2022 Ohio 801
Ohio Ct. App.2022Background
- David Wagner timely filed an App.R. 26(B) application to reopen his direct appeal that had affirmed consecutive prison terms totaling 15 years.
- Wagner contends appellate counsel was ineffective for failing to raise trial-counsel omissions on appeal: specifically, the competency evaluation and the presentence investigation report (PSI) were not included in the record.
- Wagner asserts the competency report and PSI contained mitigation that might have led to a lesser sentence.
- The court relied on the two-stage App.R. 26(B) framework (as explained in the Ohio Supreme Court’s recent Leyh decision) — at the first stage an applicant must show a genuine issue that appellate counsel was ineffective.
- The court found Wagner established a genuine issue and a reasonable probability the outcome on appeal could differ if the omitted materials had been raised, granted reopening, appointed new appellate counsel, and ordered the record reassembled and supplemented with the competency report, the PSI, and any other omitted material.
- The reopened appeal is limited to the eight assignments of error in Wagner’s application; issues previously decided in the original appeal are not reopened.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wagner made a sufficient showing under App.R. 26(B) to reopen his direct appeal for alleged ineffective assistance of appellate counsel | Appellee argued reopening was not warranted because applicant had not shown a genuine issue of ineffective assistance at the first-stage threshold | Wagner argued appellate counsel was deficient for failing to include the competency report and PSI in the record, and those omissions raise a genuine issue that appellate counsel was ineffective | Court held Wagner met the first-stage standard: a genuine issue exists and there is a reasonable probability the appeal's outcome could differ, so reopening granted |
| Whether failure to include competency evaluation and PSI in the record can support an ineffective-assistance-of-appellate-counsel claim | Prosecution implicitly disputed the sufficiency of the claim (i.e., that omissions were prejudicial) | Wagner asserted those documents contained mitigation relevant to sentencing and would have supported assignments of error on appeal | Court treated the omission as raising a colorable claim of prejudice at the reopening stage and permitted supplementation of the record with those materials |
| Whether an App.R. 26(B) applicant must conclusively prove ineffective assistance at the reopening stage | State argued the applicant must show more than a mere possibility of success on reopening | Wagner relied on Leyh and argued that only a genuine issue (not conclusive proof) is required at stage one | Court applied Leyh: applicant need only show a genuine issue at the first stage; conclusive proof is not required to obtain reopening |
| Relief and scope if reopening is granted | Appellee urged maintaining the original appellate record and decision scope | Wagner requested reassembly of the record, supplementation with omitted materials, appointment of counsel, and reopening limited to his proposed assignments | Court ordered reassembly/transmission of the record within 45 days, permitted supplementation with the competency report and PSI, appointed new counsel, limited the reopened appeal to Wagner’s eight assignments, and set briefing requirements |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-prong test for ineffective assistance of counsel: deficiency and prejudice)
- State v. Spivey, 84 Ohio St.3d 24 (1998) (applicant must show appellate counsel was deficient and there was a reasonable probability the outcome would differ to prevail on App.R. 26(B) reopening)