State v. Hanni

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State v. Hanni

State: Ohio

Court: Ohio Southern District Court

Docket No: 2009-Ohio-6631

Case Date: 12/14/2009

Plaintiff: State

Defendant: Hanni

Preview:[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 2

State v. Hanni, Cuyahoga App. No. 91014, 2009-Ohio-139. 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 4

App.R. 26(B)(5). 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 Thus,

decisions after Foster indicate that this specification no longer exists.

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 6 7 8

Foster, supra, paragraph 5 of the syllabus. Id. at paragraph 6 of the syllabus. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1. State v. Hunter, 123 Ohio St.3d 164, 2009-Ohio-4147, 915 N.E.2d 292, at

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