State v. Marsh, 2013 Ohio 2949

Michael Marsh was convicted by a jury of second-degree felony robbery after rejecting the State’s offer (recommended 2 years) and being sentenced to 6 years.
On direct appeal, counsel argued that trial counsel’s plea advice was ineffective (invoking Lafler); this court rejected that claim in the direct appeal.
Marsh filed an App.R. 26(B) application to reopen his appeal, alleging appellate counsel was ineffective for not raising additional issues.
He advanced two new claims for reopening: (1) sufficiency of the evidence to prove he caused the security guard’s hand injuries, and (2) appellate counsel should have argued trial counsel was ineffective for not requesting a lesser-included-theft instruction (and that the court committed plain error by not giving it).
The court reviewed the App.R. 26(B) standard (Strickland two-prong test applied to appellate counsel) and found no deficient performance or prejudice on these newly asserted claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was appellate counsel ineffective for not raising insufficiency of the evidence?	Appellee (State) argued appellate counsel reasonably focused on the Lafler-based plea claim; no deficient performance.	Marsh argued evidence was insufficient to show he caused guard’s injuries.	Denied — counsel not deficient; no reasonable probability of success on sufficiency.
Was appellate counsel ineffective for not arguing trial counsel erred by not requesting a lesser-included offense instruction (and plain error in failing to give one)?	State argued failure to request was trial strategy; appellate counsel not ineffective for omitting a likely-strategic issue; no plain error.	Marsh argued omission of lesser-included instruction was a ‘‘dead-bang winner’’ and appellate counsel should have raised it.	Denied — matter of trial tactics (Griffie); no plain error; counsel not ineffective.

Strickland v. Washington, 466 U.S. 668 (established two-prong ineffective-assistance standard)
Lafler v. Cooper, 132 S. Ct. 1376 (right to effective assistance in plea consideration; remedies where prejudice shown)
Jones v. Barnes, 463 U.S. 745 (appellate counsel need not raise every nonfrivolous issue)
State v. Were, 120 Ohio St.3d 85 (appellate ineffective-assistance framework in Ohio)
State v. Thompkins, 78 Ohio St.3d 380 (sufficiency of the evidence standard)
State v. Jenks, 61 Ohio St.3d 259 (circumstantial evidence has same probative value as direct evidence)
State v. Griffie, 74 Ohio St.3d 332 (failure to request lesser-included instruction often trial strategy)