[Cite as State v. Ware, 2014-Ohio-815.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION 

No. 99374

STATE OF OHIO

 PLAINTIFF-APPELLEE 

vs.

ABRAM D. WARE

 DEFENDANT-APPELLANT 

JUDGMENT:

APPLICATION DENIED

Cuyahoga County Court of Common Pleas 

Case No. CR-561300 

Application for Reopening 

Motion No. 469403 

RELEASE DATE: March 4, 2014 
FOR APPELLANT

Abram D. Ware 

Inmate No. 633-801 

Mansfield Correctional Institution 

P.O. Box 788 

Mansfield, Ohio 44901 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Mary McGrath 

Assistant County Prosecutor 

8th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
FRANK D. CELEBREZZE, JR., P.J.: 

{¶1} Abram D. Ware has filed a timely application for reopening pursuant to 

App.R. 26(B). Ware is attempting to reopen the appellate judgment rendered in State v. 

Ware, 8th Dist. Cuyahoga No. 99374, 2013-Ohio-4492, that affirmed his conviction for 

the offenses of drug trafficking and possessing criminal tools, but vacated the forfeiture 

findings and remanded for a hearing on the issue of forfeiture. For the following 

reasons, we decline to grant the application for reopening. 

{¶2} In order to establish a claim of ineffective assistance of appellate counsel, 

Ware must demonstrate that appellate counsel’s performance was deficient and that, but 

for the deficient performance, the result of his appeal would have been different. State v. 

Reed, 74 Ohio St.3d 534, 660 N.E.2d 456 (1996). Specifically, Ware must establish that 

“there is a genuine issue as to whether he was deprived of the effective assistance of 

counsel on appeal.” App.R. 26(B)(5). 

{¶3} In State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588, the 

Supreme Court of Ohio held: 

Moreover, to justify reopening his appeal, [applicant] “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 25, 1998-Ohio-704, 701 N.E.2d 696. 

Strickland charges us to “appl[y] a heavy measure of deference to 

counsel’s judgments,” 466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674, and 

to “indulge a strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance,” Id. at 689, 104 S.Ct. 

2052, 80 L.Ed.2d 674. Moreover, we must bear in mind that appellate 
counsel need not raise every possible issue in order to render 

constitutionally effective assistance. See Jones v. Barnes, 463 U.S. 745, 

103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); State v. Sander, 94 Ohio St.3d 150, 

761 N.E.2d 18 (2002). 

Smith at ¶ 7. 

{¶4} In addition, the Supreme Court of Ohio, in State v. Spivey, 84 

Ohio St.3d 24, 1998-Ohio-704, 701 N.E.2d 696, held: 

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 674, is the appropriate 

standard to assess a defense request for reopening under App.R. 26(B)(5). 

[Applicant] must prove that his counsel were 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 [applicant] 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. 

{¶5} It is well settled that appellate counsel is not required to raise and argue 

assignments of error that are meritless. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 

77 L.Ed.2d 987 (1983). Appellate counsel cannot be considered ineffective for failing to 

raise every conceivable assignment of error on appeal. Jones v. Barnes, supra; State v. 

Gumm, 73 Ohio St.3d 413, 1995-Ohio-24, 653 N.E.2d 253; State v. Campbell, 69 Ohio 

St.3d 38, 1994-Ohio-492, 630 N.E.2d 339. 

{¶6} In Strickland, the United States Supreme Court also stated that a court’s 

scrutiny of an attorney’s work must be deferential. The court further stated that it is too 

tempting for an appellant to second-guess his attorney after conviction and appeal and 
that it would be all too easy for a court to conclude that a specific act or omission was 

deficient, especially when examining the matter in hindsight. Accordingly, this court 

must indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance, and the defendant must overcome the presumption 

that the challenged action might be considered sound trial strategy. Id. at 689. 

{¶7} Finally, the United States Supreme Court has upheld the appellate attorney’s 

discretion to decide which issues he or she believes are the most fruitful arguments and 

the importance of winnowing out weaker arguments on appeal and focusing on one 

central issue or at most a few key issues. Jones v. Barnes, supra. 

{¶8} In the case sub judice, Ware raises two proposed assignments of error in 

support of his App.R. 26(B) application for reopening. Ware’s first proposed assignment 

of error is that 

[a]ppellate counsel failed to raise in the assignments of error that the trial 

court erred in ordering a hearing for the appellant to waive trial counsel and 

represent himself pro se. 

{¶9} Ware, through his first proposed assignment of error, argues that appellate 

counsel failed to argue on appeal the issue of self-representation during the course of 

trial. The Sixth and Fourteenth Amendments of the United States Constitution guarantee 

that a defendant in a criminal action must be afforded the right to assistance of counsel. 

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. 

Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). A defendant may waive 

representation of counsel and represent their own interests during a criminal trial. Reed, 

74 Ohio St.3d 534, 535, 660 N.E.2d 456 (1996), citing Faretta v. California, 422 U.S. 
806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A defendant’s right to self-representation, 

however, is not absolute. Martinez v. Court of Appeal of California, 528 U.S. 152, 120 

S.Ct. 684, 145 L.Ed.2d 597 (2000). The dangers involved in waiving the right to 

representation by counsel are significant, and because the right to self-representation can 

be employed as a tactic to delay trial and to disrupt otherwise orderly legal proceedings, 

the request for self-representation must be clearly and unequivocally asserted in a timely 

manner or it will be waived. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 

N.E.2d 81. 

{¶10} In the case sub judice, a review of the record discloses that no motion for 

self-representation was filed by Ware. A plea hearing was held on August 16, 2012. 

Ware, however, rejected the negotiated plea and requested that he be allowed to represent 

himself during any trial. The matter was continued and a new hearing was held on 

October 17, 2012, at which time Ware waived his right to a jury trial and requested a 

bench trial. No request for self-representation was made during the jury waiver hearing 

of October 17, 2012. On October 19, 2012, Ware withdrew his request for a bench trial 

and once again requested a jury trial, which was granted by the trial court. No request 

was made for waiver of representation by counsel and self-representation. Finally, on 

November 6, 2012, a jury trial was commenced. Once again, no request for 

self-representation was made by Ware. 

{¶11} Our review of the record demonstrates that Ware did not clearly and 

unequivocally assert his request for self-representation. With the exception of any initial 
inquiry into self-representation at the hearing of August 16, 2012, no further request for 

self-representation can be found within the record before this court. Thus, we can only 

conclude that Ware waived his right to self-representation. Ware’s initial proposed 

assignment of error is not well taken and fails to establish ineffective assistance of 

appellate counsel. 

{¶12} Ware’s second proposed assignment of error is: 

Ineffective assistance of trial counsel for failure to move the courts for a 

suppression hearing to challenge the veracity of the search warrant, 

affidavit in support, and the police report. 

{¶13} Ware, through his second proposed assignment of error, argues that trial 

counsel erred by failing to request a suppression hearing. Specifically, Ware argues that 

trial counsel was ineffective by failing to request a suppression hearing with regard to the 

affidavit employed to secure a search warrant. In addition, Ware argues that trial counsel 

should have challenged the police report as completed with regard to the arrest of Ware 

and several other individuals. 

{¶14} Initially, we find that there exists a lack of record support. The affidavit 

and search warrant were not part of the appellate record. Because they are outside of the 

record, we could not consider the affidavit and search warrant on direct appeal. State v. 

Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978); State v. Martin, 151 Ohio App.3d 

605, 2003-Ohio-735, 784 N.E.2d 1237 (3d Dist.). In addition, Ware’s allegation that the 

police detective lied in the police report is unsupported by any demonstrative evidence. 

Thus, Ware has failed to establish how he was prejudiced. State v. Bradley, 42 Ohio 
St.3d 136, 538 N.E.2d 373 (1989). Ware’s second proposed assignment of error is 

without merit and fails to establish ineffective assistance of appellate counsel. 

{¶15} Accordingly, the App.R. 26(B) application for reopening is denied. 

 

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE 

EILEEN A. GALLAGHER, J., and 

PATRICIA A. BLACKMON, J., CONCUR