State v. Hanni

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[Cite as State v. Hanni, 2009-Ohio-6631.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 91014 STATE OF OHIO PLAINTIFF-APPELLEE vs. ADRIAN HANNI DEFENDANT-APPELLANT JUDGMENT: APPLICATION DENIED Application for Reopening Motion No. 420920 Cuyahoga County Common Pleas Court Case No. CR-500087 RELEASE DATE: December 14, 2009 2 ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor By: Kristen L. Sobieski Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FOR APPELLANT Office of the Ohio Public Defender Kelly K. Curtis Assistant State Public Defender 250 East Broad Street Suite 1400 Columbus, Ohio 43215 PATRICIA A. BLACKMON, J.: In State v. Hanni, Cuyahoga County Court of Common Pleas Case No. CR-500087, applicant, Adrian Hanni, was convicted of: two counts of rape both with notice of prior conviction and repeat violent offender specification; and one count of kidnapping with notice of prior conviction as well as repeat violent offender and sexual motivation specifications. This court affirmed in part, reversed in part and remanded the case for correction of the sentencing entry.1 The Supreme Court of Ohio denied leave to appeal.2 1 State v. Hanni, Cuyahoga App. No. 91014, 2009-Ohio-139. 2 State v. Hanni, 122 Ohio St.3d 1521, 2009-Ohio-4776. 3 Hanni has filed with the clerk of this court a timely application for reopening. He asserts that he was denied the effective assistance of appellate counsel because the trial court lacked the authority to impose additional prison terms for the repeat violent offender specifications. We deny the application for reopening. As required by App.R. 26(B)(6), the reasons for our denial follow. Having reviewed the arguments set forth in the application for reopening in light of the record, we hold that Hanni has failed to meet his burden to demonstrate that there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal. 3 The Supreme Court of Ohio has specified the proof required of an applicant. 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 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. 4 Hanni cannot satisfy 3 App.R. 26(B)(5). 4 State v. Spivey, 84 Ohio St.3d 24, 25, 1998-Ohio-704, 701 N.E.2d 696. 4 either prong of the Strickland test. We must, therefore, deny the application on the merits. Hanni argues that appellate counsel was ineffective for failing to raise two assignments of error: 1. The trial court violated Mr. Hanni s right to due process under the Fifth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution when it imposed prison terms under the Repeat Violent Offender specifications, because the Ohio Supreme Court severed the statute authorizing such additional terms in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. (T.p. 744-747; January 23, 2008 Sentencing Entry). Application at 4. 2. Trial counsel rendered constitutionally deficient performance when he failed to object to the erroneous imposition of an additional ten-year prison term under the repeat violent offender specification. (T.p. 744-747; January 23, 2008 Sentencing Entry). Id. at 6. Hanni bases both of his proposed assignments of error on the Supreme Court s holding in Foster, supra. That is, Foster held, in part: Because the specifications contained in R.C. 2929.14(D)(2)(b) and (D)(3)(b) require judicial fact-finding before repeat-violent-offender and major-drug-offender penalty enhancements are imposed, they are unconstitutional. (Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. 5 Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, followed.) 5 The Supreme Court also severed R.C. 2929.14(D)(2)(b) and (D)(3)(b).6 Hanni argues, therefore, that the additional ten-year sentence for the repeat violent offender specifications is unconstitutional. As explained recently by the Supreme Court, however, Hanni s argument misconstrues Foster. Our opinions in Foster and Mathis7 patently demonstrate our intent to excise only the portions of former R.C. 2929.14(D)(2)(b) that required judicial fact-finding in violation of the Sixth Amendment and the United States Supreme Court's decisions in Apprendi and Blakely. We never specifically precluded a trial court from imposing enhanced penalties for a repeat violent offender specification, nor did we excise the definition of a repeat violent offender as set forth in former R.C. 2929.01(DD). Furthermore, none of our decisions after Foster indicate that this specification no longer exists. Thus, Foster excised judicial fact-finding from former R.C. 2929.14(D)(2) but did not eliminate the repeat violent offender specification, as defined in former R.C. 2929.01(DD). Accordingly, [defendant/appellant s] argument that Foster eliminated the repeat violent offender specification is not well taken. 8 5 Foster, supra, paragraph 5 of the syllabus. 6 7 State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1. 8 ¶27. Id. at paragraph 6 of the syllabus. State v. Hunter, 123 Ohio St.3d 164, 2009-Ohio-4147, 915 N.E.2d 292, at 6 In Hunter, the Supreme Court affirmed the judgment which resulted in a consecutive sentence for a repeat violent offender specification. This court has also affirmed post-Foster sentences imposing consecutive sentences under repeat violent offender specifications.9 In light of this precedent, we cannot conclude that appellate counsel was deficient by failing to assign as error that Hanni s right to due process was violated by the imposition of a consecutive term for the repeat violent offender specifications. Likewise, we cannot conclude that appellate counsel was deficient for failing to raise ineffective assistance of trial counsel for failing to object to the consecutive term. We also cannot conclude that Hanni was prejudiced by the absence of these two assignments of error. Additionally, we note that Hanni waived his right to a jury trial on the notice of prior conviction and repeat violent offender specification.10 As a consequence, Hanni has not met the standard for reopening. Accordingly, the application for reopening is denied. 9 State v. Vaughn, Cuyahoga App. No. 90136, 2008-Ohio-3027; State v. Douglas, Cuyahoga App. No. 91029, 2009-Ohio-1068. 10 Defendant s Waiver of Jury Trial of All Repeat Violent Offender Specifications & Notice of Prior Conviction, filed December 17, 2007. See also Hunter, supra, at ¶30-31 (Hunter chose to submit that determination [of his status as a repeat violent offender] to the court to avoid presenting evidence of his prior conviction for felonious assault to the jury at trial. Therefore, Hunter has waived whatever right he had with respect to the repeat violent offender specification. Id. at ¶31, citation deleted). 7 PATRICIA A. BLACKMON, JUDGE SEAN C. GALLAGHER, P.J., and MELODY J. STEWART, J., CONCUR

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