State v. Wade
2017 Ohio 4135
Ohio Ct. App.2017Background
- Andre Wade convicted by jury of rape (R.C. 2907.02(A)(2)), drug possession, and misdemeanor assault after encountering two minors in the woods; sentence: aggregate 12 years.
- On direct appeal, appellate counsel raised four assignments of error (ineffective trial counsel, admission of sanity-evaluation statements, insufficiency and manifest-weight challenges to rape conviction); this court affirmed.
- Wade filed a timely pro se App.R. 26(B) application to reopen his appeal alleging appellate ineffective assistance (failure to raise certain issues and failure to advise on post-conviction deadlines).
- Wade’s application included a sworn affidavit but did not supply the portions of the record he relied on, as required by App.R. 26(B)(2)(e).
- The court reviewed whether Wade made a colorable claim of ineffective appellate assistance under Strickland (deficient performance + prejudice) and whether the omitted claims would have been viable.
- Court denied reopening: procedural defect (missing record portions) and on the merits found proposed assignments either trial tactics or unsupported by evidence, so no reasonable probability of success on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether application complied with App.R. 26(B) record requirement | State: applicant must provide available portions of record; failure warrants denial | Wade: provided affidavit but not record excerpts | Court: Denied—Wade failed to supply required record portions, so application properly denied |
| Whether appellate counsel was ineffective for not arguing trial counsel’s failure to request lesser-included instruction (sexual battery) | State: no colorable claim because defense strategy and evidence supported rape; failure to request was trial tactic | Wade: trial counsel ineffective for not requesting sexual-battery instruction; trial court plain-error by not giving it sua sponte | Court: No ineffective assistance—requesting lesser would contradict defense strategy; evidence supported rape; trial tactic not plain error |
| Whether appellate counsel was ineffective for not arguing trial counsel’s overall ineffectiveness | State: prior direct-appeal assignments were adjudicated and meritless | Wade: counsel should have raised trial counsel ineffectiveness more/better | Court: No colorable claim—appellate counsel’s choices reasonable and issues lacked probable success |
| Whether appellate counsel was ineffective for failing to inform Wade of post-conviction deadlines | State: claim unsupported by evidence and post-conviction is separate remedy | Wade: counsel failed to inform him of filing deadlines for post-conviction relief | Court: Denied—no evidentiary support and not a basis to reopen direct appeal |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance test)
- State v. Wine, 140 Ohio St.3d 409 (lesser-included instruction required only if evidence would reasonably support acquittal on charge and conviction on lesser offense)
- State v. McNeill, 83 Ohio St.3d 457 (App.R. 26(B) requires applicant to supply record portions; failure warrants denial)
- State v. Sanders, 75 Ohio St.3d 607 (standard for reopening: colorable claim of ineffective assistance on appeal)
- State v. Bradley, 42 Ohio St.3d 136 (Ohio restatement of Strickland standard)
- State v. Hamblin, 37 Ohio St.3d 153 (competence of licensed counsel presumed)