State v. Hardin
2020 Ohio 5039
Ohio Ct. App.2020Background
- Defendant Dearlo B. Hardin pleaded guilty in Sandusky C.P. No. 17CR292 to two counts of burglary and received two concurrent six-year prison terms.
- On direct appeal, appellate counsel raised no assignments of error as to 17CR292; this court affirmed the conviction and sentence.
- Hardin filed an App.R. 26(B) application to reopen that appeal, alleging ineffective assistance of appellate counsel for failing to raise trial-counsel conflict issues.
- Hardin contends Attorney Jeffrey Kane served as the prosecutor at the preliminary hearing for 17CR292 and was later appointed by the trial court to represent Hardin at arraignment in the same case, creating a conflict that affected counsel’s judgment.
- Hardin alleges the conflict caused counsel to avoid challenging his competency and to forgo a not-guilty-by-reason-of-insanity defense, resulting in prejudice; the state did not respond to the application.
- The appellate court found a genuine issue under App.R. 26(B) and Strickland, granted reopening as to 17CR292, appointed counsel for reopening, and set briefing deadlines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether App.R. 26(B) application raises a genuine issue of ineffective assistance of appellate counsel under Strickland | Hardin: appellate counsel was deficient for not raising trial-counsel conflict and related claims; reasonable probability of success on appeal | State: did not respond | Court: Granted reopening; found a genuine issue under App.R. 26(B) and applied Strickland standard |
| Whether appointment of former prosecutor Jeffrey Kane as defense counsel created a conflict causing trial-counsel ineffective assistance (impacting competency/insanity defenses) | Hardin: Kane previously acted as prosecutor in same case; conflict influenced counsel to avoid competency/insanity challenges and to "silence the record," causing actual prejudice | State: no response asserted in record (implicitly disputes or would argue no conflict/ no prejudice) | Court: Allegations sufficient to raise a genuine issue warranting appellate reopening; did not finally decide conflict but allowed appellate review |
| Appropriate relief/procedure if reopening granted | Hardin: reopen appeal, consider the assignments raised in application | State: no response | Court: Reopened appeal for 17CR292 limited to assignments in application; appointed counsel and set briefing schedule |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (two-prong standard for ineffective assistance of counsel)
- State v. Spivey, 84 Ohio St.3d 24 (App.R. 26(B) reopening is evaluated under Strickland)
- State v. Reed, 74 Ohio St.3d 534 (applicant bears burden to show a genuine issue of a colorable ineffective-assistance claim)