2016 Ohio 48
Ohio Ct. App.2016Background
- Frederick McGowan, pro se, filed a timely App.R. 26(B) application to reopen his direct appeal challenging felony drug convictions affirmed by this court in State v. McGowan, 2015–Ohio–3429.
- Reopening sought relief on the basis that appellate counsel was ineffective for failing to raise a sufficiency-of-the-evidence challenge to the possession-of-heroin conviction.
- On direct appeal, counsel had argued that the heroin and cocaine convictions were against the manifest weight of the evidence; the court rejected that manifest-weight argument.
- McGowan now contends many of the same factual/credibility points that were raised as manifest-weight arguments demonstrate insufficiency of the heroin evidence.
- The court analyzed the App.R. 26(B) standard and applied the Strickland two-prong test as adopted in Ohio decisions for appellate ineffective-assistance claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for not raising a sufficiency challenge to the heroin possession conviction | State: counsel was not ineffective; the prior appeal addressed weight and encompassed sufficiency | McGowan: counsel should have separately argued insufficiency of the heroin evidence | Denied — no colorable claim: manifest-weight ruling necessarily included sufficiency, so insufficiency argument lacks reasonable probability of success |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-pronged standard for ineffective assistance of counsel)
- State v. Were, 120 Ohio St.3d 85 (Ohio 2008) (Ohio applies Strickland standard to appellate counsel claims)
- State v. Spivey, 84 Ohio St.3d 24 (Ohio 1998) (applicant must show deficient performance and reasonable probability of success)
- State v. Myers, 102 Ohio St.3d 318 (Ohio 2004) (applicant bears burden to show a genuine issue and a colorable claim of ineffective assistance)