Opinion
No. 106450
08-09-2019
STATE OF OHIO, Plaintiff-Appellee, v. RANAU D. JOHNSON, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Zeleznikar, Assistant Prosecuting Attorney, for appellee. W.E.B. Norman Law, Inc., and William N. Norman, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case No. CR-17-613109-A
Application for Reopening
Motion No. 522502
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Zeleznikar, Assistant Prosecuting Attorney, for appellee. W.E.B. Norman Law, Inc., and William N. Norman, for appellant. SEAN C. GALLAGHER, P.J.:
{¶ 1} On October 29, 2018, the applicant, Ranau Johnson, pursuant to App.R. 26(B), applied to reopen this court's judgment in State v. Johnson, 2018- Ohio-3670, 119 N.E.3d 914 (8th Dist.), in which this court affirmed his convictions for arson and two of his sentences, but vacated his conviction for attempted felony murder, reversed the award of restitution, and remanded the case for a resentencing on one of the arson counts and for an evidentiary hearing to determine the appropriate amount for restitution. Johnson now argues that his appellate counsel was ineffective for failing to argue that all of the arson counts should have merged as allied offenses and that the testimony of the fire investigator was not based on scientific evidence. The state filed its brief in opposition on November 5, and Johnson filed a reply brief on November 14, 2018. For the following reasons, this court denies the application to reopen.
{¶ 2} In early January 2016, Johnson's ex-girlfriend was living in her uncle's home; they had broken up as a couple on New Year's Eve. On the night of January 4, 2016, the ex-girlfriend was in her basement bedroom, when she heard a window break, and some glass fell on her bed. She saw Johnson pouring liquid from a Hawaiian Punch bottle. She recognized that the liquid was gasoline, and she ran from the bedroom. When she looked back, she saw flames coming down the wall, traveling across the floor and onto her bed. She ran from the house and saw Johnson with the bottle getting into his car.
{¶ 3} The uncle also heard glass break and while investigating, saw Johnson walking to his car. Although the ex-girlfriend and the uncle tried to extinguish the fire, the Cleveland Fire Department arrived and was able to put out the fire in approximately ten minutes.
{¶ 4} The grand jury indicted Johnson on one count of attempted murder, trying to cause the death of his ex-girlfriend as a proximate result of committing the offense of aggravated arson; and three counts of aggravated arson by creating through fire a substantial risk of serious harm to the ex-girlfriend, the uncle, and the house. After a bench trial, the judge found Johnson guilty of all charges. At sentencing, the judge merged the attempted murder count with the aggravated arson count for the ex-girlfriend and imposed a ten-year sentence. He then sentenced Johnson to ten years for the aggravated arson count for the uncle, and seven years for the aggravated arson charge for the house, all to be served consecutively. The judge also ordered Johnson to pay $5,000 in restitution.
{¶ 5} Johnson's appellate counsel argued (1) that all of the convictions were against the manifest weight of the evidence; (2) that there was insufficient evidence to support the convictions for aggravated arson against the two people, because there was no proof of risk of serious harm; (3) that there was insufficient evidence to prove attempted murder; (4) that an ersatz fire investigation produced manifestly unreliable results because the state did not establish that the fire investigator was an expert and that he based his report on scientifically valid principles and methods; (5) that the trial judge erred in imposing consecutive sentences; and (6) that the restitution order was not based on proper evidence. This court sua sponte vacated the attempted felony murder charge on the basis of State v. Nolan, 141 Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d 1016. Because the attempted murder charge had been merged with the aggravated arson charge against the ex-girlfriend, this court remanded for resentencing on that count. This court also ruled that the judge had not correctly determined the amount of restitution and remanded for a proper hearing. The court overruled the other assignments of error and affirmed the other convictions and sentences.
{¶ 6} Johnson now claims that his appellate attorney should have argued that all of the arson charges were allied offenses and that the fire department investigation was not based on scientific evidence but merely on the victims' statements.
{¶ 7} 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, 1996-Ohio-21, 660 N.E.2d 456.
{¶ 8} 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. 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.'" Strickland at 689.
{¶ 9} 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, 1996-Ohio-366, 672 N.E.2d 638.
{¶ 10} 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. A court need not determine whether counsel's performance was deficient before examining prejudice suffered by the defendant as a result of alleged deficiencies.
{¶ 11} Johnson's merger argument is direct. R.C. 2941.25(A) provides: "Where the same conduct by the defendant can be construed to constitute two or more allied offenses of similar import, the indictment * * * may contain counts for all such offenses, but the defendant may be convicted of only one." Johnson argues that there was only one act of arson and, therefore, he could be convicted of only one act. The fact that there might have been multiple victims does not negate the fact that there was only one act. The same conduct constituted allied offenses of similar import.
R.C. 2941.25(B) provides: "Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them."
{¶ 12} However, in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.2d 892, paragraph two of the syllabus, the Supreme Court of Ohio ruled: "Two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable." The court clarified "that when the defendant's conduct put more than one individual at risk, that conduct could support multiple convictions because the offenses were of dissimilar import." 143 Ohio St.3d 114, ¶ 23. The court then affirmed its previous holding in State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 726 N.E.2d 26, ¶ 48, that even though the defendant set only one fire, his conduct caused six offenses of dissimilar import due to risk of serious harm to each person.
{¶ 13} This court has affirmed that when an offense is defined in terms of conduct towards another, then there is dissimilar import for each person affected by the conduct. In State v. Piscura, 8th Dist. Cuyahoga No. 98712, 2013-Ohio-1793, Piscura participated in a fire bombing of house in which there were three people. Among the charges to which he pled guilty were three counts of aggravated arson for each of the three people and a charge of aggravated arson for damage to the house. On appeal, Piscura argued that all of offenses should merge into a single offense because they were committed with the same act and same animus. This court rejected that argument as to the arson counts, reasoning that a separate animus exists for each victim and, thus, the defendant can properly be convicted of and sentenced on multiple accounts. Accordingly, Johnson's appellate counsel was not deficient in eschewing this argument.
Piscura was also charged with three counts of attempted murder that the trial judge merged with the three aggravated arson counts, and the state elected to sentence on the attempted murder charges.
{¶ 14} Johnson's second argument that the fire department investigator should not have been qualified as an expert and that his investigation and conclusions were not reliable because of an ersatz investigation is a rehash of a nine-page argument that his appellate counsel presented as the fourth assignment of error. Citing to the National Fire Protection Association's practices did not undermine this court's confidence in its decision. Johnson's reformulation of the argument is not more persuasive than his lawyer's brief, especially in light of this court's analysis and rejection of that assignment of error.
{¶ 15} Accordingly, this court denies the application for reopening. /s/_________
SEAN C. GALLAGHER, PRESIDING JUDGE LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR