State v. Makin , 2017 Ohio 8569 ( 2017 )


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  • [Cite as State v. Makin, 2017-Ohio-8569.]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 104010
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    HAKEEN K. MAKIN
    DEFENDANT-APPELLANT
    JUDGMENT:
    APPLICATION DENIED
    Cuyahoga County Court of Common Pleas
    Case No. CR-15-594103-A
    Application for Reopening
    Motion No. 509162
    RELEASE DATE: November 13, 2017
    FOR APPELLANT
    Hakeen Makin
    Inmate No. A683089
    Marion Correctional Institution
    P.O. Box 57
    Marion, Ohio 43301
    ATTORNEYS FOR APPELLEE
    Michael C. O’Malley
    Cuyahoga County Prosecutor
    By: Daniel T. Van
    Assistant County Prosecutor
    Justice Center, 8th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    ANITA LASTER MAYS, P.J.:
    {¶1} Hakeen Makin has filed a timely application for reopening pursuant to App.R.
    26(B). Makin seeks to reopen the appellate judgment rendered in State v. Makin, 8th Dist.
    Cuyahoga No. 104010, 2017-Ohio-2649, that affirmed his convictions and sentence for multiple
    drug-related offenses. For the reasons that follow, we decline to reopen Makin’s appeal.
    A.      Standard of Review
    {¶2} The appropriate standard to determine whether a defendant has received ineffective
    assistance of appellate counsel is the two-pronged analysis found in Strickland v. Washington,
    
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984). State v. Were, 
    120 Ohio St. 3d 85
    ,
    2008-Ohio-5277, 
    896 N.E.2d 699
    , ¶ 10.            Applicant “must prove that his counsel [was]
    deficient for failing to raise the issues he now presents and that there was a reasonable probability
    of success had he presented those claims on appeal.” 
    Id., quoting State
    v. Sheppard, 91 Ohio
    St.3d 329, 330, 
    744 N.E.2d 770
    (2001). Applicant “bears the burden of establishing that there
    was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of ineffective assistance of counsel
    on appeal.” State v. Spivey, 
    84 Ohio St. 3d 24
    , 25, 
    701 N.E.2d 696
    (1998).
    {¶3} 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.
    {¶4} With this standard in mind, we turn to the arguments raised by Makin.
    B. Arguments Not Meritorious
    {¶5} Makin raises three proposed assignments of error in support of his application to
    reopen his direct appeal. Having reviewed the arguments in light of the record, we hold that
    Makin cannot satisfy either prong of the Strickland test.          We must, therefore, deny the
    application on the merits.
    1.     Imposition of postrelease control
    {¶6} In his first proposed assignment of error, Makin argues that his appellate counsel
    was ineffective in failing to challenge his sentence as to the imposition of postrelease control.
    According to Makin, the trial court failed to properly impose separate terms of postrelease
    control for each conviction, thereby rendering his sentence void. This argument, however, lacks
    merit.
    {¶7} Under R.C. 2967.28(F)(4)(c), if a defendant may be subject to multiple terms of
    postrelease control, “the period of post-release control for all of the sentences shall be the period
    of post-release that expires last, as determined by the parole board or court. Periods of
    post-release control shall be served concurrently and shall not be imposed consecutively to each
    other.” Relying on this statutory language, “Ohio appellate courts have held that trial courts are
    permitted only to impose one term of post-release control even when the defendant has been
    convicted of multiple felony offenses.” State v. Brown, 2d Dist. Montgomery No. 25653,
    2014-Ohio-2551, ¶ 23, citing State v. Orr, 8th Dist. Cuyahoga No. 96377, 2011-Ohio-6269, ¶ 50;
    State v. Reed, 2012-Ohio-5983, 
    983 N.E.2d 394
    , ¶ 12 (6th Dist.); see also State v. Tharp, 8th
    Dist. Cuyahoga No. 104216, 2016-Ohio-8316, reopening disallowed, 2017-Ohio-2750, ¶ 3- 5
    (rejecting the exact argument raised by Makin).
    {¶8} The record reflects that the trial court properly notified Makin that he was subject to
    a mandatory five-year period of postrelease control.    Among Makin’s multiple convictions, he
    was convicted of trafficking in violation of R.C. 2925.03(A)(2), a first-degree felony. Under
    R.C. 2967.28(B)(1), a five-year term of postrelease control is mandatory for a felony of the first
    degree. Therefore, in ordering the imposition of a five-year postrelease control term, the trial
    court had no obligation to impose shorter terms for the remaining offenses. Tharp at ¶ 5, citing
    State v. Morris, 8th Dist. Cuyahoga No. 97215, 2012-Ohio-2498, ¶ 18 (recognizing that the trial
    court’s imposition of a single term of postrelease control was proper and that R.C.
    2967.28(F)(4)(c) precludes the court or the parole board from imposing more than one period of
    postrelease control in cases that involve multiple convictions).
    {¶9} Because this proposed assignment of error has no merit, appellate counsel cannot be
    deemed ineffective in refraining from raising it.
    2. Fabricated Evidence
    {¶10} In his second and third proposed assignments of error, Makin argues that the
    prosecutor presented “fabricated evidence,” which his trial counsel should have challenged and
    that his appellate counsel should have raised assignments of error relating to prosecutorial
    misconduct and ineffective assistance of counsel. Makin argues that the prosecutor lied about
    the confidential informant being fitted with “two separate devices” as opposed to just one
    recording device.   Makin further contends that the prosecutor coerced the CI to commit perjury
    as to the recording devices and that the prosecutor introduced a “fabricated” audio-recording.
    But our review of the record does not support Makin’s argument.
    {¶11} The record reflects that the state presented several exhibits evidencing the meetings
    and controlled buys, which included both audio and video recordings, spanning from March
    through July 2014. The authenticity or admissibility of these exhibits, including the recording
    that Makin now challenges, were not questioned at trial. The record, however, does not reveal
    any grounds to challenge the recording.    Indeed, the CI directly testified as to the recording that
    Makin challenges. We find no basis to support Makin’s claim that the prosecutor “fabricated”
    evidence. Moreover, Makin’s argument fails to demonstrate any prejudice that would support
    an ineffective assistance of appellate counsel. Accordingly, we find appellate counsel was not
    ineffective in refusing to raise such a baseless argument.
    {¶12} Application denied.
    ANITA LASTER MAYS, JUDGE
    KATHLEEN ANN KEOUGH, A.J., and
    PATRICIA ANN BLACKMON, J., CONCUR
    

Document Info

Docket Number: 104010

Citation Numbers: 2017 Ohio 8569

Judges: Mays

Filed Date: 11/13/2017

Precedential Status: Precedential

Modified Date: 11/16/2017