Opinion
No. 104578
04-06-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. DAVID D. ERCOLI DEFENDANT-APPELLANT
FOR APPELLANT David D. Ercoli, pro se Inmate No. 683283 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43302 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Daniel T. Van Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case No. CR-16-602684-A
Application for Reopening
Motion No. 510568
FOR APPELLANT
David D. Ercoli, pro se
Inmate No. 683283
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43302
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113 LARRY A. JONES, SR., J.:
{¶1} Under App.R. 26(B), applicant David Ercoli, seeks to reopen this court's judgment in State v. Ercoli, 8th Dist. Cuyahoga No. 104578, 2017-Ohio-5571, in which this court affirmed Ercoli's conviction on multiple counts relating to two robberies occurring at McDonald's restaurants. The state opposes the application as having no merit. For the following reasons, we deny the application to reopen.
A. Procedurally Defective
{¶2} Under App.R. 26(B)(2)(d), an application for reopening is required to contain the following:
[a] sworn statement of the basis for the claim that appellate counsel's representation was deficient with respect to the assignments of error or arguments raised pursuant to division (B)(2)(c) of this rule and the manner in which the deficiency prejudicially affected the outcome of the appeal, which may include citations to applicable authorities and references to the record.
{¶3} Here, Ercoli's affidavit does not swear to the basis for his claims that his appellate counsel was deficient and the manner in which the deficiency prejudicially affected the outcome of the appeal. Instead, he generally refers to the appellate record not containing all the exhibits and his counsel acknowledging this defect. Further, he broadly asserts that his appellate counsel prejudiced him based on the reasons asserted in his application and that his counsel failed to raise "winning" arguments. An affidavit, however, that merely swears to the truth of the allegations contained in the application "falls short of particularity required by this rule." State v. Franklin, 72 Ohio St.3d 372, 650 N.E.2d 447 (1995) (recognizing that an affidavit that merely swears to the truth of the applications contained in the application fails to comply with App.R. 26(B)(2)(d)).
{¶4} This court has previously held that an applicant's failure to articulate the basis for an ineffective assistance of counsel claim in a sworn affidavit as required under App.R. 26(B)(2)(d) is a sufficient basis for denying the application for reopening. See State v. Mays, 8th Dist. Cuyahoga No. 73376, 1998 Ohio App. LEXIS 4968 (Oct. 22, 1998), reopening disallowed, 2001 Ohio App. LEXIS 1523 (Mar. 20, 2001); State v. Johnson, 8th Dist. Cuyahoga No. 61015, 1992 Ohio App. LEXIS 4256, reopening disallowed, 2000 Ohio App. LEXIS 6085 (Dec. 13, 2000).
{¶5} But apart from a deficient affidavit, we find Ercoli's application also fails on the merits.
B. Arguments Not Meritorious
{¶6} Ercoli raises six proposed assignments of error in support of his application to reopen his direct appeal.
{¶7} The appropriate standard to determine whether a defendant has received ineffective assistance of appellate counsel is the two-pronged analysis found in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 10. Applicant "'must prove that his counsel [was] deficient for failing to raise the issues he now presents and that there was a reasonable probability of success had he presented those claims on appeal.'" Id., quoting State v. Sheppard, 91 Ohio St.3d 329, 330, 744 N.E.2d 770 (2001). 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, 25, 701 N.E.2d 696 (1998).
{¶8} 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."Strickland at 689.
{¶9} Having reviewed the arguments in light of the record, we hold that Ercoli has failed to meet his burden to justify reopening his appeal. He cannot satisfy either prong of the Strickland test, and therefore, his application fails on the merits.
1. Appellate Record
{¶10} In his first proposed assignment of error, Ercoli argues that his "appellate counsel failed to secure a complete and adequate record of trial proceedings." Ercoli contends that, if appellate counsel had obtained the exhibits, appellate counsel could have challenged the exhibits as being "fabricated," which undermines his conviction. But our review of the appellate record belies Ercoli's claim. Contrary to Ercoli's assertion, the appellate record contains all of the exhibits that were admitted at trial. Moreover, there is no basis to conclude that these exhibits were "fabricated," and Ercoli's bald accusation does not support a claim for ineffective assistance of counsel.
{¶11} The first proposed assignment of error is overruled.
2. Photo Array Documents and Excluded Video
{¶12} In his second proposed assignment of error, Ercoli argues that his appellate counsel should have raised an ineffective assistance of trial counsel claim based on his trial counsel's failure to challenge the "forged and fabricated photo array documents," which are missing from the record. But as stated above, these documents are not missing from the record. Nor is there any basis to conclude that they were forged or fabricated. The witnesses themselves testified at trial and acknowledged identifying Ercoli from the photo array presented. Further, Ercoli cannot complain regarding the exclusion of a surveillance video that he moved to exclude at trial. See State v. Brownlee, 8th Dist. Cuyahoga No. 105116, 2018-Ohio-739, ¶ 25. Apart from falling under the invited error doctrine, there is simply no grounds for an assignment of error related to a trial counsel's sound decision to move for the exclusion of evidence (based on the state's discovery violation) that would otherwise prejudice his client's case.
{¶13} The second proposed assignment of error has no merit.
3. Alleged Violations of Sixth Amendment Right to Confrontation
{¶14} In his third proposed assignment of error, Ercoli argues that his appellate counsel should have challenged the trial court's decision limiting cross-examination of two witnesses as well as argued ineffective assistance of trial counsel in failing to object. Ercoli contends that his right to confrontation was violated when (1) a detective "was unable to answer questions regarding the procedures used during the photo array," and (2) the defense was not allowed to question Matthew Simpson regarding the video that was excluded. Ercoli's arguments, however, confuse the right to confront witnesses with the scope of cross-examination.
{¶15} Although the Sixth Amendment to the U.S. Constitution gives a defendant the right to be confronted with the witnesses against him, this protection guarantees only an opportunity for effective cross-examination. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 170. "Trial courts have 'wide latitude * * * to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant.'" Id., quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); see also Evid.R. 611(A) and (B) (a trial court is required to permit cross-examination on "all relevant matters and matters affecting credibility," but a trial court "shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence").
{¶16} Here, we find no grounds to support an assignment of error based on the trial court's alleged limits on cross-examination. The record reflects that Det. Elliot Landrau was not present for the administration of the photo array and therefore could not answer questions outside of his knowledge. Similarly, because the trial court excluded the admission of the third video-camera footage (upon defense counsel's request), the trial court properly cautioned the witness not to talk about that camera angle. Again, this admonition was done because of Ercoli's request to exclude the evidence. His purported claim of ineffective assistance of counsel is not supported by law or facts.
{¶17} The third proposed assignment of error is overruled.
4. Miranda Rights
{¶18} In his fourth proposed assignment of error, Ercoli appears to argue that his trial counsel was ineffective in failing to move to suppress his pretrial statements to Det. Landrau on the basis that he was not advised of his Miranda rights. This argument, however, is contradicted by the record. Indeed, prior to Det. Landrau conducting the interview, Ercoli signed an acknowledgment waiving his rights. Based on the record before us, we find no basis for trial counsel to have moved to suppress Ercoli's statements to Det. Landrau. And therefore appellate counsel was not ineffective in refusing to raise a baseless claim.
5. Denial of Motion for New Trial
{¶19} In his fifth proposed assignment of error, Ercoli argues that appellate counsel failed to challenge the trial court's "immediate" denial of his pro se motion for a new trial based on newly discovered evidence under Crim.R. 33. A motion for new trial on the ground of newly discovered evidence under Crim.R. 33(A)(6) may be granted only if that evidence
(1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.
{¶20} Here, Ercoli's motion appeared to rely on evidence that was known during trial — the video camera surveillance that had been excluded at trial. Further, the evidence did not disclose a strong probability that it will change the result if a new trial is granted. Because Ercoli's motion had no merit, the trial court did not abuse its discretion in denying the motion without an evidentiary hearing. See State v. Cannon, 8th Dist. Cuyahoga No. 103298, 2016-Ohio-3173, ¶ 21. Consequently, there is no basis to conclude that appellate counsel was deficient in choosing not to raise this meritless assignment of error.
6. Appellate Brief Filed in Direct Appeal
{¶21} In his final proposed assignment of error, Ercoli attacks the brief filed by his appellate counsel, arguing that it contained spelling and typographical errors as well as a citation to an outdated case. But aside from broadly attacking the brief, Ercoli makes no argument or showing of prejudice based on these alleged errors. We find no merit to Ercoli's argument.
{¶22} In conclusion, Ercoli's six proposed assignments of error have no merit. He fails to satisfy either prong of the Strickland test. Accordingly, Ercoli cannot meet his burden under App.R. 26(B)(5) to demonstrate "a genuine issue as to whether [he] was deprived of the effective assistance of counsel on appeal."
{¶23} Application denied. /s/_________
LARRY A. JONES, SR., JUDGE MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J., CONCUR