Summary
The Supreme Court of Ohio held that an appellant seeking to reopen a direct appeal based on ineffective assistance of appellate counsel under App.R. 26(B) must explicitly address both the deficiency of prior counsel and the resulting prejudice in their brief. The court rejected the argument that a finding of reversible error creates a presumption of ineffectiveness, ruling instead that the rule's briefing requirements are mandatory. Consequently, the court affirmed the lower court's decision to confirm its prior judgment after the appellant failed to make the required showing.
Topics
Practice areas
Questions Presented
- Whether an appellant's brief in an appeal reopened under App.R. 26(B) must separately address how prior appellate counsel was deficient and how that deficiency prejudiced the appellant.
- Whether an appellate court may presume ineffective assistance of appellate counsel from the presence of reversible error in the assignments of error even when the appellant fails to make the required deficient-performance and prejudice arguments.
- Whether the court should authorize a further delayed reconsideration under State v. Murnahan based on ineffective assistance of counsel in the reopened appeal.
Holdings
- An appellant's brief in support of a reopened appeal must address both the deficient performance of prior appellate counsel and the resulting prejudice. The requirements of App.R. 26(B)(7) are mandatory.
- An appellate court may not presume ineffective assistance of appellate counsel merely because the assignments of error in a reopened appeal might have merit. The appellant must affirmatively establish deficient performance and prejudice.
- The court declined to address the alternative proposition because deciding whether another delayed reconsideration would be available would require an advisory opinion on issues not properly before the court.
Key quotations
“An appellant’s failure to assert an argument regarding the ineffectiveness of appellate counsel prevents the court from making such a finding.” (¶ 3)
“The brief in support of the reopened appeal must address the deficient representation and the resulting prejudice.” (¶ 25)
“If the appellate court does not find deficient performance and resultant prejudice, the court must confirm its prior judgment.” (¶ 25)
Factual background
In 2016, Clark was charged with multiple counts of rape and gross sexual imposition involving a minor. He pleaded guilty to three rape counts and ten gross-sexual-imposition counts, and the remaining counts were dismissed. After an initial appeal and remand concerning his waiver of counsel, the trial court imposed the same sentence in 2020. Clark later obtained reopening under App.R. 26(B), but his reopened-appeal brief did not separately establish deficient performance by prior appellate counsel and resulting prejudice.
Procedural history
Clark was convicted after pleading guilty to three counts of rape and ten counts of gross sexual imposition. The Ninth District initially reversed the judgment because the trial court improperly accepted his waiver of counsel and failed to obtain a written waiver, but on remand the trial court reinstated the same sentence and the Ninth District later affirmed. The Ninth District granted Clark's App.R. 26(B) application to reopen, then confirmed its prior judgment because his brief did not separately argue that prior appellate counsel was deficient or that the deficiency caused prejudice. The Supreme Court of Ohio accepted the certified conflict and a discretionary appeal and affirmed.