State v. Simpson (Slip Opinion) , 2020 Ohio 6719 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Simpson, Slip Opinion No. 2020-Ohio-6719.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-6719
THE STATE OF OHIO, APPELLEE, v. SIMPSON, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Simpson, Slip Opinion No. 2020-Ohio-6719.]
App.R. 26(B)—Two-pronged standard articulated in Strickland v. Washington,
adopted in Ohio in State v. Reed, applies to applications for reopening
under App.R. 26(B)—Court of appeals’ judgment affirmed.
(No. 2019-1769—Submitted August 18, 2020—Decided December 18, 2020.)
APPEAL from the Court of Appeals for Butler County, No. CA2018-06-121.
_________________
FRENCH, J.
{¶ 1} Appellant, Roger Simpson, asks this court to revisit the standard that
Ohio courts of appeals must apply when considering App.R. 26(B) applications for
reopening. He asks that we require appellate courts to apply the factors set out in
Mapes v. Tate, 388 F.3d 187, 191 (6th Cir.2004) (“Mapes II”), when they consider
whether to grant an application for reopening. We decline to do so. We reaffirm
that the standard set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
SUPREME COURT OF OHIO
2052, 80 L. Ed. 2d 674 (1984), which we adopted in State v. Reed, 74 Ohio St. 3d
534, 535, 660 N.E.2d 456 (1996), applies to applications for reopening under
App.R. 26(B). We reaffirm that courts of appeals should grant an application for
reopening if the defendant shows a genuine issue as to whether he has a colorable
claim that his appellate counsel’s performance was deficient and that the deficient
performance caused him prejudice. Because the Twelfth District Court of Appeals
applied the correct standard when it considered Simpson’s App.R. 26(B)
application for reopening, we affirm its judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Simpson was charged with 23 felonies related to the rape of a woman
in Oxford, Ohio, in 2017. He was charged with ten counts of rape, five counts of
sexual battery, two counts of kidnapping, four counts of complicity to rape, and two
counts of complicity to sexual battery. Two other men were also indicted.
Codefendant Elijah Mincy was charged with 23 felony counts for his involvement
in the rape, and codefendant Rodney Gibson II was charged with 26 felony counts
for his involvement.
{¶ 3} A jury found Simpson guilty on all charges. The trial court merged
many of the counts. It sentenced him on five counts of rape, one count of
kidnapping, and two counts of complicity to rape. The court imposed consecutive
sentences on all the rape and kidnapping counts, for an aggregate total of 51 years.
The court also sentenced Simpson to seven years on each of the complicity counts,
but it ordered those sentences to run concurrently with the other sentences.
{¶ 4} After Simpson’s trial, Gibson and Mincy accepted plea bargains.
Gibson pleaded guilty to one count of complicity to kidnapping. He received a
five-year sentence. Mincy pleaded guilty to one count of rape and one count of
kidnapping. He received an eight-year sentence.
2
January Term, 2020
A. Direct Appeal
{¶ 5} Simpson appealed his convictions and sentences, raising two
assignments of error. First, Simpson argued that the trial court should have merged
more counts. Second, he argued that his trial counsel was ineffective for failing to
cross-examine the state’s expert witnesses, failing to allow Simpson to testify in his
own defense, and failing to oppose the state’s sentencing memorandum on allied
offenses. The court of appeals rejected both assignments of error.
B. Application for Reopening
{¶ 6} Simpson then filed an application to reopen his appeal under App.R.
26(B). He argued that his original appellate counsel had failed to obtain his case
file to review it for potential errors and that counsel had raised two errors that were
meritless when she could have raised three additional errors that had merit: (1) the
trial court’s admission of out-of-court statements; (2) Simpson’s aggregate 51-year
prison term as compared to the aggregate eight-year and five-year terms his
codefendants received; and (3) the trial court’s failure to record a hearing on
evidence protected by Ohio’s rape-shield law or file the exhibit Simpson’s counsel
proffered containing that evidence.
{¶ 7} Simpson supported his application for reopening with an affidavit
executed by his lead trial counsel, Don LeRoy. LeRoy supported Simpson’s claim
that his original appellate counsel had never reviewed Simpson’s case file, which
LeRoy kept at his office. LeRoy also represented that Simpson’s counsel did not
raise meritorious arguments on direct appeal.
{¶ 8} LeRoy addressed the items he believed should have been raised in
Simpson’s direct appeal. LeRoy said that the proceedings concerning the state’s
argument that certain evidence was excluded by the rape-shield law occurred in
chambers without a court reporter and that the docket does not contain an entry
reflecting the court’s adjudication of those proceedings. He represented that he
proffered an exhibit containing the evidence at issue but that his proffered exhibit
3
SUPREME COURT OF OHIO
is not in the clerk’s official file. LeRoy also summarized the contents of the
proffered exhibit. Furthermore, LeRoy identified two issues that he felt Simpson’s
appellate counsel should have raised on direct appeal: the state’s repeated use of
codefendant Gibson’s out-of-court statements and the disparity between the
aggregate sentence Simpson received and the sentences his codefendants received.
{¶ 9} The court of appeals denied the application. It applied the Strickland
standard and concluded that Simpson failed to meet either part of that test. The
court considered each of the errors that Simpson argued his original appellate
counsel should have raised. It determined that there was no indication that the trial
court would have excluded the out-of-court statements as inadmissible hearsay had
Simpson’s trial counsel objected to their admission, because they were not offered
for their truth but rather for their effect on the listener. Further, the court of appeals
held that Simpson could not show that it would have sustained a challenge to his
sentence, because the trial court “properly considered the relevant sentencing
guidelines and requirements” and there was no indication that the trial court acted
vindictively. Finally, the court held that Simpson failed to show that the evidence
his trial counsel proffered during the in-chambers hearing was admissible under
Ohio’s rape-shield law.
{¶ 10} We accepted Simpson’s appeal and his sole proposition of law:
Appellate ineffectiveness is measured in the application and
reopening by comparing the presented arguments on direct appeal
with omitted ones, by applying the Sixth Circuit’s Mapes factors to
weigh the strengths, weaknesses, and viability of those omitted
arguments, and by evaluating postconviction facts about appellate
counsel’s preparedness and tactics.
See 158 Ohio St. 3d 1430, 2020-Ohio-748, 141 N.E.3d 236.
4
January Term, 2020
II. ANALYSIS
{¶ 11} Indigent criminal defendants generally have a right to appellate
counsel in their first appeal of right. Coleman v. Thompson, 501 U.S. 722, 755, 111
S. Ct. 2546, 115 L. Ed. 2d 640 (1991). Like trial counsel, appellate counsel must
provide reasonably effective assistance. Id., citing Evitts v. Lucey, 469 U.S. 387,
396, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985); Strickland, 466 U.S. at 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674, citing Trapnell v. United States, 725 F.2d 149, 151-152 (2d
Cir.1983).
A. App.R. 26(B)
{¶ 12} App.R. 26(B) allows a criminal defendant to apply to reopen his
direct appeal based on a claim that his appellate counsel was ineffective. It creates
a two-step process. First, the applicant must apply to have his appeal reopened
following the procedure set out in App.R. 26(B)(2) through (4). The initial
application is limited to ten pages, and no oral argument is permitted. App.R.
26(B)(4). It must include a sworn statement explaining how appellate counsel’s
representation was deficient and how that deficiency “prejudicially affected the
outcome of the appeal.” App.R. 26(B)(2)(d). 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.” App.R. 26(B)(5). We have said that the applicant
must show that there is a “ ‘genuine issue’ as to whether he has a ‘colorable claim’
of ineffective assistance of counsel on appeal.” State v. Spivey, 84 Ohio St. 3d 24,
25, 701 N.E.2d 696 (1998).
{¶ 13} If the application is granted, it proceeds to the second step. The case
is then treated as if it were an initial direct appeal, with briefs and oral argument.
App.R. 26(B)(7); see App.R. 21(A). Unlike an initial appeal, though, the court of
appeals may order an evidentiary hearing if it determines one is necessary. App.R.
26(B)(8).
5
SUPREME COURT OF OHIO
B. A defendant must meet Strickland’s two-pronged standard to prevail on a
claim of ineffective assistance of appellate counsel
{¶ 14} In Reed, 74 Ohio St. 3d at 535, 660 N.E.2d 456, this court adopted
the two-pronged analysis set out in Strickland, 466 U.S. at 687, 104 S. Ct. 2052, 80
L. Ed. 2d 674, for considering applications for reopening. Under that standard, an
appellant must show that his appellate counsel’s performance was deficient and that
the deficient performance prejudiced him. Strickland at 687; see Reed at 535-536;
see also App.R. 26(B)(9). Appellate counsel’s performance must have been
objectively unreasonable, and there must be a reasonable probability that the result
of the appeal would have been different but for counsel’s errors. Strickland at 688,
694; see Reed at 535. Under Strickland, a reasonable probability is a probability
sufficient to undermine confidence in the outcome of the proceedings. Strickland
at 694.
{¶ 15} Simpson now asks that we adopt a number of other factors for
appellate courts to consider when deciding whether to grant an application for
reopening. Those factors were first outlined in a federal-court opinion, Mapes v.
Coyle, 171 F.3d 408, 427-428 (6th Cir.1999) (“Mapes I”). In that case, the Sixth
Circuit considered whether the district court properly granted Mapes’s petition for
a writ of habeas corpus, barring the state from carrying out his death sentence,
because Mapes’s appellate counsel was ineffective for failing to raise certain errors
on appeal. The Sixth Circuit recognized that Strickland’s two-pronged analysis
applies to a claim alleging that appellate counsel was ineffective. Mapes I at 425.
Applying that standard, the Sixth Circuit said that Mapes would not be able to show
that he had been prejudiced during the guilt phase of his trial because there was
overwhelming evidence that he was guilty. Appellate counsel’s failure to raise
errors related to the mitigation phase and the jury’s death-sentence
recommendation, though, was “almost inexplicable.” Id. at 427. The court drew
from other circuit courts and compiled a list of questions that it found helpful for
6
January Term, 2020
determining whether Mapes’s appellate counsel performed reasonably competently
despite failing to raise arguments concerning those phases of the proceedings:
(1) Were the omitted issues “significant and obvious”?
(2) Was there arguably contrary authority on the omitted
issues?
(3) Were the omitted issues clearly stronger than those
presented?
(4) Were the omitted issues objected to at trial?
(5) Were the trial court’s rulings subject to deference on
appeal?
(6) Did appellate counsel testify in a collateral proceeding
as to his appeal strategy and, if so, were the justifications
reasonable?
(7) What was appellate counsel’s level of experience and
expertise?
(8) Did the petitioner and appellate counsel meet and go
over possible issues?
(9) Is there evidence that counsel reviewed all the facts?
(10) Were the omitted issues dealt with in other
assignments of error?
(11) Was the decision to omit an issue an unreasonable one
which only an incompetent attorney would adopt?
Id. at 427-428. The court cautioned that its list is not exhaustive and must not be
used to “produce a ‘correct score.’ ” Id. at 428. The factors merely guide the
consideration.
7
SUPREME COURT OF OHIO
{¶ 16} Considering those factors, the Sixth Circuit concluded that there was
a strong possibility that Mapes’s appellate counsel was ineffective and there was a
reasonable probability that Mapes was prejudiced. Id. at 429. The court remanded
the matter to the district court for an evidentiary hearing to consider whether
Mapes’s appellate counsel was ineffective. On remand, the district court adopted
the magistrate’s recommendation to vacate Mapes’s death sentence (unless the
Ohio courts granted another review of Mapes’s sentence within 90 days) because
his appellate counsel was ineffective. When the case came before the Sixth Circuit
on an appeal from that decision, the court referred to the 11 factors it outlined in
Mapes I. Mapes II, 388 F.3d at 191. It then concluded that Mapes’s appellate
counsel was ineffective for failing to challenge the trial court’s refusal to allow the
jury to consider certain mitigating evidence. It affirmed the district court’s
judgment.
{¶ 17} Simpson argues that we should adopt the Mapes factors so that there
is a standard against which his appellate counsel’s performance can be evaluated
and so that Ohio aligns with federal law to provide a predictable and uniform
standard for ineffective-assistance-of-appellate-counsel claims. But there is
already a predictable and uniform standard to evaluate appellate counsel’s
performance, and it is outlined in Strickland. And as we discuss below, both Ohio
and federal courts have adopted Strickland as the standard for evaluating appellate
counsel’s performance. See Reed, 74 Ohio St. 3d at 535, 660 N.E.2d 456; Smith v.
Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000).
{¶ 18} As we have stated, under Strickland, in order to prevail on a claim
that counsel was ineffective, a criminal defendant must show (1) that his counsel’s
performance was deficient and (2) that that performance prejudiced him. See
Strickland, 466 U.S. at 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674. Strickland also
established a standard for evaluating whether counsel’s performance was deficient.
In Strickland, the United States Supreme Court acknowledged that courts must be
8
January Term, 2020
highly deferential in reviewing counsel’s performance. Id. at 689. It said that “the
proper standard for attorney performance is that of reasonably effective assistance.”
Id. at 687. A defendant who claims his counsel was ineffective must show that,
considering all the circumstances, his counsel’s performance fell below an
objective standard of reasonableness under prevailing professional norms. See id.
at 687-688. The court cautioned that “[m]ore specific guidelines” for counsel’s
performance “are not appropriate.” Id. at 688. The court listed some generally
accepted basic duties that “neither exhaustively define” counsel’s obligations “nor
form a checklist for judicial evaluation of attorney performance.” Id. Those
general duties include assisting the defendant, advocating for the defendant’s cause,
communicating with the defendant, and using the attorney’s skill and knowledge to
ensure a reliable adversarial process. Id. But still, the court recognized that it is
not appropriate to develop a set list of factors for evaluating counsel’s performance
because “[n]o particular set of detailed rules for counsel’s conduct can
satisfactorily” account for all the variables that a court must consider. Id. at 688-
689.
{¶ 19} Although Strickland involved a claim of ineffective assistance of
trial counsel, both this court and the United States Supreme Court have recognized
that the Strickland standard also applies to claims asserting ineffective assistance
of appellate counsel. See Smith at 285 (“the proper standard for evaluating [a] claim
that appellate counsel was ineffective * * * is that enunciated in Strickland”); Reed,
74 Ohio St. 3d at 535, 660 N.E.2d 456. Contrary to appellant’s assertion, Ohio law
is, therefore, already aligned with federal law on the standard for evaluating
appellate counsel’s performance.
{¶ 20} As a final matter, we note that even the Sixth Circuit itself has not
adopted the Mapes factors uniformly. See, e.g., Haliym v. Mitchell, 492 F.3d 680,
694-696 (6th Cir.2007) (applying the Strickland standard alone, without
mentioning the Mapes factors, and finding that appellate counsel was not
9
SUPREME COURT OF OHIO
ineffective); Ceasor v. Ocwieja, 655 Fed. Appx. 263, 277-278 (6th Cir.2016)
(applying the Strickland standard without mentioning the Mapes factors, finding
that appellate counsel’s performance was deficient, and remanding to the district
court to determine the prejudice prong). Although the Mapes factors may provide
helpful guidance for appellate courts as they evaluate appellate counsel’s
performance, mandating consideration of those factors is not appropriate.
{¶ 21} Today, we reaffirm that a defendant must show a genuine issue as to
whether he has a colorable claim that his appellate counsel was ineffective in order
to have his appeal reopened. The Twelfth District applied the correct standard
when it reviewed Simpson’s application for reopening and concluded that Simpson
failed to show a genuine issue that he has a colorable claim of ineffective assistance
of appellate counsel. We therefore affirm the decision of the Twelfth District.
III. CONCLUSION
{¶ 22} Today, we reaffirm that the two-pronged standard articulated in
Strickland, 466 U.S. at 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, applies to App.R.
26(B) applications for reopening. Courts of appeals should grant an application for
reopening if the defendant shows a genuine issue that he has a colorable claim that
his appellate counsel’s performance was deficient and that he was prejudiced by
the deficient performance. Appellate counsel’s performance was deficient if,
considering all the circumstances, it fell below an objective standard of
reasonableness under prevailing professional norms. Id. at 688. The Twelfth
District Court of Appeals applied this standard, and we affirm its judgment.
Judgment affirmed.
KENNEDY and DEWINE, JJ., concur.
O’CONNOR, C.J., concurs, with an opinion.
FISCHER, J., concurs, with an opinion.
DONNELLY, J., dissents, with an opinion joined by STEWART, J.
_________________
10
January Term, 2020
O’CONNOR, C.J., concurring.
{¶ 23} I agree with the majority’s conclusion that the two-pronged standard
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), applies to App.R. 26(B) applications for reopening. I nevertheless
write separately because I share the dissent’s outrage at appellate counsel’s
performance in this case. Applying Strickland, I would conclude that appellant,
Roger Simpson, presented a colorable claim that his appellate counsel’s
performance was deficient and that Simpson was prejudiced as a result. However,
because Simpson challenged only the applicable standard to App.R. 26(B)
applications and failed to challenge his appellate counsel’s performance under
Strickland, I can offer only an advisory assessment of counsel’s performance.
{¶ 24} Applying the first prong of Strickland, I find it difficult to conceive
of a more appropriate example of performance that falls below “an objective
standard of reasonableness,” id. at 688, than that of appellate counsel failing to even
review the case file of a defendant who was convicted following a jury trial. See
also Storey v. Vasbinder, 657 F.3d 372, 389 (6th Cir.2011) (Clay, J., dissenting)
(“There is no scenario under which a complete failure to investigate a case or to
review available discovery can be assumed to be reasoned trial strategy or
otherwise excused.”). In his affidavit, Simpson’s lead trial counsel explained that
he kept the case file at his home office and intended to discuss the case with
appellate counsel once he provided her with the file. But appellate counsel never
obtained, nor attempted to obtain, the file, meaning she never reviewed the bill-of-
information, the counsel-only discovery, work product from experts and
investigators, or trial counsel’s work product. Nor did she ever discuss the issues
in the case with trial counsel. As a result, appellate counsel was not aware of two
issues that trial counsel believed had merit and should have been raised on direct
appeal.
11
SUPREME COURT OF OHIO
{¶ 25} More specifically, appellate counsel failed to raise on direct appeal
a glaring issue regarding the disparity between Simpson’s sentence and his
codefendants’ sentences. In contrast to Simpson’s 51-year sentence, his
codefendants received 8- and 5-year sentences. Despite similarities in both their
conduct and the charges all three men faced, Simpson received a sentence more
than six times longer than his codefendants’ sentences. Paired with the fact that
Simpson, unlike his codefendants, exercised his constitutional right to a jury trial,
the relative severity of his sentence resembles a trial tax. This issue was clearly
stronger than the merger issue raised in Simpson’s direct appeal, especially when
the state and Simpson’s trial counsel had agreed as to the offenses that were allied
for merger below. To me, appellate counsel’s failures demonstrate at least a
genuine issue as to whether Simpson has a colorable claim that his counsel’s
performance was deficient.
{¶ 26} Turning to the second prong of Strickland, appellate counsel’s
failures also demonstrate a reasonable probability that counsel’s deficient
performance prejudiced Simpson. See Strickland, 466 U.S. at 687, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Because appellate counsel failed to raise the disproportionate-
sentencing issue, the court of appeals could not address this significant issue in
Simpson’s direct appeal. Indeed, similar arguments involving disproportionate
sentences and trial taxes have persuaded courts of appeals to reverse and remand
for more appropriate sentences. See State v. Moore, 2012-Ohio-1958, 970 N.E.2d
1098 (8th Dist.) (defendant successfully contended that his sentence was
disproportionate to that of his codefendant’s and a punishment for exercising his
constitutional right to trial); State v. Beverly, 2d Dist. Clark No. 2011-CA-64, 2013-
Ohio-1365, rev’d on other grounds, 143 Ohio St. 3d 258, 2015-Ohio-219, 37 N.E.3d
116 (concluding that the evidence in the record did not support the more than 50-
year disparity between defendant’s and codefendant’s sentences). There is a
reasonable probability that had appellate counsel raised this disproportionate-
12
January Term, 2020
sentencing issue, the court of appeals would have reversed Simpson’s sentence and
remanded for resentencing, carrying with it the potential of a reduced sentence.
Accordingly, I would also conclude that a genuine issue exists as to whether
Simpson has a colorable claim that he was prejudiced by his appellate counsel’s
deficient performance.
{¶ 27} While I believe Simpson demonstrated a colorable claim that his
appellate counsel was ineffective under Strickland, and therefore, met his burden
under App.R. 26(B) to reopen his appeal, I nevertheless join the majority opinion
in light of the narrow scope of this appeal.
_________________
FISCHER, J., concurring.
{¶ 28} I concur with the majority opinion. The standard set forth in
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), is the appropriate standard by which appellate courts should review
applications for reopening under App.R. 26(B). I write separately to emphasize
that appellate courts, in analyzing the prejudice prong of Strickland, should look to
determine whether, but for appellate counsel’s deficient performance, there is a
reasonable probability that the result of the proceeding would have been different.
Under longstanding Ohio law, a reasonable probability is a probability sufficient to
undermine confidence in the outcome. State v. Davis, 159 Ohio St. 3d 31, 2020-
Ohio-309, 146 N.E.3d 560, ¶ 10; State v. Bradley, 42 Ohio St. 3d 136, 142, 538
N.E.2d 373 (1989); Strickland at 694. The analysis does not demand the certainty
of success.
{¶ 29} I also write separately to express my concern with a matter that was
raised in this appeal but that could not be fully considered due to the narrow scope
of the issue before us. The Office of the Ohio Public Defender, in its amicus brief,
identifies that review of applications for reopening under App.R. 26(B) has evolved
from reviewing for genuine issues that could have been argued on appeal to
13
SUPREME COURT OF OHIO
reviewing the merits of those issues. See State v. Fain, 188 Ohio App. 3d 531, 2010-
Ohio-2455, 936 N.E.2d 93, ¶ 34 (1st Dist.) (Cunningham, J., concurring in part and
dissenting in part) (writing that the majority in that case, while correct in
determining that a genuine issue existed, erred in deciding the merits of the
ineffective-assistance-of-counsel claim based solely on the application for
reopening rather than ordering briefing on the issue as is required under App.R.
26(B)(6)-(9)). While that issue is beyond the scope of this appeal, I agree that
appellate courts are likely in need of further guidance from this court on that issue.
Thus, moving forward, I would encourage my colleagues on this court to accept for
review cases pertaining to applications to reopen an appeal under App.R. 26(B).
_________________
DONNELLY, J., dissenting.
{¶ 30} In this case, appellant, Roger Simpson, invites us to supplement the
two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), with the factors set forth in Mapes v. Tate, 388 F.3d
187, 191 (6th Cir.2004), when considering applications for reopening under App.R.
26(B). The majority opinion rejects this invitation; I would accept it because the
Mapes factors provide enhanced guidance to courts that the more limited Strickland
test does not.
{¶ 31} This case deserves meaningful review because appellate counsel
below failed many of the factors listed in Mapes to determine whether “appellate
counsel performed reasonably competently despite failing to raise arguments
* * *,” majority opinion at ¶ 15. According to Simpson’s brief,
Simpson’s lead counsel kept the case file at his home office
because he intended to discuss the issues with appellate counsel
when he transferred the file to her. But appellate counsel only
emailed once about the case, never obtained the file, and never had
14
January Term, 2020
a substantive discussion about the case. Which means appellate
counsel never reviewed the bill-of-information, the discovery, the
counsel-only discovery, the work product of experts and the
investigator, and the notes.
{¶ 32} The brief also states:
Appellate counsel failed to argue that Simpson’s 51-year
sentence was unsupported by the record, disproportionate with his
co-defendants’ sentences, and involved an unconstitutional trial tax.
The discrepancy between Simpson’s 51-year term and [codefendant
Elijah] Mincy’s and [codefendant Rodney] Gibson’s 8- and 5-year
terms was a significant and obvious issue—more so given that
Simpson and Mincy committed the same acts, where each faced 23
counts, and therefore shared culpability and blameworthiness.
The majority opinion concludes that these deficiencies are basically irrelevant
because Simpson was not prejudiced.
{¶ 33} Any appellate attorney in Ohio worth his or her salt would have
recognized the vitality and importance of the disproportion between Simpson’s
sentence and the sentences received by his codefendants. That issue should have
been Simpson’s first proposition of law. Still, the majority opinion concludes that
Simpson has not set forth “a colorable claim that his appellate counsel was
ineffective in order to have his appeal reopened.” Majority opinion at ¶ 21. It can
only be because the second prong of Strickland is not satisfied—i.e., that Simpson
could not have prevailed even with competent counsel—though that is not directly
stated.
15
SUPREME COURT OF OHIO
{¶ 34} It is clear to me, in analyzing the Mapes factors, that Simpson’s
appellate counsel was deficient. The disproportionate-sentence issue was
“significant and obvious,” was clearly stronger than those issues that were
presented, and was not otherwise raised by appellate counsel; the decision to omit
the issue was “one which only an incompetent attorney would adopt.” Mapes, 388
F.3d at 191. Moreover, appellate counsel did not meet with Simpson or his trial
counsel, did not review the case record, and did not defend her decision to omit the
disproportionate-sentence issue. See id. I believe that Simpson was prejudiced by
counsel’s deficient performance, because competent advocacy could have
convinced the court of appeals that the sentence imposed was excessive and
disproportionate, see State v. Hawley, 2020-Ohio-1270, 153 N.E.3d 714 (8th Dist.)
(defendant successfully argued that his sentence was disproportionate and
excessive).
{¶ 35} If failure to review the record below and failure to argue the
disproportion of a sentence more than six times longer than a codefendant’s do not
present a colorable claim of ineffective assistance, then we might never reopen a
case pursuant to App.R. 26(B). Of the 836 applications for reopening that this court
has received in the last ten years, zero have been granted. We must ask ourselves
whether we are providing meaningful review or just a mirage. I dissent.
STEWART, J., concurs in the foregoing opinion.
_________________
Michael T. Gmoser, Butler County Prosecuting Attorney, and John C.
Heinkel, Assistant Prosecuting Attorney, for appellee.
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and
Michael J. Hendershot, Chief Deputy Solicitor General, urging affirmance for
amicus curiae Ohio Attorney General.
16
January Term, 2020
Timothy Young, Ohio Public Defender, and Patrick T. Clark, Charlyn
Bohland, and Rachel Troutman, Assistant Public Defenders, urging reversal for
amicus curiae Office of the Ohio Public Defender.
_________________
17