To reopen a criminal appeal, an offender needs to demonstrate there are legitimate grounds to claim the appeal was lost because of ineffective assistance of counsel, the Supreme Court of Ohio ruled today.

If an appellate court grants the reopening, the offender then must prove both that the lawyer was deficient and the outcome of the case would be different, the Supreme Court added.

In a 4-3 decision, the Court ruled the Ninth District Court of Appeals wrongly declined to reopen the appeal of Charles Leyh. The Ninth District had found the man’s new attorney did not explain in the application how the errors by Leyh’s prior attorney would have led to a different outcome.

Writing for the Court majority, Justice Michael P. Donnelly stated the Ninth District “jumped the analytical gun” by requiring the attorney to provide more proof than required by the Ohio Rules of Appellate Procedure to reopen the case. Justice Donnelly explained that in the first step of the process, Leyh provided enough information to raise a “genuine issue of ineffective assistance of appellate counsel.” At that point the court should have proceeded to the second stage where it would examine the merits of his claim, he concluded.

Chief Justice Maureen O’Connor and Justices Melody J. Stewart and Jennifer Brunner joined Justice Donnelly’s opinion.

In a dissenting opinion, Justice R. Patrick DeWine stated the plain terms of the rules require the new attorney to explain in the first stage of the request to reopen the appeal how the first attorney’s deficiencies caused the defendant to lose the appeal. Leyh’s attorney provided only a conclusory statement that the outcome might have changed had his counsel been effective, Justice DeWine stated. Such a statement was insufficient to satisfy the prejudice component of a motion to reopen, the dissent concluded.

Justices Sharon L. Kennedy and Patrick F. Fischer joined Justice DeWine’s opinion.

Appeal Seeks Shorter Sentence
In 2018, Leyh pleaded guilty to four felony counts of gross sexual imposition. The trial court stated it performed the required analysis of allied offenses to determine if the charges merged for sentencing purposes. It then sentenced Leyh to four, one-year consecutive sentences, for a total of four years in prison, and designated him as a Tier I sex offender.

In 2019, Leyh appealed, arguing the trial court failed to correctly apply the law for allied offenses. If the trial court had merged the sentences, he would face a maximum of three years in prison, he maintained. If Leyh was correct that he was wrongly sentenced, then his release date would have already passed and his continued incarceration beyond that date was erroneous.

Lawyer Omits Critical Material for Appeal
Leyh’s trial attorney filed a notice of appeal and a statement indicating the record being supplied to the appeals court would include a “full or partial transcript” of the trial court proceedings prepared by the court reporter. The attorney indicated he made a formal request to the reporter to prepare a transcript through a legal filing known as a “praecipe.”

The appeals court record did not reflect the request was made of the reporter, and the praecipe was not filed with the court. The clerk of court notified the parties the record before the appeals court only included a listing of the items in Leyh’s case docket and the trial court’s journal entries. Nothing in the record indicated a trial transcript was requested or prepared.

Leyh’s attorney then filed a brief, explaining how the trial court incorrectly analyzed the offenses and failed to merge them correctly for sentencing. Attached to the brief was Leyh’s presentence-investigation report (PSI).

In opposition to Leyh’s appeal, the Summit County Prosecutor’s Office filed a brief noting the trial transcript had not been provided. The prosecutor also argued the PSI was improperly filed with the appeals court and should be removed from consideration. Leyh’s lawyer took no action to secure the hearing transcript after the prosecutor noted it was missing. The prosecutor’s request to remove the PSI report was unopposed.

In September 2019, the appeals court unanimously denied Leyh’s appeal without considering the merits of his argument. The court said because of the incomplete record, it had to assume the trial court properly conducted its work.

Reopening Appeal Request Made
Months later, through a new attorney, Leyh applied to the appeals court to reopen his direct appeal. App.R. 26(B) includes a process for a criminal offender to reopen an appeal with a claim of ineffective assistance of counsel. The process includes the new lawyer filing an affidavit explaining the reasoning for the appeal.

The new lawyer noted that the earlier attorney’s failure to include the transcript and improper filing of the PSI with the appellate court left the appellate court without the record needed to determine if Leyh’s four-year sentence was appropriate. That indicates ineffective counsel and is grounds for reopening the appeal, the lawyer concluded.

The prosecutor’s office did not object to reopening the case, but the Ninth District rejected the application.

Leyh appealed the decision to the Supreme Court, which agreed to hear the case.

Requirements for Two-Step Application Process Analyzed
The majority and dissenting justices agree App.R. 26(B) sets up a two-stage process for requests to reopen an appeal. The justices also agree that during the process, Leyh had to prove his original appeals attorney was ineffective under a two-part standard established by the U.S. Supreme Court’s 1984 Strickland v. Washington decision.

Justice Donnelly explained the justices are divided as to when and how an appeals court applies the Strickland standards. Under Strickland, an applicant must show first that the attorney’s performance was unreasonable. Secondly, the applicant must show there is “reasonable probability” that the outcome of the case would have been different had the attorney not made the errors.

Under App.R. 26(B), the first stage requires the new attorney to state the basis for claiming the original attorney was deficient and “the manner in which the deficiency” affected the outcome. The application “shall be granted if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal,” the opinion noted.

The majority opinion stated at this stage Leyh’s new lawyer met the standard, essentially by using the appellate court’s decision denying Leyh’s appeal. The appellate court made clear that it could not address the merits of Leyh’s case because the judges were unable to review the trial court transcript or the PSI.

The opinion stated Leyh met the requirement of the rule for the first stage, which also aligns with the first part of the Strickland test. He demonstrated there were legitimate grounds to claim the lawyer’s actions were not reasonable.

The Ninth District rejected the application because the new lawyer did not explain how failing to submit the transcript and PSI would change the outcome of the case. The opinion stated that explanation was not required at this stage and “Leyh did not have to prove that he would win” the reopened appeal.

Details Required in Second Stage
The majority opinion stated the “practical realities” an offender faces when attempting to reopen an appeal make it clear that presenting proof of how the outcome would be different comes later in the process. The opinion noted that only after an application to reopen is granted is the offender entitled to an attorney. For an indigent person or prison inmate, the appointment of an attorney is typically necessary to properly analyze the case, file the brief, and cover the costs for a trial court transcript.

Only after approval to move forward with the appeal does the offender then have to satisfy the second part of the Strickland case and prove the outcome would be different, the opinion stated.

Detailed Allegation of Prejudice Required Even in First Stage, Dissent Asserted
In his dissenting opinion, Justice DeWine stated that Appellate Rule 26(B) explicitly requires an offender’s new lawyer to explain in the application both how the original lawyer was deficient and how this deficiency “prejudicially affected the outcome of the appeal.” Thus, he explained, the application must include a “colorable claim” that meets both prongs of the Strickland test. Leyh’s new counsel met only the first part while ignoring the second.

“He does not contend that the outcome of his appeal would have been different had the omitted materials been included in the record,” the dissent stated. “At best, all Leyh argues is that there is a possibility that the omitted materials might have changed the result of his appeal. Thus, if we follow the rule and our precedent, Leyh’s application to reopen should be denied.”

Justice DeWine wrote that the majority is correct in stating Leyh did not have to prove in the first stage that he would win his case, but “[t]he problem is that Leyh did not submit any evidence of prejudice at all,” the dissent stated.

“Quite simply, Leyh failed to make any attempt to present a colorable claim of prejudice, and instead insisted that prejudice should be presumed,” the dissent concluded.

2020-0819. State v. Leyh, Slip Opinion No. 2022-Ohio-292.

View oral argument video of this case.

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