State v. Waltzer, 2011 Ohio 5147

Waltzer was convicted by a jury of felonious assault and domestic violence, with concurrent sentences.
This court previously affirmed the judgment on direct appeal.
Waltzer filed an application for reopening under App.R. 26(B), arguing ineffective assistance of appellate counsel.
Grounds include alleged trial-counsel ineffectiveness, a mid-trial judge substitution, and allied-offenses assertion.
The court reviewed the record and the applicable standards, citing Spivey and Reed, and denied reopening on the merits.
Judge Gallagher presided the verdict; Judge Matia presided the sentencing; record gaps regarding judge substitution were noted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate counsel was ineffective.	Waltzer contends appellate counsel failed to raise trial-ineffectiveness issues.	Waltzer asserts counsel should have raised the issues on appeal.	Denied; no colorable, record-supported claim shown.
Whether waiver/prejudice exists for judge substitution.	Waltzer alleges improper substitution of judges during trial.	No preserved objection shown in the record.	Denied; error not preserved; waiver applies.
Whether felonious assault and domestic violence are allied offenses of similar import.	Counsel should have argued merger under R.C. 2941.25 and Johnson.	The record shows circumstances suggesting similarity of import may apply.	Denied; insufficient showing of reasonable probability of success on appeal.
Whether the Johnson-Damron framework supports reversal of allied-offense findings.	Johnson requires merger analysis so offenses may merge.	Damron and post-Johnson decisions govern merger; no reversal here.	Denied; not meet reopening standard.
Whether the record supports reopening for other asserted ineffectiveness grounds.	Other alleged issues relied on outside-record materials.	Outside-record materials cannot support reopening.	Denied; outside-record allegations do not justify reopening.

State v. Spivey, 84 Ohio St.3d 24 (1998-Ohio-704) (two-prong Strickland standard for 26(B)(5) reopening)
State v. Reed, 74 Ohio St.3d 534 (1996-Ohio-458) (application of Strickland to reopening; colorable claim required)
State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (allied offenses framework under R.C. 2941.25)
State v. Damron, 129 Ohio St.3d 86 (2011-Ohio-2268) (merger vs. concurrent sentencing; merger not automatic)
State v. Gulley, 2011-Ohio-4123 (Ohio) (post-Johnson treatment of domestic violence and felonious assault as allied offenses)
In re J.J., 111 Ohio St.3d 205 (2006-Ohio-5484) (preservation/waiver rules for appellate errors)
State v. Hicks, Cuyahoga App. No. 83981 (2005-Ohio-1842) (matters outside record not basis for reopening)
State v. Coleman, 85 Ohio St.3d 129 (1999-Ohio-258) (postconviction remedies for ineffective assistance claims)