[Cite as State v. Williams, 2012-Ohio-352.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 95853

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

RICHARD WILLIAMS

DEFENDANT-APPELLANT

JUDGMENT: 

APPLICATION DENIED

Cuyahoga County Common Pleas Court 

Case No. CR-534090 

Application for Reopening 

Motion No. 447136 

RELEASED AND JOURNALIZED: January 30, 2012
FOR APPELLANT

Richard Williams, pro se 

Inmate #592-040 

Marion Correctional Inst. 

P. O. Box 57 

Marion, OH 43301 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

By: Mary McGrath 

Assistant Prosecuting Attorney 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, OH 44113 

EILEEN A. GALLAGHER, J.: 

{¶ 1} In State v. Williams, Cuyahoga Cty. Court of Common Pleas Case No. 

CR-534090, applicant, Richard Williams, pled guilty to gross sexual imposition and rape. 

 This court affirmed that judgment in State v. Williams, 8th Dist. No. 95853, 

2011-Ohio-2551. 

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

reopening. He argues that he was denied the effective assistance of appellate counsel 
and asserts seven proposed assignments of error. 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 Williams 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). [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. at 25. Williams cannot satisfy either prong of the Strickland

test. We must, therefore, deny the application on the merits. 

{¶ 4} In his first proposed assignment of error, Williams contends that his 

appellate counsel failed to assert Williams’s “actual innocence.” Williams pled guilty to 

Count 3 (gross sexual imposition). During the lengthy plea colloquy, the trial court 

asked Williams how he pled to Count 4, rape, and mistakenly identified B.U., the victim 
of Count 3 (grosss sexual imposition), as the victim of Count 4. Williams stated on the 

record that he did not rape B.U. and the trial court ultimately correctly associated the 

victims with Counts 3 and 4 respectively. 

{¶ 5} The trial court actually acknowledged Williams’s claim of innocence of the 

rape of B.U. He, however, did not assert innocence of gross sexual imposition with 

respect to B.U. The record does not support Williams’s claim of “actual innocence.” 

We cannot, therefore, conclude that appellate counsel was deficient or that Williams was 

prejudiced by the absence of this proposed assignment of error on direct appeal. As a 

consequence, Williams's first proposed assignment of error is not well-taken. 

{¶ 6} In his second proposed assignment of error, Williams complains that the 

trial court did not render a final appealable order. In support of this argument, Williams 

quotes part of R.C. 2929.19(A) which requires a sentencing hearing and provides, in part: 

“The court shall inform the offender of the verdict of the jury or finding of the court and 

ask the offender whether the offender has anything to say as to why sentence should not 

be imposed upon the offender.” The trial court did ask: “Mr. Williams, what did you 

wish to say before the court imposes sentence?” Tr. at 63. 

{¶ 7} Additionally, the trial court’s August 31, 2010 sentencing entry “sets forth 

(1) the fact of the conviction, (2) the sentence, (3) the judge's signature, and (4) the time 

stamp indicating the entry upon the journal by the clerk.” (Citations deleted.) State v. 

Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the 

syllabus. In light of Lester, therefore, Williams has not demonstrated that his judgment 
of conviction is not a final appealable order. As a consequence, Williams's second 

proposed assignment of error is not well-taken. 

{¶ 8} In his third proposed assignment of error, Williams contends that his 

appellate counsel was ineffective for failing to assign as error that the trial court denied 

Williams trial counsel of his choice. During the plea negotiations, Williams expressed 

concern that his counsel was not going to “fight” for him and Williams told counsel that 

he wanted to be represented by the public defender. Counsel explained to the trial court 

that he was retained counsel. The trial court denied Williams’s motion to appoint the 

public defender as his counsel. 

{¶ 9} Williams has not provided this court with any controlling authority 

requiring a trial court to replace retained counsel with the public defender. Furthermore, 

his reliance on State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785, 947 N.E.2d 651, 

is misplaced. In Chambliss, the Supreme Court held that a trial court’s order removing 

retained defense counsel is immediately appealable. Obviously, the trial court did not 

remove Williams’s retained counsel. As a consequence, Williams's third proposed 

assignment of error is not well-taken. 

{¶ 10} In his fourth proposed assignment of error, Williams asserts that his 

appellate counsel was ineffective for not assigning as error that his waiver of jury trial 

was not voluntary, knowing or intelligent. Initially, we note that the trial court docket 

does not reflect the filing of a jury trial waiver. During the colloquy with the trial court, 

when Williams indicated that he would like to go to trial, the court responded: “Okay. 
We’ll see you tomorrow morning in civilian clothes.” Tr. 48. See also Tr. 51. The 

portions of the transcript cited by Williams do not include a waiver of jury trial. 

Appellate counsel was not deficient and Williams was not prejudiced by the absence of 

this proposed assignment of error. As a consequence, Williams's fourth proposed 

assignment of error is not well-taken. 

{¶ 11} In his fifth proposed assignment of error, Williams claims that his appellate 

counsel was deficient for failing to assign on direct appeal that his sentence was void. 

Count 4 of the indictment included a furthermore clause referring to his prior conviction 

for rape under R.C. 2907.02. The notice of prior conviction in Count 4 specifically 

referred to Cuyahoga Cty. Court of Common Pleas Case No. CR-226563. Williams 

asserts that he did not have counsel in Case No. CR-226563. 

{¶ 12} Williams appealed his conviction in Case No. CR-226563. See State v. 

Williams, 8th Dist. No. 56726, 1993 WL 27620 (Feb. 4, 1993), appeal dismissed 67 Ohio 

St.3d 1409, 1993-Ohio-300, 615 N.E.2d 1043. In Case No. 56726, Williams’s appellate 

counsel assigned as error that trial counsel was ineffective and that trial counsel failed to 

request an instruction on gross sexual imposition. Indeed, this court discussed various 

aspects of trial counsel’s representation. Clearly, Williams had counsel in Case No. 

CR-226563. As a consequence, Williams's fifth proposed assignment of error is not 

well-taken. 

{¶ 13} In his sixth proposed assignment of error, Williams argues that appellate 

counsel was ineffective for failing to assign that trial counsel was ineffective. Williams 
contends that the cumulative effect of trial counsel’s purported shortcomings with respect 

to: trial counsel’s failure to object to the plea colloquy because Williams asserted his 

“actual innocence” (first proposed assignment of error ); his prior conviction being 

“uncounseled” (fifth proposed assignment of error); and trial counsel’s permitting him to 

plead guilty where the plea was not voluntary because the furthermore clause in Count 4 

referring to his prior conviction is unconstitutional (fifth proposed assignment of error). 

{¶ 14} Yet, as discussed above, Williams’s fourth and fifth proposed assignments 

of error lack merit. He was not, therefore, prejudiced by the “cumulative effect” of the 

absence of these assignments of error from his direct appeal. As a consequence, 

Williams's sixth proposed assignment of error is not well-taken. 

{¶ 15} In his seventh proposed assignment of error, Williams contends that the trial 

court judge participated in plea negotiations. Our review of the portions of the plea and 

sentencing transcript cited by Williams reflects the trial court’s repeated statements to 

Williams that he could go to trial and that the trial court would not make any promises 

regarding his sentence. The record does not reflect that the trial court participated in plea 

negotiations. Rather, the trial court endeavored to establish whether Williams wished to 

go to trial or enter a plea of guilty. Appellate counsel was not deficient and Williams 

was not prejudiced by the absence of this assignment of error. Williams's seventh 

proposed assignment of error is not well-taken. 

{¶ 16} As a consequence, Williams has not met the standard for reopening. 

Accordingly, the application for reopening is denied. 
EILEEN A. GALLAGHER, JUDGE 

MARY EILEEN KILBANE, P.J., and 

LARRY A. JONES, J., CONCUR