2012 Ohio 5709
Ohio Ct. App.2012Background
- Allen applied to reopen under App.R. 26(B) after State v. Allen affirmed convictions and sentences for multiple counts of aggravated murder and related offenses.
- The application alleged appellate counsel was ineffective on five points: absence at a jury view, failure to call witnesses, lack of alibi investigator, failure to object to gang-related questioning, and failure to remove sleeping jurors.
- The appellate court applied Strickland and related Ohio standards, requiring deficient performance and prejudice, with review limited to the trial record.
- The court held the claims were unpersuasive because prejudice could not be established from the asserted deficiencies, and several arguments relied on speculation.
- The application to reopen was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for not requesting Allen’s presence at the jury view | Allen | Allen | Not shown; no prejudice from absence; view not evidence; no right to presence. |
| Whether appellate counsel was ineffective for failing to call witnesses | Allen | Allen | Not shown; records do not establish what testimony would be; speculation insufficient. |
| Whether appellate counsel was ineffective for lacking an alibi investigator | Allen | Allen | Not shown; investigator participated; speculation about findings insufficient. |
| Whether appellate counsel was ineffective for allowing gang-related questioning | Allen | Allen | Not shown; challenged on direct-appeal grounds; no prejudice established. |
| Whether appellate counsel was ineffective for not voir diring or replacing sleeping jurors | Allen | Allen | Not shown; record insufficient to demonstrate prejudice; professional judgment reflected. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes standard for ineffective assistance of counsel)
- Jones v. Barnes, 463 U.S. 745 (U.S. 1983) (advocacy may focus on strongest issues; not all colorable issues must be raised)
- State v. Reed, 74 Ohio St.3d 534 (Ohio 1996) (limits appellate counsel duties to record-supported issues)
- State v. Moore, 93 Ohio St.3d 649 (Ohio 2001) (record-based, no prejudice shown without evidence)
- State v. Burke, 97 Ohio St.3d 55 (Ohio 2002) (declining to find ineffective assistance without record support)
- Warder, Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77 (Ohio 1898) (limits prejudice assessment to record-based considerations)