State v. Lockhart, (Ohio 2011)

Ohio Supreme Court

Status: 2011-Ohio-3381

Docket Number: 95093

Parts: Cooney

Linked as:

Summary

App.R. 26(B); bad time statute; R.C. 2967.11; R.C. 2929.19(B)(3)(b)

Summary

App.R. 26(B); bad time statute; R.C. 2967.11; R.C. 2929.19(B)(3)(b)

Text

[Cite as State v. Lockhart, 2011-Ohio-3381.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 95093 STATE OF OHIO PLAINTIFF-APPELLEE vs. ISAAC LOCKHART DEFENDANT-APPELLANT JUDGMENT: APPLICATION DENIED    Cuyahoga County Common Pleas Court Case No. CR-353508 Application for Reopening Motion No. 443541 RELEASE DATE:    July 5, 2011 FOR APPELLANT

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2 Isaac Lockhart, pro se Inmate No. 355-631 Grafton Correctional Institution 2500 South Avon Belden Road Grafton, Ohio 44044 ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor By: Thorin Freeman Assistant County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 COLLEEN CONWAY COONEY, J.: {¶ 1}  Isaac Lockhart has filed a timely application for reopening pursuant to App.R. 26(B). Lockhart is attempting to reopen the appellate judgment in State v. Lockhart, Cuyahoga App. No. CA-95093, 2011-Ohio-936, which affirmed the trial court’s imposition of consecutive prison terms at a resentencing hearing.    We decline to reopen Lockhart’s appeal. {¶ 2}  In  order  to  establish  a  claim  of  ineffective  assistance  of  appellate  counsel, Lockhart must demonstrate that appellate counsel’s performance was deficient and that, but for

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3 his 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,  Lockhart  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, * * * 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 were deficient for failing to raise the issues 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, 25, 1998-Ohio-704, 701 N.E.2d 696. {¶ 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; 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.

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4 {¶ 5}  In Strickland v. Washington, 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 too 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. {¶ 6}  In the case sub judice, Lockhart raises one proposed assignment of error in support of his claim of ineffective assistance of appellate counsel.   Specifically, he argues that his appellate counsel was ineffective for failing to assign as error the trial court’s failure to advise at resentencing that the parole board could extend the imposed consecutive prison terms for violations of prison rules. Lockhart argues that his sentence was defective since he was not advised of the “bad time” statute as required by R.C. 2929.19(B)(3)(b).

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5 {¶ 7}  The Ohio Adult Parole Authority possesses no authority, pursuant to R.C. 2967.11 or 2929.19(B)(3)(B), to administratively extend the stated sentence if an offender commits any criminal offense or violation of prison rules while serving a prison term.    The “bad time” statutes contained in R.C. 2967.11 and 2929.19(B)(3)(b), have been declared unconstitutional because they violated the separation of powers doctrine.    State ex rel. Bray v. Russell (2000), 89 Ohio St.3 132, 729 N.E.2d 359; State v. Wolford, Cuyahoga App. No. 92607, 2010-Ohio-434; State v. Fleming, Cuyahoga App. No. 87773, 2006-Ohio-6773;  State v. Honzu, Trumbull App. No. 2001-T-0005, 2002-Ohio-1165.  Thus, the trial court possessed no duty to advise Lockhart of the effect of “bad time” and appellate counsel was not required to raise the issue on appeal.      {¶ 8}  Accordingly, we deny Lockhart’s application for reopening.

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    COLLEEN CONWAY COONEY, JUDGE MARY J. BOYLE, P.J., and LARRY A. JONES, J., CONCUR

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