State v. Smith

Summary

The Seventh District Court of Appeals of Ohio denied Kenneth Smith’s application under Ohio App.R. 26(B) to reopen his direct appeal based on alleged ineffective assistance of appellate counsel. The court rejected claims concerning the validity of Smith’s jury waiver, the failure to raise a sufficiency-of-the-evidence argument, and the failure to raise a malicious prosecution claim. The court concluded that Smith failed to establish ineffective assistance warranting reopening.

Holdings

1. The application was timely because it was filed within 90 days of journalization of the direct-appeal decision.
2. Appellate counsel was not ineffective for declining to challenge Smith's oral jury waiver because the record showed that Smith made the waiver in open court, with counsel present, after the trial court reviewed the jury-trial right with him.
3. Appellate counsel was not ineffective for failing to raise a sufficiency-of-the-evidence argument because the record supported the convictions and Smith failed to show prejudice.
4. Appellate counsel was not ineffective for failing to raise a malicious-prosecution claim because the record contained no evidence of prosecutorial malice and counsel had already raised a manifest-weight challenge.

Questions Presented

1. Whether Smith's App.R. 26(B) application was timely.
2. Whether appellate counsel was ineffective for failing to challenge the validity of Smith's oral jury waiver.
3. Whether appellate counsel was ineffective for failing to raise a sufficiency-of-the-evidence argument.
4. Whether appellate counsel was ineffective for failing to raise a malicious-prosecution claim.

Disposition

other