State v. McClendon
2013 Ohio 5172
Ohio Ct. App.2013Background
- McClendon pleaded guilty under Crim.R. 11 to two trafficking counts (cocaine and crack) and one heroin possession count; sentenced to an aggregate 6 years.
- He filed a pro se motion to withdraw his plea in trial court; it was denied and not appealed.
- This court affirmed his convictions and sentence on direct appeal; opinion journalized March 22, 2012.
- On October 9, 2013, McClendon filed a pro se App.R. 26(B) application to reopen his direct appeal alleging appellate counsel was ineffective.
- His asserted error: appellate counsel failed to argue the trial court erred in convicting and sentencing him for both trafficking and possession as allied offenses.
- The application was filed more than 18 months after journalization; McClendon did not allege any reason or "good cause" for the delay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether McClendon timely filed an App.R. 26(B) application | State: Application is untimely and must be denied absent good cause | McClendon: (implicit) application should be considered despite delay | Court: Application untimely (filed >90 days); no good cause alleged; deny |
| 2. Alleged ineffective assistance of appellate counsel for not raising allied-offense/plain-error argument | State: Merits not reached because of procedural default (untimeliness) | McClendon: Counsel was deficient and prejudice resulted from failure to raise allied-offense claim on appeal | Court: Did not reach merits due to failure to show good cause; application denied |
Key Cases Cited
- State v. Gumm, 103 Ohio St.3d 162 (explaining the importance of enforcing App.R. 26(B) deadlines to protect finality and prompt resolution of ineffective-assistance claims)