[Cite as State v. Stefan , 2018-Ohio-3493.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104979

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. GREGORY PETER STEFAN

DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-15-600196-A Application for Reopening Motion No. 517037

RELEASE DATE: August 24, 2018ATTORNEY FOR APPELLANT Gregory P. Stefan, pro se Inmate No. A690081 Lake Erie Correctional Institution P.O. Box 8000 Conneaut, Ohio 44030

ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor By: Amy Venesile Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113ANITA LASTER MAYS, J.: {¶1} On April 25, 2018, the applicant, Gregory Stefan, pursuant to App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), a pplied to reopen this court’s judgment in State v. Stefan , 8th Dist. Cuyahoga No. 104979, 2018-Ohio-266, in which this court

affirmed his convictions and se ntences for one count of import uning, one count of attempted

unlawful sexual conduct with a mi nor, one count of possession of cr iminal tools, and five counts of pandering sexually oriented matter involving a minor. Stefan maintains that his appellate counsel should have argued the following: (1) in effective assistance of trial counsel for not objecting that the state had abrogated the plea agreement, and (2) ineffective assistance of trial counsel for not arguing that the term of impri sonment was contrary to the statute and not supported by the record. The state of Ohio filed its brief in opposition on June 26, 2018. For the following reasons, this court denies the application. {¶2} In order to establish a claim of ineff ective assistance of a ppellate counsel, the applicant must demonstrate that counsel’s performance was defi cient and that the deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and 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 la wyer after conviction and that it would be all too easy for a court, examining an unsuccessful defense in hinds ight, to conclude that a particular act or omission was deficient. Therefore, “a court must indulge a strong pres umption that counsel’s conduct falls within the wide rang e of reasonable professional assi stance; that is, the defendantmust overcome the presumption th at, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Strickland at 689. {¶4} Specifically, in regard to claims of ine ffective assistance of appellate counsel, the United States Supreme Court has upheld the appellate advocate’s pr erogative 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 weak er 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 (1983). Indeed, incl uding weaker arguments might lessen the impact of the stronger ones. Accordingly, the court ruled that judges should not second-guess reasonable professional judgment s and impose on appellate couns el 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 a ll the circumstances of the cas e, 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 c ourt need not determine whether counsel’s performance was deficient before examining prej udice suffered by the defendant as a result of alleged deficiencies. {¶6} Appellate review is strictly limited to the record. The Warder, Bushnell &

Glessner Co. v. Jacobs , 58 Ohio St. 77, 50 N.E. 97 (1898). Thus, “a reviewing court cannotadd matter to the record that was not part of the trial court’s proceedings and then decide the appeal on the basis of the new matter.” State v. Ishmail , 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the sylla bus. “Nor can the effectiven ess of appellate counsel be judged by adding new matter to the record and th en arguing that counsel should have raised these new issues revealed by th e newly added material.” State v. Moore , 93 Ohio St.3d 649, 650, 2001-Ohio-1892, 758 N.E.2d 1130. “Clearly, declinin g to raise claims without record support

cannot constitute ineff ective assistance of a ppellate counsel.” State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776 N.E.2d 79, ¶ 10. {¶7} The facts presented at the guilty plea and sentencing hearings showed that Stefan had an 18-year interest in child pornography. This interest had advanced to the point that he was seeking to meet underage girls through the internet. The Ohio Internet Crimes against Children Task Force in a sex-related chat room set up a fictional profile of a 29-year-old mother with a 14-year-old daughter to intercept predators, and the task force intercepted Stefan. On this website, Stefan engaged in sexually exp licit conversations with what he believed was a 14-year-old girl and arranged to meet with her to have sex. The task force three times

confirmed that he traveled to di fferent locations to hook up with he r. On the third time, the task force arrested him. After his arrest and advisement of his Miranda rights, Stefan admitted that he had traveled to have sex with a 14-year-old girl. The execution of a search warrant revealed child pornography on CDs, DVDs, a nd other electronic devices. {¶8} The grand jury indicted him on one count of importuning, one count of attempted

unlawful sexual conduct with a mi nor, one count of possessing cr iminal tools, five counts of second-degree pandering sexually oriented matter involving a minor, and five counts of fourth-degree pandering sexually oriented matter involving a minor. Pursuant to a pleaagreement, the state nolled the five fourth-degree pandering c ounts and agreed not to charge Stefan on any additional child pornography he possessed. Stefan pleaded guilty to the remaining charges, and the tria l court sentenced him to an aggregate 11 years in prison. {¶9} Stefan now argues that his appellate counsel should have argued ineffective assistance of trial counsel for not arguing that the state abrogated th e plea bargain. Stefan maintains that the initial agreement was that if he gave the passwords to all his electronic devices as requested by the state, and if none of those devices were found to contain any child pornography, then the state would nolle the five second-degree counts of pandering. Instead, it nolled the five fourth-degree counts, and Stefan complains that his trial counsel did not object. {¶10} However, a thorough review of the entire record shows no indication that the state had ever agreed to nolle the second-degree feloni es. That includes Stefan stating that he was

satisfied with his trial counsel (tr. 31) and admitting that no threat s of promises were made in securing the plea (tr. 32). Wit hout some record support, appellate counsel properly rejected this

argument. {¶11} Stefan’s second argument is that his tria l counsel was ineffective for failing to object to the trial court sentencing him to a term of imprisonment contrary to the statute and where its findings were not supported by the reco rd pursuant to R.C. 2929.14. This argument is meritless. It is a rehashing of his appellate counsel’s second assignment of error that the sentence was contrary to law. In fact, at times Stefan uses the identical language that his appellate counsel used. This c ourt examined the argument and re jected it. To the extent that Stefan adds the argument that the trial court failed to make the requisite findings to impose consecutive sentences, the argument is unfounded. The trial court made the necessary findings at the hearing (tr. 75-76) and in the sentencing entry.{¶12} Accordingly, this court deni es the application to reopen.

ANITA LASTER MAYS, JUDGE KATHLEEN ANN KEOUGH, P.J., and TIM McCORMACK, J., CONCUR