[Cite as State v. McCall, 2022-Ohio-383.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 104479 

 v. : 

 

MIKELL E. MCCALL, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: APPLICATION DENIED 

RELEASED AND JOURNALIZED: February 7, 2022 

 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-599126-A 

Application for Reopening 

Motion No. 551694 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Callista Plemel, Assistant Prosecuting 

Attorney, for appellee. 

Mikell E. McCall, pro se. 

KATHLEEN ANN KEOUGH, P.J.: 

Applicant, Mikell E. McCall, belatedly seeks to reopen his appeal, 

State v. McCall, 8th Dist. Cuyahoga No. 104479, 2017-Ohio-296. He claims that 

appellate counsel was ineffective because counsel did not obtain McCall’s approval 
before filing the appellate brief in the appeal and failed to argue issues that McCall 

wanted assigned as errors in the brief. For the following reasons, we deny the 

application. 

I. Background 

On January 26, 2017, this court issued a decision affirming McCall’s 

several convictions for rape, sexual battery, and kidnapping. In the appeal, McCall’s 

appellate counsel unsuccessfully argued two assignments of error: 

I. [Appellant’s] convictions related to the two instances of alleged 

cunnilingus are not supported by legally sufficient evidence. 

II. [Appellant’s] convictions are against the manifest weight of the 

evidence. 

On January 4, 2022, almost five years after release of the appellate 

decision, McCall filed the instant application for reopening. McCall now claims 

counsel was ineffective when counsel “raised two assignment[s] of error [in] the 

appeallate [sic] brief * * * without first discussing it and getting the exceptance [sic] 

from [McCall] * * *. These actions from public defender [sic] office and appointed 

counsel prove to be unloyal [sic] to [McCall] when McCall ask to review the 

appealate [sic] brief before it is filed.” He attached to the application 

correspondence he received from his appellate attorney discussing the potential 

issues that could be raised in the appeal and counsel’s thoughts on the issues that 

McCall wanted to advance. Ultimately, McCall’s appellate attorney declined to 

include the issues McCall wanted to raise because counsel determined they had no 
merit. Finally, appellate counsel declined to provide McCall with a draft appellate 

brief for his approval before submitting it to this court.1 

The state opposed McCall’s application in a brief in opposition filed 

January 26, 2022. There, it pointed out that the application was not timely filed and 

McCall failed to allege sufficient good cause to excuse the delay. 

II. Law and Analysis 

An application to reopening an appeal, a procedure defined by App.R. 

26(B), offers a means of asserting claims of ineffective assistance of appellate 

counsel. There are certain procedural requirements within the rule that a successful 

applicant must meet. State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 

N.E.2d 861. One of those requirements is that the application must be filed within 

90 days of the journalization of the appellate decision seeking to be reopened. 

App.R. 26(B)(1). Where an application is filed outside of this deadline, App.R. 

26(B)(2)(b) requires a of showing of “good cause.” This is necessary, and the failure 

to produce sufficient justification is grounds to the deny the application without 

addressing the merits argued within. State v. Farrow, 115 Ohio St.3d 205, 2007-

Ohio-4792, 874 N.E.2d 526; State v. Keith, 119 Ohio St.3d 161, 2008-Ohio-3866, 

892 N.E.2d 912. 

McCall failed to provide sufficient justification in his application to 

excuse his almost five-year delay in filing. The application does not allege that 

1 Counsel advised McCall that he could submit a pro se supplemental appellate 

brief if he wished. 
anything prevented McCall from filing the application in a timely fashion. The 

actions of appellate counsel were known prior to the issuance of the appellate 

decision. At one point, he states that he was unaware of the remedy of an application 

for reopening until recently. However, ignorance of the law does not constitute good 

cause. Farrow at ¶ 6, quoting State v. Reddick, 72 Ohio St.3d 88, 91, 647 N.E.2d 

784 (1995). See also State v. Battiste, 8th Dist. Cuyahoga No. 102299, 2017-Ohio83, ¶ 4. 

McCall’s application was not timely filed and he has failed to show 

good cause for the delay. Therefore, the application must be denied. 

Even if the application was timely, McCall does not present an issue 

that warrants reopening. 

In order to reopen an appeal, an applicant must 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). “[T]he two-prong analysis found 

in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), 

is the appropriate standard to assess a defense request for reopening under App.R. 

26(B)(5).” State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998), citing State 

v. Reed, 74 Ohio St.3d 534, 535, 660 N.E.2d 456 (1996). McCall must show 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.” Id. This requires a showing “that 
there was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of ineffective 

assistance of counsel on appeal.” Id. 

McCall does not cite to any relevant authority for the proposition that 

appellate counsel was required to submit the appellate brief to McCall for review 

before filing it with the appellate court. To the contrary, 

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 [or she] 

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, 77 L.Ed.2d 987, 103 S.Ct. 3308 (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). 

State v. Darrington, 8th Dist. Cuyahoga No. 65588, 2000 Ohio App. LEXIS 5103, 9 

(Oct. 27, 2000). As a result, “[a]ppellate counsel possesses the necessary discretion 

to decide which issues are most fruitful and should be raised on appeal.” Cleveland 

Hts. v. Jackson, 8th Dist. Cuyahoga No. 82958, 2004-Ohio-2153, ¶ 6, citing Jones. 

McCall claims he was prejudiced by counsel’s refusal to provide him 

with a draft of the appellate brief because a claim of ineffective assistance of trial 

counsel should have been raised. McCall goes on to assert that trial counsel should 
have filed a motion to suppress certain letters the state alleged were written by 

McCall and received by the victim in this case. 

Claims of ineffective assistance of counsel are judged by the 

Strickland standard set forth above. 

At trial, the victim testified about handwritten letters she received 

from McCall. She stated that she recognized McCall’s handwriting in the letters. 

(Tr. 40-41.) The victim testified about the content of the letters: 

[Prosecutor:] What kind of things does Mikell tell you in those letters? 

[Victim:] That he’s sorry, and he loves us, and he misses me and my 

mom, and he doesn’t want to — he doesn’t want me to leave him in here 

to die. 

And that he’ll stop doing drugs for me. And, like, he’ll get me a car and 

stuff like that. And that he loves us. 

[Prosecutor:] Okay. Does he ever say he did this stuff? 

[Victim:] No. 

[Prosecutor:] Does he ever say he didn’t? 

[Victim:] He said he doesn’t remember. 

(Tr. 41-42.) Her testimony continued: 

[Prosecutor:] Showing you what’s been marked as State’s Exhibit 2. 

Can you tell me what it says in the last paragraph on the first page. 

[Victim:] Now I’m in jail wishing I could have been a better dad. You 

do not have to go to trial on me. You can tell them you are angry, I had 

your mom discipline you so you made up that story. You do not have to 

let these police destroy my life. 

(Tr. 44.) These letters were admitted into evidence over objection. 
McCall’s application does not provide any basis for the suppression of 

these letters. Counsel objected to the admission of the letters as evidence at trial 

based on a lack of authentication, but the objection was overruled. (Tr. 95-97.) 

McCall does not provide any argument as to why a motion to suppress should have 

been filed or on what basis a motion to suppress these letters would have been 

successful. Further, McCall does not argue how the suppression of the letters would 

have made a difference at trial. 

McCall has failed to establish a genuine issue of ineffective assistance 

of appellate counsel. Therefore, his application is denied. 

_________________________ _____ 

KATHLEEN ANN KEOUGH, PRESIDING JUDGE 

MARY EILEEN KILBANE, J., and 

ANITA LASTER MAYS, J., CONCUR