State v. Oliver , 2023 Ohio 1353 ( 2023 )

[Cite as State v. Oliver, 2023-Ohio-1353.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29535
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANTHONY R. OLIVER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 18 11 4023
DECISION AND JOURNAL ENTRY
Dated: April 26, 2023
STEVENSON, Judge.
{¶1} In this reopened appeal, Defendant-Appellant, Anthony Oliver, appeals from the
judgment of the Summit County Court of Common Pleas. This Court confirms our prior decision.
I.
{¶2} Mr. Oliver sexually assaulted a female at a small house party. As a result, he was
indicted on ten counts. A grand jury charged him with vaginal rape under R.C. 2907.02(A)(2),
anal rape under that same subdivision, vaginal rape under R.C. 2907.02(A)(1)(c), anal rape under
that same subdivision, kidnapping, two counts of abduction, having a weapon under disability,
carrying a concealed weapon, and aggravated menacing. Each count of rape, kidnapping, and
abduction also carried a firearm specification.
{¶3} A jury trial ensued. At its conclusion, the trial court agreed to instruct the jury on
sexual battery as a lesser-included offense of rape. Of the four rape counts, three of those counts
resulted in guilty verdicts on the lesser-included offense of sexual battery and one resulted in a not
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guilty verdict. The jury also found Mr. Oliver not guilty of one count of abduction. The jury found
Mr. Oliver guilty on each of his remaining counts but rejected his firearm specifications. After the
trial court sentenced him and classified him as sexual offender, Mr. Oliver filed his direct appeal.
{¶4} On appeal, this Court overruled each of Mr. Oliver’s arguments, save for his
challenge to his felony conviction for carrying a concealed weapon. See State v. Oliver, 9th Dist.
Summit No. 29535, 2021-Ohio-4153. Because the verdict form for that offense was deficient, we
found Mr. Oliver’s felony conviction had to be reduced to a first-degree misdemeanor. Id. at ¶ 19.
We remanded the matter to the trial court strictly for it “to enter judgment finding [Mr.] Oliver
guilty of carrying a concealed weapon as a first-degree misdemeanor.” Id. at ¶ 65. We otherwise
affirmed his convictions.
{¶5} After this Court issued its decision, Mr. Oliver filed an application to reopen his
appeal pursuant to App.R. 26(B). He argued he received ineffective assistance of appellate counsel
because his counsel did not: (1) argue plain error with respect to a jury instruction; (2) challenge
the trial court’s failure to give a different jury instruction; (3) develop a manifest weight argument
with respect to an element of kidnapping; and (4) file a reply brief. Upon review, this Court
determined there was a genuine issue of ineffective assistance of appellate counsel. Accordingly,
we granted the application to reopen and ordered the parties to “address in their briefs the claim
that representation by prior appellate counsel was deficient, and that [Mr. Oliver] was prejudiced
by that deficiency.” State v. Oliver, 9th Dist. Summit No. 29535 (Apr. 22, 2022).
{¶6} Mr. Oliver’s reopened appeal raises five assignments of error for review. Because
this Court must overrule each assignment of error for the same reason, we consolidate them to
facilitate our analysis.
II.
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ASSIGNMENT OF ERROR I
THE COURT COMMITTED PLAIN ERROR IN GIVING THE INSTRUCTION
OF SEXUAL BATTERY AS A LESSER INCLUDED OFFENSE TO RAPE
UNDER THIS RECORD, AS THERE IS NO EVIDENCE OF COERCION, OR
THAT THE VICTIM WAS SUBSTANTIALLY IMPAIRED, OR THAT
ANTHONY OLIVER KNEW THE VICTIM WAS SUBSTANTIALLY
IMPAIRED.
ASSIGNMENT OF ERROR II
THE COURT COMMITTED PLAIN ERROR IN NOT GIVING INSTRUCTION
OF SEXUAL IMPOSITION AS A LESSER INCLUDED OFFENSE TO RAPE
UNDER THIS RECORD AS THERE IS NO EVIDENCE OF FORCE AS FOUND
BY THE JURY AND NO EVIDENCE OF COERCION OR THAT THE VICTIM
WAS SUBSTANTIALLY IMPAIRED AND THAT ANTHONY OLIVER KNEW
THE VICTIM WAS SUBSTANTIALLY IMPAIRED.
ASSIGNMENT OF ERROR III
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT
THE VICTIM WAS “SUBSTANTIALLY IMPAIRED” AND FAILED TO
PROVE CARRYING A CONCEALED WEAPON AND WEAPONS UNDER
DISABILITY BEYOND A REASONABLE DOUBT AND THUS THERE IS
INSUFFICIENT EVIDENCE FOR THE JURY VERDICT, THE VERDICT
FORM WAS DEFECTIVE, AND THE COURT ERRED IN DENYING THE
DEFENDANT’S RULE 29 MOTION.
ASSIGNMENT OF ERROR IV
THE JURY VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
ASSIGNMENT OF ERROR V
ANTHONY OLIVER WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION
10, OF THE OHIO CONSTITUTION[.]
{¶7} In his assignments of error, Mr. Oliver challenges aspects of the trial court’s jury
instructions, the sufficiency of the evidence, and the weight of the evidence. He also claims he
received ineffective assistance of trial counsel. Because he has “failed to address the key issue of
ineffective assistance of appellate counsel, we cannot reach the merits of these claims and must
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instead overrule his assignments of error.” State v. Osborne, 9th Dist. Lorain No. 17CA011208,
2022-Ohio-734, ¶ 5.
{¶8} “App.R. 26(B) establishes a two-stage procedure to adjudicate claims of ineffective
assistance of appellate counsel.” State v. Leyh, 166 Ohio St.3d 365, 2022-Ohio-292, ¶ 19. “The
first stage involves a threshold showing for obtaining permission to file new appellate briefs.”
Osborne at ¶ 6, quoting 1993 Staff Notes to App.R. 26. At that stage, “[t]he burden is on the
applicant to demonstrate a ‘genuine issue’ as to whether there is a ‘colorable claim’ of ineffective
assistance of appellate counsel.” Leyh at ¶ 21, quoting State v. Spivey, 84 Ohio St.3d 24, 25 (1998).
If the appellate court finds the applicant has satisfied his burden and grants the application to
reopen, the matter “proceeds to the second stage, where ‘[t]he case is then treated as if it were an
initial direct appeal, with briefs and oral argument.’” State v. Calhoun, 9th Dist. Summit No.
29604, 2022-Ohio-4269, ¶ 7, quoting State v. Simpson, 164 Ohio St.3d 102, 2020-Ohio-6719, ¶
13.
{¶9} At the second stage, an applicant must establish “the merits of both the direct appeal
and the claim of ineffective assistance of appellate counsel.” Leyh at ¶ 25. “[T]he prior appellate
judgment may not be altered unless the applicant establishes at the second stage that the direct
appeal was meritorious and failed because appellate counsel rendered ineffective assistance under
the two-pronged [Strickland v. Washington, 466 U.S. 668 (1984)] standard.” Id. at ¶ 24. “[W]hen
an appellant fails to address ineffective assistance of appellate counsel in a brief filed in a reopened
appeal, this Court must confirm our prior judgment.” Calhoun at ¶ 9, citing Osborne at ¶ 9. See
also App.R. 26(B)(9). “Although we recognize that [the appellant] will not be permitted to file a
subsequent application to reopen to allege ineffective assistance of counsel, * * * we must
nonetheless apply [App.R. 26(B)] as written.” Osborne at ¶ 9.
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{¶10} As in Osborne and Calhoun, this Court ordered Mr. Oliver to file an appellate brief
that addressed whether his appellate counsel was ineffective in handling his direct appeal. Mr.
Oliver’s brief sets forth five assignments of error, but he has “neglected to address the issue of
ineffective assistance of appellate counsel.” Osborne at ¶ 8. Under these circumstances, this Court
has no choice but to apply App.R. 26(B) as written and confirm our prior judgment. Calhoun at ¶
10; Osborne at ¶ 9. Accordingly, Mr. Oliver’s assignments of error are overruled.
III.
{¶11} Mr. Oliver’s assignments of error are overruled. Pursuant to App.R. 26(B), this
Court confirms our prior judgment in Oliver, 2021-Ohio-4153. Consistent with that decision, the
judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in part, and
the matter is remanded for proceedings consistent with that opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
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Costs taxed equally to both parties.
SCOT STEVENSON
FOR THE COURT
SUTTON, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.