[Cite as State v. Logan, 2012-Ohio-5713.]

 Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA

 JOURNAL ENTRY AND OPINION 

 No. 97022 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

MONTEZ LOGAN

DEFENDANT-APPELLANT

JUDGMENT: 

APPLICATION DENIED

Cuyahoga County Court of Common Pleas 

Case No. CR-540250 

Application for Reopening 

Motion No. 457035 
RELEASE DATE: November 30, 2012 

 

APPELLANT

Montez Logan, pro se 

Inmate No. A603004 

Lorain Correctional Institution 

2075 South Avon-Belden Road 

Grafton, Ohio 44044 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

James M. Price 

Assistant County Prosecutor 

The Justice Center - 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113

MARY EILEEN KILBANE, J.: 
{¶1} On July 23, 2012, the applicant, Montez Logan, pursuant to 

App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 

(1992), timely applied to reopen this court’s judgment in State v. Logan, 8th 

Dist. No. 97022, 2012-Ohio-1944, in which this court affirmed Logan’s 

convictions and sentences for two counts of aggravated murder, three counts 

of attempted aggravated murder, with one and three-year firearm 

specifications, and one count of having a weapon under disability.1 Logan 

now maintains that his appellate counsel should have argued that his trial 

counsel was ineffective in the following ways: (1) she did not request his 

presence at a jury view of the crime scene; (2) she did not call various 

witnesses to support his defense; (3) she did not have an investigator to 

investigate his alibi defense; and (4) she did not seek to replace sleeping 

jurors. On August 9, 2012, the state of Ohio filed its brief in opposition. For 

the following reasons, this court denies Logan’s application to reopen. 

{¶2} In order to establish a claim of ineffective assistance of appellate 

counsel, the applicant must demonstrate that counsel’s performance was 

deficient and that the deficient performance prejudiced the defense. 

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 

 1 At approximately 8:30 p.m. on July 17, 2010, five men were socializing outside a house, 

when two men approached and fired on them with an AK-47. The five men tried to flee. Two were 

killed, one was shot in the foot, another injured his foot, and the other escaped unharmed. Two 
(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); State v. 

Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456. 

{¶3} 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. 

{¶4} Specifically, in regard to claims of ineffective assistance of 

appellate counsel, the United States Supreme Court has upheld the appellate 

advocate’s prerogative to decide strategy and tactics by selecting what he 

thinks are the most promising arguments out of all possible contentions. 

The court noted: “Experienced advocates since time beyond memory have 

emphasized the importance of winnowing out weaker arguments on appeal 

and focusing on one central issue if possible, or at most on a few key issues.” 

Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 

 

eyewitnesses identified Demetrius Allen and Montez Logan as the two assailants. 
(1983). Indeed, including weaker arguments might lessen the impact of the 

stronger ones. Accordingly, the court ruled that judges should not 

second-guess reasonable professional judgments and impose on appellate 

counsel the duty to raise every “colorable” issue. Such rules would disserve 

the goal of vigorous and effective advocacy. The Supreme Court of Ohio 

reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172, 

1996-Ohio-366, 672 N.E.2d 638. 

{¶5} Moreover, even if a petitioner establishes that an error by his 

lawyer was professionally unreasonable under all the circumstances of the 

case, the petitioner must further establish prejudice: but for the unreasonable 

error there is a reasonable probability that the results of the proceeding 

would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome. A court need not 

determine whether counsel’s performance was deficient before examining 

prejudice suffered by the defendant as a result of alleged deficiencies. 

{¶6} Furthermore, appellate review is strictly limited to the record. 

The Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97 

(1898). “Nor can the effectiveness of appellate counsel be judged by adding 

new matter to the record and then arguing that counsel should have raised 

these new issues revealed by the newly added material.” State v. Moore, 93 

Ohio St.3d 649, 650, 2001-Ohio-1892, 758 N.E.2d 1130. “Clearly, declining to 
raise claims without record support cannot constitute ineffective assistance of 

appellate counsel.” State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776 

N.E.2d 79, ¶ 10. 

{¶7} Logan’s first argument is that his trial counsel was ineffective for 

not requesting that he be present during the jury view. He claims that his 

absence prevented him from requesting certain observations that would later 

bolster his case that certain witnesses could not have seen what they claimed. 

{¶8} The record shows that the jury did view the crime scene. 

However, it is silent as to who was or was not present, to what was observed, 

and to what was requested. In State v. Richey, 64 Ohio St.3d 353, 367, 

1992-Ohio-44, 595 N.E.2d 915, the Supreme Court of Ohio ruled that a “court 

cannot presume prejudice from an unrecorded visit to a crime scene.” 

Therefore, this argument fails because Logan cannot establish prejudice. 

Additionally, a “view of a crime scene is neither evidence nor a critical stage 

in the proceedings.” Id. Thus, Logan did not have a right to be present at 

the view. Accordingly, it is understandable that appellate counsel in the 

exercise of professional judgment would decline to argue this point. 

{¶9} Logan also argues that his trial counsel was ineffective for failing 

to call additional witnesses on his behalf. He submits that these witnesses 

would have testified that they “suspected Arsenio Smith of committing the 

murders.” (Pg. 4 of application.) During the cross-examination of the 
investigating police officers, defense counsel elicited that various individuals 

had told the officers that Arsenio might have been the perpetrator. Logan 

now claims that these witnesses could have bolstered that evidence. 

{¶10} However, the record does not verify what the testimony of these 

witnesses would have been. Without that, appellate counsel and this court 

could only speculate what the testimony would have been and whether that 

would have been helpful to Logan. Speculation is insufficient for making an 

appellate argument and does not establish prejudice. State v. Addison, 8th 

Dist. No. 90642, 2009-Ohio-221, reopening disallowed 2009-Ohio-2704; and 

State v. Abdul, 8th Dist. No. 90789, 2009-Ohio-225, reopening disallowed,

2009-Ohio-6300. Moreover, the decisions on what evidence to present fall 

within the realm of trial strategy and tactics that will ordinarily not be 

disturbed on appeal. State v. Warner, 8th Dist. No. 95750, 2011-Ohio-4096, 

reopening disallowed, 2012-Ohio-256. 

{¶11} Similarly, Logan’s next argument is also unpersuasive. He 

claims that his trial counsel did not have an investigator to investigate his 

alibi defense or that she failed to investigate it herself. During trial, Logan, 

Allen, Allen’s brother, and a friend of Allen’s brother, all testified that on the 

day of the shooting, Allen and Logan took Allen’s brother and his friend to a 

shoe store at Lee and Harvard and then took them home. Allen, Logan, and 

the brother indicated that this trip took place between 6:30 and 8:30 p.m., so 
that Allen and Logan would not have had time to travel to East 123rd and 

Signet, the location of the crime, to have committed it at approximately 8:30. 

The friend indicated that the trip might have been earlier in the day. Logan 

also maintained that after returning Allen’s brother and the friend to their 

home, he and Allen stopped at a liquor store and went to a friend’s house. 

Logan now complains that his trial counsel did not investigate this alibi 

enough, such as seeking the film from the stores’ surveillance cameras. 

{¶12} However, the record shows that defense counsel did have an 

investigator who participated in the preparation of the case. Nevertheless, 

this argument is dependent on speculation. The record does not indicate 

whether either defense counsel or the investigator went to the stores, whether 

anyone there had any recollection of that day, whether there were working 

cameras, whether the films were preserved, or what they showed. Without 

the answers to those questions, appellate counsel and this court could only 

speculate on what the evidence would have shown. That is not the basis for 

a sound appellate argument, and prejudice cannot be established. 

{¶13} Logan’s final argument is that “trial counsel was ineffective for 

remaining silent to replace other sleeping jurors.” Toward the end of the 

trial, defense counsel raised the issue with the judge that jurors 1 and 3 were 

sleeping at various times during the trial. The judge questioned both jurors. 

 Juror number 3 admitted to sleeping during the trial, and the judge replaced 
him with an alternate. Juror number 1 denied sleeping, and defense counsel 

did not ask for his removal. Beyond this, the record is not clear as to 

whether any other jurors may have been sleeping during the trial. 

{¶14} Appellate counsel addressed this issue in the third assignment of 

error: “Appellant was denied a fair trial and his right to due process by at 

least one juror sleeping during the testimony and the court not properly 

dealing when it was brought to its attention.” The gravamen of this 

argument was that the trial court erred in waiting until the close of evidence 

to investigate, instead of addressing the issue when defense counsel raised it. 

 Following the admonition of the Supreme Court, this court will not question 

the reasonable professional judgments of counsel in framing issues supported 

by the record, as compared to others that have less support. Moreover, 

Logan did not explicitly argue this issue in his application. 

{¶15} Accordingly, this court denies the application to reopen. 

 

MARY EILEEN KILBANE, JUDGE 

PATRICIA A. BLACKMON, A.J., and 

SEAN C. GALLAGHER, J., CONCUR