[Cite as State v. Marcum, 2012-Ohio-2721.]

STATE OF OHIO, COLUMBIANA COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NO. 10 CO 17 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION AND 

) JUDGMENT ENTRY 

J.C. JOHN MARCUM ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Motion to Reopen Direct Appeal 

JUDGMENT: Overruled. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Robert Herron 

Columbiana County Prosecutor 

Atty. John E. Gamble 

Assistant Prosecuting Attorney 

105 South Market Street 

Lisbon, Ohio 44432 

For Defendant-Appellant: J.C. John Marcum, Pro se 

#583-801 

Belmont Correctional Institution 

P.O. Box 540 

St. Clairsville, Ohio 43950 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

Dated: June 13, 2012
[Cite as State v. Marcum, 2012-Ohio-2721.]

PER CURIAM 

{¶1} Appellant, J.C. John Marcum, Jr., has already appealed his Columbiana 

County convictions of assault on a peace officer and aggravated burglary. In his 

original appeal, Appellant challenged the sufficiency and the weight of the evidence 

against him on both charges. He also challenged the admission of what he alleged 

to be hearsay evidence and claimed prosecutorial misconduct during trial and in 

closing. On review, we found sufficient evidence on each element of the offenses 

charged and that the conviction was not against the weight of the evidence. Because 

the alleged hearsay evidence was not offered for the truth of the matter asserted, it 

was not hearsay within the meaning of the rule. While the prosecutor’s conduct was 

not ideal, it did not rise to the level of misconduct resulting in prejudice that 

necessitated reversal. We affirmed the judgment of the trial court in full. 

{¶2} Appellant has now filed a timely application to reopen his appeal, to 

which the state has not responded. The time for response has passed and we will 

consider the matter on Appellant’s motion alone. Appellant now contends that he 

received ineffective assistance of appellate counsel because counsel did not 

challenge the duration of his sentence and did not challenge the imposition of 

consecutive sentences. Although in Appellant’s first assignment of error he refers to 

the word “sentence” in the singular, he does not specify which of the two sentences 

imposed he seeks to challenge. Appellant offers no reason, argument, or law 

supporting his contention that the “[s]everity of the sentence does not match the the 

[sic] offense pursuant to [R.C.] 2929.11 et seq.” nor does he identify on what, within 

the approximately forty-two subsections of R.C. 2929 encompassed by “2929.11 et 
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seq.,” he is relying in making his argument. (1/3/12 Motion to Reopen, Assignments 

of Error Nos. 1 and 2.) Similarly, Appellant does not offer any reason why the 

imposition of consecutive sentences is unlawful in this instance. Appellant includes a 

third assignment of error where he asserts that appellate counsel has not been in 

regular contact with him. The presence, absence, or quality of contact between 

attorney and client is not a legal or factual error properly before this Court on an 

application to reopen an appeal. Hence, we address what Appellant identifies as 

errors number one and two only to the extent that they refer to legal or factual issues 

that may be considered by a reviewing court. 

{¶3} Appellate Rule 26(B) governs applications for reopening. The rule 

provides: “A defendant in a criminal case may apply for reopening of the appeal from 

the judgment of conviction and sentence, based on a claim of ineffective assistance 

of appellate counsel.” App.R. 26(B)(1). The defendant seeking to reopen must 

provide “[o]ne or more assignments of error * * * that previously were not considered 

on the merits in the case by any appellate court or that were considered on an 

incomplete record because of appellate counsel’s deficient representation.” App.R. 

26(B)(2)(c). The applicant must also provide a “sworn statement of the basis for the 

claim that appellate counsel’s representation was deficient with respect to the 

assignments of error * * * and the manner in which the deficiency prejudicially 

affected the outcome of the appeal.” App.R. 26(B)(2)(d). 

{¶4} To justify reopening his appeal, Appellant “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, 
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25, 701 N.E.2d 696 (1998), accord State v. Sheppard, 91 Ohio St.3d 329, 744, 

N.E.2d 770 (2001). “The two-pronged 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 whether [Appellant] has raised a ‘genuine issue’ as to the ineffectiveness of 

appellate counsel in his request to reopen under App. R. 26(B).” Sheppard at 330. 

To prevail on a claim of ineffective assistance of counsel Appellant must show not 

only that counsel's performance was deficient, but also that he was prejudiced by that 

deficiency. Strickland, supra; see also State v. Williams, 99 Ohio St.3d 493, 2003-

Ohio-4396, 794 N.E.2d 27, ¶107. “Deficient performance” is performance that falls 

below an objective standard of reasonable representation. “Prejudice,” in this 

context, is defined as a reasonable probability that, but for counsel's errors, the result 

of the proceeding would have been different. Strickland at 687-688, 694. Moreover, 

in evaluating the performance of counsel, “strategic choices made after thorough 

investigation of law and facts relevant to plausible options are virtually 

unchallengeable; and strategic choices made after less than complete investigation 

are reasonable precisely to the extent that reasonable professional judgments 

support the limitations on investigation.” Id. at 690-691. In support of an application 

for reopening Appellant 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.” Sheppard, supra, at 330, citing State v. 

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus. 

{¶5} Appellant was charged with and convicted of assaulting a peace officer 

while in the commission of his duties, a violation of R.C. 2903.13(C)(3), which 
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provides: “No person shall knowingly cause or attempt to cause physical harm to 

another * * * [i]f the victim of the offense is a peace officer * * * while in the 

performance of their official duties, assault is a felony of the fourth degree.” 

{¶6} Appellant was also convicted of aggravated burglary, a violation of R.C. 

2911.11(A), which provides: “No person, by force, stealth, or deception, shall 

trespass in an occupied structure * * * when another person other than an accomplice 

of the offender is present, with purpose to commit in the structure * * * any criminal 

offence, if any of the following apply: (1) The offender inflicts, or attempts or 

threatens to inflict physical harm on another.” 

{¶7} Pursuant to R.C. 2911.11, the distinction between “burglary” and 

“aggravated burglary” is the element of physical harm in or accompanying the 

criminal offense committed or to be committed within the occupied structure. In 

conjunction with the aggravated burglary, Appellant was charged with aggravated 

menacing, a violation of R.C. 2903.21(A), which states, “[n]o person shall knowingly 

cause another to believe that the offender will cause serious physical harm to the 

person or property of the other person, the other person’s unborn, or a member of the 

other person’s immediate family.” A conviction on aggravated menacing satisfies the 

harm element of aggravated burglary. A guilty verdict on each count was returned by 

the jury on May 4, 2010. Appellant was sentenced and judgment entered on May 5, 

2010. Appellant received fourteen months of incarceration on the assault charge and 

nine years on the aggravated burglary charge, to be served consecutively. 

{¶8} Ohio sentencing ranges and sentencing goals are established by the 

legislature. In 1996 the Ohio legislature passed a comprehensive sentencing reform 
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bill, intended to provide truth in sentencing by introducing certainty and 

proportionality to felony sentencing. 146 Ohio Laws, Part IV, 7136, effective July 1, 

1996 (“S.B. 2”); State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, 

¶34. The resulting scheme included both over-arching purposes for felony 

sentencing, R.C. 2929.11, and factors for a court to consider, R.C. 2929.12, when 

exercising its discretion in compliance with the principles and purposes established 

by the legislature. Foster, ¶36-42. The legislation established presumptions for and 

against prison terms and community control as well as requirements that the trial 

court make specific findings before imposing more than a minimum or maximum 

prison term and when imposing consecutive sentences. All provisions of S.B. 2 were 

applicable only to offenses committed on or after July 1, 1996. State v. Rush, 83 

Ohio St.3d 53, 697 N.E.2d 634 (1998), paragraph two of the syllabus. 

{¶9} Subsequent to Ohio’s sentencing reform a majority of the United States 

Supreme Court held, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 

L.Ed.2d 435 (2000), that any fact used to increase the penalty for a crime beyond the 

statutory maximum must be submitted to a jury and proven beyond a reasonable 

doubt whether the sentence is imposed at the federal or at the state level. Id. at 476. 

“[I]t is unconstitutional for a legislature to remove from the jury the assessment of 

facts that increase the prescribed range of penalties to which a criminal defendant is 

exposed.” Id. at 490. Applying these principles the United States Supreme Court 

found unconstitutional a New Jersey hate crime statute that allowed a trial judge to 

impose an extended term of imprisonment if the trial judge found by a preponderance 

of the evidence at sentencing that the defendant was convicted of a crime committed 
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with the purpose to intimidate an individual or group due to his, her, or their, race, 

color, ethnicity, gender, sexual orientation, religion, or disability. Id. at 468-469. 

{¶10} Subsequently, in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 

159 L.Ed.2d 403 (2004), the same majority invalidated a Washington state case in 

which the trial court imposed an “exceptional” sentence after a judicial determination 

that the defendant had acted with “deliberate cruelty” resulting in a total sentence of 

ninety months, thirty-seven months longer than the maximum penalty that could 

otherwise be imposed for a “Class-B” felony in Washington at that time. Id. at 297-

298. The Washington statute, like the New Jersey statute, required the trial judge to 

make a specific factual finding before imposing a penalty beyond the statutory 

maximum for the conviction and therefore violated the Sixth Amendment. The 

Blakely Court emphasized that the relevant statutory maximum when evaluating the 

constitutionality of a sentencing statute or sentence under Apprendi “is not the 

maximum sentence a judge may impose after finding additional facts, but the 

maximum he may impose without any additional findings.” (Emphasis sic.) Id. at 

303-304. Whether, under the relevant statutory scheme, a “judge’s authority to 

impose an enhanced sentence depends on finding a specified fact * * * one of 

several specified facts * * * or any aggravating fact * * * it remains the case that the 

jury’s verdict alone does not authorize the sentence” because “[t]he judge acquires 

that authority only upon finding some additional fact.” (Emphasis sic.) Id. at 305. 

{¶11} Both Apprendi and Blakely refute the use of sentencing enhancements 

that require judicial fact-finding, however, both opinions also emphasize that while 

judicial fact-finding is prohibited by the Sixth Amendment, judicial discretion is not. In 
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Apprendi the Court explained that “nothing in history suggests that it is impermissible 

for judges to exercise discretion - taking into consideration various factors relating 

both to offense and offender - in imposing a judgment within the range prescribed by 

statute. We have often noted that judges in this country have long exercised 

discretion of this nature in imposing sentence within statutory limits in the individual 

case.” (Emphasis sic.) Apprendi at 481. In Blakely the majority reiterates that 

statutory schemes that allow judicial discretion in sentencing but do not compel 

judicial fact finding are constitutional. Blakely at 305. 

{¶12} Applying the principles of Apprendi and Blakely, the United States 

Supreme Court determined that the sentencing guidelines promulgated by the federal 

sentencing commission under the 1984 Sentencing Reform Act violated the Sixth 

Amendment. U.S. v. Booker, 543 U.S. 220, 226, 125 S.Ct. 738, 160 L.Ed.2d 261 

(2005). The Booker Court stated “[w]e have never doubted the authority of a judge to 

exercise broad discretion in imposing a sentence within a statutory range;” “[i]f the 

Guidelines as currently written could be read as merely advisory * * * their use would 

not implicate the Sixth Amendment.” Id. at 233. The remedy the Booker Court 

devised, having determined that the provisions of the statute were severable, was to 

sever and invalidate the portions of the Sentencing Reform Act of 1984 that had the 

effect of making the Guidelines mandatory. Id. As a result, the sentencing scheme 

now grants full discretion to federal judges to impose any sentence allowed under the 

statutory range without making specific findings. “[D]istrict courts, while not bound to 

apply the Guidelines, must consult those Guidelines and take them into account 

when sentencing” which helps “to avoid excessive sentencing disparities, while 
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maintaining flexibility sufficient to individualize sentences where necessary.” Id. at 

264-265. 

{¶13} The Ohio Supreme Court applied Apprendi, Blakely, and Booker to 

Ohio’s Sentencing Reform Act, S.B. 2, in State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, 845 N.E.2d 470. The Court conducted an analysis similar to that found in 

Booker and held that the sections of Ohio’s Sentencing Reform Act governing the 

imposition of more than minimum terms, maximum terms, consecutive terms, penalty 

enhancements for repeat violent offenders and major drug offenders, and the 

imposition of consecutive prison terms all violated the Sixth Amendment by requiring 

judicial fact-finding. The Court determined that these provisions were severable. 

The purposes of felony sentencing, established by R.C. 2929.11, and the 

seriousness and recidivism factors included in R.C. 2929.12, both of which were 

stated in general terms and did not require findings, were undisturbed by the Foster

Court’s analysis. The Court concluded its analysis by holding that “judicial factfinding is not required before a prison term may be imposed within the basic ranges 

of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant”; “judicial 

fact-finding is not required before imposition of consecutive prison terms”; and “trial 

courts have full discretion to impose a prison sentence within the statutory range and 

are no longer required to make findings or give their reasons for imposing maximum, 

consecutive, or more than the minimum sentences.” Foster at ¶99-100. After Foster,

Ohio trial court judges “have full discretion to impose a prison sentence within the 

statutory range and are no longer required to make findings or give their reasons for 
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imposing * * * consecutive [sentences].” State v. Mathis, 109 Ohio St.3d 54, 2006-

Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus. 

{¶14} Three years after the Ohio Supreme Court found the Ohio consecutive 

sentencing provisions unconstitutional, the United States Supreme Court ruled in 

Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), that a state 

statute requiring judicial findings prior to the imposition of consecutive sentences did 

not violate the Sixth Amendment under Blakely and Apprendi. The Court evaluated 

the statutory scheme adopted by Oregon, which provides that sentences run 

concurrently unless the judge finds statutorily described facts which permit, but do 

not require, consecutive terms. The Court held that because the elements of the 

individual sentences were found beyond a reasonable doubt, by a jury, the 

sentencing provision did not implicate the due process concerns raised by the 

sentencing enhancements involved in Blakely and Apprendi and their predecessors. 

{¶15} The Ohio State Supreme Court then revisited Foster in State v. Hodge, 

and found “[t]he United States Supreme Court’s decision in Oregon v. Ice * * * does 

not revive Ohio’s former consecutive-sentencing statutory provisions * * * which were 

held unconstitutional in State v. Foster,” and therefore “[t]rial court judges are not 

obligated to engage in judicial fact-finding prior to imposing consecutive sentences 

unless the General Assembly enacts new legislation requiring that findings be made.” 

(Internal citations omitted.) State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 

N.E.2d 768, paragraphs two and three of the syllabus. In 2011 the Ohio Legislature 

passed H.B. 86, effective September 30, 2011, which re-codified the exact 

conditional language severed from R.C. 2929.14(E)(4) by the Ohio Supreme Court in 
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Foster. No further decision on the issue of consecutive sentences has been released 

by the Ohio Supreme Court since Hodge and the subsequent re-enactment of R.C. 

2929.14(E)(4). 

{¶16} Appellant was tried and convicted of offenses committed on December 

9, 2009. The offenses occurred three years after the Ohio Supreme Court 

invalidated the consecutive sentencing provisions of R.C. 2929.14(E)(4) and the 

more than minimum sentencing requirements of R.C. 2929.14(B) in Foster and two 

years before the consecutive sentencing provisions were re-codified by the 

legislature. The sentencing provisions in effect when Appellant committed assault 

and aggravated burglary and applicable to his sentence are those enacted by the 

legislature in S.B. 2, as amended by the Supreme Court in Foster. At the time, under 

R.C. 2929.14 the penalty range for assault on a peace officer, a fourth degree felony, 

was six to eighteen months and the penalty range for aggravated burglary, a first 

degree felony, was three to eleven years. Appellant was sentenced to fourteen 

months for the assault and nine years for the aggravated burglary. Both sentences 

were within the applicable statutory ranges. 

{¶17} Under Foster, Mathis, Blakely, and Apprendi the trial court has 

complete discretion to impose a sentence within the statutory range. The trial court 

could have exercised its discretion in this instance to impose a maximum of eighteen 

months for the assault and a maximum of eleven years for the aggravated burglary. 

It did not choose to do so. There is nothing in this record that suggests error with 

regard to sentences within the statutory range. Appellate counsel’s decision not to 

challenge the duration of Appellant’s sentences and the application of consecutive 
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sentences is not error where, as here, the sentences were entirely compliant with 

applicable law. Appellant was in no way prejudiced by the fact that appellate counsel 

did not raise an argument that had no chance of success. Based on the record 

before us, appellate counsel’s performance was not deficient. 

{¶18} Appellant received effective assistance of counsel in his appeal. There 

was no reasonable probability of success had counsel challenged the duration and 

consecutive application of Appellant’s sentences. Accordingly, Appellant’s 

application for reopening is denied. 

Waite, P.J., concurs. 

Vukovich, J., concurs. 

DeGenaro, J., concurs.