Opinion
No. 109045
09-28-2020
STATE OF OHIO, Plaintiff-Appellee, v. KENNETH GULLEY, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Callista Plemel, Assistant Prosecuting Attorney, for appellee. Kenneth Gulley, pro se.
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case No. CR-19-639339-A
Application for Reopening
Motion No. 540575
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Callista Plemel, Assistant Prosecuting Attorney, for appellee. Kenneth Gulley, pro se. KATHLEEN ANN KEOUGH, P.J.:
{¶ 1} Kenneth Gulley has filed a timely App.R. 26(B) application for reopening. Gulley is attempting to reopen the appellate judgment rendered in State v. Gulley, 8th Dist. Cuyahoga No. 109045, 2020-Ohio-3597, that affirmed his conviction for the offenses of harassment with a bodily substance, assault of a peace officer, and theft. We decline to grant Gulley's application for reopening because he has failed to establish that he was prejudiced by the performance of his appellate counsel on appeal.
{¶ 2} In order to establish a claim of ineffective assistance of appellate counsel under App.R. 26(B), Gulley is required to establish that the performance of his appellate counsel was deficient, and the deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990).
{¶ 3} In Strickland, the United States Supreme Court held that a court's scrutiny of an attorney's work must be highly deferential. The court further stated that it is all too tempting for a defendant to second-guess his attorney after conviction and that it would be too easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Thus, a court must indulge in 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. Strickland.
{¶ 4} Moreover, even if Gulley establishes that an error by his appellate counsel was professionally unreasonable, Gulley must further establish that he was prejudiced; but for the unreasonable error there exists a reasonable probability that the results of his appeal would have been different. Reasonable probability, with regard to an application for reopening, is defined as a probability sufficient to undermine confidence in the outcome of the appeal. State v. May, 8th Dist. Cuyahoga No. 97354, 2012-Ohio-5504.
{¶ 5} Gulley raises one proposed assignment of error in support of his application for reopening:
Count Two - a felony of the fourth degree did not and could not have been committed due to the fact that I was restrained at the hospital with a spit mask - with arms and legs restrains on the whole time.
{¶ 6} Gulley, through his sole proposed assignment of error, argues that he was improperly convicted of the offense of assault of a peace officer. Specifically, Gulley argues that no evidence was presented at trial to support the conviction for assault of a peace officer.
{¶ 7} Contrary to Gulley's argument, sufficient evidence was adduced at trial to support the conviction for the offense of assault of a peace officer. R.C. 2903.13(A) provides that "[n]o person shall knowingly cause or attempt to cause physical harm to another or to another's unborn." In addition, R.C. 2903.13(C)(5) provides that "[i]f the victim of the offense is a peace officer or an investigator of the bureau of criminal identification and investigation, a firefighter, or a person performing emergency medical service, while in the performance of their official duties, assault is a felony of the fourth degree."
{¶ 8} This court, in its appellate opinion, summarized the evidence presented at trial and stated that:
Officer Lipply said he then transported Gulley to Ahuja Medical Center, where Gulley continued his combative behavior. Officer Lipply testified that Gulley had to be restrained on a gurney as he was brought into the hospital, and then had to be restrained in his hospital bed. Officer Lipply said that at various times, Gulley tried to kick the nurses and that at one point, when he moved to adjust the spit hood on Gulley's head, Gulley tried to bite his hand and told him he was going to "barbeque" him and "eat" him. After the trial court denied Gulley's Crim.R. 29 motion for acquittal, Gulley testified in his own defense. Gulley admitted that he stole the Sony speaker from Target and that he fled from Austin when he confronted him at Target. Gulley admitted further that he hid in a garage for a while to avoid police detection, and that he jumped a fence and hid again after Officer Ferrera spotted him. He agreed that he spit out the window of the patrol car but denied he was trying to hit anyone with his spit. He also admitted that he said "some words" about barbequing and eating Lipply while he was at Ahuja Medical Center but denied that he ever lunged at him or tried to bite him.Gulley, ¶ 11.
{¶ 9} In addition, a second review of the trial transcript demonstrates that Gulley attempted to bite a peace officer. See tr. 213, 214, 215, 216, 217, 221, 223, 224, 239, 240, and 242. Evidence was also adduced at trial that demonstrates that Gulley expressed a desire to "barbecue and eat" a peace officer. Tr. 215, 239, 242, and 307. Cleary, sufficient evidence was presented at trial to support Gulley's conviction for the offense of assault upon a peace officer. State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997); State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598.
{¶ 10} Consideration of Gulley's sole proposed assignment of error, on appeal, would not have resulted in a different outcome. Gulley was not prejudiced by the alleged failure of appellate counsel to argue the claim of improper conviction of the offense of assault of a peace officer. State v. Timmons, 8th Dist. Cuyahoga Nos. 105940, 105941, and 105942, 2019-Ohio-3506; State v. Lester, 8th Dist. Cuyahoga No. 105992, 2018-Ohio-5154; and State v. Burnett, 8th Dist. Cuyahoga No. 87506, 2007-Ohio-4434.
{¶ 11} Application for reopening is denied. /s/_________
KATHLEEN ANN KEOUGH, PRESIDING JUDGE MICHELLE J. SHEEHAN, J., and
MARY EILEEN KILBANE, J., CONCUR