State v. Tabasso
2013 Ohio 3721
Ohio Ct. App.2013Background
- Tabasso timely filed an application under App.R. 26(B) to reopen the appellate judgment affirming felonious assault conviction in State v. Tabasso, 8th Dist. Cuyahoga No. 98248, 2012-Ohio-5747.
- The reopened issue would be whether appellate counsel was ineffective for not raising certain assignments of error.
- The court applies a two-prong standard requiring a genuine issue of colorable claim of ineffective assistance and a reasonable probability of success on appeal.
- The court may deny reopening if the applicant fails to meet the Strickland/Reed-Spivey framework or if res judicata bars review of issues already raised.
- Tabasso raised six proposed assignments of error; the court assesses each for merit and notices application of res judicata to weight-related claims.
- The application for reopening is denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for not raising certain issues | Tabasso argues colorable ineffectiveness of appellate counsel | State defends counsel's strategic discretion and meritless issues | Rejected; no reasonable probability of success; no colorable claim |
| Whether prosecutorial misconduct or inconsistent victim testimony would have changed the outcome | Tabasso claims prosecutor misstated evidence and victim injuries | Record shows victim sustained rib, skull, and jaw injuries; credibility for trier of fact | Not weighty enough to alter result; within trial-court credibility assessment |
| Whether the conviction was against the manifest weight of the evidence (res judicata applies) | Tabasso asserts weight of the evidence invalidates conviction | Weight issues were decided on direct appeal; cannot relitigate | Denied due to res judicata; previously resolved on direct appeal and not unjust to apply it |
| Whether appellate counsel erred by not raising lesser-included offense instructions | Failure to request lesser-included offenses was deficient | Strategy and law do not require such instructions; aggravated assault not lesser-included | No ineffective assistance; jury instructions on lesser offenses not mandatory; strategy justified |
| Whether restitution awards were plain error due to insufficient certainty | Restitution lacked reasonable certainty | Victim testified to medical bills and lost wages supporting awarded amounts | No plain error; credible evidence supports restitution amounts |
Key Cases Cited
- State v. Reed, 74 Ohio St.3d 534 (1996-Ohio-21) (two-prong Strickland/Reed standard for reopening under App.R. 26(B))
- State v. Spivey, 84 Ohio St.3d 24 (1998-Ohio-704) (colorable claim of ineffective assistance on appeal; genuine issue required)
- State v. Smith, 95 Ohio St.3d 127 (2002-Ohio-1753) (colorable claim standard for reopening; credibility considerations)
- Jones v. Barnes, 463 U.S. 745 (1983) (counsel not ineffective for omitting non-meritless issues; strategic discretion)
- Strickland v. Washington, 466 U.S. 668 (1984) (deferential standard; strong presumption of reasonable performance; focus on main issues)
- State v. Griffie, 74 Ohio St.3d 332 (1996-Ohio-71) (trial-strategy matters; not ineffective assistance to withhold lesser-included offenses)
- State v. Clayton, 62 Ohio St.2d 45 (1980) (jury instructions; not automatically entitled to lesser-included offenses)
- State v. Perry, 10 Ohio St.2d 175 (1967) (res judicata principle in post-appeal review)