[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, 2018 
ATTORNEY 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 44113 
ANITA 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), applied 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 sentences for one count of importuning, one count of attempted 

unlawful sexual conduct with a minor, one count of possession of criminal tools, and five counts 

of pandering sexually oriented matter involving a minor. Stefan maintains that his appellate 

counsel should have argued the following: (1) ineffective 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 imprisonment 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 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 (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 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 (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} 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 cannot 
add 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 syllabus. “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} 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 explicit 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 different locations to hook up with her. 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, and other electronic devices. 

{¶8} The grand jury indicted him on one count of importuning, one count of attempted 

unlawful sexual conduct with a minor, one count of possessing criminal 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 plea 
agreement, the state nolled the five fourth-degree pandering counts and agreed not to charge 

Stefan on any additional child pornography he possessed. Stefan pleaded guilty to the 

remaining charges, and the trial 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 the 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 felonies. That includes Stefan stating that he was 

satisfied with his trial counsel (tr. 31) and admitting that no threats of promises were made in 

securing the plea (tr. 32). Without some record support, appellate counsel properly rejected this 

argument. 

{¶11} Stefan’s second argument is that his trial 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 record 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 court examined the argument and rejected 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 denies the application to reopen. 

 

ANITA LASTER MAYS, JUDGE 

KATHLEEN ANN KEOUGH, P.J., and 

TIM McCORMACK, J., CONCUR