State v. Harris, 2011 Ohio 4403

Harris seeks to reopen his appeal under App.R. 26(B) after a prior conviction for two counts of rape and one count of kidnapping with a sexual motivation specification.
The Eighth District affirmed Harris's conviction and sentence in State v. Harris, 2011-Ohio-194, and Harris now applies for reopening.]
The application for reopening exceeds the ten-page limit under App.R. 26(B)(4), creating a procedural defect that supports dismissal.
The court conducts a substantive review to determine if Harris shows a genuine issue of ineffective assistance of appellate counsel under App.R. 26(B)(5).
The court concludes the two rape offenses are not allied offenses of similar import and are separate acts, negating Harris's first, third, and fourth assignments, and finds no merit to the second assignment about cross-examination strategy.
The application is denied for both procedural defect and lack of a genuine colorable claim of ineffective assistance on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Harris’s reopening application complies with page-limit rule	Harris	Court	Procedural defect; dismissal
Whether Harris shows ineffective assistance of appellate counsel on appeal	Harris claims counsel failed to raise issues	No showing of deficient performance with reasonable probability of different outcome	No genuine issue; not satisfied
Whether the two rape convictions are allied offenses of similar import	Rapes were part of a continuous act	Rapes were separate acts with separate animus	Not allied offenses; separate convictions survive
Whether trial counsel’s cross-examination strategy was deficient	Appellate counsel should have challenged cross-exam	Cross-examination strategy is trial tactic and not reversible error	Not ineffective on appeal
Whether Harris’s sentence-merger for kidnapping and rape was proper	Merger based on allied offenses	Rapes not allied offenses; merger inappropriate	Rape offenses not merged; affirmed as proper

State v. Reed, 74 Ohio St.3d 534 (1996) (two-prong Strickland standard for reopening under App.R. 26(B))
Jones v. Barnes, 463 U.S. 745 (1983) (counsel's discretion to select issues; not ineffective for not raising all errors)
State v. Spivey, 84 Ohio St.3d 24 (1998) (requires colorable claim of ineffective assistance on appeal)
State v. Grimm, 73 Ohio St.3d 413 (1995) (counsel not ineffective for not raising every issue)
State v. Campbell, 69 Ohio St.3d 38 (1994) (counsel not ineffective for not raising all possible assignments of error)
State v. Frazier, 115 Ohio St.3d 139 (2007) (standard for appellate effectiveness)