State v. Wagner , 2022 Ohio 801 ( 2022 )

[Cite as State v. Wagner, 2022-Ohio-801.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109678
v. :
DAVID WAGNER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION GRANTED
RELEASED AND JOURNALIZED: March 16, 2022
Cuyahoga County Court of Common Pleas
Case No. CR-19-636068-B
Application for Reopening
Motion No. 551045
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mary M. Frey, Assistant Prosecuting
Attorney, for appellee.
John P. Parker, for appellant.
EMANUELLA D. GROVES, J.:
David Wagner has filed a timely application for reopening pursuant
to App.R. 26(B). Wagner seeks to reopen the appeal, rendered in State v. Wagner,
8th Dist. Cuyahoga No. 109678, 2021-Ohio-3107, that affirmed the trial court’s
imposition of consecutive sentences, totaling 15 years, in State v. Wagner, Cuyahoga
C.P. No. CR-19-636068-B. We grant Wagner’s application for reopening.
Pursuant to App.R. 26(B)(1), an appellant in a criminal matter may
move to reopen an appeal based on a claim of ineffective assistance of appellate
counsel. The test for ineffective assistance of trial counsel, found in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is the
appropriate standard to determine whether appellate counsel was ineffective
under App.R. 26(B)(5). The applicant “must prove that his counsel [was] deficient
for failing to raise the issue he now presents, as well as showing that had he
presented those claims on appeal, there was a ‘reasonable probability’ that he would
have been successful.” State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998).
To prevail on an application to reopen, defendant must establish “a colorable claim”
of ineffective assistance of appellate counsel under the standard established
in Strickland.
The Supreme Court of Ohio, in State v. Leyh, Slip Opinion No. 2022-
Ohio-292, a very recent opinion issued on February 8, 2022, reversed the Ninth
District Court of Appeals on the basis that the applicant, through his App.R. 26(B)
application for reopening, had demonstrated that there existed a genuine issue as to
whether he was deprived of the effective assistance of appellate counsel. The Ohio
Supreme Court further held that the applicant is not initially required, through his
application for reopening, to conclusively establish ineffective assistance of
appellate counsel.
Thus, the 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. See App.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. See App.R. 26(B)(9).
Leyh at ¶ 25.
The facts, pertinent to Leyh, involved the failure of appellate counsel
to include as part of the record, a transcript, and a confidential presentence-
investigation report (“PSI”). Similar to the facts in Leyh, Wagner argues that there
exists a genuine issue as to whether appellate counsel was ineffective for failing to
raise on appeal the failure of trial counsel to include a competency evaluation and a
PSI as part of the trial court record. Specifically, Wagner argues that the competency
report and the PSI contained mitigation information that may have resulted in the
trial court imposing a lesser sentence of incarceration. As stated by the Supreme
Court of Ohio:
As we have noted, the structure and text of App.R. 26(B) plainly
contemplate stages of analysis. In this case, Leyh had to show only at
the first stage of the procedure a genuine issue that he was deprived of
the effective assistance of appellate counsel. He was not required to
conclusively establish ineffective assistance of appellate counsel just to
be allowed to argue in a reopened appeal that he was deprived of the
effective assistance of appellate counsel. Contrary to the reasoning of
the court of appeals, Leyh did not have to prove that he would win the
reopened direct appeal and prevail on his claim of ineffective assistance
of appellate counsel as a precondition to reopening the direct appeal
for further legal proceedings to contest the trial court’s alleged failure
to merge allied offenses.
Leyh at ¶ 35.
Herein, there exists a genuine issue as to whether Wagner was
deprived of the assistance of appellate counsel. We further find that there exists a
reasonable probability that had appellate counsel presented the proposed
assignments of error contained within the application for reopening, the results of
the appeal may have been different. As a result, we find that the application for
reopening is well taken. State v. Nix, 8th Dist. Cuyahoga No. 106894, 2019-Ohio-
1640; State v. Rosemond, 1st Dist. Hamilton No. C-180221, 2011-Ohio-768.
The reopened appeal will be limited to the issues raised in Wagner’s
eight proposed assignments of error in support of the application for reopening.
Issues previously addressed by this court, in Wagner’s original appeal, shall not be
considered. See App.R. 26(B)(7).
The court appoints John P. Parker, 988 East 18th Street, Cleveland,
Ohio 44119, 216-881-0900, to represent Wagner. Counsel is instructed to apply for
compensation within 30 days after journalization of this court’s final decision in the
reopened appeal. See Loc.App.R. 46(C).
The clerk of courts is ordered to reassemble and transmit, within 45
days of the date of this entry, the record in 8th Dist. Cuyahoga No. 109678 as it
existed during the court’s original review of the judgment rendered in State v.
Wagner, Cuyahoga C.P. No. CR-19-636068-B. Wagner is permitted to supplement
the reassembled record with the competency report, the PSI, and any other material
that has been omitted from the record “by error or accident or is misstated.” See
App.R. 9(E) and 26(B)(2)(e).
Briefs of the parties shall be filed in accordance with the time frames
established within Loc.App.R. 16 and shall conform to the App.R. 16 and 19.
Application for reopening is granted.
_________________________
EMANUELLA D. GROVES, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
CORNELIUS J. O’SULLIVAN, J., CONCUR