State v. Foster
2012 Ohio 916
Ohio Ct. App.2012Background
- Foster was convicted of murder and multiple robbbery offenses in Cuyahoga County and the conviction was affirmed on direct appeal; Ohio Supreme Court denied leave to appeal.
- Foster timely filed an application for reopening under App.R. 26(B)(6) alleging ineffective assistance of appellate counsel.
He proposed five assignments of error, including delayed appointment of counsel and various trial-counsel deficiencies.
- The state opposed reopening but did not address the proposed assignments in detail; the appellate court reviewed the merits for reopening.
- The court denied reopening, applying the Strickland two-prong standard and concluding Foster failed to show a genuine issue of colorable ineffective-assistance claim on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Delay in appointing new counsel | Foster argues prejudice from late ruling | State contends no reversible prejudice shown | Denied; no prejudice shown |
| Ineffectiveness for prosecutorial misconduct claim about victim statement | Foster asserts appellate counsel ineffective for not raising issue | State asserts no deficiency or prejudice established | Denied; not well taken |
| DNA testing on hat | Foster argues DNA testing could have exonerated or aided defense | State notes strategic trial choices; burden on state for proof | Denied; not well taken |
| Suppression of statements about other robberies | Foster relies on outside affidavit; seeks reopening | State argues matters outside record do not support reopening | Denied; not well taken |
| Jury instructions regarding accomplice Lamont | Foster argues lack of cautionary instruction prejudiced trial | State argues R.C. 2923.03(D) instruction issue was harmless | Denied; not well taken |
Key Cases Cited
- State v. Spivey, 84 Ohio St.3d 24 (1998-Ohio-704) (establishes two-prong Strickland standard for App.R. 26(B)(5) reopening)
- State v. Reed, 74 Ohio St.3d 534 (1996-Ohio-) (explains Strickland standard for reopening analysis)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance claims)
- State v. Warner, 8th Dist. No. 95750 (2011-Ohio-4096) (illustrates that sound trial strategy does not constitute grounds for reopening)