State v. Durham
2012 Ohio 2053
Ohio Ct. App.2012Background
- Durham was convicted in Cuyahoga County Common Pleas Court (CR-525549) and his conviction was affirmed on direct appeal by this court.
- Durham filed a pro se application for reopening under App.R. 26(B); counsel later filed a notice and supplement, leading the court to strike the pro se portion and require compliance.
- Durham allege dineffective assistance of appellate counsel for failing to raise issues on appeal; the court must assess under Strickland as refined by Spivey.
- The court held Durham failed to show deficient performance or prejudice; it applied the two-prong Strickland test and found no genuine issue of ineffective assistance.
- The court rejected arguments about admission of a witness's testimony and other trial-counsel issues as not meeting the standard, and denied reopening on merits and procedural grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance—appellate counsel | Durham asserts appellate counsel failed to raise colorable issues. | State contends no deficiency or prejudice shown. | Denied on the merits. |
| Admission of White testimony and 403(a) issue | Counsel should have challenged unfair prejudice from father's statements. | No error warranting reversal; proper analysis under evidentiary rules. | Not well taken; no prejudice proven. |
| Failure to identify specific trial-counsel errors | Appellate counsel failed to point to specific trial-strategy errors. | Trial counsel’s objections and strategy were within permissible discretion. | Not well taken. |
| Supplemental brief and lack of leave | Supplemental brief/affidavit show merit; binding authority ignored. | App.R. 26(B) does not authorize unsolicited supplements. | Request denied; supplements disregarded; no reversal on this basis. |
Key Cases Cited
- State v. Spivey, 84 Ohio St.3d 24 (Ohio 1998) (establishes Strickland framework for App.R. 26(B) reopening)
- State v. Reed, 74 Ohio St.3d 534 (Ohio 1996) (two-prong Strickland analysis for reopening under App.R. 26(B)(5))
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (deficiency and prejudice standard for ineffective assistance)
- State v. Foster, 8th Dist. No. 95209, 2011-Ohio-2781 (Ohio 2011) (reopening standards and considerations in this court)
- State v. Warner, 8th Dist. No. 95750, 2011-Ohio-4096 (Ohio 2011) (trial-strategy considerations not readily disturbed on appeal)