State v. Leyh (Slip Opinion), 185 N.E.3d 1075

Appellant Clarence Leyh pleaded guilty to four felony counts of gross sexual imposition and two misdemeanor sexual-imposition counts and was sentenced to four consecutive one-year prison terms (aggregate four years).
The trial-court journal entry stated the court performed an allied-offense analysis and that neither party objected, but did not include the sentencing-hearing transcript in the appellate record; Leyh’s counsel also attached a PSI to the brief which was later stricken.
Appellate counsel failed to secure/transmit the sentencing-hearing transcript (and the PSI was stricken), so the Ninth District affirmed the conviction by presuming regularity due to an incomplete record.
Leyh filed a timely App.R. 26(B) application alleging ineffective assistance of appellate counsel for failing to include necessary record materials; the state did not oppose reopening.
The Ninth District denied the application, requiring Leyh to show a reasonable probability he would have prevailed on the underlying appeal; the Ohio Supreme Court reversed, holding App.R. 26(B) stage-one requires only a genuine issue/colorable claim and remanded for further proceedings.

Issue	Leyh's Argument	State/Ninth Dist. Argument	Held
Standard for App.R. 26(B) stage-one showing	Stage one requires a "genuine issue" / colorable claim that appellate counsel was deficient and that deficiency prejudiced the appeal; applicant need not prove likely success on the merits at this stage	Applicant must show both deficiency and a reasonable probability of success (prejudice) at the threshold stage	Supreme Court: stage one requires only a genuine issue (colorable claim) that appellate counsel was deficient and prejudiced the appeal; proof of likely success is for stage two
Whether Leyh’s application met App.R. 26(B) stage-one	Failure to include sentencing transcript/PSI prevented merits review and thus prejudiced the appeal — creates a genuine issue warranting reopening	Denial was proper because Leyh did not show how omitted materials would likely change the appeal’s outcome	Supreme Court: Leyh’s application presented a genuine issue of ineffective assistance (counsel conceded deficient; record omissions compelled presumption of regularity), so the appeal must be reopened and further proceedings held

Strickland v. Washington, 466 U.S. 668 (ineffective-assistance standard: deficiency and prejudice)
State v. Murnahan, 63 Ohio St.3d 60 (App.R. 26 origins; ineffective-assistance-on-appeal procedure)
State v. Davis, 119 Ohio St.3d 422 (App.R. 26(B) creates a special two-stage procedure)
State v. Simpson, 164 Ohio St.3d 102 (application-of-Strickland to App.R. 26(B) claims)
State v. Spivey, 84 Ohio St.3d 24 (applicant must show a genuine/colorable claim)
Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (when necessary transcript portions are omitted, court must presume regularity)
State v. Johnson, 128 Ohio St.3d 153 (allied-offense analysis referenced by trial court)
State v. Ruff, 143 Ohio St.3d 114 (abrogated aspects of Johnson’s allied-offense approach)
Morgan v. Eads, 104 Ohio St.3d 142 (indigent applicant has no right to appointed App.R. 26(B) counsel until reopening granted)
State v. Reed, 74 Ohio St.3d 534 (recognition that App.R. 26(B) claims are assessed under Strickland)