State v. Asadi-Ousley, 2018 Ohio 4431

In July 2015 Asadi-Ousley was indicted on seven counts arising from alleged December 31, 2008 sexual assault, including rape, kidnapping, and felonious assault (Count 5).
DNA testing in 2014 matched Asadi-Ousley to biological material collected from the victim; he was convicted by a jury of rape, kidnapping, and felonious assault and sentenced to concurrent terms.
The indictment was returned July 29, 2015—more than six years after the December 31, 2008 offense date.
Asadi-Ousley sought reopening of his direct appeal under App.R. 26(B), limited to whether appellate counsel was ineffective for not arguing trial counsel was ineffective for failing to move to dismiss Count 5 on statute-of-limitations grounds.
The state conceded Count 5 was indicted after the six-year limit but argued waiver and that tolling under R.C. 2901.13(H) applied because the assailant hid his identity during the offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate counsel was ineffective for not raising that trial counsel was ineffective for failing to move to dismiss Count 5 as time-barred	Asadi-Ousley: appellate counsel should have argued trial counsel was deficient for not moving to dismiss felonious assault as beyond the six-year statute of limitations, and he was prejudiced by an extra conviction	State: the defense is waived (not raised at trial); alternatively, tolling under R.C. 2901.13(H) applies so prosecution was timely; and concurrent sentence eliminated prejudice	Court: Appellate counsel was ineffective; trial counsel likely would have had a meritorious motion to dismiss Count 5 as time-barred; appellate counsel’s omission prejudiced Asadi-Ousley; vacate Count 5 conviction and remand to vacate that conviction.
Whether R.C. 2901.13(H) tolled the limitations period because the assailant concealed identity during commission of the crime	State: tolling applies because the attacker grabbed victim from behind and rendered her unconscious, thwarting identification	Asadi-Ousley: no evidence he absconded, changed identity, or otherwise avoided prosecution after the crime; tolling should not apply to hiding identity only during commission	Court: R.C. 2901.13(H) tolls only where the accused purposely avoids prosecution after the crime (e.g., leaving jurisdiction or concealing whereabouts); hiding identity during the offense is insufficient to toll.

Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance: deficient performance and prejudice)
Jones v. Barnes, 463 U.S. 745 (1983) (appellate counsel may winnow arguments; not required to raise every nonfrivolous issue)
State v. Bess, 126 Ohio St.3d 350 (2010) (explaining tolling under R.C. 2901.13(H) and that purposeful avoidance of prosecution justifies tolling)
State v. Underwood, 124 Ohio St.3d 365 (2010) (a defendant is prejudiced by having convictions not authorized by law even if sentences run concurrent)
Toussie v. United States, 397 U.S. 112 (1970) (statutes of limitations generally begin when the crime is complete)