State v. Philpotts

2023 Ohio 1810

Opinion

[Cite as State v. Philpotts, 2023-Ohio-1810.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110607 v. :

DELVONTE PHILPOTTS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: May 26, 2023

Cuyahoga County Court of Common Pleas Case No. CR-20-649537-A Application for Reopening Motion No. 559557

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecutor, and Brandon A. Piteo, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Robert B. McCaleb, Assistant Public Defender, for appellant.

LISA B. FORBES, J.:

Delvonte Philpotts has filed a timely App.R. 26(B) application for

reopening. Philpotts is attempting to reopen the appellate judgment, rendered in State v. Philpotts, 8th Dist. Cuyahoga No. CA-19-110607, 2022-Ohio-2865, which

affirmed the convictions rendered in State v. Philpotts, Cuyahoga C.P. No. CR-20-

649537-A, for the offenses of aggravated murder (R.C. 2903.01(B)), aggravated

robbery (R.C. 2911.01(A)(3)), murder (R.C. 2903.02(B)), felonious assault

(R.C. 2903.11(A)(1)), involuntary manslaughter (R.C. 2903.04), and discharge of a

firearm on or near prohibited premises (R.C. 2923.162(A)(3)). We decline to reopen

Philpotts’s appeal.

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

An application for reopening shall be granted if there exists a genuine

issue as to whether an applicant was deprived of the effective assistance of appellate

counsel on appeal. See App.R. 26(B)(5). To establish a claim of ineffective

assistance of appellate counsel, Philpotts 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. 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), cert. denied,

497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed. 2d 768 (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. Id. at

689. 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.’” Id., quoting Michel v.

Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

Moreover, even if Philpotts establishes that an error by his appellate

counsel was professionally unreasonable, Philpotts 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,

regarding 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. Argument

The sole assignment of error raised by Philpotts, in support of his

application for reopening, is that

[t]here was insufficient evidence to support the conviction of aggravated murder when the facts found by the trial court amounted only to felony murder.

Pursuant to Strickland, Philpotts must demonstrate that (1) his

appellate counsel’s performance was objectively unreasonable, and (2) there exists

a reasonable probability that, but for appellate counsel’s unprofessional conduct on

appeal, the results of his appeal would have been different. Id., 466 U.S. at 664, 104

S.Ct. 2052, 80 L.Ed.2d 674. See also Smith v. Robbins, 528 U.S. 259, 285-286, 120

S.Ct. 746, 145 L.Ed.2d 756 (2000). Herein, there exists no reasonable probability sufficient to undermine confidence in this court’s original appellate decision.

Strickland at 694.

In the appellate opinion journalized August 18, 2022, this court

reviewed the issue of sufficiency of the evidence to support Philpotts’s convictions

for the offenses of aggravated murder and felony murder. Contrary to Philpotts’s

argument, this court did not gloss over the distinction between felony murder and

complicity to commit aggravated murder. This court focused its analysis on the

issue of complicity and held

[t]he crux of this case lies in the complicity statute. Under Ohio’s complicity statute, “[n]o person, acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in committing the offense.” R.C. 2923.03(A)(2). A defendant guilty of complicity “shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated * * * in terms of the principal offense.” R.C. 2923.03(F).

To support a conviction for complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal. Such intent may be inferred from the circumstances surrounding the crime.

State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302, 2015- Ohio-4074, ¶ 33, quoting State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus.

Upon review, we find that the state produced sufficient evidence to support all of Philpotts’s convictions. His arguments that there was no evidence that he intended to kill Thomas nor that he fired a gun are not well taken.

Philpotts, 8th Dist. Cuyahoga No. 110607, 2022-Ohio-2865, at ¶ 100-101. There exists no reasonable probability that, but for appellate

counsel’s claimed error on appeal, the results of Philpotts’s appeal would have been

different. Philpotts has failed to establish any prejudice through the sole assignment

of error raised in support of his claim of ineffective assistance of appellate counsel.

State v. Gulley, 8th Dist. Cuyahoga No. 109045, 2020-Ohio-4746; State v. Lester,

8th Dist. Cuyahoga No. 105992, 2018-Ohio-5154.

Application for reopening is denied.

LISA B. FORBES, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and EILEEN A. GALLAGHER, J., CONCUR