State v. Krzywkowski, 80392.
| Decision Date | 12 June 2003 |
| Docket Number | NO. 80392.,80392. |
| Citation | 2003 Ohio 3003 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. GRADY KRZYWKOWSKI Defendant-Appellant. |
| Court | Ohio Court of Appeals |
{¶1} On November 27, 2002, the applicant, Grady Krzywkowski, applied, pursuant to App.R. 26(B) and State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, to reopen this court's judgment in State v. Krzywkowski, Cuyahoga App. No. 80392, 2002-Ohio-443, in which this court affirmed his convictions of four counts of rape and two counts of gross sexual imposition against two of his young children. Mr. Krzywkowski asserts that his appellate counsel was ineffective. On February 7, 2003, the State of Ohio filed its brief in opposition, and on March 7, 2003, Mr. Krzywkowksi filed his reply brief. For the following reasons, this court denies the application to reopen.
{¶2} First, res judicata properly bars this application. See, generally, State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104. Res judicata prevents repeated attacks on a final judgment and applies to all issues which were or might have been litigated. In Murnahan, the supreme court ruled that res judicata may bar a claim of ineffective assistance of appellate counsel unless circumstances render the application of the doctrine unjust.
{¶3} When Mr. Krzywkowski appealed to the Supreme Court of Ohio, he explicitly argued that his appellate counsel was ineffective.1 This court has consistently held that such appeals bar claims of ineffective assistance of appellate counsel based on the principles of res judicata. State v. Kaszas (Sept. 21, 1998), Cuyahoga App. Nos. 72546 and 72547, reopening disallowed (Aug. 14, 2000), Motion No. 16752; State v. Bussey (Dec. 2, 1999), Cuyahoga App. No. 75301, reopening disallowed (Aug. 8, 2000), Motion No. 16647 and State v. Bluford (Dec. 9, 1999), Cuyahoga App. No. 75228, reopening disallowed (May 31, 2000), Motion No. 15241.2
{¶4} Furthermore, in the present application Mr. Krzywkowski raises four assignments of error which he claims should have been argued. The fourth is that his appellate counsel should have federalized the initial arguments by citing certain federal cases. This is exactly the same argument he made to the Supreme Court of Ohio, and the vast majority of these federal cases are the same ones he cited to the supreme court.
{¶5} Mr. Kryzwkowski makes various arguments why the application of res judicata would be unjust in his case: (1) broadly applying res judicata would render App.R. 26(B) a nullity, (2) counsel often needs more time to prepare an application as compared to a memorandum in support of jurisdiction, especially in the present case which had a 2,000-page transcript, and (3) appellate court judges should rule on claims of ineffective assistance of appellate counsel.
{¶6} These arguments are unpersuasive. First, the Supreme Court of Ohio has repeatedly ruled that even having the ability to raise the issue of ineffective assistance of appellate counsel in the supreme court may properly invoke res judicata to bar an App.R. 26(B) application. State v. Terrell, 72 Ohio St.3d 247, 1995-Ohio-54, 648 N.E.2d 1353; State v. Dehler, 73 Ohio St.3d 307, 1995-Ohio-320, 652 N.E.2d 987;3 State v. Colombo, 73 Ohio St.3d 306, 1995-Ohio-321, 652 N.E.2d 987; State v. Hill, 78 Ohio St.3d 174, 1997-Ohio-293, 677 N.E.2d 337; and State v. Gillard, 85 Ohio St.3d 363 1999-Ohio-385, 708 N.E.2d 708. Furthermore, it seems just to apply res judicata when a defendant has previously raised the identical general issue, effective assistance of appellate counsel, in a higher court and that court has rejected the argument.
{¶7} Nevertheless, this court will examine the specific issues raised. 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 (1984), 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, cert. denied (1990), 497 U.S. 1011, 110 S.Ct. 3258.
{¶8} 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, 104 S.Ct. at 2065.
{¶9} 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 (1983), 463 U.S. 745, 77 L.Ed.2d 987, 103 S.Ct. 3308, 3313. 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.
{¶10} 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 court need not determine whether counsel's performance was deficient before examining prejudice suffered by the defendant as a result of alleged deficiencies.
{¶11} In the present case Mr. Krzywkowski's arguments on ineffective assistance of appellate counsel are not well taken. His first raises a double-pronged argument against testimony relating to young Katelyn Krzywkowski, e.g., the foster mother's observations of her bizarre behavior and accounts of how Mr. Krzywkowski physically and sexually abused her. Mr. Krzywkowski has four children. The grand jury indicted him for sexual abuse of three of the children, but not Katelyn, nor did she testify. Nevertheless, trial testimony referred to her. Mr. Krzywkowski now complains that his trial counsel was ineffective for failing to object to such testimony and also that the trial court abused its discretion in admitting such testimony because it was more prejudicial than probative. Therefore, appellate counsel should have argued this point.
{¶12} However, Mr. Kryzwkowski has not established appellate counsel's deficiency. First, appellate counsel referenced the testimony relating to Katelyn as part of other assignments of error, that the admission of "other bad acts" testimony was prejudicial error (Appellant's brief page 11) and that the verdict was against the manifest weight of the evidence. (Appellant's brief page 29.) Appellate counsel based his first assignment of error on the testimony given about various harsh or unusual forms of corporal punishment used on the children, for which Mr. Krzywkowski was not indicted. He also argued under manifest weight that "it is not surprising that the jury lost its way in deliberating upon the trial evidence in light of the varied and numerous references to `other bad acts' concerning unusual discipline inside the Kryzwkowski household." (Appellate brief page 29.) This argument included acts against Katelyn. This court will not second guess counsel's strategic and tactical decisions to assign this "other bad acts" testimony as error or to reference the testimony relating to Katelyn as part of these arguments and not to argue the testimony relating to Katelyn as a separate assignment of error.
{¶13} Furthermore, a review of the record indicates that at various times trial counsel did object to testimony relating to Katelyn, e.g., Tr. 994, 997, 1002, 1014, 1015, 1016, 1017 and 1018. In fact, the transcript indicates that trial counsel often objected. Given the deference courts must given to the strategic and tactical decisions of trial counsel, it is understandable why appellate counsel would not want to pose an argument micro-analyzing trial counsel's objections.
{¶14} Next, the foster mothers of the children gave hearsay testimony of incidents of sexual abuse which the Krzywkowski children related to them: e.g., Kristen told her foster mother that "[w]hen dad got mad at us, he would take his four fingers and stick them in Katie's private or poke us in the butt with toys and try to poke us in our privates with toys." (Tr. 1002-1003.) Mr. Krzywkowski now maintains that his appellate counsel should have argued that this was inadmissible, prejudicial hearsay.
{¶15} Appellate counsel argued eight assignments of error,...
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