[Cite as State v. Glenn,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97314

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

JERREL T. GLENN DEFENDANT-APPELLANT

JUDGMENT APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-535072 Application for Reopening Motion No. 459018

RELEASE DATE: April 19, 2013 FOR APPELLANT

Jerrel T. Glenn Inmate No. 603-951 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43302

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: T. Allan Regas Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:

{¶1} Jerrel T. Glenn has filed a timely application for reopening pursuant to

App.R. 26(B). Glenn is attempting to reopen the appellate judgment that was rendered in

State v. Glenn, 8th Dist. No. 97314,

, which affirmed his conviction on

four counts of felonious assault and two counts of aggravated robbery. For the following

reasons, we decline to reopen Glenn’s original appeal.

{¶2} In order to establish a claim of ineffective assistance of appellate counsel,

Glenn 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,

,

,

. Specifically, Glenn 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,

,

,

, 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,

,

,

.

State v. Smith, supra, at ¶ 7.

{¶4} In addition, the Supreme Court of Ohio, in Spivey, supra, at 25, held that:

In State v. Reed (1996),

,

, we held that the two prong analysis found in Strickland v. Washington (1984),

,

, 80 L.Ed 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.

{¶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,

,

,

(1983). Appellate counsel cannot be considered ineffective for failing to

raise every conceivable assignment of error on appeal.

; State v. Gumm,

,

,

; State v. Campbell,

,

,

.

{¶6} In Strickland v.

, 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.”

. Finally, the United States Supreme Court

has 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.

.

{¶7} In support of his claim of ineffective assistance of appellate counsel, Glenn

raises three proposed assignments of error. Glenn’s first proposed assignment of error

states:

Trial counsel was ineffective for failure to object at trial to the multiple firearm sentences imposed on appellant at trial.

{¶8} Glenn, through his first proposed assignment of error, argues that the trial

court erred by imposing three separate three-year consecutive terms of incarceration with

regard to three firearms specifications. Specifically, Glenn argues that all of the

three-year firearm specifications should have merged for sentencing under “R.C.

2929.71(B) [sic]”.

{¶9} The issue of multiple consecutive terms of incarceration, vis-a-vis conviction

for multiple firearms specifications, was previously raised and addressed through Glenn’s

original appeal. This court held,

In his fourth assignment of error, Glenn argues the trial court erred by sentencing him to three consecutive three-year terms on the firearm specifications. He contends the court was required by law to merge multiple firearm specifications for sentencing if the specifications involve the same “act or transaction.” In support of this argument, Glenn relies upon R.C. 2929.14(D)(1).

R.C. 2929.14(D)(1)(b), as it existed at the time of resentencing, prohibited a trial court from imposing more than one prison term for multiple firearm specifications if the specifications were committed as part of the same act or transaction. However, R.C. 2929.14(D)(1)(g) provided an exception for certain felonies including felonious assault and aggravated robbery. * * * The sentencing entry states that Glenn was found guilty of four counts of felonious assault (Counts 4, 5, 11, and 12) and two counts of aggravated robbery (Counts 6 and 7). All of these charges included one- and three-year firearm specifications. Under R.C. 2929.14(D)(1)(g), the court was required to impose prison terms for the two most serious firearm specifications against that victim and had discretion to impose a sentence for the third firearm specification. State v. Worth, 10th Dist. No. 10AP-1125,

, ¶ 96. * * *.

.

{¶10} The doctrine of res judicata prevents this court from reopening Glenn’s

original appeal based on his first proposed assignment of error. Errors of law that were

previously raised through an appeal are barred from further review based on the operation

of res judicata. See generally State v. Perry,

,

(1967).

The Supreme Court of Ohio has also established that a claim of ineffective assistance of

counsel will be barred by the doctrine of res judicata unless circumstances render the

application of the doctrine unjust. State v. Murnahan,

,

(1992).

{¶11} Since the issue of multiple and consecutive three-year terms of

incarceration, with regard to the three-year firearm specifications, has already been raised

and found to be without merit on direct appeal, we find that the doctrine of res judicata

prevents further review of the issue. We further find that the application of the doctrine

is not unjust.

{¶12} Glenn’s second proposed assignment of error in support of his application

for reopening states: Trial counsel was ineffective for failing to request for complicity or a lessor [sic] included offenses of attempted as the underlying offense.

{¶13} Glenn, through his second proposed assignment of error, argues that

appellate counsel was ineffective on appeal by failing to raise an assignment of error that

dealt with lesser included offenses. Specifically, Glenn argues that trial counsel was

ineffective for failing to request a jury instruction with regard to “attempt” as to the

offenses of felonious assault and aggravated robbery.

{¶14} The decision to request instructions on lesser included offenses is a matter

of trial strategy and does not establish ineffective assistance of counsel. State v. Griffie,

,

,

; State v. Clayton,

,

(1980), cert. denied,

,

,

(1980).

{¶15} It must also be noted that a criminal defendant is not entitled to a jury

instruction on the lesser included offenses of felonious assault and aggravated robbery

where the defendant has denied participation in the originally charged offenses. State v.

Lewis, 8th Dist. No. 95964,

; State v. Jordan, 8th Dist. No. 91413,

; State v. Gholston, 8th Dist. No. 88742,

. Herein, a

review of the record clearly demonstrates that Glenn vehemently denied any

responsibility for the charged offenses of felonious assault and aggravated robbery.

Thus, jury instructions as to the lesser included offenses of felonious assault and

aggravated robbery were not mandated, and appellate counsel was not ineffective for not raising the issue on appeal. Compare State v. Kidder,

,

(1987); State v. Wilkins,

,

(1980).

{¶16} Glenn’s third proposed assignment of error in support of his application for

reopening states:

Trial counsel was ineffective for failing to raise at trial the multiple offenses R.C. 2941.25 that were all committed at the same time which were allied offenses or the trial committed plain error 52(B).

{¶17} Glenn, through his third proposed assignment of error, argues that appellate

counsel was ineffective by failing to argue improper sentencing by the trial court.

Specifically, Glenn argues that the offenses of felonious assault and aggravated robbery

should have merged for sentencing. Glenn’s third proposed assignment of error lacks

merit.

{¶18} This court has established that separate crimes committed against separate

victims are not subject to merger. State v. Collins, 8th Dist. No. 95415,

.

In addition, the offenses of aggravated robbery and felonious assault do not merge for

purposes of sentencing where there is a break in the causal chain of events. State v.

Burton, 8th Dist. No. 94449,

.

{¶19} Glenn committed the offenses of felonious assault against two separate

victims, the acts of shooting Kenneth L. Elsleger and Joseph D. Elsleger, which involved

two separate and distinct animi. State v. Lanier,

,

,

(1st Dist.); State v. Stall, 3d Dist. No. 3-10-12,

; State v.

McCullough, 12th Dist. Nos. CA2010-04-006 and CA2010-04-008,

. In addition, we have previously determined that the offenses of felonious assault and

aggravated robbery were not subject to merger on the application of R.C.

2929.14(B)(1)(g), formerly R.C. 2929.14(D)(1)(g). Thus, appellate counsel was not

required to argue on appeal the need to merge the sentences imposed for the offenses of

felonious assault and aggravated robbery.

{¶20} Accordingly, we find that Glenn has failed to demonstrate a “genuine issue”

as to whether he possesses a “colorable claim” of ineffective assistance of appellate

counsel. Clearly, appellate counsel was not ineffective on appeal.

{¶21} Application for reopening is denied.

EILEEN T. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and MARY EILEEN KILBANE, J., CONCUR