State v. Hubbard, 2014 Ohio 122

Defendant Hubbard sought to reopen his direct-appeal under App.R. 26(B) after this court’s 2013 decision in Hubbard, No. 11AP-945, 2013-Ohio-2735.
The underlying case involved charges of aggravated murder, murder, felonious assault, and attempted murder with firearm specifications arising from events on September 18, 2010.
This court previously affirmed some issues and vacated the sentence, remanding for resentencing.
Hubbard filed an untimely application to reopen (92 days after journalization) claiming ineffective assistance of appellate counsel.
The application to reopen argued three new grounds: confrontation-clause issues and failure to raise lesser-included-offense arguments at trial and on appeal.
The trial record and prior Hubbard decision were used to evaluate whether Hubbard’s counsel’s performance was deficient and prejudicial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the reopening was timely with good cause.	State contends untimely filing; Hubbard showed no good cause.	Hubbard argues good cause due to ineffective appellate counsel.	No good cause; untimely filing denied.
Whether appellate counsel’s failure to raise certain issues was colorable ineffective-assistance.	Hubbard asserts counsel omitted issues that could have affected the outcome.	Hubbard claims counsel’s omissions were prejudicial.	No colorable Strickland basis; no prejudice shown.
Confrontation Clause: admission of evidence about Keys without Keys testifying violated Crawford.	Hubbard argues testimonial statements from Keys were admitted via others and violated confrontation rights.	Argues denial of cross-examination and testimonial evidence.	Arguments rejected; claim previously addressed in Hubbard and not shown.
Whether failure to instruct on reckless homicide or involuntary manslaughter was ineffective assistance.	Counsel should have requested lesser-included-offense instructions.	Trial strategy may justify not requesting; could affect outcome.	No reversal; failure to brief these issues not prejudicial; no plain error.

Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (confrontation clause; testimonial statements require cross-examination or unavailability)
State v. Deem, 40 Ohio St.3d 205 (1988) (standard for defining lesser-included offenses)
State v. Shane, 63 Ohio St.3d 630 (1992) (test for when lesser-included offense instructions are required)
State v. Griffie, 74 Ohio St.3d 332 (1996) (trial-strategy and ineffective assistance considerations)
State v. Ryan, 2009-Ohio-3235 (10th Dist.) (failure to raise issues; prejudice required)
State v. Gumm, 103 Ohio St.3d 162 (2004) (timeliness and good cause for App.R. 26(B))
State v. Reddick, 72 Ohio St.3d 88 (1995) (timeliness and good cause; finality interests)
State v. Sanders, 75 Ohio St.3d 607 (1996) (Strickland standard for ineffective assistance)