2014 Ohio 4831
Ohio Ct. App.2014Background
- Milous Brown was convicted of gross sexual imposition; convictions affirmed on direct appeal (7th Dist. No. 11 MA 117).
- Indictment involved sexual offenses against three children; counts were severed for separate trials.
- Child X (age 5) was removed from custody, medically evaluated, treated, and testified at trial; multiple witnesses corroborated.
- Child Y (age 4) was interviewed once by a social worker; thereafter the mother refused further access, Child Y was not medically evaluated and did not testify.
- Brown filed a timely App.R. 26(B) application to reopen his appellate case alleging appellate counsel ineffective for failing to raise additional issues (including counsel’s investigation failures, evidentiary complaints, and sentencing errors).
- The court denied reopening for procedural defects (failure to supply portions of the record) and on the merits (no colorable claim of ineffective assistance).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brown's App.R. 26(B) application satisfied the rule's filing and content requirements | Court (plaintiff-appellee) argued Brown failed to provide portions of the record required by App.R. 26(B)(2)(e) | Brown contended appellate counsel was ineffective and raised three new assignments of error; he filed a sworn statement but did not supply record excerpts | Denied — application failed App.R. 26(B)(2)(e); noncompliance justified denial |
| Whether appellate counsel was ineffective for not raising issues requiring evidence outside the trial record | Court argued appellate counsel cannot add de hors the record evidence on appeal | Brown claimed trial/appellate counsel failed to investigate and that Child Y would provide exculpatory alibi testimony (new evidence) | Denied — issues relying on evidence outside the record cannot be raised on direct appeal or reopening; no colorable claim shown |
| Whether the sufficiency/weight claims were inadequately considered on appeal | Court maintained prior opinion addressed sufficiency/weight based on trial evidence presented | Brown sought re-review based on undermining the investigation rather than the trial evidence | Denied — prior opinion properly evaluated the sufficiency/weight of the evidence actually presented at trial |
| Whether sentencing (maximum consecutive terms) was improper | Brown cited cases addressing improper information/judicial fact-finding at sentencing | Court noted cited authorities did not apply and Brown provided no supporting record or new argument | Denied — no applicable law or record support; sentencing challenge was not a colorable appellate-ineffective-counsel claim |
Key Cases Cited
- State v. McNeill, 83 Ohio St.3d 457 (1998) (applicant must provide record portions relied upon in App.R. 26(B) application)
- State v. Sanders, 75 Ohio St.3d 607 (1996) (reopening requires a colorable claim of ineffective assistance of appellate counsel)
- State v. Were, 120 Ohio St.3d 85 (2008) (ineffective-assistance standard for appellate counsel follows Strickland analysis)
- Strickland v. Washington, 466 U.S. 668 (1984) (performance-prejudice test for ineffective assistance of counsel)
- Jones v. Barnes, 463 U.S. 745 (1983) (appellate counsel has discretion to winnow issues; not required to raise every nonfrivolous issue)
- State v. Tenace, 109 Ohio St.3d 451 (2006) (deference to counsel’s appellate strategy; need not raise all issues)
- State v. Ishmail, 54 Ohio St.2d 402 (1978) (appellate court reviews the trial court record; appellate counsel cannot supplement with new evidence)
- State v. Keith, 79 Ohio St.3d 514 (1997) (matters de hors the record cannot be raised on direct appeal)
- State v. Foster, 109 Ohio St.3d 1 (2006) (addressed impermissible judicial fact-finding affecting sentencing)