State v. Wulff, 2011 Ohio 5146

Wulff timely filed App.R. 26(B) reopening to challenge an appellate judgment affirming his murder, tampering with evidence, and abuse of a corpse convictions.
The appellate court granted reopening in part, reinstated the appeal, vacated postrelease control, and remanded for proper resentencing on postrelease control.
The court found a reversible error in imposing five years of postrelease control for third-degree felonies and remanded for proper imposition.
The court rejected Wulff’s competency and compulsory-process claims as meritless given the plea colloquy and competency evaluation.
The decision cites Strickland/State v. Reed standards for reopening and reiterates appellate counsel is not required to raise meritless or redundant issues.
The remedy is limited to correction of postrelease-control imposition; other aspects of the sentence remain intact.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Issue 1: Was appellate counsel ineffective for not raising competency concerns?	Wulff argues trial competency issues were warranting appeal.	State contends competency was adequate based on the plea colloquy and evaluation.	No; competency issue not viable on appeal.
Issue 2: Was appellate counsel ineffective for not raising compulsory-process error?	Wulff argues right to compulsory process was violated and merits consideration on appeal.	State argues the court explained compulsory process adequately.	No; claim not viable on appeal.
Issue 3: Was the five-year postrelease-control term improperly imposed for third-degree felonies?	Wulff asserts five years exceeds statutory maximum for postrelease control on third-degree felonies.	State contends imposition was proper per prior law.	Reversed in part; vacate/postrelease-control term remanded for correct imposition.

State v. Reed, 74 Ohio St.3d 534 (1996) (establishes two-prong Strickland test for reopening under App.R. 26(B))
State v. Spivey, 84 Ohio St.3d 24 (1998) (requires colorable claim of ineffective assistance on appeal)
Jones v. Barnes, 463 U.S. 745 (1983) (counsel not required to raise every error; strategic decisions allowed)
State v. Grimm, 73 Ohio St.3d 413 (1995) (limits on meritless assignments on appeal)
State v. Campbell, 69 Ohio St.3d 38 (1994) (endorsement of strategic winnowing on appeal)
State v. Reed, 74 Ohio St.3d 534 (1996) (see above (reiterated standard))
State v. Street, Cuyahoga App. No. 85020, 2005-Ohio-1976 (2005) (reopening framework and postrelease-control considerations)
State v. Fischer, 128 Ohio St.3d 92 (2010) (reopening remedies and remand for proper imposition)