State v. Long
2022 Ohio 1601
Ohio Ct. App.2022Background
- Michael A. Long was indicted in 2015 on multiple felonies including aggravated burglary, kidnapping, aggravated robbery, felonious assaults, and murder; various firearm specifications were alleged.
- Long was convicted at a 2016 jury trial and sentenced to 25 years to life; this court reversed and remanded for a new trial because the trial court violated Long's Sixth Amendment public-trial right.
- On remand Long waived a jury; a bench trial in late 2019 resulted in convictions and a substantially increased aggregate sentence of 64 years to life (versus the prior 25-to-life).
- Long appealed; this court affirmed the convictions and rejected challenges to evidentiary rulings, sufficiency/weight of the evidence, and merger issues (State v. Long, 10th Dist. No. 20AP-86, 2021-Ohio-2656).
- Long filed a timely App.R. 26(B) application alleging appellate counsel was ineffective for failing to raise a vindictive-sentencing claim based on the much-harsher second sentence.
- The court, applying Leyh and Strickland principles, concluded Long made a particularized showing and presented a genuine issue of ineffective assistance on appeal and granted reopening; the matter was remanded for briefing limited to the new assignment of error.
Issues
| Issue | State's Argument | Long's Argument | Held |
|---|---|---|---|
| Whether App.R. 26(B) application should be granted (colorable ineffective-assistance claim) | Leyh allows case-by-case scrutiny; where counsel failed to omit a meritless issue, no genuine issue exists | Appellate counsel was deficient for omitting a vindictive-sentencing assignment; the much-harsher second sentence is presumptively or at least plausibly vindictive | Grant: court finds a genuine issue and reopens the appeal under App.R. 26(B) to brief the claim further |
| Whether appellate counsel was deficient for not arguing vindictive sentencing on direct appeal | No presumption applies when a different judge imposed a harsher sentence; the record does not show vindictiveness | 2.56x longer sentence with no on-record nonvindictive reasons creates at least a plausible claim of vindictiveness | Court finds appellant made a more particularized showing of prejudice and deficiency sufficient to reopen |
| What showing is required at the first stage of App.R. 26(B) after Leyh | Leyh permits requiring more particularized showings in some contexts (e.g., omitted appellate arguments) | Leyh requires only a genuine issue/legitimate grounds at the first stage; detailed merits come after reopening | Court follows Leyh: first-stage requires only a genuine issue; more detailed merits addressed after reopening |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance standard for deficiency and prejudice)
- North Carolina v. Pearce, 395 U.S. 711 (presumption of vindictiveness in some double-sentencing contexts)
- Alabama v. Smith, 490 U.S. 794 (presumption of vindictiveness does not apply in every case where sentence increases on retrial)
- State v. Lechner, 72 Ohio St.3d 374 (App.R. 26(B) affidavit requirement)
- Morgan v. Eads, 104 Ohio St.3d 142 (appellate courts best positioned to evaluate appellate counsel effectiveness)
- State v. Murnahan, 63 Ohio St.3d 60 (standards for assessing appellate-counsel deficiency)
- Beatty v. Alston, 43 Ohio St.2d 126 (reasons for a harsher second sentence must appear and be based on post-sentencing conduct)