State v. Marcum, 2012 Ohio 2721

Appellant Marcum convicted of assault on a peace officer (4th-degree) and aggravated burglary (1st-degree) in Columbiana County; sentences were 14 months and 9 years, served consecutively.
This court previously affirmed the convictions, holding sufficiency/weight of the evidence; hearsay issues were not reversible and prosecutorial conduct did not require reversal.
Appellant timely filed an App.R. 26(B) reopening motion alleging ineffective assistance of appellate counsel for not challenging sentence duration and consecutive terms, but he supplied vague assignments of error.
Rule 26(B) requires a colorable claim of ineffective assistance and a sworn basis for deficiency; Spivey/Sheppard standards govern whether reopening is warranted.
The offenses occurred Dec. 9, 2009; applicable law included SB 2 sentencing regime, Foster/Mathis developments, and later Oregon v. Ice and Hodge, with sentences within statutory ranges; court denies reopening as no prejudicial error shown and no colorable claim.
Appellant’s sentences were within statutory ranges (assault 6–18 months; aggravated burglary 3–11 years); Foster/Mathis gave trial courts broad discretion; the appellate failure to challenge duration/consecutiveness did not prejudice him; reopening denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance for not challenging sentence duration/consecutiveness	Marcum argues appellate counsel failed to raise duration and consecutive sentencing issues	Counsel's failure was not deficient; within law; no colorable claim	Denied; no colorable claim; reopening denied
Impact of contemporary law on appeal viability (Apprendi/Blakely/Oregon Ice/Hodge)	Constitutional principles undermine the validity of consecutive sentences	Law allowed discretion within ranges; no proportionality or fact-finding error	Denied; no prejudice; issues not viable to reopen

State v. Foster, 109 Ohio St.3d 1 (Ohio Supreme Court 2006) (severability of mandatory sentencing provisions; discretion within ranges)
State v. Mathis, 109 Ohio St.3d 54 (Ohio Supreme Court 2006) (clarified sentencing within ranges; no requirement for post-Foster findings)
Apprendi v. New Jersey, 530 U.S. 466 (U.S. Supreme Court 2000) (required jury finding for facts increasing penalties)
Blakely v. Washington, 542 U.S. 296 (U.S. Supreme Court 2004) (invalidated mandatory enhancements; discretion within statutory ranges allowed)
Oregon v. Ice, 555 U.S. 160 (U.S. Supreme Court 2009) (no Sixth Amendment violation where consecutive terms are not conditionally based on new findings)
State v. Spivey, 84 Ohio St.3d 24 (Ohio Supreme Court 1998) (two-pronged ineffective-assistance-standard framework in reopening)
State v. Sheppard, 91 Ohio St.3d 329 (Ohio Supreme Court 2001) (Strickland standard applied to appellate representation)
State v. Bradley, 42 Ohio St.3d 136 (Ohio Supreme Court 1989) (probing prejudice requirement for ineffective assistance)