Opinion
No. 108050
10-30-2020
STATE OF OHIO, Plaintiff-Appellee, v. GREGGORY JONES, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Callista Plemel, Assistant Prosecuting Attorney, for appellant. Greggory Jones, pro se.
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case No. CR-17-617001-A
Application for Reopening
Motion No. 538502
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Callista Plemel, Assistant Prosecuting Attorney, for appellant. Greggory Jones, pro se. MICHELLE J. SHEEHAN, J.:
{¶ 1} Greggory Jones has filed a delayed App.R. 26(A) application for reconsideration and an application for reopening pursuant to App.R. 26(B). Jones is attempting to reconsider or reopen the appellate judgment rendered in State v. Jones, 8th Dist. Cuyahoga No. 108050, 2019-Ohio-5237, which affirmed his conviction and the sentence of incarceration imposed in State v. Jones, Cuyahoga C.P. No. CR-17-617001 for the offenses of felonious assault (R.C. 2903.11(A)(1)) and tampering with evidence (R.C. 2921.129A)(1)). We decline to grant reconsideration or reopen Jones's appeal, because both are without merit.
{¶ 2} In order to establish a claim of ineffective assistance of appellate counsel under App.R. 26(B), Jones 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 Jones establishes that an error by his appellate counsel was professionally unreasonable, Jones 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} Having a common basis in law and fact, we shall simultaneously consider Jones's two proposed assignments of error:
The trial court erred when it failed to instruct the jury on "knowingly" and "purposely", essential elements of the crime of tampering with evidence, and when it relieved the state of its burden to prove specific intent.
Defense counsel provided ineffective assistance by failing to object to the tampering with evidence instructions given to the jury.
{¶ 6} Jones, through his two proposed assignments of error, argues that defective jury instructions were given to the jury concerning the offense of tampering with evidence. In addition, Jones argues that his appellate counsel was ineffective on appeal by failing to argue the issue of defective jury instructions with regard to the offense of tampering with evidence.
{¶ 7} A review of the trial transcript clearly demonstrates that the trial court properly instructed the jury as to the offense of tampering with evidence. Jones was convicted of tampering with evidence in violation of R.C. 2921.12(A)(1), which provides that "no person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall * * * alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation." Thus, the trial court was required to instruct the jury with regard to the legal definitions of knowing, purpose, and the additional elements of the offense of tampering with evidence. State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 11.
{¶ 8} The trial court properly instructed the jury as to the legal definitions of knowing, purpose, and the additional elements of tampering with evidence under R.C. 2921.12(A)(1). With regard to purpose, the trial court stated that:
Purpose is a decision of the mind to do an act with the conscious intent to produce a specific result or engage in specific conduct. To do an act purposely is to do it intentionally, and not accidentally. Purpose and intent mean the same thing. The purpose with which a person does an act is known only to that person, unless he expresses it to others or indicates it by his conduct. The purpose with which a person does an act or brings about a result is determined from the manner in which it is done, the means or weapon used, and all of the facts and circumstances in evidence.Tr. 1179.
{¶ 9} With regard to knowing, the trial court stated that:
A person acts knowingly regardless of purpose when the person is aware that his conduct will probably cause a certain result or probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the facts. Because you cannot look into the mind of another, knowledge is determined from all the facts and circumstances in evidence.Tr. 1188 - 1189.
{¶ 10} With regard to the additional elements of the offense of tampering with evidence, the trial court stated that:
Greggory Jones is charged in Count 5 with tampering with evidence, a violation of 2921.12 (A)(1). Before you can find him guilty of tampering, you must find beyond a reasonable doubt that on or about September 15, 2016, in Cuyahoga County, Greggory Jones did, knowing that an official proceeding or investigation was in progress or was about to be or likely to be instituted, he did alter, destroy, conceal or remove any record, document or thing with purpose to impair its value or availability of evidence in such proceeding or investigation. Those terms, purposely and knowingly were previously defined; the same definitions apply. An official proceeding means any proceeding before a legislature, judicial, administrative or other governmental agency or official authorized to take evidence under oath and includes any proceeding before a referee, hearing examiner, commissioner, notary or other person taking testimony or a deposition in connection with an official proceeding.Tr. 1193 - 1194.
{¶ 11} We find no prejudicial error with regard to the trial court's jury instruction with regard to the offense of tampering with evidence. State v. Bradshaw, 4th Dist. Scioto No. 17CA3803, 2018-Ohio-1105; State v. Shaw, 8th Dist. Cuyahoga No. 105111, 2018- Ohio-403. Appellate counsel was not ineffective for not raising the issue of a defective tampering with evidence jury instruction. 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.
{¶ 12} In addition, Jones has not supported the application with an affidavit averring the 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 * * *." In State v. Lechner, 72 Ohio St.3d 374, 650 N.E.2d 449 (1995), the Ohio Supreme Court held that the sworn statement required by App.R. 26(B)(2)(d) is mandatory and upheld the denial of an application because that sworn statement was missing. The failure to provide the required sworn statement is also a sufficient basis to deny the application. State v. Phillips, 8th Dist. Cuyahoga No. 108423, 2020-Ohio-4130; State v. Sturgill, 8th Dist. Cuyahoga No. 93158, 2020-Ohio-3716.
{¶ 13} Finally, this court does not possess the necessary jurisdiction to consider Jones's App.R. 26(A) application for reconsideration. The Supreme Court of Ohio has held that:
Courts of appeal have jurisdiction to reconsider their judgments on a timely motion filed pursuant to App.R. 26 until an appeal as of right is filed in this court, or this court rules on a motion to certify the record. See State v. Murphy (1990), 49 Ohio St.3d 293, 551 N.E.2d 1292, and Cincinnati v. Alcorn (1930), 122 Ohio St. 294, 171 N.E. 330 (Supreme Court and court of appeals have concurrent jurisdiction over an appealed judgment prior to attachment of Supreme Court's exclusive jurisdiction). Moreover, by virtue of the jurisdiction conferred by Section 3(B), Article IV, Ohio Constitution, courts of appeals also have inherent authority, in the furtherance of justice, to reconsider their judgments sua sponte. Tuck v. Chapple (1926), 114 Ohio St. 155, 151 N.E. 48.
Tuck implies that this inherent authority exists forever. However, Tuck does not mention Section 3(B)(3), Article IV, Ohio Constitution, which provides that appellate judgments are final unless appealed as of right or by a request for this court's discretionary review pursuant to Section 2(B)(2), Article IV, Ohio Constitution. The effect of this deadline is clear — if no such appeal is filed, the judgment is binding and no longer subject to the court of appeals' jurisdiction to reconsider. See Wigton v. Lavender (1984), 9 Ohio St.3d 40, 43, 9 OBR 129, 132, 457 N.E.2d
1172, 1175 ("an unappealed judgment is final and the prevailing party may fully rely upon it").State ex rel. LTV Steel v. Gwin, 64 Ohio St.3d 245, 249, 594 N.E.2d 616 (1992).
{¶ 14} Accordingly, the application for reconsideration and the application for reopening are denied. /s/_________
MICHELLE J. SHEEHAN, JUDGE MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J., CONCUR