2022 Ohio 4269
Ohio Ct. App.2022Background
- On Feb. 6, 2019, a shooter fired into an SUV in Akron; a backseat passenger (T.O.) was seriously injured and required emergency surgery.
- Multiple witnesses and a hospital report led police to identify and investigate Michael Calhoun, who was 17 at the time; witnesses identified Calhoun from a photo array and gave statements implicating him.
- Calhoun was bound over from juvenile court to be tried as an adult, indicted on four counts of felonious assault with firearm specifications, convicted by a jury, and sentenced to consecutive terms totaling 20 years.
- This Court initially affirmed the conviction. Calhoun filed an App.R. 26(B) application to reopen, alleging appellate counsel was ineffective for failing to challenge the bind-over, sentencing, and manifest-weight issues.
- The Court granted reopening (found a genuine issue) but ordered Calhoun to brief ineffective-assistance-of-appellate-counsel. His reopened brief raised four assignments of error but did not argue that appellate counsel was ineffective.
- Because Calhoun failed to address the central App.R. 26(B) claim in his reopened brief, the Court confirmed its prior judgment and overruled his assignments of error without reaching their merits.
Issues
| Issue | Calhoun's Argument | State's Argument | Held |
|---|---|---|---|
| Whether juvenile court abused discretion in binding Calhoun over | Bind-over was improper; juvenile sanctions should apply | Prior proceedings lawful; issue must be raised under App.R. 26(B) | Overruled — Court declined to reach merits because Calhoun failed to prove appellate counsel ineffective in reopened brief |
| Whether trial court erred in sentencing | Sentence was excessive/abusive | Sentence stands; procedural requirements unmet | Overruled — merits not reached for same reason |
| Whether convictions are against the manifest weight of the evidence | Verdict against the weight of evidence | Conviction supported; but procedural default on reopened-brief issue | Overruled — merits not reached |
| Whether admission of out-of-court statement violated Confrontation Clause | Admission violated confrontation and evidentiary rules | Confrontation claim was not properly preserved/raised on reopening | Overruled — merits not reached |
Key Cases Cited
- State v. Davis, 119 Ohio St.3d 422 (describing App.R. 26(B) as a special two-stage procedure)
- State v. Leyh, 166 Ohio St.3d 365 (explaining App.R. 26(B) requires proving both ineffective assistance and merits of underlying appeal at second stage)
- State v. Simpson, 164 Ohio St.3d 102 (defining the first-stage requirement of a genuine issue and colorable claim under App.R. 26(B))
- State v. Spivey, 84 Ohio St.3d 24 (describing the threshold showing for reopening as a genuine issue of ineffective assistance)
- Strickland v. Washington, 466 U.S. 668 (establishing the deficient-performance and prejudice test for ineffective assistance of counsel)