[Cite as State v. Hubbard, 2014-Ohio-122.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 11AP-945 

v. : (C.P.C. No. 10CR-09-5694)

 

Dawntwai M. Hubbard, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on January 16, 2014 

 

Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, 

for appellee. 

Dawntwai M. Hubbard, pro se. 

 

ON APPLICATION FOR REOPENING 

CONNOR, J. 

{¶ 1} Defendant-appellant, Dawntwai M. Hubbard ("defendant"), has filed an 

application, pursuant to App.R. 26(B), seeking to reopen his appeal resolved in this 

court's decision in State v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735. 

Plaintiff-appellee, the State of Ohio ("the State"), has filed a memorandum in opposition 

to defendant's application. Because defendant's untimely application fails to present a 

genuine issue that he was deprived of the effective assistance of appellate counsel, we 

deny his application to reopen. 

{¶ 2} On September 27, 2010, defendant was indicted on charges of aggravated 

murder, attempted murder, murder, and felonious assault, all with firearm 

specifications. The charges arose from events which occurred near defendant's house on 
No. 11AP-945 2 

September 18, 2010. Throughout the daytime hours on September 18, 2010, 

defendant's 14-year-old daughter and her friends engaged in numerous verbal and 

physical altercations with defendant's 19-year-old neighbor, Ravenna Bronaugh, and her 

group of friends. That evening, when defendant's daughter and her friends were inside 

defendant's house, Bronaugh and one of her friends left the group which had 

congregated near Bronaugh's front porch and walked to defendant's house, five houses 

north from Bronaugh's house. Bronaugh's friend picked up a cement block on the walk, 

and "threw it at [defendant's front] window and busted it." (Tr. 348.) 

{¶ 3} Defendant testified that, after the cement block came through his window, 

he retrieved the gun which he had placed behind the mantel earlier in the day and 

walked out onto his porch. Defendant pointed his gun "[t]owards the group" of people 

standing in front of Bronaugh's house and fired five shots in rapid succession. (Tr. 224.) 

A neighbor who witnessed the event stated that defendant directed his shots "[d]own 

the street into [the] group," and did not point "the gun down" or "up in the sky." (Tr. 

226-27, 246, 307-08.) Defendant testified that he had fired his gun "down towards the 

ground" in the direction of the abandoned house next door. (Tr. 1202-03.) Defendant 

stated that he did not intend to kill or harm anyone when he shot his gun. One of the 

bullets from defendant's gun hit Teddy McGrapth in the back, causing his death. 

Another bullet from defendant's gun hit Candace Keys in the foot and caused her injury. 

Both Keys and McGrapth had been standing with the group near Bronaugh's front 

porch. The jury found defendant guilty of attempted murder, felonious assault, and 

felony murder. 

{¶ 4} In his direct appeal, defendant, through counsel, raised ten assignments of 

error. As relevant herein, defendant asserted that (1) the trial court denied him due 

process of law when the court failed to instruct the jury on the lesser-included offenses 

of involuntary manslaughter and reckless homicide, and (2) that the State violated his 

constitutional right to confront the witnesses against him. In our June 27, 2013 decision 

in Hubbard, this court overruled defendant's first nine assignments of error, but 

overruled in part and sustained in part the tenth assignment of error regarding 

defendant's sentence. Accordingly, we affirmed the judgment of the Franklin County 
No. 11AP-945 3 

Court of Common Pleas in part, but vacated defendant's sentence and remanded the 

case for resentencing. 

{¶ 5} Defendant filed the application for reopening on September 26, 2013. 

Defendant also filed an affidavit with his application, averring that the outcome of his 

direct appeal would have been different if his appellate attorney had presented the 

issues presented in the application to reopen. Defendant's application sets forth the 

following three assignments of error in support of his claim that appellate counsel was 

ineffective on direct appeal: 

[I.] THE DEFENDANT-APPELLANT WAS DENIED HIS 

SIXTH AMENDMENT RIGHT TO CROSS EXAMINE HIS 

ACCUSER. 

[II.] VIOLATION OF HUBBARD'S 6TH AMENDMENT 

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. 

[III.] HUBBARD WAS DENIED DUE PROCESS OF LAW IN 

VIOLATION OF HIS 5TH AND 14TH AMENDMENT 

CONSTITUTIONAL RIGHTS WHEN THE TRIAL COURT 

FAILS TO INSTRUCT THE JURY ON THE LESSER 

INCLUDED CHARGES OF INVOLUNTARY 

MANSLAUGHTER AND RECKLESS HOMICIDE, AND THE 

EVIDENCE PRESENTED AT TRIAL SUGGESTED THAT 

DEFENDANT WAS ENTITLED TO THOSE 

INSTRUCTIONS. 

{¶ 6} App.R. 26(B) allows applications to reopen an appeal from a judgment of 

conviction and sentence based upon a claim of ineffective assistance of appellate 

counsel. App.R. 26(B)(1) provides that an application for reopening shall be filed within 

90 days from the journalization of the appellate judgment. The 90-day time frame for 

filing an application for reopening begins to run from the date the appellate judgment is 

filed. State v. Dingess, 10th Dist. No. 10AP-848, 2013-Ohio-801, ¶ 7. 

{¶ 7} Our decision in Hubbard was journalized on June 27, 2013. Defendant 

filed his application for reopening on September 26, 2013, 92 days after the 

journalization of our decision in Hubbard.1 App.R. 26(B)(2)(b) requires a showing of 

good cause for an untimely filing where the application is filed more than 90 days after 

 

1 Four days in June + 31 days in July + 31 days in August + 26 days in September = 92 days. 
No. 11AP-945 4 

the journalization of the appellate judgment. See also State v. Reddick, 72 Ohio St.3d 

88, 91 (1995) (noting that "[l]ack of effort or imagination, and ignorance of the law, are 

not such circumstances and do not automatically establish good cause for failure to seek 

timely relief"); State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, ¶ 7 (noting that 

"[c]onsistent enforcement of the rule's deadline by the appellate courts in Ohio protects 

on the one hand the state's legitimate interest in the finality of its judgments and 

ensures on the other hand that any claims of ineffective assistance of appellate counsel 

are promptly examined and resolved"). Defendant has failed to demonstrate good cause 

for his untimely filing. 

{¶ 8} Moreover, even if we were to find that defendant's untimely application 

was filed with good cause, we would find that the application fails on the merits as well. 

An application for reopening must set forth "[o]ne or more assignments of error or 

arguments in support of 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 

application must also contain a sworn statement setting forth the basis of the claim 

alleging that appellate counsel's representation was deficient and the manner in which 

the deficiency prejudiced the outcome of the appeal. App.R. 26(B)(2)(d). The 

application "shall be granted if 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). 

{¶ 9} To prevail on an application to reopen, defendant must make "a colorable 

claim" of ineffective assistance of appellate counsel under the standard established in 

Strickland v. Washington, 466 U.S. 668 (1984). See State v. Lee, 10th Dist. No. 06AP226, 2007-Ohio-1594, ¶ 2, citing State v. Sanders, 75 Ohio St.3d 607 (1996). Under 

Strickland, defendant must demonstrate the following: (1) counsel was deficient in 

failing to raise the issues defendant now presents; and (2) defendant had a reasonable 

probability of success if the issue had been presented on appeal. Id., citing State v. 

Timmons, 10th Dist. No. 04AP-840, 2005-Ohio-3991. 

{¶ 10} An appellate attorney has wide latitude and the discretion to decide which 

issues and arguments will prove most useful on appeal. Furthermore, appellate counsel 
No. 11AP-945 5 

is not required to argue assignments of error that are meritless. Id. at ¶ 3, citing State v. 

Lowe, 8th Dist. No. 82997, 2005-Ohio-5986, ¶ 17. 

Confrontation Clause 

{¶ 11} Defendant's first proposed assignment of error asserts that he was denied 

his Sixth Amendment right to cross-examine his accuser. Defendant asserts that "the 

admission of any evidence that defendant had shot Candice Keys was testimonial in 

nature and deprived Hubbard of his right to confront a witness against him when Keys 

was not called on as a witness to present this evidence." (Application for Reopening, 2.) 

{¶ 12} Defendant raised this same argument in his direct appeal. See Hubbard at 

¶ 28-31. There, we noted that the Confrontation Clause bars admission of testimonial 

statements of a witness who did not appear at trial, unless the witness is unavailable to 

testify and the defendant had a prior opportunity to cross-examine the witness. Id. at 

¶ 29, quoting Crawford v. Washington, 541 U.S. 36, 53-54 (2004). In Hubbard, 

defendant asserted that Keys' hearsay statements were allowed into the record via 

testimony from other witnesses. We noted that defendant did "not provide a citation to 

the transcript to support this assertion, [did] not indicate what hearsay statements were 

allowed into the record, and fail[ed] to allege that such statements were testimonial." 

Id. at ¶ 30. Similarly, in his application for reopening, defendant fails to identify any 

specific testimonial statements from Keys which were allowed into the record. 

Accordingly, defendant's contentions regarding the Confrontation Clause have been 

addressed and rejected. 

Lesser-Included Offenses 

{¶ 13} Defendant's remaining proposed assignments of error concern the trial 

court's failure to instruct the jury on the lesser-included offenses of reckless homicide 

and involuntary manslaughter. Defendant asserts that his appellate counsel rendered 

ineffective assistance by (1) failing to assign trial counsel's ineffectiveness as an 

assignment of error, (2) failing to present an argument to support the fifth assignment 

of error in Hubbard, and (3) failing to assign the trial court's failure to instruct the jury 

on reckless homicide and involuntary manslaughter as an assignment of error. 

{¶ 14} Defendant asserts that his trial counsel rendered ineffective assistance by 

failing to request jury instructions on the lesser-included offenses of involuntary 
No. 11AP-945 6 

manslaughter and reckless homicide. However, "[f]ailure to request instructions on 

lesser-included offenses is a matter of trial strategy and does not establish ineffective 

assistance of counsel." State v. Griffie, 74 Ohio St.3d 332, 333 (1996) (noting that "[t]he 

record may reveal that trial counsel did not request a certain jury instruction, but, 

without more, the court of appeals would have to guess as to why trial counsel did not 

make the request"). Appellant must demonstrate that the failure to make the request 

resulted from a reason other than trial strategy. State v. Ryan, 10th Dist. No. 08AP-481, 

2009-Ohio-3235, ¶ 79. See also State v. Colvin, 9th Dist. No. 26063, 2012-Ohio-4914, 

¶ 15 (noting that "[a]lthough there is risk involved in not requesting an instruction on a 

lesser-included offense when the evidence supports it, the pay-off can also be 

substantial, that is, acquittal if the strategy prevails"). 

{¶ 15} In light of defendant's testimony indicating that he fired warning shots 

toward the ground and did not intend to harm anyone, defense counsel could have been 

pursuing a valid "all or nothing" strategy, and hoping to receive an acquittal on the 

felony murder charge. Defendant fails to allege that his trial counsel's decision not to 

request a jury instruction on the lesser-included offenses was anything other than trial 

strategy. Accordingly, defendant has not presented a colorable claim that his appellate 

counsel was ineffective in failing to assign trial counsel's ineffectiveness as an 

assignment of error. 

{¶ 16} Defendant next asserts that his appellate counsel rendered ineffective 

assistance by failing to brief an argument to support the fifth assignment of error in 

Hubbard, which addressed the trial court's failure to instruct the jury on the lesserincluded offenses of reckless homicide and involuntary manslaughter. Defendant's 

appellate counsel failed to brief any argument to support the fifth assignment of error, 

in violation of App.R. 16(A)(7). See Hubbard at ¶ 33-34. Although failing to brief an 

assigned error amounts to deficient performance, defendant has not established 

prejudice resulting from this deficient performance. 

{¶ 17} In Hubbard, we thoroughly addressed defendant's fifth assignment of 

error as it related to reckless homicide. We concluded that, although reckless homicide 

was a lesser-included offense of felony murder predicated on felonious assault, the trial 

court did not commit plain error by failing to instruct the jury on reckless homicide. We 
No. 11AP-945 7 

held that " '[s]hooting a gun in a place where one or more persons risk injury supports 

an inference defendant acted knowingly.' " Id. at ¶ 45, quoting State v. Whatley, 10th 

Dist. No. 95APA10-1375 (May 14, 1996). Although defendant asserted that he only fired 

warning shots and did not intend to harm anyone, there was no physical evidence to 

corroborate defendant's assertion. The record evidence did demonstrate that defendant 

had fired his gun in the direction of a group of people standing down the street from his 

house, and that bullets from his gun injured two separate people standing in that group. 

Accordingly, we concluded that "although defendant's testimony constituted some 

evidence which could support a conviction on reckless homicide, viewing the totality of 

the evidence presented at trial, * * * the jury could not reasonably have acquitted 

defendant on the felony murder charge." Id. 

{¶ 18} As we addressed defendant's fifth assignment of error regarding reckless 

homicide, defendant was not prejudiced by his counsel's failure to brief an argument 

regarding that lesser-included offense. Additionally, for the reasons that follow, 

defendant has failed to demonstrate a reasonable probability of success on an appeal of 

the court's failure to instruct the jury on the lesser-included offense of involuntary 

manslaughter. 

{¶ 19} An offense is a lesser-included offense of another where: (1) the offense 

carries a lesser penalty; (2) the greater offense cannot, as statutorily defined, ever be 

committed without the lesser offense, as statutorily defined, also being committed; and 

(3) some element of the greater offense is not required to prove commission of the lesser 

offense. State v. Deem, 40 Ohio St.3d 205, 209 (1988). The jury instruction on the 

lesser-included offense must be given when sufficient evidence is presented which 

would allow a jury to reasonably reject the greater offense and find the defendant guilty 

on a lesser-included offense. State v. Shane, 63 Ohio St.3d 630, 632-33 (1992). 

{¶ 20} R.C. 2903.04 defines the crime of involuntary manslaughter, and provides 

that no person shall cause the death of another "as a proximate result of the offender's 

committing or attempting to commit a felony," or as the result of the offender 

committing or attempting to commit "a misdemeanor of any degree." R.C. 2903.04(A) 

and (B). Defendant was found guilty of felony murder predicated on the felony of 

felonious assault. R.C. 2903.02(B) provides, in relevant part, that "[n]o person shall 
No. 11AP-945 8 

cause the death of another as a proximate result of the offender's committing * * * an 

offense of violence that is a felony of the first or second degree." See also R.C. 2903.11 

(defining felonious assault). Thus, while felony murder requires a first or second degree 

felony as the predicate offense, any felony or misdemeanor can be the predicate offense 

for involuntary manslaughter. 

{¶ 21} Defendant does not identify what predicate felony or misdemeanor he 

believes would support the involuntary manslaughter instruction. Defendant simply 

asserts that "[t]he jurors could have found Hubbard guilty of involuntary manslaughter 

if they had any doubt about Hubbard's purpose to kill but were reluctant to acquit." 

(Application to Reopen, 9.) As defendant has not identified what predicate offense he 

believes the involuntary manslaughter instruction should have been based on, we 

cannot determine whether involuntary manslaughter would be a lesser-included offense 

of felony murder in this case. Moreover, as the only other non-murder felony defendant 

was charged with was felonious assault, the jury could not have found defendant guilty 

of involuntary manslaughter predicated on felonious assault without also finding him 

guilty of felony murder predicated on felonious assault. See State v. Meadows, 9th Dist. 

No. 26549, 2013-Ohio-4271, ¶ 11. 

{¶ 22} In conclusion, because defendant's proposed assignments of error are not 

well-taken, he has failed to meet his burden to demonstrate that there is a genuine issue 

as to whether he was deprived the effective assistance of appellate counsel. As such, we 

deny defendant's App.R. 26(B) application to reopen. 

Application for reopening denied. 

BROWN and KLATT, JJ., concur. 

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