State of Ohio v. Michael A. Long
No. 20AP-90
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
May 12, 2022
[Cite as State v. Long, 2022-Ohio-1601.]
DORRIAN, J.
(C.P.C. No. 15CR-3564) (REGULAR CALENDAR)
Rendered on May 12, 2022
On brief: G. Gary Tyack, Prosecuting Attorney, and Paula M. Sawyers, for appellee.
On brief: Timothy Young, Ohio Public Defender, and Addison M. Spriggs, for appellant.
ON APPLICATION FOR REOPENING
DORRIAN, J.
{1} Defendant-appellant, Michael A. Long, has filed a timely application, pursuant to
{2} On July 22, 2015, a Franklin County Grand Jury indicted appellant on the following charges alleged to have occurred on or about July 17, 2015: aggravated burglary in violation of
{3} Appellant proceeded to trial on August 1, 2016 and was found guilty of all charges pursuant to jury verdict and sentenced to 25 years to life. Appellant appealed the judgment entry filed September 12, 2016. This court rendered a decision reversing and remanding the matter for a new trial based on the trial court‘s violation of appellant‘s Sixth Amendment right to a public trial. State v. Long, 10th Dist. No. 16AP-708, 2017-Ohio-9322, ¶ 34.
{4} On remand, appellant voluntarily waived and relinquished his right to a trial by jury, electing the matter be heard by the trial judge. Trial commenced October 29, 2019 and concluded January 16, 2020. The trial court rendered judgment on the record on the last day of trial finding appellant guilty of the offenses alleged in the indictment, with the exception of the firearm specification accompanying the murder charge. On February 7, 2020, appellant was sentenced to an aggregate prison sentence of 64 years to life.
{5} Appellant filed a direct appeal of the judgment, raising four assignments of error: (1) the trial court‘s error in admitting victim-impact testimony during the course of the trial was not harmless, requiring reversal of appellant‘s convictions, (2) the evidence for felony murder was legally insufficient because a reasonably unforeseeable intervening act caused Cooper‘s death, absolving appellant of criminal liability for it, (3) because the evidence weighed manifestly against convicting appellant, reversal of his felony murder conviction and the felonious assault against Shawn is required, and (4) appellant‘s aggravated burglary, kidnapping, aggravated robbery, and attempted theft counts are subject to merger.
{6} On August 4, 2021, this court affirmed the trial court‘s judgment. See State v. Long, 10th Dist. No. 20AP-86, 2021-Ohio-2656, ¶ 68. We first found the trial court did not abuse its discretion in admitting relevant testimony and any error in admitting non-relevant testimony did not impact the fairness of the bench trial or the trial court‘s findings of guilt. We further found unpersuasive appellant‘s sufficiency challenge that an unforeseeable intervening event absolves appellant of criminal liability and further, on the
{7} On October 29, 2021, appellant timely filed the instant application for reopening. In his application, appellant asserts he received ineffective assistance of appellate counsel for failing to raise an argument regarding vindictive sentencing.
{8}
{9} Pursuant to
{10} Under the Strickland test, as applied to an application for reopening, the applicant must demonstrate: (1) appellate counsel was deficient in failing to raise the issues
{11} Since the filing of this application and memorandum contra, the Supreme Court of Ohio released State v. Leyh, ___ Ohio St.3d ___, 2022-Ohio-292. In Leyh, the Supreme Court held it was error for an intermediate court of appeals to deny an application to reopen “by requiring [the applicant] to provide a demonstrable showing of ineffective assistance of appellate counsel and a likelihood of success on the merits of his direct appeal.” Id. at ¶ 13. The Supreme Court further held:
[T]he two-stage procedure prescribed by
App.R. 26(B) requires that the applicant seeking permission to reopen his direct appeal show at the first stage that there is at least a genuine issue—that is, legitimate grounds—to support the claim that the applicant was deprived of the effective assistance of counsel on appeal. SeeApp.R. 26(B)(5) . If that showing is made and the application is granted, the applicant must then establish at the second stage the merits of both the direct appeal and the claim for ineffective assistance of appellate counsel. SeeApp.R. 26(B)(9) .
(Emphasis added.) Id. at ¶ 25.
{12} Upon the request of this court, appellant and the state provided supplemental briefing on Leyh and its application herein. As we summarize the parties arguments below, we begin by noting that, on the question of deficiency, neither party in Leyh contested that the deficient performance by Leyh‘s appellate counsel was the failure to file a complete record for review. On the question of prejudice, however, the court held that the intermediate appellate court erred “by requiring that Leyh establish at the first procedural stage a showing of virtual, if not certain, success of his
{13} The state argues the court qualified its holding in Leyh in two regards:
First, the Court noted that “a mere failure to order a transcript does not necessarily create a genuine issue of ineffective assistance of appellate counsel when a transcript is not
necessary to support a particular argument.” Id. at ¶ 38.1 Second, “an App.R. 26(B) application based on a claim that that [sic] prior appellate counsel failed to effectively argue a particular assignment of error may require a more particularized showing that counsel‘s alleged deficient performance prejudicially affected the outcome of the appeal. But those are issues to be considered on a case-by-case basis as the circumstances may require.” Id. at ¶ 38.
(Emphasis added.) (State‘s Supp. Brief at 4-5, quoting Leyh.)
{14} The state notes that, in the case before us, appellant‘s application is based on a claim that prior appellate counsel failed to effectively argue a particular assignment of error and suggests, therefore, that Leyh requires a more particularized showing that appellant‘s prior appellate counsel‘s alleged deficient performance prejudicially affected the outcome of the appeal. The state argues for the reasons outlined in its November 10, 2021 memo contra that appellant‘s application fails to show a genuine issue of appellate counsel‘s ineffectiveness.
{15} Appellant argues that Leyh is directly applicable to this case and that Leyh did not limit the holding of the decision to a particular type of
{16} Appellant argues Leyh clarifies that a showing of “virtual, if not certain, success” on the claims raised in an
{18} Here, as we explain below, appellant: (1) made a more particularized showing that prior appellate counsel‘s alleged deficient performance prejudicially affected the outcome of the appeal, and (2) showed there is at least a genuine issue—that is, legitimate grounds—to support the claim that he was deprived of the effective assistance of counsel on appeal at this first stage.
{19} Appellant argues that his appellate counsel was ineffective for failing to raise an argument that the second sentencing court engaged in vindictive sentencing. Appended to appellant‘s application was the affidavit of appellant‘s counsel for the instant matter, Addison Spriggs, who affied in her professional opinion, competent counsel would have included a vindictive sentencing assignment of error and that appellate counsel‘s failure to do so prejudiced appellant as otherwise the court of appeals would have considered the merits of such assignment of error.
{20} As to deficiency, appellant states that his second sentence was 2.56 times longer than his first sentence despite appellant having been convicted of fewer2 felonies and firearm specifications, from 25 years to life to 64 years to life. Appellant argues that even though the second sentencing court was different from the first in this case, the second sentence is “alarmingly higher,” and therefore this court should presume that the sentence is vindictive. (Appellant‘s App. at 10.) In the alternative, appellant argues, if the presumption does not apply, Ohio law requires that the reasons for the more severe
{21} As to prejudice, appellant argues that his appellate counsel‘s deficient performance substantially prejudiced his appeal.
{22} Appellant also asserts there is a reasonable probability that this court would have vacated his sentence and either reduced his sentence or remanded for resentencing in line with his original sentence had appellate counsel raised a vindictive sentence argument on direct appeal. Appellant observes that the “increase transformed [appellant‘s] sentence from one where he may receive parole at some point in the future, to one that is functional life in prison without the possibility of parole. It ensures [appellant] will die in prison because he will otherwise see the parole board for the first time in 2079, as a 97-year-old man, if he is still alive at that point.” (Emphasis sic.) (Appellant‘s App. at 9-10.) We consider this to be a more particularized showing that prior appellate counsel‘s alleged deficiency prejudicially affected the outcome of the appeal.
{23} The state argues that the record does not reveal the second sentencing court sentenced vindictively. The state points out that the Supreme Court has found “our cases [subsequent to North Carolina v. Pearce, 395 U.S. 711 (1969)] have made clear that [the] presumption of vindictiveness ‘do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial.’ ” (Memo in Opp. at 10, quoting Alabama v. Smith, 490 U.S. 794, 799 (1989). The state points to our precedent that ” ‘where a different judge imposes a harsher sentence after an independent assessment, there is no true “increase” in the sentence, and the vindictiveness presumption does not apply.’ ” (State‘s Memo in Opp. at 11, quoting State v. Smith, 168 Ohio App.3d 141, 2006-Ohio-3720, ¶ 85 (1st Dist.).) The state also argues that absent a presumption of vindictiveness, appellant bears the burden of establishing vindictiveness from the entire record.
{24} In support of its argument, the state points generally, without specific references, to the sentencing transcript and states that the second sentencing court explained why the sentence was being issued on the record, “pointing to the crimes he
{25} Given the significant disparity between the first and second sentence, the fact that appellate counsel could have raised both issues of merger and vindictiveness on direct appeal, and appellant‘s counsel‘s affidavit, we find appellant has shown both a more particularized showing that the alleged deficient performance prejudicially affected the outcome of the appeal and that there is “at least a genuine issue—that is, legitimate grounds—to support the claim that the applicant was deprived of the effective assistance of counsel on appeal.” Leyh at ¶ 25.
{26} Therefore, we grant appellant‘s application for reopening pursuant to
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. UnderApp.R. 26(B) , the determination whether appellate counsel was deficient and prejudiced the 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. SeeApp.R. 26(B)(6) through (9). To prevail, the applicant will still have to establish that ineffective assistance of appellate counsel undermined at least one meritorious direct-appeal issue. And courts of appeals are in the best position to recognize whether a person has received deficient representation from appellate counsel and whether he has also been prejudiced by that deficient representation. Morgan [v. Eads], 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, at ¶ 6; [State v.] Murnahan, 63 Ohio St.3d [60, 65], 584 N.E.2d 1204.
{27} Furthermore, ”
{28} Accordingly, for the reasons articulated above and consistent with the law, we grant appellant‘s application to reopen.
Application for reopening granted.
LUPER SCHUSTER, P.J., and MENTEL, J., concur.