[Cite as State v. Wulff, 2011-Ohio-5146.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 94087
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ALEX WULFF DEFENDANT-APPELLANT
JUDGMENT: APPLICATION FOR REOPENING GRANTED IN PART (MOTION NO. 444348), SENTENCE VACATED IN PART, AND REMANDED FOR RESENTENCING
Cuyahoga County Common Pleas Court Case No. CR-518412 Application for Reopening Motion No. 444348
RELEASE DATE: October 4, 2011 2
FOR APPELLANT
Alex Wulff, Pro Se No.A571-010 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason, Esq. Cuyahoga County Prosecutor By: Mary McGrath, Esq. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} Alex Wulff has filed a timely application for reopening pursuant to App.R.
26(B). Wulff is attempting to reopen the appellate judgment, as rendered in State v.
Wulff, Cuyahoga App. No. CA-94087, 2011-Ohio-700, which affirmed his conviction for
the offenses of murder, tampering with evidence, and abuse of a corpse. For the
following reasons, we grant the application for reopening in part, reinstate Wulff’s
appeal, vacate his sentence as to postrelease control, and remand for resentencing on
postrelease control consistent with this opinion. 3 {¶ 2} In order to establish a claim of ineffective assistance of appellate counsel,
Wulff must demonstrate that appellate counsel’s performance was deficient and that, but
for the 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, Wulff 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).
{¶ 3} “In State v. Reed [supra, at 458] 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.
{¶ 4} 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, 77
L.Ed.2d 987, 103 S.Ct. 3308. Appellate counsel cannot be considered ineffective for
failing to raise every conceivable assignment of error on appeal. Jones v. Barnes, supra; 4 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.
{¶ 5} In Strickland v. Washington, 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 upheld the appellate attorney’s 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 v.
Barnes, supra.
{¶ 6} In the case sub judice, Wulff raises three proposed assignments of error in
support of his claim of ineffective assistance of appellate counsel. Specifically, Wulff
argues that his appellate counsel was ineffective for failing to assign as error the trial
court’s failure to inquire into his competency to enter a plea of guilty, the trial court’s 5 failure to advise him of his right to compulsory process, and the trial court’s imposition of
five years of postrelease control.
{¶ 7} Initially, we find that the plea colloquy, that occurred during the hearing
conducted on June 8, 2009, demonstrates that Wulff was lucid when entering his plea of
guilty to the offenses of murder, tampering with evidence, and abuse of a corpse. In
addition, the competency evaluation of Wulff established that he was able to understand
the nature and objectives of the court proceedings and that he was able to assist in his
defense. State v. Taylor, Lake App. No. 2002-L-005, 2003-Ohio-6670. It must also be
noted that Wulff is not rendered incompetent to stand trial or enter a plea of guilty
because he is being treated with medicinal drugs. State v. Borchers, 101 Ohio App.3d
157, 655 N.E.2d 225. Wulff’s first proposed assignment of error is not well taken and
consideration of the issue of competency on appeal would not have resulted in a different
outcome.
{¶ 8} Wulff, through his second proposed assignment of error, argues that the
trial court failed to advise him of his right to compulsory process. An additional review
of the plea hearing of June 8, 2009, demonstrates that the trial court explained the
constitutional right of compulsory process in a manner reasonably intelligent to Wulff.
State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621; State v. Ballard
(1981), 66 Ohio St.2d 473, 423 N.E.2d 115. Wulff’s second proposed assignment of 6 error is not well taken and consideration of the issue of compulsory process on appeal
would not have resulted in a different outcome.
{¶ 9} Wulff, through his third proposed assignment of error, argues that the trial
court erred by imposing a term of five years of postrelease control with regard to the
offenses of tampering with evidence and abuse of a corpse. We agree.
{¶ 10} R.C. 2967.28(B) and (C) provide in pertinent part that: “a period of
post-release control required by this division for an offender shall be of the following
periods: * * * (3) For a felony of the third degree that is not a felony sex offense and in
the commission of which the offender caused or threatened physical harm to a person,
three years.
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[Cite as State v. Wulff, 2011-Ohio-5146.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 94087
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ALEX WULFF DEFENDANT-APPELLANT
JUDGMENT: APPLICATION FOR REOPENING GRANTED IN PART (MOTION NO. 444348), SENTENCE VACATED IN PART, AND REMANDED FOR RESENTENCING
Cuyahoga County Common Pleas Court Case No. CR-518412 Application for Reopening Motion No. 444348
RELEASE DATE: October 4, 2011 2
FOR APPELLANT
Alex Wulff, Pro Se No.A571-010 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason, Esq. Cuyahoga County Prosecutor By: Mary McGrath, Esq. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} Alex Wulff has filed a timely application for reopening pursuant to App.R.
26(B). Wulff is attempting to reopen the appellate judgment, as rendered in State v.
Wulff, Cuyahoga App. No. CA-94087, 2011-Ohio-700, which affirmed his conviction for
the offenses of murder, tampering with evidence, and abuse of a corpse. For the
following reasons, we grant the application for reopening in part, reinstate Wulff’s
appeal, vacate his sentence as to postrelease control, and remand for resentencing on
postrelease control consistent with this opinion. 3 {¶ 2} In order to establish a claim of ineffective assistance of appellate counsel,
Wulff must demonstrate that appellate counsel’s performance was deficient and that, but
for the 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, Wulff 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).
{¶ 3} “In State v. Reed [supra, at 458] 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.
{¶ 4} 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, 77
L.Ed.2d 987, 103 S.Ct. 3308. Appellate counsel cannot be considered ineffective for
failing to raise every conceivable assignment of error on appeal. Jones v. Barnes, supra; 4 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.
{¶ 5} In Strickland v. Washington, 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 upheld the appellate attorney’s 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 v.
Barnes, supra.
{¶ 6} In the case sub judice, Wulff raises three proposed assignments of error in
support of his claim of ineffective assistance of appellate counsel. Specifically, Wulff
argues that his appellate counsel was ineffective for failing to assign as error the trial
court’s failure to inquire into his competency to enter a plea of guilty, the trial court’s 5 failure to advise him of his right to compulsory process, and the trial court’s imposition of
five years of postrelease control.
{¶ 7} Initially, we find that the plea colloquy, that occurred during the hearing
conducted on June 8, 2009, demonstrates that Wulff was lucid when entering his plea of
guilty to the offenses of murder, tampering with evidence, and abuse of a corpse. In
addition, the competency evaluation of Wulff established that he was able to understand
the nature and objectives of the court proceedings and that he was able to assist in his
defense. State v. Taylor, Lake App. No. 2002-L-005, 2003-Ohio-6670. It must also be
noted that Wulff is not rendered incompetent to stand trial or enter a plea of guilty
because he is being treated with medicinal drugs. State v. Borchers, 101 Ohio App.3d
157, 655 N.E.2d 225. Wulff’s first proposed assignment of error is not well taken and
consideration of the issue of competency on appeal would not have resulted in a different
outcome.
{¶ 8} Wulff, through his second proposed assignment of error, argues that the
trial court failed to advise him of his right to compulsory process. An additional review
of the plea hearing of June 8, 2009, demonstrates that the trial court explained the
constitutional right of compulsory process in a manner reasonably intelligent to Wulff.
State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621; State v. Ballard
(1981), 66 Ohio St.2d 473, 423 N.E.2d 115. Wulff’s second proposed assignment of 6 error is not well taken and consideration of the issue of compulsory process on appeal
would not have resulted in a different outcome.
{¶ 9} Wulff, through his third proposed assignment of error, argues that the trial
court erred by imposing a term of five years of postrelease control with regard to the
offenses of tampering with evidence and abuse of a corpse. We agree.
{¶ 10} R.C. 2967.28(B) and (C) provide in pertinent part that: “a period of
post-release control required by this division for an offender shall be of the following
periods: * * * (3) For a felony of the third degree that is not a felony sex offense and in
the commission of which the offender caused or threatened physical harm to a person,
three years. * * *.” (Emphasis added.) Herein, the offenses of tampering with evidence
and abuse of a corpse are felonies of the third degree. The imposition of five years of
postrelease control for third degree felonies constitutes reversible error. It must also be
noted that the trial court is required to inform Wulff that a violation of postrelease control
could allow the parole board to impose an additional prison term of up to one-half of the
stated prison term originally imposed at sentencing. See State v. Singleton, 124 Ohio
St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958.
{¶ 11} Accordingly, we grant the application for reopening in part, reinstate this
appeal to the active docket, vacate the sentence of the trial court solely as to the
imposition of postrelease control, and remand to the trial court for the proper imposition
of postrelease control. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 7 332; State v. Street, Cuyahoga App. No. 85020, 2005-Ohio-1976, reopening granted,
2006-Ohio-21.
It is, therefore, ordered that appellant recover of the appellee his costs herein
taxed.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27, of
the Rules of Appellate Procedure.
_______________________________________________ JAMES J. SWEENEY, JUDGE
PATRICIA ANN BLACKMON, P.J., and MELODY J. STEWART, J., CONCUR