State v. Vlahopoulos

Annotate this Case

Download PDF

[Cite as State v. Vlahopoulos , 2005-Ohio-4287.] COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 82035 STATE OF OHIO : : : : : : : : : : : : AUGUST 16, 2005 CHARACTER OF PROCEEDINGS : : : : Application for Reopening, Motion No. 370053 Lower Court No. CR-380647 Common Pleas Court JUDGMENT : APPLICATION DENIED. Plaintiff-Appellee vs. STEVE VLAHOPOULOS Defendant-Appellant DATE OF JOURNALIZATION JOURNAL ENTRY AND OPINION APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor BY: MARY MCGRATH Assistant County Prosecutor Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: STEVE VLAHOPOULOS, pro se Inmate No. 389-257 Mansfield Correctional Inst. P. O. Box 788 Mansfield, Ohio 44901-0788 JUDGE SEAN C. GALLAGHER: 2 {¶ 1} Steve Vlahopoulos has filed an application for reopening pursuant to App.R. 26(B). Vlahopoulos is attempting to reopen the appellate judgment that was rendered by this court in State v. Vlahopoulos, Cuyahoga App. No. 82035, 2003-Ohio-5070, which affirmed the sentences of incarceration as imposed with regard to his conviction for three counts of rape. For the following reasons, we decline to reopen Vlahopoulos appeal. {¶ 2} App.R. 26(B)(2)(b) provides that Vlahopoulos must establish a showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment which is subject to reopening. See, also, State v. Cooey, 73 Ohio St.3d 411, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick, 72 Ohio St.3d 88, 1995-Ohio-249, 647 N.E.2d 784. Herein, Vlahopoulos is attempting to reopen judgment that was journalized on October 6, 2003. the appellate The application for reopening was not filed until March 24, 2005, more than ninety days after journalization of the appellate judgement which affirmed Vlahopoulos conviction. Vlahopoulos has failed to establish a showing of good cause for the untimely filing of his application for reopening. State v. Klein (Apr. 8, 1991), Cuyahoga App. No. 58389, reopening disallowed (Mar. 15, 1994), Motion No. 49260, affirmed (1994), 69 Ohio St.3d 1481; State v. Trammell (July 24, 1995), Cuyahoga App. No. 67834, reopening disallowed (Apr. 22, 1996), Motion No. 70493; State v. Travis (Apr. 5, 1990), Cuyahoga 3 App. No. 56825, reopening disallowed (Nov. 2, 1994), Motion No. 51073, affirmed (1995), 72 Ohio St.3d 317. Thus, Vlahopoulos application for reopening is fatally defective and must be denied. {¶ 3} A substantive review of Vlahopoulos application for reopening fails to support the claim of ineffective assistance of appellate counsel. It is well settled that appellate counsel is not required to raise and argue assignments of error that are meritless. Jones v. Barnes (1983), 463 U.S. 745, 77 L.Ed.2d 987, 103 S.Ct. 3308. Appellate counsel cannot be considered ineffective for failing to raise every conceivable assignment of error on appeal. Id; State v. Grimm, 73 Ohio St.3d 413, 1995-Ohio-24, 653 N.E.2d 253; State v. Campbell, 69 Ohio St.3d 38, 1994-Ohio-492, 630 N.E.2d 339. from the Vlahopoulos must establish the prejudice which results claimed deficient performance of appellate counsel. Vlahopoulos must also demonstrate that but for the deficient performance of appellate counsel, the result of his appeal would have been different. 21, 660 N.E.2d 456. State v. Reed, 74 Ohio St.3d 534, 1996-OhioTherefore, in order for this court to grant an application for reopening, Vlahopoulos must establish that there is a genuine issue as to whether the applicant was deprived of the assistance of counsel on appeal. App.R. 26(B)(5). In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we held that the two-prong analysis found in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct 2052, 80 L.Ed.2d 674, is the appropriate standard to assess a defense request for reopening under App.R. 26(B)(5). [Applicant] must prove that his counsel 4 were deficient for failing to raise the issue 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. State v. Spivey, 84 Ohio St.3d 24, 1998-Ohio-704, 701 N.E.2d 696, at 25. {¶ 4} In the case sub judice, Vlahopoulos argues that his appellate counsel was deficient on appeal as a result of failing to argue that the sentences of incarceration, as imposed by the trial court, were contrary to the procedures relevant to maximum sentencing under Blakely v. Washington [(2004), ____U.S.____, 124 S.Ct. 2531, 159 L.Ed.2d 403]. Initially, we find that Vlahopoulos argument in support of the claim of ineffective assistance of appellate counsel must fail since Blakely was announced after this court affirmed the sentences of incarceration imposed in State v. Vlahopoulos, supra. Appellate counsel cannot be required to anticipate future changes in the law and argue such potential changes on appeal. App.3d 686, 600 N.E.2d 298. Lett, Cuyahoga App. Nos. State v. Williams (1991), 74 Ohio In addition, this court, in State v. 84707 and 84729, 2005-Ohio-2665, established the following: (1) the imposition of maximum sentences, under the statutory provisions of R.C. 2929.14(C) and R.C. 2929.19(B)(2)(d), do not violate the Sixth Amendment to the United States Constitution as construed in Blakely and States v. Booker 5 (2005), ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621; and (2) the imposition of consecutive sentences, under the statutory provisions of R.C. 2929.14(E)9(4) and R.C. 2929.19(B)(2)(c), do not violate the Sixth Amendment as construed by the United States Supreme Court in Blakely and Booker.1 Thus, appellate counsel was not ineffective upon appeal as a result of failing to argue sentencing errors based upon the holdings contained in Blakely and Booker. {¶ 5} Accordingly, this application for reopening is denied. SEAN C. GALLAGHER PRESIDING JUDGE ANTHONY O. CALABRESE, JR., J., CONCURS CHRISTINE T. MCMONAGLE, J., CONCURS 1 Although this writer dissented from the majority position in State v. Lett, I am nevertheless bound by the majority decision in that case pursuant to this court s en banc policy. (See dissent in State v. Lett).

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.