[Cite as State v. Makin, 2017-Ohio-8569.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION 

No. 104010

STATE OF OHIO

 PLAINTIFF-APPELLEE 

vs. 

HAKEEN K. MAKIN 

 DEFENDANT-APPELLANT 

JUDGMENT:

APPLICATION DENIED 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-594103-A 

Application for Reopening 

Motion No. 509162 

RELEASE DATE: November 13, 2017 
FOR APPELLANT

Hakeen Makin 

Inmate No. A683089 

Marion Correctional Institution 

P.O. Box 57 

Marion, Ohio 43301 

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 

ANITA LASTER MAYS, P.J.: 
{¶1} Hakeen Makin has filed a timely application for reopening pursuant to App.R. 

26(B). Makin seeks to reopen the appellate judgment rendered in State v. Makin, 8th Dist. 

Cuyahoga No. 104010, 2017-Ohio-2649, that affirmed his convictions and sentence for multiple 

drug-related offenses. For the reasons that follow, we decline to reopen Makin’s appeal. 

A. Standard of Review

{¶2} 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). 

{¶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} With this standard in mind, we turn to the arguments raised by Makin. 

B. Arguments Not Meritorious

{¶5} Makin raises three proposed assignments of error in support of his application to 

reopen his direct appeal. Having reviewed the arguments in light of the record, we hold that 

Makin cannot satisfy either prong of the Strickland test. We must, therefore, deny the 

application on the merits. 

1. Imposition of postrelease control

{¶6} In his first proposed assignment of error, Makin argues that his appellate counsel 

was ineffective in failing to challenge his sentence as to the imposition of postrelease control. 

According to Makin, the trial court failed to properly impose separate terms of postrelease 

control for each conviction, thereby rendering his sentence void. This argument, however, lacks 

merit. 

{¶7} Under R.C. 2967.28(F)(4)(c), if a defendant may be subject to multiple terms of 

postrelease control, “the period of post-release control for all of the sentences shall be the period 

of post-release that expires last, as determined by the parole board or court. Periods of 

post-release control shall be served concurrently and shall not be imposed consecutively to each 

other.” Relying on this statutory language, “Ohio appellate courts have held that trial courts are 

permitted only to impose one term of post-release control even when the defendant has been 

convicted of multiple felony offenses.” State v. Brown, 2d Dist. Montgomery No. 25653, 

2014-Ohio-2551, ¶ 23, citing State v. Orr, 8th Dist. Cuyahoga No. 96377, 2011-Ohio-6269, ¶ 50; 

State v. Reed, 2012-Ohio-5983, 983 N.E.2d 394, ¶ 12 (6th Dist.); see also State v. Tharp, 8th 
Dist. Cuyahoga No. 104216, 2016-Ohio-8316, reopening disallowed, 2017-Ohio-2750, ¶ 3- 5 

(rejecting the exact argument raised by Makin). 

{¶8} The record reflects that the trial court properly notified Makin that he was subject to 

a mandatory five-year period of postrelease control. Among Makin’s multiple convictions, he 

was convicted of trafficking in violation of R.C. 2925.03(A)(2), a first-degree felony. Under 

R.C. 2967.28(B)(1), a five-year term of postrelease control is mandatory for a felony of the first 

degree. Therefore, in ordering the imposition of a five-year postrelease control term, the trial 

court had no obligation to impose shorter terms for the remaining offenses. Tharp at ¶ 5, citing 

State v. Morris, 8th Dist. Cuyahoga No. 97215, 2012-Ohio-2498, ¶ 18 (recognizing that the trial 

court’s imposition of a single term of postrelease control was proper and that R.C. 

2967.28(F)(4)(c) precludes the court or the parole board from imposing more than one period of 

postrelease control in cases that involve multiple convictions). 

{¶9} Because this proposed assignment of error has no merit, appellate counsel cannot be 

deemed ineffective in refraining from raising it. 

2. Fabricated Evidence

{¶10} In his second and third proposed assignments of error, Makin argues that the 

prosecutor presented “fabricated evidence,” which his trial counsel should have challenged and 

that his appellate counsel should have raised assignments of error relating to prosecutorial 

misconduct and ineffective assistance of counsel. Makin argues that the prosecutor lied about 

the confidential informant being fitted with “two separate devices” as opposed to just one 

recording device. Makin further contends that the prosecutor coerced the CI to commit perjury 

as to the recording devices and that the prosecutor introduced a “fabricated” audio-recording. 

But our review of the record does not support Makin’s argument. 
{¶11} The record reflects that the state presented several exhibits evidencing the meetings 

and controlled buys, which included both audio and video recordings, spanning from March 

through July 2014. The authenticity or admissibility of these exhibits, including the recording 

that Makin now challenges, were not questioned at trial. The record, however, does not reveal 

any grounds to challenge the recording. Indeed, the CI directly testified as to the recording that 

Makin challenges. We find no basis to support Makin’s claim that the prosecutor “fabricated” 

evidence. Moreover, Makin’s argument fails to demonstrate any prejudice that would support 

an ineffective assistance of appellate counsel. Accordingly, we find appellate counsel was not 

ineffective in refusing to raise such a baseless argument. 

{¶12} Application denied. 

 

ANITA LASTER MAYS, JUDGE 

KATHLEEN ANN KEOUGH, A.J., and 

PATRICIA ANN BLACKMON, J., CONCUR