[Cite as State v. Bolan, 2012-Ohio-2381.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 95807 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

RAYMOND BOLAN 

DEFENDANT-APPELLANT 

JUDGMENT: 

APPLICATION DENIED

Cuyahoga County Court of Common Pleas 

Case No. CR-531193 

Application for Reopening 

Motion No. 450162 

 

 RELEASE DATE: May 29, 2012
-iATTORNEY FOR APPELLANT

Robert A. Dixon 

4403 St. Clair Avenue 

Cleveland, Ohio 44103 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

Daniel T. Van 

Assistant County Prosecutor 

8th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
PATRICIA ANN BLACKMON, A.J.: 

{¶1} In State v. Bolan, Cuyahoga C.P. No. CR-531193 (Sept. 30, 2010), 

applicant, Raymond Bolan, was found guilty by a jury and convicted of aggravated 

murder, murder, and felonious assault with respect to one victim and attempted murder 

and felonious assault with respect to another victim. He was also found guilty of one-year 

and three-year firearm specifications on each count. This court affirmed Bolan’s 

convictions but vacated his sentence in part and remanded the case for resentencing with 

respect to the allied offenses of attempted murder and related felonious assault in State v. 

Bolan, 8th Dist. No. 95807, 2011-Ohio-4501. The Supreme Court of Ohio denied 

Bolan’s motion for leave to appeal and dismissed the appeal as not involving any 

substantial constitutional question. State v. Bolan, 131 Ohio St.3d 1414, 2012-Ohio-136, 

959 N.E.2d 1058. 

{¶2} Bolan has filed with the clerk of this court a timely application for 

reopening. He asserts that he was denied the effective assistance of counsel because his 

counsel did not assign as error that trial counsel was ineffective. We deny the 

application for reopening. As required by App.R. 26(B)(6), the reasons for our denial 

follow. 

{¶3} Having reviewed the arguments set forth in the application for reopening in 

light of the record, we hold that applicant has failed to meet his burden to demonstrate 
that “there is a genuine issue as to whether the applicant was deprived of the effective 

assistance of counsel on appeal.” App.R. 26(B)(5). In State v. Spivey, 84 Ohio St.3d 

24, 1998-Ohio-704, 701 N.E.2d 696, the Supreme Court specified the proof required of 

an applicant. “In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we 

held that the two-prong analysis found in Strickland v. Washington (1984), 466 U.S. 668, 

104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess a defense request for 

reopening under App.R. 26(B)(5).” Bolan must prove that his counsel was deficient for 

failing to raise the issues he now presents, as well as showing that had he presented those 

claims on appeal, there was a “reasonable probability” that he would have been 

successful. Thus, Bolan 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.” 

Id. at 25. Applicant cannot satisfy either prong of the Strickland test. We must, 

therefore, deny the application on the merits. 

{¶4} Bolan argues that his trial counsel was ineffective because trial counsel did 

not object to and/or acquiesced in the closure of the courtroom for the testimony of two 

state’s witnesses and did not secure the attendance of a defense witness. 

{¶5} On direct appeal, the sixth assignment of error asserted by appellate counsel 

challenged the propriety of the trial court’s closing the courtroom during the testimony of 

two of the state’s witnesses, including the trial court’s instruction that Bolan was not to 

look at one of those witnesses. Appellate counsel argued that the trial court abused its 

discretion. 
{¶6} In his application for reopening, Bolan argues that appellate counsel should 

have argued that trial counsel was ineffective because trial counsel did not object to the 

trial court’s closure of the courtroom. In State v. Drummond, 111 Ohio St.3d 14, 

2006-Ohio-5084, 854 N.E.2d 1038, the Supreme Court upheld the partial closure of the 

courtroom for the cross-examination of one prosecution witness and the examination of 

two other prosecution witnesses. The trial court had determined that there was, among 

other considerations, a fear of retaliation against the witnesses. The Supreme Court 

determined that there was a substantial reason for the partial closure. 

{¶7} One of the two state’s witnesses in question stated that she was afraid. 

Prior to the testimony of the other state’s witness later in the case, trial counsel stated: 

“[I]t’s been demonstrated in this trial that people in the neighborhood and associated with 

either family in this case have had a reluctance to be candid with witnesses, whether for 

admitting different stories, or for fear of retribution.” Tr. 856. Clearly, these 

circumstances suggest a “substantial reason” for the trial court’s partial closure of the 

courtroom. In light of the evidence in the record for the partial closure, we cannot 

conclude that appellate counsel was deficient or that Bolan was prejudiced by the absence 

of the argument that his trial counsel was ineffective for failing to object to the partial 

closure of the courtroom. 

{¶8} In his second argument, Bolan contends his trial counsel was ineffective 

because trial counsel did not secure the attendance of a defense witness. In the fourth 

assignment of error on direct appeal, appellate counsel argued that the trial court “violated 
his right to present a meaningful trial by refusing to grant a continuance” to secure the 

presence of a defense witness. 2011-Ohio-4501, ¶ 40. 

{¶9} Bolan now contends that trial counsel’s conduct provided the basis for this 

court’s upholding of the trial court’s ruling. That is, trial counsel initially declined to 

request a bench warrant for the defense witness and only on the next day — the day on 

which the witness could have testified — did trial counsel request a bench warrant. The 

trial court also complained regarding conflicting information provided to the trial court 

regarding the status of law enforcement’s efforts to secure the attendance of the witness 

on that day. Bolan argues, therefore, that trial counsel’s actions were at issue as well as 

whether the trial court abused its discretion by refusing to grant the continuance. 

{¶10} As noted above, trial counsel was aware that witnesses on both sides were 

afraid to testify. In response to the trial court’s observation that trial counsel did not 

address the issue of a bench warrant a day earlier, trial counsel stated: “* * * I didn’t 

want her coming in under those circumstances * * * .” Tr. 980. We recognize that trial 

counsel could have been attempting to balance securing the attendance of the witness 

with avoiding alienating the witness. “It is well established that sound trial strategy does 

not provide a basis for reopening. See, e.g., State v. Warner, 8th Dist. No. 95750, 

2011-Ohio-4096, reopening disallowed, 2012-Ohio-256, at ¶ 5.” State v. Foster, 8th 

Dist. No. 95209, 2012-Ohio-916, ¶ 13. In Warner, this court observed that: 

[C]laims of ineffective assistance of both appellate counsel and trial 

counsel, as predicated upon the failure to introduce evidence during the 

course of trial, failure to subpoena witnesses, and a request for 

continuance of trial, involved strategic choices of counsel that fell 
within the realm of trial strategy and tactics that will not ordinarily be 

disturbed on appeal. 2012-Ohio-256, at ¶ 11. 

{¶4} Similarly, an appellate court cannot presume to second guess trial counsel’s 

judgment regarding the risks and benefits of having law enforcement personnel secure the 

attendance of this witness. Rather, we must conclude that appellate counsel was not 

deficient and Bolan was not prejudiced by the absence of this argument from his direct 

appeal. As a consequence, Bolan has failed to demonstrate that there is a “genuine 

issue” whether he has a “colorable claim” of ineffective assistance of counsel on appeal. 

Accordingly, the application for reopening is denied. 

 

PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE 

FRANK D. CELEBREZZE, JR., J., and 

LARRY A. JONES, SR., J., CONCUR