2018 Ohio 5344
Ohio Ct. App.2018Background
- In 2016 a jury convicted Lewis J. Vance of aggravated murder (R.C. 2903.01(D)), murder, two counts of felonious assault, and tampering with evidence; other charges were acquitted.
- The trial court sentenced Vance to life without parole on aggravated murder and 36 months on tampering, to run consecutively; postrelease-control language was later found deficient on direct appeal.
- This court in State v. Vance remanded for proper imposition/notification of postrelease control and resentencing.
- On remand the trial court held an R.C. 2929.19 resentencing hearing, informed Vance of postrelease-control terms, and reaffirmed consecutive sentences; the appellate record did not include a transcript of that resentencing hearing.
- Vance filed numerous pro se motions (including a postconviction petition and an App.R. 26(B) application to reopen), which the trial court and this court mostly denied; several issues were previously litigated or deemed untimely.
- The Fourth District affirmed the resentencing judgment, reasoning that (1) absence of the resentencing transcript requires presuming regularity of the proceedings, and (2) the merits-based claims lack support or are barred by res judicata.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Vance) | Held |
|---|---|---|---|
| Adequacy of counsel at resentencing / request for new counsel | Trial court had counsel and no showing of prejudice; Vance must prove deficient performance and prejudice under Strickland | Counsel was unprepared, refused to argue, communications were adversarial; requested new counsel and asked counsel to file appeal | Affirmed — no transcript of resentencing; regularity presumed and prior App.R.26(B) issues were rejected; ineffective-assistance claim not shown |
| Legality/excessiveness of sentence on remand | Sentencing complied with remand and R.C. 2929.19; postrelease control was properly addressed on remand | Resentencing remains excessive and unconstitutional; sentencing did not comport with felony sentencing purposes | Affirmed — resentencing entry complied with remand; Vance failed to identify specific defect on remand |
| Alleged bias / abuse of discretion by trial court; denial of hearings and relief | Court properly ruled on motions; many claims were raised previously or were procedurally barred | Trial court acted with bias, refused mitigation hearings, denied Crim.R. 33 relief, and mishandled jury issues and transcripts | Affirmed — claims previously raised/decided or barred by res judicata; no record support due to missing transcript |
| Record adequacy / missing transcript for appeal | Appellant bears duty to provide record/transcript necessary to review assigned errors | Appellant sought transcripts and complained record transmission omitted them | Affirmed — under Knapp, absence of necessary transcript requires presuming regularity of proceedings; appellate review limited |
Key Cases Cited
- Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (1980) (when necessary portions of transcript are omitted, appellate court must presume regularity of lower-court proceedings)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance standard: deficient performance and prejudice)
- State v. Conway, 109 Ohio St.3d 412 (2006) (discussion of objective-reasonableness standard for counsel performance)
- Wozniak v. Wozniak, 90 Ohio App.3d 400 (1993) (appellant bears responsibility to provide record supporting assignments of error)
- Christy v. Summit Cty. Bd. of Elections, 77 Ohio St.3d 35 (1996) (presumption of regularity when record is incomplete)