[Cite as State v. Peterson,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109306 v. :

DAMIEN L. PETERSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: August 10, 2022

Cuyahoga County Court of Common Pleas Case No. CR-19-639520-A Application for Reopening Motion No. 554599

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.

Damien L. Peterson, pro se.

EILEEN A. GALLAGHER, J.:

Damien L. Peterson has filed a timely App.R. 26(B) application for

reopening. Peterson is attempting to reopen the appellate judgment, rendered in

State v. Peterson, 8th Dist. Cuyahoga No. 109306,

, that affirmed the convictions rendered in State v. Peterson, Cuyahoga C.P. No. CR-19-639520-A,

for four counts of aggravated robbery (with multiple firearm specifications, notice

of prior conviction and repeat violent offender specifications), four counts of having

weapons while under disability (with multiple firearm specifications) and two

counts of misdemeanor theft, but remanded for the issuance of a nunc pro tunc

order correcting clerical errors in the trial court’s sentencing journal entry. We

decline to reopen Peterson’s appeal.

I. Standard of Review Applicable to App.R. 26(B) Application for Reopening

An application for reopening shall be granted if there exists a genuine

issue as to whether an applicant was deprived of the effective assistance of appellate

counsel on appeal. See App.R. 26(B)(5). To establish a claim of ineffective

assistance of appellate counsel, Peterson is required to establish that the

performance of his appellate counsel was deficient and the deficiency resulted in

prejudice. Strickland v. Washington,

,

,

(1984); State v. Bradley,

,

(1989), cert. denied,

,

,

(1990).

In Strickland, the United States Supreme Court held that a court’s

scrutiny of an attorney’s work must be highly deferential. The court further stated

that it is all too tempting for a defendant to second-guess his attorney after

conviction and that it would be too easy for a court to conclude that a specific act or

omission was deficient, especially when examining the matter in hindsight. Thus, a court must indulge in 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.

Moreover, even if Peterson establishes that an error by his appellate

counsel was professionally unreasonable, Peterson must further establish that he

was prejudiced; but for the unreasonable error there exists a reasonable probability

that the results of his appeal would have been different. Reasonable probability,

regarding an application for reopening, is defined as a probability sufficient to

undermine confidence in the outcome of the appeal. State v. May, 8th Dist.

Cuyahoga No. 97354,

.

II. Argument

Peterson does not raise individual proposed assignments of error in

support of his claim of prejudice based upon ineffective assistance of appellate

counsel as required by App.R. 26(B)(2)(c). However, Peterson has presented

sufficient arguments to discern proposed issues in support of the claim of ineffective

assistance of appellate counsel. State v. Cobb, 8th Dist. Cuyahoga No. 106928,

. The issues raised by Peterson, in support of his claim of ineffective

assistance of appellate counsel, basically involve the failure of appellate counsel to

argue a defective preliminary hearing in the Shaker Heights Municipal Court and a

lack of jurisdiction on the part of the Cuyahoga County Common Pleas Court to indict, bring to trial, and convict him of the offenses of aggravated robbery, having

weapons while under disability and theft.

The doctrine of res judicata prevents further review of the issues

relating to a preliminary hearing in the Shaker Heights Municipal Court because the

issues have already been addressed by this court on direct appeal and found to be

without merit. State v. Perry,

,

(1967). Claims of

ineffective assistance of appellate counsel in an application for reopening may be

barred from further review by the doctrine of res judicata unless circumstances

render the application of the doctrine unjust. State v. Murnahan,

,

(1992); State v. Logan, 8th Dist. Cuyahoga No. 88472, 2008-Ohio-

1934; State v. Tate, 8th Dist. Cuyahoga No. 81682,

.

This court, in the appellate opinion journalized March 17, 2022, held:

In his third assignment of error, Peterson claims he was denied due process based on purported defects in a municipal court proceeding that is not before us. He asserts that the criminal complaint filed in the Shaker Heights Municipal Court was defective and that he was improperly denied a preliminary hearing. In the case before us, Peterson’s convictions are predicated upon an indictment that he does not challenge.

State v.

.

In addition, this court addressed the issues relating to the trial court’s

jurisdiction upon the return of a valid indictment and held:

Moreover, we note that Peterson’s arguments are otherwise meritless. “The jurisdiction of the court is invoked by the return of a valid indictment and is not based on the process by which an accused is taken into custody or the findings made on the preliminary examination.” Dowell v. Maxwell,

, 290,

(1963); see also State v. Walker, 2d Dist. Montgomery No. 28970, 2021-Ohio- 3053, ¶ 36 (“the issuance of a grand jury indictment renders any defect in the complaint moot”); State v. Rogers, 10th Dist. Franklin No. 17AP- 610,

(“the issuance of a grand jury indictment renders any defect in the complaint or warrant moot”); State v. Hess, 7th Dist. Jefferson No. 02 JE 36,

(“An indictment generally renders any defects in the proceedings arising from the complaint moot”).

.

We further find that the circumstances do not render the application

of the doctrine of res judicata unjust. Peterson has failed to establish any prejudice

through the issues raised in support of his claim of ineffective assistance of appellate

counsel. State v. Gulley, 8th Dist. Cuyahoga No. 109045,

; State v.

Lester, 8th Dist. Cuyahoga No. 105992,

.

Application for reopening is denied.

________________________ EILEEN A. GALLAGHER, JUDGE

ANITA LASTER MAYS, P.J., and LISA B. FORBES, J., CONCUR