[Cite as State v. Pruitt, 2013-Ohio-2459.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98080
______-
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DENVER A. PRUITT
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Application for Reopening
Motion No. 462522
Cuyahoga County Court of Common Pleas
Case No. CR-552756
RELEASE DATE: June 7, 2013
FOR APPELLANT
Denver Pruitt, pro se
Inmate No. 622-920
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Katherine E. Mullin
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} On February 14, 2013, the applicant, Denver Pruitt, pursuant to App.R.
26(B), applied to reopen this court’s judgment in State v. Pruitt, 8th Dist. No. 98080,
2012-Ohio-5418, in which this court affirmed Pruitt’s convictions and sentence of 16
years for four counts of aggravated robbery, one count of kidnapping, four counts of
felonious assault, all with one- and three-year firearm specifications, and one count of
having a weapon under disability.1 Pruitt argues that his appellate counsel should have
argued ineffective assistance of trial counsel for advising him not to accept the plea
negotiation in which the prosecution offered six years. On March 15, 2013, the state of
Ohio, through the Cuyahoga County Prosecutor, filed its brief in opposition. For the
following reasons, this court denies the application to reopen.
{¶2} 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); and State v. Reed, 74 Ohio St.3d 534, 660 N.E.2d
456 (1996).
{¶3} Moreover, appellate review is strictly limited to the record. The Warder,
Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97 (1898). Thus, “a
1
The evidence showed that Pruitt and Eugene Nelson attempted to rob Advance Iron and
Metal in June 2011. During the incident, two persons fired weapons, and the owner of the business
and Nelson were wounded. After the police apprehended Pruitt, several people identified him as a
perpetrator in a cold stand shortly after the incident.
reviewing court cannot add matter to the record that was not part of the trial court’s
proceedings and then decide the appeal on the basis of the new matter.” State v. Ishmail,
54 Ohio St.2d 402, 377 N.E.2d 500 (1978). “Nor can the effectiveness of appellate
counsel be judged by adding new matter to the record and then arguing that counsel
should have raised these new issues revealed by the newly added material.” State v.
Moore, 93 Ohio St.3d 649, 650, 2001-Ohio-1892, 758 N.E.2d 1130. “Clearly,
declining to raise claims without record support cannot constitute ineffective assistance of
appellate counsel.” State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776 N.E.2d 79, ¶
10.
{¶4} In the present case, Pruitt swears in his affidavit that counsel knowingly
gave him unsound advice not to accept the plea deal that would have given him a
sentence of six years. Pruitt further states that his trial lawyers told him that a plea could
be negotiated during trial. However, he never refers where in the record there is support
for this proposition. Moreover, the record indicates that Pruitt was not willing to accept
the plea deal offered, but wanted to go to trial. At a pretrial hearing on Pruitt’s motion
for a new attorney, the judge remarked that because the prosecutor’s office was not
willing to give Pruitt a plea that Pruitt was willing to accept, the case was set for trial. (Tr.
15-16.) Later in the same hearing the judge noted that it appeared that defense counsel
was not trying to force Pruitt to enter into a plea bargain of any sort. Pruitt responded:
“That’s — a little bit that’s what I was getting the understanding of she was trying to get
me to plead to some things that I don’t understand. And like I ain’t do none of the things
she trying to get me to plead to. I’m not willing to plead to any of that stuff.” (Tr.
17-18.)
{¶5} Subsequently, the judge clarified that there had been plea discussions, but
that Pruitt wanted a trial. The prosecutor’s office offered a plea of one count of
aggravated robbery with a three-year firearm specification, but Pruitt rejected the offer.
(Tr. 39-40.) Therefore, appellate counsel properly declined to argue an assignment of
error that not only was bereft of record support, but also was contradicted by the record.
{¶6} Accordingly, this court denies the application.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR