State v. Ferrell
| Decision Date | 15 April 2015 |
| Docket Number | No. 100659,100659 |
| Citation | 2015 Ohio 1446 |
| Court | Ohio Court of Appeals |
| Parties | STATE OF OHIO PLAINTIFF-APPELLEE v. JOHN FERRELL DEFENDANT-APPELLANT |
Cuyahoga County Court of Common Pleas
Application for Reopening
FOR APPELLANT
John Ferrell, pro se
Richland Correctional Institution
1001 Olivesburg Road
Mansfield, Ohio 44901-8107
ATTORNEYS FOR APPELLEE
Daniel T. Van
Assistant County Prosecutors
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} John Ferrell has filed a timely application for reopening pursuant to App.R. 26(B) relating to State v. Ferrell, 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377, which affirmed his convictions for various sex offenses.1 The state has opposed the application for reopening, and Ferrell has filed a reply. For the following reasons, we deny the application for reopening.
{¶2} In order to establish a claim of ineffective assistance of appellate counsel, Ferrell must demonstrate that appellate counsel's performance was deficient and that, but for the 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, Ferrell must establish that "there is a genuine issue as to whether he was deprived of the effective assistance of counsel on appeal." App.R. 26(B)(5).
{¶3} In State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588, the Supreme Court of Ohio held that:
Moreover, to justify reopening his appeal, [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 at 25, 1998-Ohio-704, 701 N.E.2d 696.
{¶4} In addition, the Supreme Court of Ohio, in State v. Spivey, 84 Ohio St.3d 24, 1998-Ohio-704, 701 N.E.2d 696, held that:
{¶5} It is also well settled that appellate counsel is not required to raise and argue assignments of error that are meritless. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Appellate counsel cannot be considered ineffective for failing to raise every conceivable assignment of error on appeal. Jones, supra, at 752; State v. Gumm, 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.
{¶6} In Strickland, 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 Courthas firmly established that appellate counsel possesses the sound discretion to decide which issues are the most fruitful arguments on appeal. Appellate counsel possesses the sound discretion to winnow out weaker arguments on appeal and to focus on one central issue or at most a few key issues. Jones, supra, at 752.
{¶7} Ferrell argues that his appellate counsel was ineffective for failing to raise two additional assignments of error. The first involves the testimony of Detective Dave Loading.
Ferrell was denied effective assistance of appellate counsel when counsel failed to raise trial counsel's failure to object to improper opinion testimony by an expert witness, in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and Article One, Section Ten of the Ohio Constitution.
{¶8} Ferrell identifies the following two experts from Det. Loading's trial testimony:
A. Certainly not as long. But when I found that she was an active part of this case and I confirmed it, it was documented. I was ready to eventually pass the case on to the proper agency.
Q. Tell us what you mean by passing it on to the proper agency.
A. I initiated my work in this case because I wanted to make sure that it was proper jurisdiction, venue, that it really did happen. I did not want to pass it on to another jurisdiction just yet. Early on I had — it appeared that it could be Broadview Heights's case. I wanted to make sure I didn't pass it on before doing homework first. In my experience, there's nothing worse than passing on, finding out maybe it didn't belong there. So I did my homework prior to. When I found out that it was credible, that there was, you know, that it was really the jurisdiction of Broadview Heights, then I did pass it on.
{¶9} There was no objection to this testimony. However, Ferrell contends the testimony was inadmissible and in violation of State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1120 (1989), and State v. Stowers, 81 Ohio St.3d 260, 1998-Ohio-632, 690 N.E.2d 881. In Boston, the court established that "[a]n expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant." Boston at syllabus. Such testimony is presumptively prejudicial and inadmissible because it " " Id. at 1240, quoting State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988).
{¶10} In Stowers, the Ohio Supreme Court recognized a fine line between an expert offering an opinion as to the truth of a child's statement and "testimony which is additional support for the truth of the facts testified to by the child, or which assists the factfinder in assessing the child's veracity." Stowers at 262-263. Whereas, the first is strictly prohibited, testimony falling under the second category is allowed. In Stowers, the court addressed the admissibility of expert testimony that the behavior of the victims was consistent with behavior observed in sexually abused children. The court found that it was admissible and did not violate Boston; instead, the court concluded the expert'stestimony provided information to the jury that would allow it to make an "educated determination" regarding the ultimate issues in the case. Indeed, the court emphasized a distinction "between expert testimony that a child witness is telling the truth and evidence which bolsters a child's credibility insofar as it supports the prosecution's efforts to prove that the child has been abused." Id. at 262.
{¶11} Ferrell asserts that Det. Loading's statements served to improperly validate the victim's accusations. However, when the testimony is read in its proper context, it is evident that Det. Loading's statements were not related to the credibility of the victim's accusations but were offered to explain why the investigation was forwarded from North Royalton to Broadview Heights.
{¶12} In order to prevail on an ineffective assistance of counsel claim, Ferrell must demonstrate that counsel's performance fell below an objective standard of reasonable representation, and that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. If a claim can be disposed of by showing a lack of sufficient prejudice, there is no need to consider the first prong, i.e., whether trial counsel's performance was deficient. Id. at 142, citing Strickland, 466 U.S. at 695-696, 104 S.Ct. 2052, 80 L.Ed. 674. There is a general presumption that trial counsel's conduct is within the broad range of professional assistance. Id. at 142-143. Ferrell has not established a reasonable probability that this assignment of error would have been successful had it been raised by appellate counsel. Appellate counsel raisedfive assignments of error, including a challenge based on improper venue, an issue that was raised and preserved throughout the trial record. Pursuant to Jones, appellate courts should not second-guess counsel's discretion to raise stronger arguments and focus on key issues as a sound strategy rather than asserting every conceivable issue on appeal. Ferrell has not satisfied his burden to merit reopening of the appeal based on the first assigned error.
{¶13} The second assignment of error that Ferrell contends his appellate counsel should have raised is that the trial court erred by allowing the social worker to testify about the sexual abuse...
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