2021 Ohio 3453
Ohio Ct. App.2021Background
- Francisco Vasquez was indicted on multiple sexual-offense counts involving his daughter and pled guilty to five counts of sexual battery (each amended to third-degree felonies).
- The trial court ordered a presentence investigation report (PSI), victim impact statement, and psychosexual evaluation; Vasquez was sentenced to five consecutive five-year terms (25 years total).
- On direct appeal this Court affirmed; the appellate record did not contain the PSI, and the Court presumed regularity in the proceedings.
- In August 2020 Vasquez moved the trial court to disclose the PSI to new counsel, asserting he would file a post-conviction petition and that appellate counsel’s failure to obtain the PSI showed ineffective assistance on direct appeal.
- The State argued no statutory basis existed to release the PSI and that ineffective-assistance claims for appellate counsel are not properly raised in post-conviction proceedings; the trial court denied the motion.
- Vasquez appealed the denial, arguing R.C. 2951.03 and State v. Johnson permit access to the PSI for his intended post-conviction proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying disclosure of the PSI to new counsel for use in a future post-conviction petition | Vasquez: R.C. 2951.03 and State v. Johnson entitle defendant’s counsel (including new/appellate counsel) to access the PSI; he needs it to pursue post-conviction relief and to show appellate counsel ineffective | State / Trial Ct.: No statutory authority to release PSI in this procedural posture; Johnson addresses access for direct appeals and due-process/effective-assistance concerns not present in post-conviction; there is no constitutional right to counsel or effective assistance in state post-conviction; appellate ineffectiveness claims are raised via App.R. 26(B) | Affirmed. Trial court properly denied disclosure. Johnson does not apply to post-conviction requests; no statutory duty to provide PSI for post-conviction purposes; appellate-ineffectiveness claims belong under App.R. 26(B). |
Key Cases Cited
- State v. Johnson, 138 Ohio St.3d 282 (Ohio 2014) (construed R.C. 2951.03 to permit appellate counsel access to PSI on a proper showing to protect appellate rights)
- Pennsylvania v. Finley, 481 U.S. 551 (U.S. 1987) (no constitutional right to counsel in state post-conviction proceedings)
- Coleman v. Thompson, 501 U.S. 722 (U.S. 1991) (federal right to counsel does not extend to state collateral review)
- State v. Crowder, 60 Ohio St.3d 151 (Ohio 1991) (no constitutional right to counsel in postconviction proceedings)
- Morgan v. Eads, 104 Ohio St.3d 142 (Ohio 2004) (claims of ineffective assistance of appellate counsel are properly raised by Application for Reopening under App.R. 26(B))