[Cite as State v. Stefan,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104979

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

GREGORY PETER STEFAN

DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-15-600196-A Application for Reopening Motion No. 517037

RELEASE DATE: August 24, 2018 ATTORNEY FOR APPELLANT

Gregory P. Stefan, pro se Inmate No. A690081 Lake Erie Correctional Institution P.O. Box 8000 Conneaut, Ohio 44030

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor By: Amy Venesile Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 ANITA LASTER MAYS, J.:

{¶1} On April 25, 2018, the applicant, Gregory Stefan, pursuant to App.R. 26(B) and

State v. Murnahan,

,

(1992), applied to reopen this court’s

judgment in State v. Stefan, 8th Dist. Cuyahoga No. 104979,

, in which this court

affirmed his convictions and sentences for one count of importuning, one count of attempted

unlawful sexual conduct with a minor, one count of possession of criminal tools, and five counts

of pandering sexually oriented matter involving a minor. Stefan maintains that his appellate

counsel should have argued the following: (1) ineffective assistance of trial counsel for not

objecting that the state had abrogated the plea agreement, and (2) ineffective assistance of trial

counsel for not arguing that the term of imprisonment was contrary to the statute and not

supported by the record. The state of Ohio filed its brief in opposition on June 26, 2018. For

the following reasons, this court denies the application.

{¶2} 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); State v. Bradley,

,

(1989); and State v.

Reed,

,

,

.

{¶3} 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.’”

.

{¶4} 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). 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,

,

,

.

{¶5} 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 reasonable probability is a probability sufficient

to undermine confidence in the outcome. A court need not determine whether counsel’s

performance was deficient before examining prejudice suffered by the defendant as a result of

alleged deficiencies.

{¶6} Appellate review is strictly limited to the record. The Warder, Bushnell &

Glessner Co. v. Jacobs,

,

(1898). Thus, “a reviewing court cannot add matter to the record that was not part of the trial court’s proceedings and then decide the

appeal on the basis of the new matter.” State v. Ishmail,

,

(1978), paragraph one of the syllabus. “Nor can the effectiveness of appellate counsel be

judged by adding new matter to the record and then arguing that counsel should have raised these

new issues revealed by the newly added material.” State v. Moore,

,

,

. “Clearly, declining to raise claims without record support

cannot constitute ineffective assistance of appellate counsel.” State v. Burke,

,

,

, ¶ 10.

{¶7} The facts presented at the guilty plea and sentencing hearings showed that Stefan

had an 18-year interest in child pornography. This interest had advanced to the point that he

was seeking to meet underage girls through the internet. The Ohio Internet Crimes against

Children Task Force in a sex-related chat room set up a fictional profile of a 29-year-old mother

with a 14-year-old daughter to intercept predators, and the task force intercepted Stefan. On

this website, Stefan engaged in sexually explicit conversations with what he believed was a

14-year-old girl and arranged to meet with her to have sex. The task force three times

confirmed that he traveled to different locations to hook up with her. On the third time, the task

force arrested him. After his arrest and advisement of his Miranda rights, Stefan admitted that

he had traveled to have sex with a 14-year-old girl. The execution of a search warrant revealed

child pornography on CDs, DVDs, and other electronic devices.

{¶8} The grand jury indicted him on one count of importuning, one count of attempted

unlawful sexual conduct with a minor, one count of possessing criminal tools, five counts of

second-degree pandering sexually oriented matter involving a minor, and five counts of

fourth-degree pandering sexually oriented matter involving a minor. Pursuant to a plea agreement, the state nolled the five fourth-degree pandering counts and agreed not to charge

Stefan on any additional child pornography he possessed. Stefan pleaded guilty to the

remaining charges, and the trial court sentenced him to an aggregate 11 years in prison.

{¶9} Stefan now argues that his appellate counsel should have argued ineffective

assistance of trial counsel for not arguing that the state abrogated the plea bargain. Stefan

maintains that the initial agreement was that if he gave the passwords to all his electronic devices

as requested by the state, and if none of those devices were found to contain any child

pornography, then the state would nolle the five second-degree counts of pandering. Instead, it

nolled the five fourth-degree counts, and Stefan complains that his trial counsel did not object.

{¶10} However, a thorough review of the entire record shows no indication that the state

had ever agreed to nolle the second-degree felonies. That includes Stefan stating that he was

satisfied with his trial counsel (tr. 31) and admitting that no threats of promises were made in

securing the plea (tr. 32). Without some record support, appellate counsel properly rejected this

argument.

{¶11} Stefan’s second argument is that his trial counsel was ineffective for failing to

object to the trial court sentencing him to a term of imprisonment contrary to the statute and

where its findings were not supported by the record pursuant to R.C. 2929.14. This argument is

meritless. It is a rehashing of his appellate counsel’s second assignment of error that the

sentence was contrary to law. In fact, at times Stefan uses the identical language that his

appellate counsel used. This court examined the argument and rejected it. To the extent that

Stefan adds the argument that the trial court failed to make the requisite findings to impose

consecutive sentences, the argument is unfounded. The trial court made the necessary findings

at the hearing (tr. 75-76) and in the sentencing entry. {¶12} Accordingly, this court denies the application to reopen.

ANITA LASTER MAYS, JUDGE

KATHLEEN ANN KEOUGH, P.J., and TIM McCORMACK, J., CONCUR