State v. Mitchell

2019 Ohio 4256

Opinion

[Cite as State v. Mitchell, 2019-Ohio-4256.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 107242 v. :

TERRANCE MITCHELL, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: October 16, 2019

Cuyahoga County Court of Common Pleas Case No. CR-17-620376-A Application for Reopening Motion No. 529800

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Christopher D. Schroeder, Assistant Prosecuting Attorney, for appellee.

Terrance Mitchell, pro se.

MICHELLE J. SHEEHAN, J.:

Terrance Mitchell has filed a timely App.R. 26(B) application for

reopening. Mitchell is attempting to reopen the appeal rendered in State v. Mitchell,

8th Dist. Cuyahoga No. 107242, 2019-Ohio-1357, which affirmed his sentence for pandering sexually oriented matter involving a minor, illegal use of a minor in

nudity-oriented material or performance, and possessing criminal tools. We decline

to grant Mitchell’s application for reopening because he fails to establish a claim of

ineffective assistance of appellate counsel nor that he was prejudiced.

I. Standard of Review Applicable to App.R. 26(B) Application for Reopening

In order to establish a claim of ineffective assistance of appellate

counsel, Mitchell 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).

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 in 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. Moreover, even if Mitchell establishes that an error by his appellate

counsel was professionally unreasonable, Mitchell must further establish that he

was prejudiced; but for the unreasonable error there exists a reasonable probability

that the results of his appeal would have been different. Reasonable probability,

with regard to an application for reopening, is defined as a probability sufficient to

undermine confidence in the outcome of the appeal. State v. May, 8th Dist.

Cuyahoga No. 97354, 2012-Ohio-5504.

II. Effect of Plea of Guilty on App.R. 26(B)

In the case sub judice, Mitchell entered a plea of guilty to the charged

offenses of pandering sexually oriented matter involving a minor, illegal use of a

minor in nudity-oriented material or performance, and possessing criminal tools. A

plea of guilty waives a defendant’s right to challenge his or her conviction on all

potential issues except for jurisdictional issues and the claim that ineffective

assistance of counsel caused the guilty plea to be less than knowing, intelligent, and

voluntary. Montpelier v. Greeno, 25 Ohio St.3d 170, 495 N.E.2d 581 (1986); State

v. Vihtelic, 8th Dist. Cuyahoga No. 105381, 2017-Ohio-5818; State v. Szidik, 8th

Dist. Cuyahoga No. 95644, 2011-Ohio-4093; State v. Salter, 8th Dist. Cuyahoga No.

82488, 2003-Ohio-5652.

By entering a plea of guilty, Mitchell waived all appealable errors that

might have occurred at trial unless the errors prevented Mitchell from entering a

knowing and voluntary plea. State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658

(1991); State v. Barnett, 73 Ohio App.3d 244, 596 N.E.2d 1101 (2d Dist. 1991). Our review of the plea transcript clearly demonstrates that the trial court meticulously

complied with the mandates of Crim.R. 11 and that Mitchell entered a knowing,

intelligent, and voluntary plea of guilty. Specifically, the trial court informed

Mitchell of the following waiver of rights and potential prison sentences: 1) the

degree of each charged felony offense; 2) the maximum sentence and fine associated

with each charged felony offense; 3) waiver of the right to a jury or bench trial; 4)

waiver of the right that the state must prove guilt beyond a reasonable doubt; 5)

waiver of the right to confront and cross-examine each witness called by the state;

6) Mitchell could not be compelled to testify against himself; 7) the court could

immediately proceed with judgment and imposition of sentence upon Mitchell

entering a plea of guilty; 8) the possibility of consecutive sentences with a maximum

sentence of 121 years; 9) imposition of restitution, fees, and costs; 10) requirement

of registration as a Tier 2 sex offender; 11) mandatory and permissive imposition of

postrelease control; 12) the effects of violation of postrelease control; and 13) the

possibility of a community control sentence. The trial court also inquired as to

whether Mitchell was satisfied with his attorney and whether any threats or

promises had been made to encourage the entry of a guilty plea. Because Mitchell’s

plea was knowingly, intelligently, and voluntarily made, and the claimed errors

raised by Mitchell are not based upon any jurisdictional defects, the raised proposed

assignments of error are waived. We further find that no prejudice can be

demonstrated by Mitchell based upon appellate representation on appeal. State v.

Bates, 8th Dist. Cuyahoga No. 100365, 2015-Ohio-297. Application for reopening is denied.

MICHELLE J. SHEEHAN, JUDGE

MARY EILEEN KILBANE, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR