State v. Leyh

Summary

The Supreme Court of Ohio held that an App.R. 26(B) application to reopen a direct appeal requires only a showing of a genuine issue regarding ineffective assistance of appellate counsel at the initial stage. The court held that the Ninth District improperly required Clarence Leyh to demonstrate likely success on the merits before reopening the appeal. The judgment was reversed and the matter remanded for further proceedings, including preparation of the necessary record and substantive briefing.

Holdings

1. At the first stage, an applicant need only establish a genuine issue, or colorable claim, that appellate counsel's deficient performance deprived the applicant of effective assistance of counsel on appeal. The applicant is not required at that stage to conclusively establish that the underlying appeal would have succeeded or that counsel was ultimately ineffective.
2. Leyh established a genuine issue warranting reopening because appellate counsel's failure to include the sentencing-hearing transcript prevented the court of appeals from considering the merits of the allied-offenses assignment of error and compelled affirmance based on the presumption of regularity.
3. The ultimate determination whether appellate counsel was deficient and whether the applicant was prejudiced must be made after the appeal is reopened and the parties have counsel, a complete record, and an opportunity to substantively brief the issues.

Questions Presented

1. Whether the court of appeals applied the proper standard under App.R. 26(B) when it required Leyh to demonstrate a reasonable probability that he would prevail on the underlying direct appeal before granting permission to reopen.
2. Whether Leyh's application established a genuine issue as to whether appellate counsel's failure to include the sentencing-hearing transcript and related materials constituted ineffective assistance prejudicially affecting the appeal.
3. Whether the determination of appellate counsel's deficiency and prejudice must be made after reopening the appeal and allowing counsel, transmission of the record, and substantive briefing.

Disposition

reversed_and_remanded