IN THE SUPRE11E COURT OF OHIO

STATE OF OHIO,

Plain^iff-Appet 1 eeg

V.

PATRICK MINIFEE,

Defetidant- Appellant.

,Case INa.

J,

On ^^^^^^ from theCuyahoga County Courtof Appeals, EighthAppellate District

Court of Appeals,Case t? oz CA-99202

MEMORANDUM IN SUPPORT OF JURISDICTI4NOF APPET PATRICK MINIFEE

Patrick Minifee#A6^^-751Mansfield Correctional inst.P.O. Box 788Mansfield, Ohio 44901

C64JR5EL FOR APPELLANTIN PRO SE

Cuyahoga County Prosecutorxianothy McGinty1200 Ontario St.Cleveland, Ohio 44113

^OUNS^L FOR APPELLEE

APR 14 ?014

CLERK OF COURTIEE COU

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Proposition of Law 3L4444aY@tppp46Yptim+i4ARpO%6aPk4Qbn44b>v:-Y4a4@48Yi?Y44MYNW'

Pro}/a3.e7 i dy A'u3 n of Law 11 ..... .... ........ ....... ... .... ........... ........ 7

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APP

3our°n'Cal Entry and Opinion of the Eighth District Court of Appeals'^

•ur+° Y;itt February k^ ,

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EXP@."ANAfION OF WHY THIS COURT SHOULD ACCEPT THIS CASE

The appellant, Patrick Minifee, preserats to this court an '^ ^sue of i neffecti ve

assi stance of appellate counsel on appeal, which the United States Supreme Court

determined is a Due °rocess Violation. See Evitts v» Lucel 469 U.S. 387(1985)(ciue

process requires effective assistance of counsel during first appeal of right).

Id. at 396. This Consti tutional entitlement will only be satisfied when 'uhe

evidence, law and circumstances of a particular case, viewed ir^ their totality and

as of the i<£me of the representation, demonstrate that a defendant received

44meaningfu^ representation" from his appellate counsel. This requires an

appellate counsel to undertake a thorough revnew of ^^^e trial record and select

t{io .€iost promising issties for a°eview. Jones v. Barnes 103 SXt. 3308., 3313 (1983).

Gounsel ' s fa^ ^ ^^^ to raise an ^ ^su^ which if raised, would have resulted in a

reversal oC, modification to his conviction constituted a sufficter^^ ground to find

i ^effecti ve assistance of app?^ ^ ^^te ^^unael. See Gr, vm Artuz 831 F.Supp 1048,

1061 (SONY 1966).

The apK7ellan°t' s appw^ ^ ^^^ cof, i ^^l was i neff vcti v>W for not rai :;i ng an. g

+^^..^^^"^^^^f^.'i"',^'ts?"^ i ssue on d'^i-ree , r '' C^a r`a{:s f^=s' ^s^tLS^^tnP i ^.

s', C4 ^^ ^^^^,! '2

cou;ss<;l t"^.^i.^'+.:ci' and an ^,^^l'E$ed offr::nMwe issue E7ti t;-n: C"iau ,`f'''c, 'S of F;^lorsiou^'s Assault

and ^^gra°,ra'wk r Itate v. Collins St'n r:;Ost, au^ahoca 99111, 2,313-

Ohfo - 37:"=.^^,'^ at l12) y whit,.?h are t±lk. " wf;f' chGrges that flne ^p:^"^a'r +? lI s^^..;i"Tl e>s ,,iressed are

allied t^llief^ c^ff€^tispe in .^#::. Ap%^,w Rw 2'(8) }:°^p^lw>rtio^t^. ,°€^t" orit ^'

recogni^,^..e and raA.^.^<&,.'^' u^d^Al Sied in a c:... . ,.h:3t shraV';ar,

^ ^r;ifi" a:ll i;','^^:° ,y

^^^^sel was ^^ear,y inwyffectiv: "

tri sti+Kte of 01hif; it hu."t.} become c^ll t£) Co6t`cii3C'.n for attorneys tci

overl ook atl tkpr°'^;'tell tiiit's allied offense issue, and Ciio9`"e frE?E4 tly^ Sp ;^ q" '^."^. wfji^,y ^;;jfw^i^ i # ^i

i E^ se`i , and sa }9 idw+ii'ig so, they ai"e fJltEs'rlS,7t"3 k i ng their clients protecti on fi"oIB Df1u^le

-1-

Jeopardy. i,^1s 11onGrai?^e court has determined that +,R.,C.29'11,25 c^^^ifir's?a the

protections o'T V ;^^^^le Jeopardy Clause of ^^•.;' Fifth Amendment to ^^^ Uni;^^

States ^^nswitu`^i2,^,,(i and Section 10, Article I of t<: Ohio ;onst^tutAofl, i=,ahich

prohibits multiple pi'f^^sh:ilent:> fcj:" t.`3f:^ 5c"2"me offft ins'.^^,.`^ See State v. Underwood

(2010), 124 Ohio stA3+^ 165 at 1e3.

The Double ^, - Clause pro^}ij^itic^r ag^fi^. )? nish.f tµnts for thej

same offense ^^^ver^ts state courts f^ori ii+ipt^^^^^ a pu-r:'ishls;^nt greater than ^gha ;.

^^^ ^ tatee :^ ^ ^^^ ^lature intended. See Mi ssouri v. Hunter (1983), 45-0, U.. S. 3159 at

366; 1.723 SrCt. 673; 74 a.,>Ed 2d 535. n^^^lhen a 1^^^^^a"I"ure signals its ^^^^^^^t to

either prohibit or prevent cusrful^^^^^ punishments for coi^du^^ that k^^^ qUalify as

two crimes„. <^`'s,^e, expressed `[ntFa{it is dispositive." State v. Rance

^1999^^ 85 Ohio St^ 3( :`52 at 635,(Citing Onia v. Johnson (1984), 467 U.S. 493', at

499, overruled on other grounds by State v. Johnson ( ?010), 128 Ohio S* > w c^ 153 at

161. Therefore, a violation of Ohio Revised Code 2941.25 is a vi^latio€^ of tne

Double Jeopardy Clause o'f the FifWh Arr^endI^^^^t of the United States Constitution

and the Double Jeopardy Clause of ttie Fifth Amendment is inac^^ applicable to the

states through the Fourteenth Amendment which provides that no person shall z'be

subject for the same offense to ^^ twice pt^^ in jeopardy of life c4 lililb." U.S.

Const. Amend, V; See Benton v. Mar.- ^ and 395 C.t. S. 784, 794

The appel1 atit has clearly demonstrated that his case presents two very

i;^^portant coqstitutional issues, and coc^^^^d wd th thesp denials of his

constitutional r^^^-t to effective assistance of counsel on appeal and his

protection against Double jeopardy is clearly of a great general public interest.

T4^^^^e has been a multitude of pr°eviatis cases that demonstrate the appellant's

point, how many cases have passed through this ^^urt, making the sasise claims, and

because of all t."^^ previous appellan1:, ° s appeals we3'e. not through the

APP.R. 26(3) application do to appellate districts iricorrect opinions and rulings,

which ^ ^ turn harred appe1 lanus fr^:,3^1 presen^^^ ^^^ their issues in future appeals,

-:1».

and rria;a tiave deemed "Chat these appellant's have procedurally defaulted 'thpir

constitutional claims in Federal Habeas Corpus proceedingsa The appellant, along

witli future appellants should not suffer the same fate as the others previa^^llv

discussed, in this case this honorable court has the opportunity to correct the

injustice that the appel ^ ate districts and appellate attore^^^s have been

inflicting on appellants, especially whan it ca,,meu to gi^^lt^ plea appeals.

Ir^ this case appai 1 ate counse1 p s conduct fell well below the acceptable

standards of representation, as enc^nIciated in Strickland v. Wa^^^^ 456 U.S.

668, and cannot be explained away as sound appellate tactics, strategies, or

reasoriable professional judgment. Appellate co+inse3's errors were so serious that

counsel was not ftinct7 oning as counsel as guaranteed to a defendant by the Sixth:

and Fourteenth Amendments and because of this the appellant was prejudiced by the

deficient performance of appellate counsel in that he was deprived of the proper

revieva of his case, and now he requests for this cotirt to accept jurisdiction to

correct the 4fncorrect determination that appel i ate counsel was not i neffecti ve and

further deterfaine that the Eighth District Court of Appeals i ncorrectl y determined

the #t[the appellant] is distinguishable from Collins."(Appxa Opinion at 514),

STATEMENT OF THE CASE AND FACTS

kOn ADri 1 26, 2012& the appellant, along with co-defendant, Devin Col1 i ns ^

attempted to rob an off-duty Clevelend Police Officery. During the incident, a

nur^.ber of shots were exchanged between the officer and the appellant and Mr..

Co] 1 insn The Off i cer was shot iri the back, the appellant was shot in the :hest r

The officer was treated and released in connection ^^^^i his gunshot wound, and tiie

appellant, seriously injured, survived the incident after he was taken to a nearby

hospital.

As a resul't of the incident, the Cuyahoga County Grand Jury returned a true

bi1l on a fftulti-count ifadictnient charging the appellant with kidnapping in

violation 2905,0i(B)(2), a felony of 'the first degree; a^^empLed murder in

^^^

violation of ZW923.02 and 29" 3,02^^'^), a felony of the first degree; 'reloi3iGui

assault in violation or R.Ca2903.11(A)(1)9 a felony of the first degree; fe1onies

assault in violation of RA2903a02(4)(2)s a felony of the first d:;rr<„ey

agg{ _:4ated robbery in violation of R*C02931,01(Q(I)a a felony of ^ts; firsi::,

(:'.=gree; aggravated robbery iri violation of R.C,291101',^^ ^ ^,ti^'.}s,.r:), ^ of 3i^:;

fa rw°'r, ' . 3s'Aey and dinharge of a firearm on or near ^^^ ohi1)ited prerr}^ ^es in

violation of Ry:$2923a1620)(3), a felony of the first degree; all of which also

included one and thre4 -year firearm specif'^cataor^^ and forfeiture of

weapons/^^^^ifieationY^ ^ The appellant +., _: 1 V^^ charged with carrying a concealed

weapon in violation of "t.C,2323.12(A)(2), a felony of the fourth degree;

improperly handling firearms in a motor vehicle in violation of r,.Ca2921j2(A)(1),

a felony of tht.,,,,, third degree; all of lwthich also incl^^^^t forfrai'tur^ of ^^^^ori

specificationS.

Mr. Collins was charged in the same indictment, with the same ct;argesg with

addition of having weapons while under disability, a felony of the third degree,

The appellant tqtered a plea to all charges in the indictment and was gi ven a

39 1 year sentence, which oaas agreed to, recommended by 'the State of ()^^^^ and

accepted by the trial court.

Mr. Collins plead::c, guilty to felonious assault in violation of

Rq02 00^11^^^^(1) otitn a one-ywar f^^^^rui specification; wiggr5>v^ted robbery in

violation of R.C.2911.010)(1) with a one-year fireasm specification; having

weapons while under disability; and tampering with evide1"scea

The trial co€^ri. sentenced tirM Collins "to prison terins of ten years for

felonious Assault and aggravated robbery with consecutive one year seG,tenV^s for

the f,^^arr,r slf',ifirationsy three years for having weapons while under disability;

and three years for tampering with evidencee The trial court ordered the prison

terms for felonious assault and aggravated robbery to be served concurrently with

-4,

each other, but consecutively 'to ttie prison ter^^ of having weapons under

^^^abilttyq and consecutively to the prison term for ^araperir^g with evidence for a

cuTnola-f: ive sentence of seventeen yearsx

Mr. Collins appealed his conviction and sentence and, on August 29, 2013, the

Eightfi District Court of appeals remanded the c^^se back to th^^ trie'l court in

order to atake a determination of whether aggravated robbery and felonious assault

vier- allied r^ffw«^^es. See State v. C^^ ^ in^ ^^^ 3-0hi o-3726b

The appellant also appealed his vonvictiori and sentence, but appellate counsel

failed to raise the allied offense issue as an assignr;-^nt of er°rar. Coauequer^^^^,

his conviction and sentence was affirmed on July 18, 2013, under a set of facts

that arc- td^ntIcal to Mr® Col1 ins' , the appe1 lgr^^^ ^^-W^^^pnt, with the sz^4;Ie

trial judge. See State v. Mini^^e 2013•.Ohic+--3146.

On O^tr^^er 2, 2013, t^^e appellant filed gn application tc reopen his appeal

under App.R. 26(8), raising that appellate counsel was ineffective for not

assigning as an assignment of error that aggravated robbery and felonious assault

are allied offenses which nust merge for purposes of sentencing.

On February 26, 2014, the Eighth District Court of Appeals deniecs the

"°ppli'u ft7on0('MFee App(t 0 Op9 Yi !on )a

The appe1 ^ ant rsnw files this appeal of the denial of the apolication and

presents the following two propositions of ^^ti in support of review by tMs court.

-5-

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Pritf ort of Law I ; A defendant is denied his constitutionalra g `^^ ^^^^ive as.,istance : f appeilcite counsel on directappeal when counsel c 'iits r^:i^ing an error that c-.;Id 1,a:^^effected the result of the ap; , . I in favor of t;.

While appellate counsel has no constitutional duty to raise every single ^ona

-f^ivo1ous issue, ^ourisel fa:iu4` still exercise rease3na^ie professional ^^^g-qtent in

presenting the appeal . see J€anes v. Barnes 163 U.S. T531

Appp-11 ate eou€isel may choose which issues to appeal as long as his perforinariwe

is "within the range of eompeetenve demanded of a ttorney ; in cr ir::^inal cases ^^d

assures ';h' lc€d1gWant defendant an adequate &..l oi"ttlnit,f to h`Ia ^lai;a'rs

fairly 1 ^ the context of the sta""eF s appellate proceS a' Jones, supra a"t 755, SeC-

al.so Aivord v. WainwriEht 725 Fb2d 123,2 ^^lt^^ ^ir. 1934)y Su13ivan v. ^^^nwri2Lt

695 F.2d 1306, 1309 (11th, Cir. 1983); Cunningham v. Henderson 725 Fs^d 32, 36 (2nd

Cir. 193A)a

The failure 'to raise Meritorious issues, especially when wea!:er claims are

raised, coiist3 tutes ineffective assistance of appellate eourisel aMapies v. S2yle

171 F.3d 488, 427w428 (6th Cir. 1999). rurtherniore, omitting a ff^^ad-bang 4iinner°:t

from an appeal is not objectively reasonableO United States v. Cook 45 Fd3d 388,

395 (10th Cir. 1995). See Also Matire v. Wainwri h^ 811 F.2d 14,30 (^^^h Clirt

19 ,87); V. Bowen 791 Fx^^ 861 (llth Cir. 1986); Ra,;an v. D^€^cer 544 So. 2d

1052 (p 1a. Diste I Ct. App. 1989); Whitt v. Holland 432 S.E. 2d 292 NI,Va. 1986$.

Rased on these established princi p1 es , the appellant was unconsr ^ tutt ona1 ly

denied his right to effective assistance of counsel on direct appeal b::cause

counsel failed to raise a critical issue ^^^t, was later discovered by other

counsel and brought in a application for reopening under App.R. 26(6) upon wi3ich

relief should have been based, therefore making his performance deficient and

prejudicial.

.6 -

^ro osin of Law I T : the trial court erred by imposi<3gconsecutive sen°^nc^s for °the allied offenses of AggravatedRobbf,"ey and Fefloniokas Assault, a violation of th^.^ Double3eoptardy Cla^use to the ^r^^^^d States "'OrISLitUtiorly

The Double Jeopar(.r;y Clause "proti. ^^ ^ aglf^inyt a second proiec;^ ^^ on for the

off ew.W;. af^er ^cq^ittF:^^ It pr^^tee^s against a second r1wr the same

offense after conviction. And it protects against multiple for the

s&!Ie ofsense^}° See Brown v. Uhio 432 U.S. 1€:1, 165 (1977), (quoting North Carolina

v. Pearce 395 U.S. 711, 717 (1969), overruled on other groQnds by Alabama v. Smith

..'k^ U.S. 4 w"*'i 9 4^ !^ ^« Only t,i^w Y 5^ "J 4 t`^.», ^.1^G.^ats the ^,1F ^.7tC:' Ln P qa^! .C^'ixgL^' i4#st 11^G^l ti^%4^

punishments, is at ^ ^su.e here.

In State v. Johnson 128 01hio St.3d 153, this court eWtrblis^^ed, a s^^^^li^^^^

standar^j in determining z^^^^^ther offenses are allied, and of similar import. In

Johnson, this court r°edirecte^, its focus to condtict of a defendant which may have

been one act, but resuli.;^.,: in two separate c6 impsw As ex}^^^^n-ed previously, the

app.z11 antg ^ co-defendant appealed to the Eighth €^^ str°? ^t Court of Appeals on thi s

very issue and was succcassfulM1 In Collins, supra, the prosecutor atter{tpted to

argue that the felonious assault had occurred ^^^^eciraent to, and separ^te, from the

aggravaltea^ ^olf.)bery, but the Eig;it^ District noted, "the ^^ate`s recitation of the

facts failed to explain precisely when during the ^ours^.x of everats the victim was

shota " Ttiis is essentially the sariie argtir^^^^t which vias itiade by the state during

the appellant°s hearing. See (TrmT. pg 73).

The Eigh-tli Di^. trict Court of Appeals ruled incorrectly w'her€ it c^^ter€^^^^^^ ^^^^t

the appellants case is distinguisha..^le from, Collins by simply stating that the

prosecutor provided ^^iar^, thw^:^ in Co11iraso(^^e AppXa Opinion at 111). what the

Ei ,C,ahth Di 5trE Ct rel ied on was Transcript 71 ^ TahiCh does not ^ `the cc se;;

tf:istinguishable, it ai{.;ke; the^'^ ii'ientica?,.

Basec^ on tLi;^ foregoing, the appellant should have bee.n granted the same as his

co-defendant, consideo ing both convictions relied on the ^amne facts, circumsta€^^es

and victif1i.

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CQNC^^^^ON

The appellanw prays that this court ser.s the ^^^^pact h is case will m4ake on

fixing and clari fy'd tig thr? issue of allied offenses her4? in the state of Ohio,

alorig with the consistent ineffectiveness of appellate counsel deferdant's in this

state continuously rnr1ure, becas.is^ of 'this continuing inef"^^ctiveness of rot

raising meritorious claims C+ri appellants appeals, i,hey are possibly I-odv1ng their

cleintsf appel I ant s procedurally defaulted ^ ^ the federal ^ourts. This case gives

this court the c'^^nc^ to m;iedy this i s^^ie3 for the appellant and future appellants

of the state of Ohio, and he prays that this honor^,°ale court accepts jurisdiction

and orders briefing on the rt^^^terb

: spectf^a^9l;^ ;^^bR;^i^,te^^:,

^^ ^;^^f

}n<^ ^ o;

Pati iWk mini^ ee ^. . .

riA632.-751

CERTIFICATE OF SERVICE

I certify that a true copy of the foregoing was sesrt to counsel for theappellee, T imathy J. McGinty, Cuyaf^^^a Coun#;y 'Pros:^cutor, At the J. ^^^ic; Cen'^^,.^^inth Fl., 1200 Ontario St. Cleveland, Ohio 44113, on thisI^a^ c^ 1 2r14u

atricrc mini T ee#A632-751

-8-

FEB 26 Z014

Court of Appeals of Ohio, Eighth District

County of CuyahogaAndrea Rocco, Clerk of Courts

STATE OF OHIO

Appellee

-vs-

PATRICK A. MINIFEE

Appellant

Date 02/26/14

MOTION NO. 468799

Journal Entry

Application by appellant for reopening pursuant to App. R. 26(B) is denied. (See journal entry and opinion

of same date.)

FILED AND JOURNAL{ZEDPER-APP,Rr 22(C)

q 2014FEB 2 p

^ 'C TYt.C'RKOF Tti ^^^; APPEALSBy^^ Deputy

Presiding Judge FRANK D. CELEBREZZE, JR.,Concurs

Judge EfLEEN A. GALLAGHER, Concurs !. "" 514_A

iillARY EIS' EEN KILBANEJudge

COA NO. LOWER COURT NO.99202 CP CR-562160

-- -COMMON PLEAS COURT

FEB 26 2014

(ourt of ppcaL,5 of 1JjtoEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY A.ND OPINIONNo. 99202

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

PATRICK A. MINIFEE

DEFENDANT-APPELLANT

JLTDGMEN'T:APPLICATION DENIED

Cuyahoga County Court of Common PleasCase No. CR-562160

Application for ReopeningMotion No. 468799

RELEASE DATE: February 26, 2014

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ATTORNEY FOR APPELLANT

Richard Agopian1415 West Ninth Street - 2nd FloorCleveland, Ohio 44113

ATTORNEYS FOR, APPELLEE

Timothy J. McGintyCuyahoga County ProsecutorKatherine MullinAssistant County ProsecutorThe Justice Center - 8th Floor1200 Ontario StreetCleveland, Ohio 44113

FILED AND JOURNALIZED

PER APP,R. 22(C)

EB 2 6 Z014

CUYA, ^TY CLeRKOF fHE ^. 0 APPEAi SBy I V Deputy

MARY EILEEN KILBANE, J.:

{ql( l) On October 2, 2013, the applicant, Patrick Minifee, pursuant to

App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584N.E.2d 1204 (1992),

applied to reopen this court's judgzn.ent in State v. 1Utnifee, 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 fires.rm in aniotor 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 Count,y

Prosecutor, filed its brief in opposition. For the following reasons, th:is court

denies the application to reopen.

(¶2} On April 26, 201.2, 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.

ۦ3} Consequently, the grand jury indicted Minifee and his two

acquaintances with the following charges: (1) kidnapping, (2) attempted xnurder,

(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.

{^41 After a change of defense counsel, d.iscovery, and extensive

negotiations, Minifee and the state reached a plea bargain. 1Vlinrfee would plead

guilty to all the charges and specifications, and the court would impose an

agreed sentence of 19.5 years.' Minifee pleaded guilty, and the judge scheduled

a separate sentencing hearing.

It 5} At the sentencing hearing, Minifee initially made a pro se oral

motion to withdraw his guilty plea an.d 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.

(¶fi} The trial judge then asked the prosecutor to address the issue of

allied offenses. The prosecutor stated that the kidnapping charge and the two

'The maximum potential sentence for the charges was 47.5 years.

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 to sentence on the attempted murder

charge.'

11j7} 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 al.lied 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.

J¶ 81 On appeal,'1Vlinifee's attorney argued the following: (1)1Vlinifee'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

' Although the prosecutor argued that the attempted murder and feloniousassault charges should not merge with the discharge of a firearm in a prohibited placebecause the elements were so different, the trial judge merged them.

not aiding Minifee's motion to withdraw, and (4) the trial jtadge erred in

imposing court costs.

J¶ 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, Stute u. Collins, 8th Dist. Cuyahoga No. 99111, 2013-Ohio-

3726. Devin 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 bythe same conduct. * * * [N]either account adequately detailed thefelonious assault su:ch that the court could properly determine if itwas committed with a separate animus from the aggravatedrobbery. * * * Although the state argued that the felonious assaultoccurred subsequent to, and separate from the aggravated robbery,the state's recitation of factsfailed to explain precisely when duringthe course of events the victim was shot.

Id. at 1112.

Minifee concludes that because the prosecutor made "essentially the same

argument" i.n his case that he did in Collins's case, this court should follow

Collins and grant his application to reopen.

{¶101 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. Str•ickland

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 u. Reed, 74 Ohio

St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.

I1) 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 unsuccessfixl 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 mu.st overcome the presumption that, under the circumstances, the

challenged action `might be considered sound trial strategy."' Strickland at 689.

{¶12} Specifzcally, 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 kev 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-Uhio-366, 672 N.E.2d 638.

{113} 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 underm.ine

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 esca-pe "when the of'ficerproducedhis 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

depend.ent on the officer's action, appellate counsel in the exercise of professional

judgment could reject the allied offenses argument.

{¶151 Accordingly, this court denies the application for reopening.

1 r3,, ti ^r' L6r ^ ^ ^ t^ ^- :^r3^>

IvIARY :EILEEN KILBANE, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and

EILEEN A. fi' ALLAG-HER, J., CONCUR