State v. Wagner

Summary

The Eighth District Court of Appeals of Ohio granted David Wagner’s application to reopen his criminal appeal under Ohio App.R. 26(B). The court found a genuine issue regarding ineffective assistance of appellate counsel based on the alleged failure to raise the omission of a competency evaluation and presentence-investigation report from the record. The reopened appeal was limited to Wagner’s proposed assignments of error, and counsel was appointed.

Holdings

1. An applicant seeking to reopen a criminal appeal under App.R. 26(B) need only demonstrate at the first stage a genuine issue, or colorable claim, that appellate counsel was ineffective; the applicant is not required at that stage to conclusively establish ineffective assistance or prove that the reopened appeal will ultimately succeed.
2. Wagner established a genuine issue and a reasonable probability that the result of his original appeal may have been different if appellate counsel had presented the proposed assignments of error concerning the omitted competency report and presentence-investigation report.
3. The reopened appeal is limited to Wagner's eight proposed assignments of error, and the record may be supplemented with the competency report, presentence-investigation report, and other materials omitted from the record by error or accident or misstated.

Questions Presented

1. Whether Wagner satisfied the first-stage requirement under App.R. 26(B) by presenting a genuine issue or colorable claim of ineffective assistance of appellate counsel.
2. Whether there was a reasonable probability that the result of the original appeal would have been different if appellate counsel had raised the proposed errors concerning the competency report and presentence-investigation report.
3. What limits and record procedures should govern the reopened appeal.

Disposition

other