[Cite as State v. McGowen, 2016-Ohio-48.]

STATE OF OHIO, JEFFERSON COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ) CASE NO. 14 JE 37 

) 

PLAINTIFF-APPELLEE, ) 

) 

VS. ) OPINION AND 

) JUDGMENT ENTRY 

FREDERICK McGOWAN, ) 

) 

DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Appellant’s application for reopening. 

JUDGMENT: Denied. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Jane M. Hanlin 

Prosecuting Attorney 

Jefferson County Justice Center 

16001 State Route 7 

Steubenville, Ohio 43952 

For Defendant-Appellant: Frederick McGowen, pro se

#A 662-710 

Belmont Correctional Institution 

P.O. Box 540 

St. Clairsville, Ohio 43950 

JUDGES: 

Hon. Carol Ann Robb 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Dated: January 4, 2016
[Cite as State v. McGowen, 2016-Ohio-48.]

PER CURIAM. 

{¶1} On November 9, 2015, Defendant-Appellant Frederick McGowan filed a 

timely application for reopening pursuant to App.R. 26(B). He is attempting to reopen 

the appellate judgment that was rendered by this Court in State v. McGowan, 7th 

Dist. No. 14 JE 37, 2015–Ohio–3429, where we affirmed his convictions and 

sentences for felony drug offenses. 

{¶2} An application for reopening must 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). The appropriate standard to determine whether a 

defendant has received ineffective assistance of appellate counsel is the twopronged analysis found in Strickland. State v. Were, 120 Ohio St.3d 85, 2008–Ohio–

5277, 896 N.E.2d 699, ¶ 10, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 

2052 (1984). Therefore, the applicant must prove that his counsel was 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. State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). To 

justify reopening his appeal, the 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. Myers, 102 Ohio St.3d 318, 2004–Ohio–

3075, 810 N.E.2d 436, ¶ 9; Spivey. 

{¶3} Appellant cannot meet this burden. His basis for reopening is that 

appellate counsel failed to raise the issue of whether there was sufficient evidence to 

find him guilty of possession of heroin. In his direct appeal, appellate counsel raised 

two assignments of error. In the first assignment of error, appellate counsel argued 

that the possession of heroin and possession of cocaine convictions were against the 

manifest weight of the evidence. We found no merit with that argument. McGowan, 

2015-Ohio-3429 at ¶ 11-26. 

{¶4} It is widely recognized that “a finding that a conviction is supported by 

the manifest weight of the evidence necessarily includes a finding of sufficiency.” 

State v. Brady, 7th Dist. No. 13 MA 88, 2014-Ohio-5721, ¶ 26, quoting State v. 
-2-

Gravely, 188 Ohio App.3d 825, 2010-Ohio-3379, 188 N.E.2d 825 ,¶ 46 (10th Dist.). 

See also State v. Boyd, 6th Dist. No. OT-06-034, 2008-Ohio-1229, ¶ 24 (“A 

conclusion that convictions are not against the manifest weight of the evidence 

necessarily encompasses a conclusion that the convictions are supported by 

sufficient evidence.”). Many of the arguments presented in that first assignment of 

error as a basis to assert the convictions were against the manifest weight of the 

evidence are now being used to make an argument that there was insufficient 

evidence to support the possession of heroin conviction. Based on the above law, 

since this court found those arguments did not establish that the convictions were 

against the manifest weight of the evidence, those arguments also fail to establish 

there was insufficient evidence. In other words, our determination that the conviction 

was supported by the manifest weight of the evidence necessarily included a finding 

of sufficiency. The sufficiency argument has no reasonable probability of success. 

Accordingly, Appellant fails to present a colorable claim of ineffective assistance of 

counsel. 

{¶5} Application of reopening is denied. 

Robb, J., concurs. 

Donofrio, P.J., concurs. 

DeGenaro, J., concurs.