Opinion
No. 106601
05-17-2019
STATE OF OHIO, Plaintiff-Appellee, v. DORJAN M. SHIVERS Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecutor, and Jennifer M. Meyer, Assistant Prosecuting Attorney, for appellee. Dorjan Shivers, pro se.
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case No. CR-14-584116-A
Application for Reopening
Motion No. 526778
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecutor, and Jennifer M. Meyer, Assistant Prosecuting Attorney, for appellee. Dorjan Shivers, pro se. MICHELLE J. SHEEHAN, J.:
{¶ 1} On March 20, 2019, the applicant, Dorjan Shivers, pursuant to App.R. 26(B), applied to reopen this court's judgment in State v. Shivers, 8th Dist. Cuyahoga No. 106601, 2018-Ohio-5174, in which this court affirmed his convictions for three counts of rape and one count of kidnapping. Shivers maintains that his appellate counsel should have argued that the trial court erred in including "child offender" when it ruled that he was a "Tier III sex offender/child offender registrant." For the following reasons, this court denies the application, sua sponte.
{¶ 2} In January 2013, Shivers invited a woman friend to his home on the pretense of "hanging out" with some other people and just relaxing. Instead, when they arrived at his apartment, he took her to his bedroom and raped her. In May 2013, Shivers hosted a party at his home and provided alcohol. When a 17-year- old high school girl became drunk, he took the girl to his bedroom and raped her.
{¶ 3} He was convicted of one count of rape against the high school girl, and two counts of rape and kidnapping against the other woman. The judge merged the kidnapping count with one of the rape counts and sentenced Shivers to five years on each count concurrent. The judge also determined Shivers to be a "Tier III sex offender/child offender registrant." His appellate counsel argued insufficiency of the evidence, prosecutorial misconduct for commenting on Shivers's right to remain silent, error in the denial of a motion for mistrial arising from a discovery violation, error in the denial of a motion for separate trials, and an irregularity in jury polling. Now Shivers asserts that his appellate counsel was ineffective for failing to argue that the inclusion of "child offender" was reversible error.
{¶ 4} 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.
{¶ 5} 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.
{¶ 6} 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.
{¶ 7} 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.
{¶ 8} In the present case, Shivers's argument on ineffective assistance of appellate counsel is unfounded. R.C. 2950.01(G)(1)(a) provides in pertinent part as follows: "'Tier III sex offender/child-victim offender' means * * * a sex offender who is convicted of * * * a violation of section 2907.02 [rape] * * * .'" A jury determined Shivers was guilty of R.C. 2907.02, involving rape of a minor. Therefore, the trial court properly included the relevant language in the journal entry and his ineffective assistance of counsel argument fails.
{¶ 9} Accordingly, the court denies the application to reopen. MICHELLE J. SHEEHAN, JUDGE MARY EILEEN KILBANE, A.J., and
RAYMOND C. HEADEN, J., CONCUR