{¶12} 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.
{¶13} 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.
{¶14} Minifee’s argument is not persuasive. The trial judge conducted an allied
offenses hearing in Minifee’s case, and merged seven of the ten offenses to which he
pleaded guilty. The prosecutor showed that a different animus motivated the aggravated
robbery and kidnapping charges than the attempted murder and felonious assault charges.
Minifee’s animus changed from robbery to escape “when the officer produced his
weapon and began to fire at them.” (Tr. 73.) Thus, Minifee is distinguishable from
Collins. The prosecutor provided more than in Collins’s case. When confronted with
the allied offenses hearing, the multiple mergers, and the prosecutor’s proffer of different
animuses dependent on the officer’s action, appellate counsel in the exercise of
professional judgment could reject the allied offenses argument.
{¶15} Accordingly, this court denies the application for reopening.
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and EILEEN A. GALLAGHER, J., CONCUR