State v. Clement, 2012 Ohio 582

Clement applied under App.R. 26(B) to reopen the court’s judgment in State v. Clement, 2011-Ohio-1555, arguing ineffective assistance of appellate counsel.
The original convictions included one count aggravated murder (Count I), one count murder (as a lesser included offense of Count I), two counts of aggravated robbery, two counts of kidnapping, with accompanying firearm specifications.
The jury found Clement not guilty of aggravated murder under Count I but guilty of murder; aggravated murder under Count II was also found; the court merged multiple counts and sentenced Clement to life with parole eligibility after 30 years.
Evidence showed a conspiracy to rob Gregory Williams, luring him to a residence, a struggle over a gun, and Clement firing at close range, killing Gregory during the robbery.
The petition to reopen alleged seven errors spanning instructions, evidentiary issues, ineffective assistance, verdict consistency, and a discovery violation; the court denied the application.
The court applied the Strickland standard for ineffective assistance of appellate counsel, requiring deficient performance and prejudice; it concluded the arguments lacked merit.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Lesser-included offense instruction required?	Clement argues lesser offenses should have been instructed.	Appellate counsel properly omitted weaker issues under strategy.	No; evidence did not support manslaughter/reckless homicide as lesser included offenses.
Plea evidence of co-defendants as substantive evidence?	Clement contends co-defendant pleas could be misused as guilt evidence.	No reversible error where proper purpose and lack of request for instruction.	Not well taken; proper purposes shown and no request for limiting instruction.
Aiding and abetting instruction with culpable mental state?	The instruction omitted culpable mental state for aiding and abetting.	Instruction on 'purpose' satisfied culpable mental state requirement.	Not well-founded; full 'purpose' instruction given.
Flight instruction as due process issue?	Flight instruction improperly admitted; misstates innocence theory.	Flight evidence admissible as consciousness of guilt; proper weight to jury.	Not well-founded; flight properly supported by record.
Inconsistency of verdicts and sentencing alignment?	Jury verdicts for murder and aggravated murder are inconsistent; sentencing should reflect murder conviction.	Verdicts can be inconsistent; merger and evidence support conclusions.	No reversible error; consistency not required across counts; conviction supported.

Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court (1984)) (establishes performance prejudice standard for ineffective assistance)
Jones v. Barnes, 463 U.S. 745 (U.S. Supreme Court (1983)) (appellate strategy prerogative; not all colorable issues must be raised)
State v. Allen, 77 Ohio St.3d 172 (1996) (reaffirms deference to appellate counsel’s strategic decisions)
State v. Tenace, 109 Ohio St.3d 451 (2006) (acknowledges appellate strategy and waiver considerations)
State v. Jeffries, 182 Ohio App.3d 459 (2009) (flight evidence and related evidentiary rulings discussed)