[Cite as State v. Linzey , 2021-Ohio-1994.]



## IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY STATE OF OHIO, Plaintiff-Appellee,

v. ANTHONY M. LINZEY,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 19 MA 0041

Appellant’s Application to Reopen Appeal BEFORE: Cher y l L. Waite and Carol Ann Robb, Jud g es.

JUDGMENT: Denied.

A tty. Paul J. Gain s , Mahoning County Prosecutor and Atty. Ralph M. Rivera , Assistan t Chief Prosecuting Attorney, Criminal Division, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee
A nthony Linze y

, Pro se , Inmate No. 761-348, at Belmont Correctional Institution (BECI ), P.O. Box 540, St. Clairsville, Ohio 43950, for Defendant-Appel lant– 2 –

Case No. 19 MA 0041 Dated: June 8, 2021

PER CURIAM. {¶1} Appellant Anthony Linzey has filed an application to reopen his appeal pursuant to App.R. 26(B). In so doing, he raises six assignmen ts of error asserting various issues related to both his no contest plea and appellat e counsel’s overall representation. For the reasons provided, Appellant's applicat ion to reopen his appeal is denied. Factual and Procedural History {¶2} On June 7, 2018, Appellant was indicted on one count of gross s exual imposition, a felony of the third degree in violation of R.C. 2 907.05(A)(4). On January 22, 2019, Appellant pleaded no contest to the sole offense as charg ed. {¶3} On March 6, 2019, the trial court held a sentencing hearing. T he court sentenced Appellant to four years of incarceration, with credit for eight days served, and five years of mandatory postrelease control. Appellant was als o designated a tier two sex offender. {¶4} We affirmed Appellant's convictions and sentence in State v. Linzey , 7th Dist. Mahoning No. 19 MA 0041, 2020-Ohio-6970 (“ Linzey I ”). Appellant subsequently filed this timely application to reopen his appeal. Reopening {¶5} Pursuant to App.R. 26(B)(1), a criminal defendant “may apply fo r reopening of the appeal from the judgment of conviction and sentence, bas ed on a claim of ineffective assistance of appellate counsel.” An applicant mus t demonstrate that “there is a genuine issue as to whether the applicant was deprived of the effective assistance of– 3 –

Case No. 19 MA 0041 counsel on appeal.” App.R. 26(B)(5). If the application is gr anted, the appellate court must appoint counsel to represent the applicant if the applican t is indigent and unrepresented. App.R. 26(B)(6)(a). {¶6} In order to show ineffective assistance of appellate counsel, t he applicant must meet the two-prong test outlined in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pursuant to Strickland , the applicant must first demonstrate deficient performance of counsel and then must demo nstrate resulting prejudice. Id . at 687. See also App.R. 26(B)(9). {¶7} “Under this test, a criminal defendant seeking to reopen an app eal must demonstrate that appellate counsel was deficient for failing to raise the issue presented in the application for reopening and that there was a reasonabl e probability of success had that issue been raised on appeal.” State v. Hackett , 7th Dist. Mahoning No. 17 MA 0106, 2019-Ohio-3726, ¶ 6, citing State v. Spivey , 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). ASSIGNMENT OF ERROR NO. 1

Failure of appellate counsel to meet with Appellant to discuss case facts, errors, options and strategy prior to filing an appeal on behal f of the Appellant was ineffective assistance of counsel.
{¶8} In his first assignment of error, Appellant contends that his a ppellate counsel did not meet with him to discuss his appeal or advise h im in any way as to the possible issues, facts, options, and strategy.– 4 –

Case No. 19 MA 0041 {¶9} Preliminarily, there is no evidence regarding the level of comm unication between Appellant and his appellate counsel in his appellate re cord. A court of appeals is limited to consideration of the evidence on the record and c annot rely on evidence de hors the record. State v. Adams , 7th Dist. Mahoning No. 08 MA 246, 2012-Ohio-2719, ¶ 67, aff'd, State v. Adams, 146 Ohio St.3d 232, 2016-Ohio-3043, 54 N.E.3d 1227. {¶10} Even so, Appellant’s own exhibit is a letter from his appellate counsel explaining the outcome of his appeal. Within the letter, appel late counsel stated “[a]s I told you during our phone call in October, 2020, I was hoping f or a favorable outcome but given that your case involved a Plea of Guilty and Sentencing, there just wasn’t much to raise in the court of appeals.” (Appellant’s Exh. 2). This st atement tends to suggest that appellate counsel did, in fact, discuss the appeal with Appella nt and explain that his options were limited due to his plea. It also appears from thi s exhibit that counsel informed Appellant of the argument that he intended to raise on appeal. Appellant does not contest the fact that this conversation occurred. Appellan t instead argues that the conversation was inadequate because he was incarcerated and una ble to speak confidentially. When representing an incarcerated person on ap peal, appellate counsel is somewhat limited in the ability to discuss the case. Here, appellate counsel made an effort to discuss the appeal and the issues he intended to rais e with Appellant through the methods of communication that were available. As counsel prese nted Appellant with the issues he intended to raise and explained why he was limited to those issues, the level or method of communication does not result in effective assista nce of counsel, here. Appellant also indicates that counsel called him “Jason” in the letter. While it is true that the letter from counsel did once refer to Appellant by the wron g name, Appellant's name– 5 –

Case No. 19 MA 0041 is correctly stated elsewhere in the letter and it is apparent that the information in the letter pertained to Appellant's case. In other words, the letter was clearly directed to the correct
person. {¶11} Appellant also contends that the lack of communication caused h im to miss the deadline to file a timely appeal of this Court’s decision i n the Supreme Court. However, this argument is related to events that occurred after the appeal ended. Thus, any alleged action or inaction of appellate counsel that affect ed Appellant’s ability to further appeal this Court’s decision should have been directed to the Supreme Court in a motion for leave, rather than a motion in this Court to reopen his appeal. {¶12} As such, Appellant has not rai sed a reasonable probability that further discussion would have resulted in a different outcome in his di rect appeal. ASSIGNMENT OF ERROR NO. 2

Failure of appellate counsel to present the fact that Defendant /Appellant's plea of “nolo contendere” was not made knowingly or intelligent ly in violation of the 14th Amendment to the Constitution of the United States.
{¶13} Appellant argues that he did not enter a knowing, intelligent, and voluntary plea of no contest in the trial court because his counsel led h im to believe that he “would likely serve only six months if he were to take a plea agreemen t.” (Appellant’s Brf., p. 4.) {¶14} Appellant concedes that his trial counsel did not guarantee him a sentence of only six months. In addition, Appellant informed the court at the plea hearing that he believed the offense was subject to a mandatory one-year prison term. Trial counsel clarified for the court, “I certainly didn’t indicate that it w as mandatory time. I indicated to– 6 –

Case No. 19 MA 0041 him it was our best case scenario under the circumstances that we could get a year on a sentence and potentially seek to come home earlier.” (1/2/19 P lea Hrg. Tr., p. 5.) {¶15} The trial court informed Appellant that it “could actually inca rcerate [him] for one year to five years.” (1/2/19 Plea Hrg. Tr., p. 14.) The j udge asked Appellant if he understood the sentencing range and he responded that he did. (1/2/19 Plea Hrg. Tr., p. 14.) There is no reference to a six-month sentence within the record, and it is clear Appellant understood that the trial court could impose a senten ce of one to five years of incarceration. {¶16} As such, Appellant has not raised a reasonable probability that his alleged mistaken interpretation of trial counsel’s explanation of his p otential sentence affected the voluntary nature of his plea. Raising this issue would not res ult in a different outcome in his direct appeal. ASSIGNMENT OF ERROR NO. 3
Trial Counsel's failure to investigate facts of the case, led h im to recommend Defendant/Appellant take a plea even though there was no eviden ce, medical, physical or DNA evidence that any GSI took place was i neffective assistance of trial counsel.
{¶17} Appellant argues that his counsel recommended that he accept a plea in this matter even though there is no physical evidence in this c ase and no medical or DNA testing was completed. {¶18} It was apparent even at the outset, when the indictment was fil ed, that this case would turn on the credibility of witness testimony. Becau se the conduct was not– 7 –

Case No. 19 MA 0041 immediately reported, it does not appear that any physical evid ence was available, including DNA evidence. Appellant concedes that an incident to ok place involving touching to the groin area, however, he claims this was an acci dent and did not involve a sexual motivation or sexual act. Because the parties presented competing versions of the incident, a verdict would have been based on the jury’s det ermination of credibility as to which witness was more truthful. {¶19} Even so, Appellant’s counsel initially turned down the plea dea l offered by the state at Appellant’s request. However, as the deal was rea d into the record, Appellant asked if it was still available, because he had changed his min d and wanted to enter a plea. Thus, this record does not reflect that trial counsel pr essured Appellant into accepting a deal, as he, himself, asked whether it was still av ailable to him. (1/2/19 Plea Hrg. Tr., pp. 6-7.) {¶20} Accordingly, Appellant has not raised a reasonable probability that physical or DNA evidence was available or that testing such evidence wou ld have resulted in a different outcome in his direct appeal. ASSIGNMENT OF ERROR NO. 4
The Trial Court violated the Defendant/Appellant's rights when it proceeded with a conviction to stand against the sufficiency of evidence and the manifest weight of the evidence.
{¶21} Appellant argues that his conviction is not supported by suffic ient evidence and is against the manifest weight of the evidence.– 8 –

Case No. 19 MA 0041 {¶22} Both sufficiency of the evidence and manifest weight of the evi dence involve an analysis of the evidence presented at trial. Appellant plea ded guilty in lieu of a trial. As such, neither sufficiency of the evidence nor manifest weigh t of the evidence applies, here. {¶23} Because Appellant’s arguments are only available to a defendant who elected to proceed to trial, he cannot establish that a differe nt outcome would have been likely in his direct appeal based on these arguments. ASSIGNMENT OF ERROR NO. 5
The Trial Court erred in failing to ensure the Defendant/Appell ant's change of plea and waiver of a jury trial was done knowingly, intellig ently and voluntarily due to Appellant's known and progressive mental hea lth conditions and/or illnesses.
{¶24} Appellant argues that he did not knowingly, intelligently, and voluntarily enter his plea as the trial court failed to conduct an investig ation of his mental health. Although Appellant frames the argument as an issue related to h is plea, his argument appears to be directed to his sentence. Appellant appears to a rgue that evidence of his mental health should have been considered as mitigating evidenc e. {¶25} Appellant’s mental health was not raised at any point on the re cord, thus would involve evidence de hors the record. To the extent that Appellant’s argument involves the voluntary nature of his plea, the trial court aske d Appellant if he was taking medication or had a condition that required medication. Appell ant responded that he was not taking medication and did not have a condition that require d medication. Appellant– 9 –

Case No. 19 MA 0041 raised no issue or concern during the plea colloquy to indicate that some mental health question may be in any way involved. {¶26} To the extent that Appellant’s argument is directed at mitigati on of his sentence, his appellate counsel did attack Appellant’s sentenci ng on appeal. After reviewing the record, we affirmed the sentence. Although couns el did not specifically raise any argument regarding Appellant’s mental health, our rev iew uncovered no indication that the sentenc e was contrary to law. {¶27} We note that, while mental health is a factor a trial court may consider when imposing a sentence, it is not the only factor for a court to c onsider. See State v. Bishop, 7th Dist. Jefferson No. 18 JE 0005, 2019-Ohio-4963, ¶ 41 (evide nce regarding drug addiction is a factor that may be considered when determining a sentence but does not automatically reduce a sentence.) {¶28} Here, the trial court focused on Appellant’s past criminal hist ory when determining his sentence. Linzey I, at ¶ 18. The court also expressly considered the PSI, which presumably would have included information regarding Appe llant’s mental health. Id. Importantly, the court did not impose the maximum sentence, th us it is possible that the court took any mental health issues, if known, into conside ration when imposing a
sentence. {¶29} As such, Appellant cannot establish a different outcome would h ave been likely in his direct appeal based on the record in this matter. ASSIGNMENT OF ERROR NO. 6– 10 –

Case No. 19 MA 0041 Trial Counsel failed to submit a Motion to Dismiss on the above grounds to challenge the cumulative "net effect" of errors and fundamental miscarriage of justice was ineff ective assistance.
{¶30} Appellant appears to argue that his trial counsel should have f iled a motion to dismiss the charges. He also generally argues, again, that his counsel did not meet with him to discuss the case sufficiently. {¶31} “When a claim for ineffective assistance of counsel is made bas ed on failure to file an objection or a motion, the appellant must demonstrat e that the objection or motion had a reasonable probability of success.” State v. Saffell , 7th Dist. Jefferson No. 19 JE 0021, 2020-Ohio-7022, ¶ 51. “If the objection or motion would not have been successful, then the appellant cannot prevail on the ineffectiv e assistance of counsel claim.” Id. , citing State v. Adkins , 161 Ohio App.3d 114, 2005-Ohio-2577, ¶ 14 (4th Dist.) {¶32} Appellant does not provide any scenario on which he believes a successful motion to dismiss the charges could have been based. A review of the record does not reveal any basis. The limited record before us reveals that th e child victim made allegations and Appellant countered those allegations. Because this case turned on witness credibility, it would have been up to a jury to determi ne which side was truthful had Appellant not entered a no contest plea. {¶33} Because Appellant does not provide a basis for an arguably succ essful motion to dismiss, Appellant cannot establish a different outco me would have been likely in his direct appeal. Conclusion– 11 –

Case No. 19 MA 0041 {¶34} As previously stated, in order to show ineffective assistance o f appellate counsel, Appellant must demonstrate deficient performance of co unsel and resulting prejudice. Appellant has failed to show that any of the issues he attempts to raise constituted error. Hence, counsel was not ineffective for fail ing to raise these issues. As there is no genuine issue regarding whether Appellant was depri ved of effective assistance of counsel on appeal, Appellant's application for re opening is denied.

JUDGE CHERYL L. WAITE

JUDGE CAROL ANN ROBB

NOTICE TO COUNSEL This document constitutes a final judgment entry.[Cite as State v. Linzey , 2021-Ohio-1994.]