State v. Hoskin

1

2023-Ohio-3052

STATE OF OHIO, Plaintiff-Appellee, v. SEAN T. HOSKIN, Defendant-Appellant.

Nos. 111119, 111120, 111121

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 28, 2023

Cuyahoga County Court of Common Pleas Case Nos CR-19-642961-A, CR-19-644629-A, and CR-20-652363-A Application for Reopening Motion No. 561449

Michael C. O'Malley, Cuyahoga County Prosecutor, and Sarah E. Hutnik, Assistant Prosecutor, for appellee.

Sean Hoskin, pro se.

JUDGMENT: APPLICATION DENIED

JOURNAL ENTRY AND OPINION

LISA B. FORBES, J.

{¶ 1} The applicant, Sean Hoskin, pursuant to App.R 26(B), applied to reopen this court's judgment in State v. Hoskin, 2022-Ohio-3917, 199 N.E.3d 1114 (8th Dist.). The judgment affirmed Hoskin's convictions in three criminal cases State v. Hoskin, Cuyahoga C.P. Nos. CR-20-652363-A, CR-19-642961-A, and CR-19-644629-A, for one count of murder; one count of felonious assault; two counts of having weapons while under disability; seven counts of drug trafficking, including cocaine, fentanyl, heroin, and morphine; one count of drug possession; one count of possessing criminal tools; and one count of failure to comply with order of a police officer. In the murder case, the trial court ruled that the murder charge and felonious assault charges merged but that the accompanying 54-month firearm specification on each was to be served consecutively. However, this court vacated the sentence for the 54-month firearm specification for felonious assault because the two charges merged. It remanded the case to the trial court to correct the sentencing journal entry to reflect this court's decision.

{¶ 2} Hoskin now argues that his appellate counsel was ineffective for not arguing the following assignments of error: (1) there was insufficient evidence to convict on murder because he had presented evidence of self-defense, (2) the trial court erred in imposing costs, (3) the trial court erred in imposing a $20,000 fine, (4) trial counsel was ineffective for not moving to dismiss the murder indictment for failing to list all of the elements, and (5) the trial court erred in imposing an improper sentence. On February 2, 2023, the state of Ohio filed its brief in opposition. For the following reasons, this court denies the application to reopen.

I. Factual and Procedural Background

{¶ 3} In the first of the three consolidated cases, State v. Hoskin, Cuyahoga C.P. No. CR-20-652363-A, the murder case, the jury convicted him of murder and felonious assault with the one- and three-year firearm specifications. The trial court found him guilty of two counts of having weapons while under disability and the two 54-month firearm specifications for murder and felonious assault. The trial court merged the murder and felonious assault counts and merged the two disability counts. The state elected to sentence on the murder count. The two 54-month firearm specifications were ordered to be served consecutively to the 15-years-to-life sentence for murder. The trial judge sentenced Hoskin to 36 months concurrent on the weapons charge for an aggregate sentence of 24 years to life.

{¶ 4} The following facts were established during the murder trial. Sean Hoskin was the ex-boyfriend of Toya Johnson. He had helped raise her children, including giving her money for expenses. The father of Johnson's youngest child was Vernon Norman. On May 23, 2020, Johnson had just moved into her new home. She was sleeping upstairs, and Norman was sleeping with their child downstairs. Hoskin entered the house through an upstairs window. A fight broke out between Hoskin and Johnson. When Johnson yelled for help, Norman came upstairs and saw Hoskin and Johnson fighting. According to Hoskin, Johnson told Norman to run and get his "shit." Norman went downstairs, and Hoskin chased after him. Johnson heard three gunshots. When she got downstairs, Norman had been fatally shot and Hoskin was yelling that he had been shot. Hoskin fled the scene.

{¶ 5} In State v. Hoskin, Cuyahoga C.P. No. CR-19-642961-A, Hoskins pled guilty to three fourth-degree drug-trafficking offenses, three fifth-degree drug- trafficking offenses, and one count of failure to comply with the order of a police officer. The trial court sentenced him to 18 months on each of the three fourth-degree offenses, 12 months on each of the three fifth-degree offenses, and six months on the failure-to-comply offense. The trial court ordered these sentences to be served concurrently with each other but consecutive to the sentences in his other two cases.

{¶ 6} In State v. Hoskin, Cuyahoga C.P. No. CR-19-644629-A, Hoskins pled guilty to a first-degree drug-trafficking offense with a major-drug-offender specification, first-degree drug possession offense with a major-drug-offender specification, and possession of criminal tools. The trial court merged the two drug offenses, and the state elected to sentence him on the trafficking offense. The court imposed a mandatory 11-year prison term and a $20,000 fine for the drug-trafficking offense and 12 months for possession of criminal tools to run concurrent to the drug-trafficking sentence. This sentence is consecutive to the sentences in the other cases for an aggregate sentence of 36.5 years to life.

{¶ 7} On direct appeal, Hoskin's attorney argued the following: (1) because the evidence of self-defense was not negated, there was insufficient evidence to convict Hoskin of murder; (2) the trial court erred in permitting the state to question him on his post-arrest silence; (3) the trial court erred by failing to merge the firearm specifications; and (4) the trial court erred in imposing consecutive sentences. This court ruled that the trial court erred in the murder case in imposing the 54-month firearm specification for the felonious-assault charge after it had been merged with the murder charge. Thus, this court affirmed the convictions, but remanded the case to the trial court to vacate the one 54-month firearm specification, reducing his sentence to 32 years to life. Hoskin now argues that his appellate counsel was ineffective.

II. Standard of review applicable to App.R. 26(B) application to reopen

{¶ 8} App.R. 26(B) allows a criminal defendant to apply to reopen his appeal based on a claim of ineffective assistance of appellate counsel. App.R. 26(B)(5) provides that an application "shall be granted if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal."

{¶ 9} 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. 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); and State v. Reed, 74 Ohio St.3d 534, 660 N.E.2d 456 (1996).

{¶ 10} 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 unsuccessful defense in hindsight, to conclude that a particular act or omission was deficient. Strickland at 689. 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 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).

{¶ 11} Specifically, 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 key 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, 672 N.E.2d 638 (1996).

{¶ 12} 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 undermine confidence in the outcome. Strickland, supra, at 694. A court need not determine whether counsel's performance was deficient before examining prejudice suffered by the defendant as a result of alleged deficiencies. Id. at 697.

III. Legal Analysis

{¶ 13} Hoskin's first proposed assignment of error that his counsel failed to argue that "[t]here was insufficient evidence to sustain a conviction for murder in violation of R.C. 2903.02(B), and the state failed to disprove self-defense" is ill-founded. Appellate counsel made this identical argument. This court examined the evidence and concluded that the state presented...