State v. Boyd

1

2023-Ohio-271

STATE OF OHIO, Plaintiff-Appellee, v. ROBERT BOYD, Defendant-Appellant.

No. 20 MA 0131

Court of Appeals of Ohio, Seventh District, Mahoning

January 26, 2023

Application to Reopen

Atty Ralph M. Rivera, Assistant Chief, Criminal Division, Office of the Mahoning County Prosecutor, 21 West Boardman Street 6th Floor, Youngstown, Ohio 44503 for Plaintiff-Appellee and

Robert Boyd, pro se, Lake Erie Correctional Institution, P.O. Box 300, Columbus, Ohio 43146, Defendant- Appellant.

BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite Judges.

OPINION AND JUDGMENT ENTRY

PER CURIAM.

{¶1} Defendant-Appellant Robert Boyd has filed an application to reopen his direct criminal appeal under App.R. 26(B). For the following reasons, the application for reopening is denied.

{¶2} After a jury trial in the Mahoning County Common Pleas Court Appellant was convicted of: rape (anal sex with victim A, who was 17 years old at the time of the March 31, 2017 incident); rape (anal sex with victim B, who was 14 years old at the time of the April 17, 2016 incident); gross sexual imposition (victim B); two counts of disseminating matter harmful to juveniles (texting photographs of his penis to victim C, who was 16 years old at the time of texts in March 2017); and nine counts of illegal use of a minor in nudity-oriented material (photographs on a hard drive recovered during the execution of search warrants). His brief on appeal raised arguments related to the denial of his suppression motion, sufficiency of the evidence, weight of the evidence, ineffective assistance of counsel, and sentencing. On September 30, 2022, this court affirmed his convictions. State v. Boyd, 7th Dist. Mahoning No. 20 MA 0131, 2022-Ohio-3523. On November 10, 2022, Appellant filed this timely application for reopening.

{¶3} A criminal defendant may apply for reopening of his direct appeal based on a claim of ineffective assistance of appellate counsel by raising an assignment of error or an argument in support of an assignment of error that previously was not considered on the merits (or that was considered on an incomplete record) because of appellate counsel's deficient representation. App.R. 26(B)(1),(2)(c). Pursuant to the rule, in order to warrant reopening for further briefing, the application must demonstrate a "genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal." App.R. 26(B)(5). If a genuine issue on ineffectiveness is established and further briefing is thus ordered, then the appellant must fully prove the ineffectiveness of appellate counsel by demonstrating deficient performance and prejudice. App.R. 26(B)(7)-(9).

{¶4} The traditional two-pronged test of deficiency and prejudice also provides the underlying framework for assessing whether Appellant raised a genuine issue as to the ineffectiveness of appellate counsel under App.R. 26(B)(5). State v. Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶ 5, applying Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Adams, 146 Ohio St.3d 232, 2016-Ohio-3043, 54 N.E.3d 1227, ¶ 2. This is supported by the rule's requirement that the application for reopening be accompanied by "[a] sworn statement of the basis for the claim that appellate counsel's representation was deficient with respect to the assignments of error or arguments raised pursuant to division (B)(2)(c) of this rule and the manner in which the deficiency prejudicially affected the outcome of the appeal, which may include citations to applicable authorities and references to the record * * *." App.R. 26(B)(2)(d). Appellant submitted a one-sentence affidavit generally swearing to the truthfulness of the allegations in the ten-page application and saying he was denied effective assistance of appellate counsel.

{¶5} The deficiency prong of the test evaluates whether the representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. In assessing the cited deficiency, we heavily defer to counsel's judgments and strongly presume the contested conduct was in the wide range of reasonable representation. Tenace, 109 Ohio St.3d 451 at ¶ 7. Courts refrain from second-guessing the strategic decisions of counsel. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Prejudice is a reasonable probability the result of the proceedings would have been different in the absence of the cited deficiency. Tenace, 109 Ohio St.3d 451 at ¶ 5. A reasonable probability is more than "some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 69. See also Carter, 72 Ohio St.3d at 558 (unreliable results or fundamentally unfair proceedings due to counsel's lacking performance).

{¶6} More specifically to the first stage in App.R. 26(B), for the applicant "to justify reopening his appeal" for further briefing, it has been said he must meet "the burden of establishing there was a 'genuine issue' as to whether he has a 'colorable claim' of ineffective assistance of counsel on appeal." Tenace, 109 Ohio St.3d 451 at ¶ 6, quoting State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). See also State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 11. In considering this test, it has been emphasized, "appellate counsel need not raise every possible issue in order to render constitutionally effective assistance." Tenace, 109 Ohio St.3d 451 at ¶ 7, citing Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) and State v. Sanders, 94 Ohio St.3d 150, 151-152, 761 N.E.2d 18 (2002).

{¶7} An error-free, perfect trial does not exist, and is not guaranteed by the Constitution." State v. Italiano, 7th Dist. Mahoning No. 19 MA 0095, 2021 -Ohio-1283, ¶ 35, citing State v. Hill, 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996). "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 key issues, to avoid diluting the force of stronger arguments." Jones, 463 U.S. at 751-752. Accordingly, constitutionally effective appellate counsel need not raise every non-frivolous argument the client wishes to present. Id. at 751. Making choices on the appellate arguments is a strategical decision used to avoid diluting the strength of stronger arguments. Id. at 752. Appellant raises at least twelve additional arguments he believes appellate counsel should have briefed.

{¶8} First, Appellant argues appellate counsel should have contested the trial court's refusal to sever the charges, emphasizing the inflammatory nature of sex offenses involving juveniles. He suggests severance was required as the other offenses would be inadmissible other acts evidence if there had been a separate trial for each of the following groups: count one, rape of victim A; counts two and three, rape and gross sexual imposition of victim B; counts five and six, disseminating matter harmful to a juvenile (victim C); and counts seven through fifteen, illegal use of a minor in nudity-oriented material.

{¶9} When a defendant moves to sever counts, he must furnish the trial court with sufficient information to weigh the benefits of joinder against the prejudice it may cause, and the trial court's decision must be upheld in the absence of an abuse of discretion. State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 44, 46. Even if the weighing favors severance, a defendant's claim can be overcome if either (1) the state could have introduced other acts evidence under Evid.R. 404(B) in the trial of the other offense or (2) the evidence of each crime is simple and direct. Id., citing State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). If "the evidence of each crime is uncomplicated," then the jury is "capable of segregating the proof of multiple charges" which are tried together. Id. at ¶ 52. The evidence of each set of offenses was simple and direct with no complicated evidence. Appellant's argument fails to recognize that "[u]nder the second method, the 'joinder' test, the state is not required to meet the stricter 'other acts' admissibility test, but is merely required to show that evidence of each crime joined at trial is simple and direct." Lott, 51 Ohio St.3d at 163.

{¶10} Second, Appellant argues appellate counsel should have raised speedy trial arguments. In addition to arguing the 270-day period for felonies expired, he points to the 90-day period for misdemeanors in counts five and six and says they would be subject to the felony period only if they arose out of the same act or transaction as the felonies. See R.C. 2945.71 (D). However, this misdemeanor issue was not raised to the trial court. Moreover, Appellant ignores the various tolling events before his time waiver, except to argue time should not be held against him for the withdrawals of various attorneys if he had a good reason for terminating counsel; however, this is incorrect if the withdrawals necessitated continuances. His fourth attorney filed a statutory speedy trial motion to dismiss based on the total time exceeding 270 days prior to his time waiver, seeking to invoke the state's burden to prove tolling events. The state's response explained some of the applicable tolling events, including discovery requests, a withdrawal request, and the continuances extending through his speedy trial waiver. Upon reviewing the calculations, appellate counsel could reasonably refrain from briefing the issue (which was only close for the unraised misdemeanors but still under 90 days).

{¶11} As to his January 29, 2019 time waiver (which said it did not waive any prior violation), Appellant...