2023 Ohio 883
Ohio Ct. App.2023Background
- Talley was indicted on 12 trafficking counts and pleaded guilty to seven counts pursuant to a written plea form; the court ordered a PSI after the plea.
- At sentencing the court imposed six 12‑month and one 6‑month terms, with multiple counts ordered consecutive, producing a 42‑month aggregate prison term.
- On direct appeal (Talley I) this court affirmed the consecutive sentences, finding the record did not clearly and convincingly fail to support the trial court’s findings; the Supreme Court declined jurisdiction (Talley II).
- Talley filed a pro se App.R. 26(B) application claiming appellate counsel was ineffective for not arguing the trial court breached a written plea agreement that allegedly promised a 12‑month concurrent sentence and waived the PSI.
- This court granted reopening because Talley attached a different version of the plea form that appeared to contain an agreed 12‑month concurrent sentence; after appointment of new appellate counsel the record‑filed plea agreement (signed by parties and judge) contained no sentence agreement.
- The court held that appellate counsel’s performance was not deficient, the official plea in the record did not promise a 12‑month agreed sentence, and it affirmed the trial court’s judgment.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Talley) | Held |
|---|---|---|---|
| 1. Were consecutive sentences unsupported by the record (proportionality)? | Record supports trial court’s consecutive‑sentence findings; prior appeal argued and rejected. | Record clearly and convincingly fails to support consecutive findings; sentences improper. | No error; prior appeal raised and rejected this; no deficient appellate performance. |
| 2. Did the trial court breach a written plea agreement promising a 12‑month concurrent sentence and fail to advise Talley it would not be bound? | The official plea in the record contains no agreed sentence; court not bound by an unrecorded agreement. | Parties agreed to a 12‑month concurrent sentence and waiver of PSI; court abused discretion and failed to advise Talley it would not follow the agreement. | The signed plea in the record had no sentence agreement; Talley’s attached version differed and was not in the record; claim fails. |
| 3. Was trial counsel ineffective for not objecting/reminding the court of the agreed sentence or moving to withdraw pleas? | No written agreed sentence exists in the record, so counsel had no meritorious basis to object or move to withdraw. | Trial counsel failed to enforce the parties’ agreed sentence and should have moved to withdraw pleas. | No deficient performance—no written agreement in the record to support such objections or motions. |
| 4. Was appellate counsel ineffective for failing to raise the agreed‑sentence claim on direct appeal? | Appellate counsel reasonably litigated the consecutive‑sentence claim; no good basis in the official record for an agreed‑sentence argument. | Appellate counsel should have raised the plea‑agreement breach and trial‑counsel ineffectiveness. | No deficient performance by appellate counsel; reopening did not change that conclusion. |
Key Cases Cited
- State v. Leyh, 166 Ohio St.3d 365, 185 N.E.3d 1075 (Ohio 2022) (explaining App.R. 26(B) two‑stage procedure and burden for reopening)
- State v. Spivey, 84 Ohio St.3d 24, 701 N.E.2d 696 (Ohio 1998) (applicant bears burden to show a colorable claim of ineffective assistance on appeal)
- State v. Talley, 167 Ohio St.3d 1499, 193 N.E.3d 584 (Ohio 2022) (Supreme Court declined jurisdiction)