THE STATE OF OHIO, APPELLEE, v. LEYH, APPELLANT.
SLIP OPINION NO. 2022-OHIO-292
SUPREME COURT OF OHIO
February 8, 2022
2022-Ohio-292
No. 2020-0819. Submitted April 28, 2021.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Leyh, Slip Opinion No. 2022-Ohio-292.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Leyh, Slip Opinion No. 2022-Ohio-292.]
Appellate law—App.R. 26(B)—Under App.R. 26(B), the determination whether appellate counsel was deficient and prejudiced an applicant is to be made after the appeal has been reopened and the parties are afforded the opportunity to have counsel, transmit the necessary record, and substantively brief the issues—Court of appeals’ judgment reversed.
APPEAL from the Court of Appeals for Summit County, No. 29298,
DONNELLY, J.
{1} Under
Background
{2} Leyh pleaded guilty to an indictment that charged him with two counts of gross sexual imposition in violation of
{3} The trial court‘s sentencing entry stated that it had “performed an analysis concerning allied offenses in regard to State v. Johnson and finds that the charges to the Indictment are not allied offenses of similar import, and do not merge for purposes of sentencing herein.”1 The entry also stated that “[n]either the state nor defense counsel objected to the Court‘s determination.”
{4} On January 22, 2019, Leyh‘s trial counsel filed the notice of appeal. Counsel contemporaneously filed a docketing statement indicating that the record would include “a full or partial transcript of proceedings prepared for [the] appeal by a court reporter appointed by the trial court, who [counsel] served with a praecipe that [counsel] also filed with [the] court.” The record does not reflect that a praecipe was ever served upon the court reporter or filed with the court.
{5} On March 5, 2019, the clerk of court notified the parties that the record had been filed with the court of appeals and that the record consisted of a transcript of the docket and the journal entries. The notice did not reflect that the record included a full or partial transcript of proceedings prepared by the court reporter.
{6} On April 12, 2019, Leyh‘s appellate brief was filed. Counsel raised one assignment of error: “THE TWO COUNTS OF GROSS SEXUAL IMPOSITION UNDER R.C. 2907.05(A)(1) AND GROSS SEXUAL IMPOSITION UNDER R.C. 2907.05(A)(5) ARE ALLIED OFFENSES OF SIMILAR IMPORT AND SHOULD HAVE MERGED FOR SENTENCING
{7} In its merit brief in the court of appeals, the state pointed out that Leyh had “failed to ensure that a transcript of the sentencing hearing was made a part of the appellate record.” The state further noted: “A review of the record bears no indication that Appellant filed a praecipe with the court reporter to prepare transcripts of the hearing. Thus, no transcripts were ever prepared or transmitted to the clerk of the court of appeals.” Leyh‘s appellate counsel still took no action to secure the hearing transcripts for Leyh‘s appeal.2
{8} The state separately moved to strike the confidential PSI pursuant to
{9} On September 11, 2019, the court of appeals unanimously overruled Leyh‘s single assignment of error without reaching the merits. The court of appeals reasoned that due to the incomplete record, it was compelled to presume regularity in the lower-court proceedings and affirm the trial court‘s judgment. 2019-Ohio-3640, ¶ 7.
{10} On November 13, 2019, represented by new appellate counsel, Leyh filed a timely application to reopen his direct appeal pursuant to
{11} Although the state did not oppose Leyh‘s
{12} On September 1, 2020, we accepted Leyh‘s discretionary appeal which proffered the following proposition of law:
In order to ensure that an appellant who has been convicted of a felony offense has a meaningful right to appeal, a district court must grant an App.R. 26(B) application to reopen when there are one or more colorable issues identified in that application, and prior appellate counsel failed to ensure that a complete record—including all relevant transcripts—was made for appellate review.
See 159 Ohio St.3d 1487, 2020-Ohio-4232, 151 N.E.3d 639.
{13} Concluding that Leyh failed to show that “there was a reasonable probability that he would have been successful” if the sentencing-hearing transcripts and PSI had been included in the record, the court of appeals determined that there was no genuine issue presenting a colorable claim of ineffective assistance of appellate counsel and accordingly denied Leyh‘s application to reopen his appeal under
Standard of Review
{14} Because the Ninth District‘s decision involves the interpretation and application of a rule of appellate procedure, it presents a question of law, and we review questions of law de novo, see State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 9 (the interpretation of a statute is a matter of law that is reviewed de novo); Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13 (a lower court‘s interpretation of the law is reviewed de novo).
Application for Reopening a Direct Appeal Under App.R. 26(B)
{15} In State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), superseded by rule as stated in State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, this court held that claims of ineffective assistance of appellate counsel were not cognizable in postconviction proceedings pursuant to
{16} One year after this court announced its decision in Murnahan, and in direct response to that decision,
App.R. 26(B) creates a special procedure for a thorough determination of a defendant‘s allegations of ineffective assistance of counsel. The rule creates a separate forum where persons with allegedly deficient appellate counsel can vindicate their rights.
{17} Claims of ineffective assistance of appellate counsel under
{18} In accordance with the Strickland analysis, an applicant must show that (1) appellate counsel‘s performance was objectively unreasonable, id. at 687, and (2) there is “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different,” id. at 694. See Smith v. Robbins, 528 U.S. 259, 285-286, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland at 694. As explained hereafter,
App.R. 26(B)‘s Two-Stage Procedure
{19}
{20} At that first stage, the applicant must apply to have his appeal reopened following the procedure set out in
{21} The application for reopening “shall be granted if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal.”
{22} If the court of appeals grants the application, then the matter proceeds to the second stage of the procedure, which “involves filing appellate briefs and supporting materials with the assistance of new counsel, in order to establish that prejudicial errors were made in the trial court and that ineffective assistance of appellate
{23} If an applicant who proceeds to stage two is indigent and not represented by counsel,
{24}
If the court finds that the performance of appellate counsel was deficient and the applicant was prejudiced by that deficiency, the court shall vacate its prior judgment and enter the appropriate judgment. If the court does not so find, the court shall issue an order confirming its prior judgment.
To put it differently, the prior appellate judgment may not be altered unless the applicant establishes at the second stage that the direct appeal was meritorious and failed because appellate counsel rendered ineffective assistance under the two-pronged Strickland standard. See 1993 Staff Notes to
{25} Thus, the two-stage procedure prescribed by
The Ninth District‘s Application of App.R. 26(B)
{26} This case concerns the Ninth District‘s determination at the first procedural stage that Leyh‘s prior appellate counsel‘s failure to include in the record Leyh‘s sentencing-hearing transcript and/or PSI did not present a “genuine issue” as to whether Leyh had a “colorable claim” of ineffective assistance of appellate counsel. The court of appeals acknowledged that Leyh‘s original appellate counsel‘s performance was deficient by failing to file a complete record for review on
{27} The court of appeals nevertheless denied Leyh‘s application to reopen because the application did not show that “there was a reasonable probability that he would have been successful” had the sentencing-hearing transcripts and PSI been included in the record for his direct appeal. Id. The court of appeals erred, however, by requiring that Leyh establish at the first procedural stage a showing of virtual, if not certain, success of his
Genuine Issue as to Whether Counsel‘s Deficient Performance Prejudicially Affected the Outcome of the Appeal
{28} Leyh‘s
{29} Leyh readily fulfilled
{30} By any measure, Leyh‘s substantiated assertion that appellate counsel‘s deficient representation prejudicially affected the outcome of his appeal presented a genuine issue as to whether Leyh was deprived of the effective assistance of appellate counsel, readily satisfying the basic elements that are necessary to sustain such a claim under the standard in Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See Simpson, 164 Ohio St.3d 102, 2020-Ohio-6719, 172 N.E.3d 97, at ¶ 26 (O‘Connor, C.J., concurring) (appellate counsel‘s failure to raise disproportionate sentencing issues demonstrated at least a
{31} Here, however, the court of appeals faulted Leyh‘s
{32} The court of appeals further faulted Leyh‘s
{33} Aside from erroneously requiring that the second-procedural-stage showing be made at the first procedural stage, at which mere permission to proceed is sought, the Ninth District‘s insistence on a full-blown presentation of the merits of the direct appeal and the claim for ineffective assistance of appellate counsel at that point ignores practical realities. Before an application to reopen has been granted, the applicant has no right to an
{34} Perhaps most fundamentally, the court of appeals denied Leyh‘s
See Simpson, 164 Ohio St.3d 102, 2020-Ohio-6719, 172 N.E.3d 97, at ¶ 29 (Fischer, J., concurring) (acknowledging concern that the “review of applications for reopening under App.R. 26(B) has evolved from reviewing for genuine issues that could have been argued on appeal to reviewing the merits of those issues“).
{35} As we have noted, the structure and text of
{36} The fact that the trial court‘s journal entry recited that the court performed without objection by any party an allied-offense analysis pursuant to Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, before deciding not to merge Leyh‘s offenses does not necessarily insulate that decision from appellate review.3 Leyh‘s sentencing-hearing transcript and perhaps his PSI—either will or will not bear out whether the trial court performed a proper merger analysis and was without objection from the parties. But those are issues for the court of appeals to consider in the first instance in a reopened appeal.
{37} We note that the determination that a genuine issue of ineffective assistance of appellate counsel exists is not a determination of ineffective assistance of appellate counsel. See State v. Fain, 188 Ohio App.3d 531, 2010-Ohio-2455, 936 N.E.2d 93, ¶ 20 (1st Dist.) (Cunningham, P.J., concurring in part and dissenting in part) (“[A] court‘s determination that an App.R. 26(B) claim is colorable is not determinative of the court‘s ultimate disposition of a reopened appeal“), abrogated on other grounds by State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509. Under
{38} We further emphasize that the mere failure to order a transcript does not
{39} In this case, however, the court of appeals jumped the analytical gun by requiring under
Conclusion
{40} The Ninth District‘s judgment is reversed, and the cause is remanded to that court for further proceedings pursuant to
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and STEWART and BRUNNER, JJ., concur.
DEWINE, J., dissents, with an opinion joined by KENNEDY and FISCHER, JJ.
DEWINE, J., dissenting.
{41}
{42} I‘d follow the rule this court has adopted. And I‘d stick to our precedent. Because the majority does neither, I dissent.
I. Background
{43} Clarence Leyh was convicted after pleading guilty to four felony counts of gross sexual imposition,
{44} On appeal, Leyh argued that the felony counts of gross sexual imposition under
{45} Leyh‘s challenge on appeal ran into two problems. First, the trial court stated in its journal entry that it had conducted a merger analysis. The journal entry provided: “The Court performed an analysis concerning allied offenses in regard
{46} Second, the record did not support Leyh‘s merger argument. Significantly, Leyh‘s counsel had failed to ensure that a transcript of the sentencing hearing was filed as part of the record on appeal. Thus, there was nothing in the record to suggest that the trial court erred in failing to merge the counts.
{47} The court of appeals concluded that because Leyh failed to include sufficient materials in the record to allow it to review his assignment of error, it could not reach the merits of his argument. As a result, the court of appeals presumed regularity in the trial-court proceedings and affirmed the trial court‘s judgment.
{48} Leyh subsequently acquired new counsel, who filed an application to reopen his direct appeal under
{49} The court of appeals denied Leyh‘s application. It noted that
II. Analysis
{50} The majority holds that the court of appeals improperly required Leyh to show prejudice from his appellate counsel‘s failure to ensure that the sentencing transcript and presentence-investigation report were made part of the record on appeal. The majority is wrong.
A. The showing required to reopen an appeal
{51} Up until today, we have been clear about the requirements to reopen an appeal. Under
{52} We recently reaffirmed that we apply the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to determine whether an application for reopening presents a colorable claim of ineffective assistance of counsel. Simpson at ¶ 14; see also
{53} The two-pronged Strickland standard is reflected in the language of
{54} The prejudice requirement “arises from the very nature * * * of the right to * * * effective * * * representation.” (Emphasis in original.) United States v. Gonzalez-Lopez, 548 U.S. 140, 147, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). Thus, “[c]ounsel cannot be ‘ineffective’ unless his mistakes have harmed the defense (or, at least, unless it is reasonably likely that they have)” and a violation of the right to effective representation “is not ‘complete’ until the defendant is prejudiced.” Id.
B. Leyh has failed to make a colorable showing that counsel‘s deficient performance affected the outcome of his appeal
{55} I agree with the majority that Leyh has met the first part of the test for reopening an appeal: he has made a colorable showing that his counsel was deficient for failing to supply record materials that would allow the court to evaluate the merger argument. The problem, though, is that Leyh has not satisfied the second part. He has not set forth anything to indicate that he was prejudiced by this failure.
{56} Under the second-prong of the test, Leyh must make a colorable showing that his prior counsel‘s deficient performance ” ‘prejudicially affected the outcome of the appeal.’ ” Simpson, 164 Ohio St.3d 102, 2020-Ohio-6719, 172 N.E.3d 97, at ¶ 12, quoting
{57} And here, Leyh offers nothing. He does not contend that the outcome of his appeal would have been different had the omitted materials been included in the record. All Leyh submitted in his application was his counsel‘s affidavit. And the only statement in the affidavit that even comes close to dealing with prejudice is the following: “It is my opinion that appellate counsel‘s nonfeasance prejudiced Mr. Leyh, as otherwise the Court of Appeals would have considered the merits of the appellate brief on a complete record, instead of an incomplete record.”
C. The Majority Reads the Prejudice Requirement Out of the Rule
{59} The majority acknowledges
{60} But an inability to consider the merits of an argument does not necessarily equate with prejudice. As the rule itself makes clear, something is prejudicial only when it “affect[s] the outcome of the appeal.” (Emphasis added.)
{61} The majority also makes much of the fact that
{62} The majority‘s approach ignores the requirement set forth in our rule and affirmed by our precedent that the application for reopening include a sworn statement explaining “the manner in which the deficiency prejudicially affected the outcome of the appeal.”
{63} The majority suggests that the need to make a colorable claim of prejudice puts Leyh in a catch-22 because the sentencing-hearing transcript is not a part of the record precisely because of his counsel‘s deficient performance. But an application for reopening is a postconviction remedy collateral to a direct appeal, which means an applicant may attach to his application material that is not a part of the trial record. See Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 9, 11-12, citing
{64} There is nothing that prevented Leyh from ordering the transcript of the sentencing hearing for use in connection with his application for reopening. And if the omitted portions of the trial record did in fact demonstrate that an allied-offense argument would have had merit, Leyh could have attached the relevant portions of the trial record to the affidavit he filed with his application for reopening.
{65} The majority also posits that there may be situations in which a defendant may not be able to obtain a transcript to substantiate a claim of ineffective assistance. But the affidavit submitted by Leyh‘s attorney does not indicate that that is the case here. And even if that had been the case, nothing precluded Leyh from submitting other materials in an attempt to meet his burden to show “the manner in which the deficiency prejudicially affected the outcome of the appeal.”
III. Conclusion
{66} The court of appeals did not err in denying Leyh‘s application for reopening.
KENNEDY and FISCHER, JJ., concur in the foregoing opinion.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven DiMartino Guest, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Addison M. Spriggs, Assistant Public Defender, for appellant.