State v. Rice, 2005 Ohio 3393 (OH 6/28/2005)

Decision Date28 June 2005
Docket NumberNo. 82547.,82547.
Citation2005 Ohio 3393
PartiesState of Ohio, Plaintiff-Appellee, v. Glen Rice, Defendant-Appellant,
CourtOhio Supreme Court

William D. Mason, Cuyahoga County Prosecutor, T. Allan Regas, Assistant County Prosecutor, Justice Center — 9th Floor, 1200 Ontario Street Cleveland, Ohio 44113 for plaintiff-appellee.

Daniel S. Chaplin, 1148 Euclid Avenue, Suite 300, Cleveland, Ohio 44115.

John P. Parker, The Brownhoist Building, 4403 St. Clair Avenue, Cleveland, Ohio 44103, for defendant-appellant.

JOURNAL ENTRY AND OPINION

Judge MICHAEL J. CORRIGAN:

{¶ 1} Glen Rice, pursuant to App.R. 26(B), has applied to reopen this court's judgment in State v. Glen Rice, Cuyahoga App. No. 82547, 2003-Ohio-6947, which affirmed his convictions for five counts of rape of a minor. On April 7, 2004, the State of Ohio filed its brief in opposition. On June 8, 2004, Rice supplemented his application with additional authority. On September 20, 2004, he moved to supplement his application with additional assignments of error, which this court allowed on October 27, 2004. The State of Ohio filed a supplemental brief in opposition on October 20, 2004. After reviewing the materials submitted and the relevant portions of the record, this court denies the application.

{¶ 2} Rice claims that his appellate counsel should have argued the following: (1) The trial court erred in failing to hold a competency hearing under Evid. R. 601 and the Fourteenth Amendment when the declarant was 4 or 5 years old and had difficulty communicating verbally.1 (2) The trial court erred in failing to hold a hearing under Evid. R. 807 when counsel requested one before trial. (3) Evid. R. 803(2), (4) and Evid. R. 807 violate the confrontation clause of the Sixth Amendment of the U.S. Constitution under Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. (4) Trial counsel should have challenged the constitutionality of Evid. R. 803. (5) The trial court did not comply with R.C. 2929.11, which requires the court to impose a sentence consistent with sentences imposed for similar crimes by similar offenders. (6) Trial counsel was ineffective because he did not provide the trial court with the necessary and appropriate information to comply with R.C. 2929.11. (7) The record does not support the finding by clear and convincing evidence that Rice is a sexual predator. (8) The indictments were fatally defective because they were too vague. (9) The five consecutive sentences violate the U.S. Constitution under Blakely v. Washington (2004), 124 S.Ct. 2531, 159 L.Ed.2d 403.

{¶ 3} 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.

{¶ 4} 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.

{¶ 5} 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 deserve 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.

{¶ 6} 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.

{¶ 7} Furthermore, appellate counsel is not deficient for failing to anticipate developments in the law or failing to argue such an issue. State v. Williams (1991), 74 Ohio App.3d 686, 600 N.E.2d 298; State v. Columbo (Oct. 7, 1987), Cuyahoga App. No. 52715, reopening disallowed (Feb. 14, 1995), Motion No. 55657; State v. Munici (Nov. 30, 1987), Cuyahoga App. No 52579, reopening disallowed (Aug. 21, 1996), Motion No. 71268, at 11-12: "appellate counsel is not responsible for accurately predicting the development of the law in an area marked by conflicting holdings." State v. Harey (Nov. 10, 1997), Cuyahoga App. No. 71774, reopening disallowed (July 7, 1998), Motion No. 90859; State v. Sanders (Oct. 20, 1997), Cuyahoga App. No. 71382, reopening disallowed, (Aug. 25, 1998), Motion No. 90861; State v. Bates (Nov. 20, 1997), Cuyahoga App. No. 71920, reopening disallowed (Aug. 19, 1998), Motion No. 91111; and State v. Whittaker (Dec. 22, 1997), Cuyahoga App. No. 71975, reopening disallowed, (July 28, 1998), Motion No. 92795.

{¶ 8} In the present case Rice's claims of ineffective assistance of appellate counsel are not well taken.

{¶ 9} Rice first submits that his appellate counsel should have argued that the trial court erred by not holding a competency hearing for the victim. Although the victim did not testify, her incriminating evidence was presented through the hearsay testimony of her mother and a social worker. In State v. Said, 71 Ohio St.3d 473, 475-476, 1994-Ohio-402, 644 N.E.2d 337, the Supreme Court of Ohio stated, "hearsay statements must meet the same basic requirements for admissibility as live witness testimony: `The admission of hearsay statements, by way of exception to the rule, therefore presupposes that the asserter possessed the qualifications of a witness *** in regard to knowledge and the like.'" (Emphasis in the original court opinion), citing 5 Wigmore on Evidence (Chadbourn Rec. 1974) 255, Section 1424. Therefore, the supreme court ruled that declarants must be determined competent at the time they made the statements for the statements to be admitted under Evid. R. 807, Hearsay exceptions; child statements in abuse cases.

{¶ 10} The Ninth District Court of Appeals affirmed this principle in Akron v. Deem (1999) 135 Ohio App.3d 523, 526, 734 N.E.2d 877, and stated the corollary: "a finding of incompetence mandates the exclusion of out-of-court statements offered under Evid.R. 807." The Ninth District seemed to expand this holding in State v. Street (1997), 122 Ohio App.3d 79, 85, 701 N.E.2d 50: "State v. Said held that a child must be found competent at the time a statement is made before the statement can qualify under any hearsay exception ***."

{¶ 11} In the instant case defense trial counsel sought to determine the competency of the victim, but the trial court denied the request as moot, because the state had decided not to call the victim. Rice now argues that determining competency was a threshold requirement, especially considering the victim's limitations and the lack of corroborating physical evidence. Had appellate counsel raised this issue, Rice would have obtained a reversal to fulfill this basic evidentiary requisite.

{¶ 12} However, in Said the supreme court noted an exception to the rule that a hearsay declarant must be determined competent before the hearsay testimony may be admitted: "in State v. Wallace (1988), 37 Ohio St.3d 87, 94-95, 524 N.E.2d 466, 473, the circumstances involving an excited utterance make that exception sui generis with respect to requiring competency of a child declarant." 71 Ohio St.3d at 477, footnote 1. Similarly, in State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d 1220, the court stated that there are applicable exceptions to the declarant competency rule, such as excited utterances under Evid. R. 803(2).

{¶ 13} The trial court allowed the mother to testify about the victim's statements under the excited utterance exception. Appellate counsel in the exercise of professional judgment decided to attack this hearsay directly in his first assignment of error, rather than indirectly through the competency argument: "The court allowed impermissible hearsay testimony from the alleged victim's mother in violation of Ohio Rule of Evidence 803(2), the Fifth, Sixth, Eighth and Fourteenth Amendment to the U.S. Constitution and Article I, Secion 9 and 16 of the Ohio Constitution." Given the Supreme Court's language in Said and Boston, appellate counsel was not deficient in his strategy and tactics. Moreover, Rice has not...

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