Opinion
No. 106755
05-08-2019
STATE OF OHIO, Plaintiff-Appellee, v. ROBERT M. HUTCHINSON Defendant-Appellant.
Appearances: Robert M. Hutchinson, pro se. Michael C. O'Malley, Prosecuting Attorney, and Steven N. Szelagiewich, Assistant Prosecuting Attorney, for appellee.
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case No. CR-16-607873-A
Application for Reopening
Motion No. 525326
Appearances:
Robert M. Hutchinson, pro se. Michael C. O'Malley, Prosecuting Attorney, and Steven N. Szelagiewich, Assistant Prosecuting Attorney, for appellee. ANITA LASTER MAYS, J.:
{¶ 1} Robert M. Hutchinson has filed a timely application for reopening pursuant to App.R. 26(B). Hutchinson is attempting to reopen the appellate judgment, rendered in State v. Hutchinson, 8th Dist. Cuyahoga No. 106755, 2018-Ohio-4792, that affirmed his plea of guilty to the offenses of attempted rape (R.C. 2923.02 and 2907.02) and gross sexual imposition (R.C. 2907.05(A)(4)). We decline to reopen Hutchinson's original appeal.
{¶ 2} In order to establish a claim of ineffective assistance of appellate counsel, Hutchinson 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} Hutchinson has not raised a proposed assignment of error in support of his application for reopening. Hutchinson merely states that he was provided ineffective assistance of appellate counsel and trial counsel based upon a denial of due process and equal protection. App.R. 26(B)(2)(c) requires that an application for reopening contain "[o]ne or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel's deficient representation." Hutchinson's application for reopening contains no such assignment of error or argument. Without providing this court with an assignment of error or argument that addresses the claim of ineffective assistance of appellate counsel, it is not possible to evaluate an application to reopen. State v. Phillips, 8th Dist. Cuyahoga No. 79192, 2001 Ohio App. LEXIS 5512 (Dec. 28. 2001), reopening disallowed (Mar. 8, 2002), Motion No. 35540 (Mar. 8, 2002). Hutchinson has failed to demonstrate any claim of ineffective assistance of appellate counsel.
{¶ 5} We also note that Hutchinson has not supported the application with an affidavit averring grounds for reopening. App.R. 26(B)(2)(d) requires a "sworn statement of the basis for the claim that appellate counsel's representation was deficient * * * and the manner in which the deficiency prejudicially affected the outcome of the appeal * * * ." The failure to provide the required sworn statement is also a sufficient basis to deny the application. In State v. Lechner, 72 Ohio St.3d 374, 650 N.E.2d 449 (1995), the Ohio Supreme Court ruled that the sworn statement is mandatory and upheld the denial of an application because that sworn statement was missing.
{¶ 6} Application for reopening is denied. ANITA LASTER MAYS, JUDGE EILEEN A. GALLAGHER, P.J., and
LARRY A. JONES, SR., J., CONCUR