[Cite as State v. Sheffey, 2014-Ohio-200.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 98944 

 

STATE OF OHIO

 PLAINTIFF-APPELLEE 

vs.

JAMES SHEFFEY

 DEFENDANT-APPELLANT 

JUDGMENT: 

APPLICATION DENIED

Cuyahoga County Court of Common Pleas 

Case No. CR-560852 

Application for Reopening 

Motion No. 468212 

RELEASE DATE: January 17, 2014 
FOR APPELLANT

James Sheffey, pro se 

Inmate No. 631-444 

Lorain Correctional Institution 

2075 South Avon-Belden Road 

Grafton, Ohio 44044 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Maxwell M. Martin 

 Joseph J. Ricotta 

Assistant County Prosecutors 

8th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY J. BOYLE, A.J.: 

{¶1} On September 11, 2013, the applicant, James Sheffey, 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. Sheffey, 8th Dist. Cuyahoga No. 98944, 

2013-Ohio-2463, in which this court affirmed Sheffey’s convictions and sentences for 

four counts of felonious assault and one count each of improperly discharging a weapon 

into a habitation, having a weapon while under disability, and criminal damaging. The 

felonious assault and improper discharge counts also carried one- and three-year firearm 

specifications and a five-year specification for drive-by shooting. Sheffey argues that 

his appellate counsel should have argued that the trial court erred by not granting his 

motion for a new trial based on newly discovered evidence. On October 11, 2012, the 

state of Ohio filed its brief in opposition. For the following reasons, this court denies 

the application to reopen. 

{¶2} On the evening of July 23, 2011, Wilson Clark, Leigh Clark, who is 

Wilson’s aunt and Sheffey’s former girlfriend, Wilson’s daughter, Dominique Hearn, who 

was Wilson’s girlfriend, and Hearn’s daughter were together on Wilson’s front porch. 

Sheffey, who lived nearby, stopped at Wilson’s house and wanted Leigh Clark to talk and 

come with him. When Leigh refused to talk with Sheffey, Wilson and Sheffey got into 

an altercation, during which Sheffey fell down and cut his head. Sheffey then left in his 

car, and Wilson also left. Approximately ten minutes later, Sheffey returned. 

Dominique saw Sheffey pull out a gun, and all four women raced into the house. They 
barely had entered the house, when the women heard shots fired. The police 

investigation found bullet holes in the house and Sheffey’s blood on the driveway. 

{¶3} At trial, Hearn was the sole witness who identified Sheffey as the person 

with the gun. Leigh Clark was subpoenaed as a witness but never appeared. After the 

trial, Sheffey’s attorney moved for a new trial based on newly discovered evidence, Leigh 

Clark’s “affidavit” that Sheffey’s mother gave to defense counsel. This document is 

dated July 19, 2012, and states as follows: “To whom it may concern: (In regards to 

James Sheffey.) I Leigh Clark is [sic] writing this letter to inform you that Dominique 

Hearn, the children and I were in the house when the shooting took place. We were 

unable to see anything. Thank you, Leigh Clark.” Beneath Clark’s signature is a 

telephone number and the following jurat: “This statement was written before me on the 

above date 7-19-12 by affiant.” Below that is the apparent signature of a notary. 

After a hearing on the matter, the trial judge denied the motion for new trial. Sheffey 

now argues that his appellate counsel should have argued that the trial court erred when it 

denied the motion for new trial based on Leigh Clark’s affidavit.1

{¶4} 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 

 1 Appellate counsel raised six assignments of error: (1) the firearm specifications should have 

merged, (2) the trial court should have accepted Sheffey’s Alford plea, (3) inconsistencies in the 

sentence, (4) manifest weight, (5) insufficient evidence, and (6) prosecutorial misconduct. 
373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456. 

{¶5} 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. 

{¶6} 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, 672 N.E.2d 

638 (1996). 

{¶7} 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. 

{¶8} Sheffey’s argument on ineffective assistance of appellate counsel is not 

well taken. First, under Crim.R. 33(A)(6), the defense must proffer the affidavits of 

witnesses who would present the new evidence. In the present case, Leigh Clark’s 

statement is not an authentic affidavit. The jurat does not affirm that Clark’s 

statements were made under oath. It merely states that statement was written before the 

notary. That is insufficient for an affidavit. Chaney v. East, 97 Ohio App.3d 431, 646 

N.E.2d 1138 (8th Dist.1994), and Occhionero v. Cox, 8th Dist. Cuyahoga No. 92334, 

2009-Ohio-3891. 

{¶9} Moreover, in order to grant a motion for a new trial, the new evidence must 

disclose a strong probability that it will change the result of the trial. Evidence that 

merely impeaches is insufficient to grant a new trial. State v. Petro, 148 Ohio St.3d 505, 

76 N.E.2d 370 (1947). However, Clark’s affidavit does not necessarily even impeach 
Hearn’s testimony, but may be cumulative. Hearn testified that the four women ran into 

the house, and then the shots were fired. Thus, Clark’s statement that they were in the 

house when the shooting took place is consistent with Hearn’s testimony. Even 

accepting the inference from the statement none of the women could have seen the 

shooter, Clark’s evidence merely impeaches Hearn’s testimony, which is an insufficient 

basis to grant a motion for a new trial. Finally, there was uncertainty as to the author of 

the statement. Even defense counsel initially conceded: “We have no idea whose letter 

that is really.” (Tr. 454.) 

{¶10} In Petro, the Supreme Court of Ohio enunciated that a motion for a new trial 

based on newly discovered evidence “is necessarily committed to the wise discretion of 

the court, and a court of error cannot reverse unless there has been a gross abuse of that 

discretion.” 148 Ohio St.3d at 507-508, 76 N.E.3d 370. Given the high standard of 

review, the uncertainty surrounding the statement, the questionable form of the 

“affidavit,” and the merely impeaching effect of the statement, appellate counsel in the 

exercise of professional judgment properly rejected this argument as an assignment of 

error. 

{¶11} Application denied. 

______________________________________________ 

MARY J. BOYLE, ADMINISTRATIVE JUDGE 

KENNETH A. ROCCO, J., and 

MARY EILEEN KILBANE, J., CONCUR