[Cite as State v. Lockhart, 2011-Ohio-3381.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95093
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ISAAC LOCKHART
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-353508
Application for Reopening
Motion No. 443541
RELEASE DATE: July 5, 2011
FOR APPELLANT
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Isaac Lockhart, pro se
Inmate No. 355-631
Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Thorin Freeman
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶ 1} Isaac Lockhart has filed a timely application for reopening
pursuant to App.R. 26(B). Lockhart is attempting to reopen the appellate
judgment in State v. Lockhart, Cuyahoga App. No. CA-95093, 2011-Ohio-936,
which affirmed the trial court’s imposition of consecutive prison terms at a
resentencing hearing. We decline to reopen Lockhart’s appeal.
{¶ 2} In order to establish a claim of ineffective assistance of appellate counsel,
Lockhart must demonstrate that appellate counsel’s performance was deficient and that, but for
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his deficient performance, the result of his appeal would have been different. State v. Reed,
74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456. Specifically, Lockhart must establish
that “there is a genuine issue as to whether he was deprived of the assistance of counsel on
appeal.” App.R. 26(B)(5).
{¶ 3} “In State v. Reed, * * * we held that the two-prong analysis found in Strickland
v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate
standard to assess a defense request for reopening under App.R. 26(B)(5). [Applicant] must
prove that his counsel were deficient for failing to raise the issues he now presents, as well as
showing that had he presented those claims on appeal, there was a ‘reasonable probability’ that
he would have been successful. Thus [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, 1998-Ohio-704, 701 N.E.2d 696.
{¶ 4} It is also well settled that appellate counsel is not required to raise and argue
assignments of error that are meritless. Jones v. Barnes (1983), 463 U.S. 745, 77 L.Ed.2d
987, 103 S.Ct. 3308. Appellate counsel cannot be considered ineffective for failing to raise
every conceivable assignment of error on appeal. Jones v. Barnes; State v. Grimm, 73 Ohio
St.3d 413, 1995-Ohio-24, 653 N.E.2d 253; State v. Campbell, 69 Ohio St.3d 38,
1994-Ohio-492, 630 N.E.2d 339.
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{¶ 5} In Strickland v. Washington, the United States Supreme Court also stated that a
court’s scrutiny of an attorney’s work must be deferential. The court further stated that it is
too tempting for a defendant/appellant to second-guess his attorney after conviction and appeal
and that it would be all too easy for a court to conclude that a specific act or omission was
deficient, especially when examining the matter in hindsight. Accordingly, “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.” Id. at 689.
Finally, the United States Supreme Court has upheld the appellate attorney’s discretion to
decide which issues he or she believes are the most fruitful arguments and the importance of
winnowing out weaker arguments on appeal and focusing on one central issue or at most a few
key issues. Jones v. Barnes.
{¶ 6} In the case sub judice, Lockhart raises one proposed assignment
of error in support of his claim of ineffective assistance of appellate counsel.
Specifically, he argues that his appellate counsel was ineffective for failing to
assign as error the trial court’s failure to advise at resentencing that the
parole board could extend the imposed consecutive prison terms for violations
of prison rules. Lockhart argues that his sentence was defective since he
was not advised of the “bad time” statute as required by R.C. 2929.19(B)(3)(b).
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{¶ 7} The Ohio Adult Parole Authority possesses no authority,
pursuant to R.C. 2967.11 or 2929.19(B)(3)(B), to administratively extend the
stated sentence if an offender commits any criminal offense or violation of
prison rules while serving a prison term. The “bad time” statutes contained
in R.C. 2967.11 and 2929.19(B)(3)(b), have been declared unconstitutional
because they violated the separation of powers doctrine. State ex rel. Bray v.
Russell (2000), 89 Ohio St.3 132, 729 N.E.2d 359; State v. Wolford, Cuyahoga
App. No. 92607, 2010-Ohio-434; State v. Fleming, Cuyahoga App. No. 87773,
2006-Ohio-6773; State v. Honzu, Trumbull App. No. 2001-T-0005,
2002-Ohio-1165. Thus, the trial court possessed no duty to advise Lockhart
of the effect of “bad time” and appellate counsel was not required to raise the
issue on appeal.
{¶ 8} Accordingly, we deny Lockhart’s application for reopening.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, J., CONCUR