In re T.A.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re T.A., Slip Opinion No. 2022-Ohio-4173.]
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. 2022-OHIO-4173IN RE T.A.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re T.A., Slip Opinion No. 2022-Ohio-4173.]
Criminal law—Juvenile law—App.R. 26(B)—A person adjudicated a juvenile
delinquent may not reopen his or her direct appeal from the adjudication
based on a claim of ineffective assistance of appellate counsel under App.R.
26(B)—Although App.R. 26(B) does not apply to a direct appeal from a
juvenile adjudication, the appellant may avail himself or herself of the pre-
rule procedures described in State v. Murnahan—Certified question
answered in the negative and court of appeals’ judgment affirmed.
(No. 2021-1018—Submitted May 10, 2022—Decided November 29, 2022.)
CERTIFIED by the Court of Appeals for Medina County, No. 19CA0025-M,
2020-Ohio-3613.
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O’CONNOR, C.J.
{¶ 1} In this certified-conflict case, we address the question whether a
person adjudicated a juvenile delinquent may reopen his or her direct appeal from
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the adjudication based on a claim of ineffective assistance of appellate counsel
under App.R. 26(B). Because the plain language of the rule does not refer to
juvenile adjudications and says that only “[a] defendant in a criminal case may
apply for reopening of the appeal from the judgment of conviction and sentence,”
App.R. 26(B)(1), we answer the certified-conflict question in the negative. We
therefore affirm the judgment of the Ninth District Court of Appeals.
RELEVANT BACKGROUND
{¶ 2} The juvenile division of the Medina County Court of Common Pleas
adjudicated T.A. a delinquent child, and in July 2020, the Ninth District affirmed
that judgment. In re T.A., 9th Dist. Medina No. 19CA0025-M, 2020-Ohio-3613,
¶ 1.
{¶ 3} In October 2020, T.A. filed an application in the Ninth District to
reopen his direct appeal under App.R. 26(B). That rule states: “A defendant in a
criminal case may apply for reopening of the appeal from the judgment of
conviction and sentence, based on a claim of ineffective assistance of appellate
counsel.” App.R. 26(B)(1). In a two-to-one decision, the Ninth District denied the
application, concluding that it could not reach its merits because “while [T.A.] was
adjudicated delinquent in this matter, the plain language of App.R. 26(B) only
provides for a defendant in a criminal case to apply for reopening of the appeal
from the judgment of conviction and sentence.” (Emphasis sic.) 9th Dist. Medina
No. 19CA0025-M, at 1 (Dec. 28, 2020). The majority reasoned that because
juvenile adjudications are not criminal convictions and App.R. 26(B) refers to only
a “judgment of conviction,” a child adjudicated delinquent may not apply for
reopening of his or her appeal from the adjudication under the rule.
{¶ 4} Although the majority agreed with the dissenting judge, stating that
“the application of the rule, as written, raises significant concerns for juvenile
delinquents,” 9th Dist. Medina No. 19CA0025-M, at 2 (Dec. 28, 2020), it ultimately
determined that it must apply the rule as written and “as adopted by the Supreme
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Court [of Ohio] and ask that Court to request the * * * Commission on the Rules of
Practice and Procedure in Ohio Courts to review the issue to determine whether to
recommend that the rule be amended,” id. at 3.
{¶ 5} On T.A.’s motion, the Ninth District certified that a conflict existed
between its decision on the issue and the decision of the Sixth District Court of
Appeals in In re L.N., 6th Dist. Wood No. WD-16-043, 2017-Ohio-9062. A judge
on the panel dissented from the court of appeals’ decision to certify a conflict,
asserting that although the Sixth District granted the juvenile’s application for
reopening under App.R. 26(B) in L.N., the Sixth District “did not consider or decide
the specific legal issue of whether juveniles adjudicated delinquent are permitted to
apply for reopening under App.R. 26(B).” 9th Dist. Medina No. 19CA0025-M, at
3 (July 16, 2021) (Teodosio, J., dissenting).
{¶ 6} By a unanimous vote, this court determined that a conflict existed in
the courts of appeals and accepted the following certified-conflict question for
review: “ ‘Does App.R. 26(B) allow juvenile offenders to reopen their direct
appeals based on claims of ineffective assistance of appellate counsel?’ ” 164 Ohio
St.3d 1456, 2021-Ohio-3438, 174 N.E.3d 803, quoting 9th Dist. Medina No.
19CA0025-M, at 2 (July 16, 2021).
ANALYSIS
The certified question is properly before this court
{¶ 7} The Ninth District determined that its decision in this case was in
conflict with the Sixth District’s decision in L.N. L.N., like T.A., was adjudicated
delinquent by a juvenile court, and the Sixth District affirmed L.N.’s adjudication
and disposition on direct appeal, id. at ¶ 2, 7. L.N. then filed an application to
reopen his appeal under App.R. 26(B), L.N. at ¶ 8, arguing that his appellate counsel
had provided ineffective assistance by failing to submit to the appellate court the
relevant transcript of the juvenile-court proceedings, which had been necessary for
the appellate court to consider his assertion that the juvenile court had erred with
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respect to the timing of his sex-offender-classification hearing, id. at ¶ 12. The
Sixth District did not specifically address the question presented here: whether
App.R. 26(B) applies to a direct appeal from a juvenile court’s delinquency
adjudication. It nonetheless assumed that the rule was applicable to direct appeals
from juvenile adjudications, because it addressed the merits of the application to
reopen and determined that there was a genuine issue as to whether L.N.’s appellate
counsel had been ineffective. See id. at ¶ 14.
{¶ 8} We have recognized three requirements for certifying a conflict: (1)
the purportedly conflicting court of appeals’ judgments must be “ ‘upon the same
question,’ ” (2) the conflict must be on a rule of law, not the facts of the cases, and
(3) the court of appeals certifying the conflict must clearly set forth the rule of law
that it contends is in conflict with a judgment by another court of appeals.
Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596, 613 N.E.2d 1032 (1993),
quoting Ohio Constitution, Article IV, Section 3(B)(4). The state argues that “[t]his
case was improvidently certified as a conflict,” citing the dissenting judge’s opinion
below, which asserted that the claimed conflict is not “upon the same question”
because “[t]here is no indication that the parties in In re L.N.[, 2017-Ohio-9062,]
briefed or argued the specific issue of App.R. 26(B)’s application to juvenile
delinquents, or that the court then analyzed and decided that issue.”
{¶ 9} The state did not contest T.A.’s App.R. 26(B) application in the court
of appeals on the ground that the rule does not apply to direct appeals from juvenile
adjudications. Instead, the state argued that T.A. was not entitled to relief on the
merits of his application. Nonetheless, the Ninth District addressed the question of
the applicability of App.R. 26(B). And after T.A. had moved to certify a conflict
on the question, the state asserted its agreement with the court of appeals that
App.R. 26(B) does not apply to direct appeals from juvenile adjudications.
{¶ 10} The absence of briefing by the parties or analysis by the Sixth
District in L.N. on the issue, however, does not control whether the courts of
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appeals’ judgments forming the basis of the asserted conflict are “upon the same
question,” Article IV, Section 3(B)(4). We are confronted here with a classic
conflict on a legal question between the judgments of two Ohio appellate districts.
Based on L.N., appellants challenging their juvenile-delinquency adjudications in
the Sixth District may use App.R. 26(B) to reopen their direct appeals, while
appellants challenging their juvenile-delinquency adjudications in the Ninth
District may not. Given that the different outcomes between the judgments of the
Ninth and Sixth Districts are rooted in the same legal question, we are not persuaded
that the conflict question was improvidently certified.
{¶ 11} We turn now to the merits of the certified question.
The certified question
{¶ 12} In State v. Murnahan, 63 Ohio St.3d 60, 65, 584 N.E.2d 1204 (1992),
this court held that claims of ineffective assistance of appellate counsel are not
cognizable in postconviction proceedings under R.C. 2953.21. This court
recognized in Murnahan, however, that such claims may go undiscovered during
the time permitted for seeking reconsideration in the court of appeals or the time
permitted for filing an appeal in this court and, as a result, it would be necessary for
such appellants to request delayed reconsideration in the court of appeals or this
court to raise ineffective-appellate-counsel claims. Id. at 65-66. But due to the
potential for the doctrine of res judicata to bar such delayed requests, a solution was
required. See State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d
1221, ¶ 9-12. Thus, “the court in Murnahan softened the effect that res judicata
would have in a delayed appeal,” id. at ¶ 10, and set forth the following process as
a solution:
[I]n an individual case where a defendant has put forth a colorable
claim of ineffective assistance of appellate counsel, where the
circumstances render the application of res judicata unjust, and the
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time periods for reconsideration in courts of appeals and direct
appeal to this court have expired, he or she must: (1) apply for
delayed reconsideration in the court of appeals where the alleged
error took place pursuant to App.R. 26 and 14(B), and if delayed
reconsideration is denied, then (2) file for delayed appeal in this
court pursuant to Section 8, Rule II of the Rules of Practice of the
Supreme Court.
(Footnotes deleted.) Murnahan at 66. In other words, “in a case where the time
for direct appeal had elapsed, Murnahan sought to balance a just application of res
judicata against the merits of a defendant’s claim of ineffective assistance of
appellate counsel” and “evinced a preference against purely procedural dismissals.”
Davis at ¶ 12.
{¶ 13} Notably, this court in Murnahan recommended that “the Rules
Advisory Committee appointed by this court review whether an amendment to
App.R. 14(B) or a new rule should be adopted to better serve claimants in this
position.” Murnahan at 66, fn. 6. App.R. 26(B) is the result of that
recommendation. Davis at ¶ 13 (“To be sure, App.R. 26(B) emanates directly from
Murnahan”); 1993 Staff Notes, App.R. 26(B) (“The 1993 amendment was in
response to the Supreme Court’s opinion in [Murnahan]”). App.R. 26(B) sets forth
the procedure by which defendants in criminal cases may bring delayed claims of
ineffective assistance of appellate counsel by filing an application to reopen his or
appeal direct appeal in the appellate court. See Davis at ¶ 13. The question in this
case is whether offenders in juvenile cases may use App.R. 26(B) to do the same.
{¶ 14} App.R. 26(B)(1) states: “A defendant in a criminal case may apply
for reopening of the appeal from the judgment of conviction and sentence, based
on a claim of ineffective assistance of counsel.” The rule goes on to describe the
procedural and substantive requirements for such an application, but the preceding
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quoted sentence is relevant here because we must determine whether a person
adjudicated delinquent in juvenile court, like T.A., is a “defendant in a criminal
case” seeking to reopen an appeal “from the judgment of conviction and sentence,”
id.
{¶ 15} The Ninth District determined that T.A. was not a defendant in a
criminal case seeking to reopen his appeal from a judgment of conviction and
sentence, citing State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448,
in which this court determined that “a juvenile adjudication is not a conviction of a
crime and should not be treated as one,” id. at ¶ 38. The court of appeals
emphasized the lack of specific language in App.R. 26(B) referring to juvenile-
delinquency proceedings. Citing other appellate rules of procedure that refer
specifically to juvenile-court proceedings, including App.R. 5(A) and App.R. 7, the
court of appeals reasoned, “Had the drafters [of App.R. 26(B)] intended [the rule]
to also apply to delinquency adjudications, they could have easily stated so.” See
also App.R. 5(A)(1) (providing that after the 30-day period for filing a timely
appeal under App.R. 4(A) has expired, a defendant may seek leave to appeal in
criminal proceedings, “[d]elinquency proceedings,” and “[s]erious youthful
offender proceedings”); App.R. 7(C) (“No order, judgment, or decree of a juvenile
court * * * shall be stayed upon appeal”).
{¶ 16} We use general principles of statutory construction to interpret court
rules. State ex rel. Law Office of Montgomery Cty. Pub. Defender v. Rosencrans,
111 Ohio St.3d 338, 2006-Ohio-5793, 856 N.E.2d 250, ¶ 23. Thus, as we do when
considering a statute, we apply a rule as written when its meaning is unambiguous
and definite. See State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn.,
74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). An unambiguous rule should be
applied by giving effect to its language without adding or deleting words. See
Armstrong v. John R. Jurgensen Co., 136 Ohio St.3d 58, 2013-Ohio-2237, 990
N.E.2d 568, ¶ 12.
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{¶ 17} We agree with the Ninth District that App.R. 26(B), on its face, does
not include language referring to appeals from juvenile adjudications. The
language used in the rule—both its reference to a defendant in a criminal case and
an appeal from a judgment of conviction and sentence—is not the plain language
ordinarily used to describe juvenile adjudications and dispositions. While it might
be tempting to accept T.A.’s invitation to consider the good-policy sense that
applying the rule to juvenile adjudications would make, we are restrained from
adding words to the rule or any meaning that is not evinced by the plain language
of the rule. For this reason, we apply the rule as written.
{¶ 18} T.A. concedes that App.R. 26(B) “does not explicitly mention
juveniles in its text,” but he argues that failing to interpret the rule as applying to
juvenile adjudications violates his due-process and equal-protection rights. That
argument, however, assumes that T.A. is without any recourse by which to raise a
claim that his appellate counsel was ineffective if he cannot do so through App.R.
26(B). But we do not read App.R. 26(B) as supplanting Murnahan as a whole.
Although App.R. 26(B) does not apply to T.A.’s appeal, he may avail himself of
the pre-rule procedures described in Murnahan.
{¶ 19} The time for T.A. to seek reconsideration of the court of appeals’
judgment in his direct appeal and the time for T.A. to file a direct appeal from that
judgment to this court has expired, which leaves T.A. the option of pursuing a
delayed claim of ineffective assistance of appellate counsel through an application
for delayed reconsideration in the court of appeals in which the alleged error took
place. See Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204, at paragraph three of
the syllabus. If he does so and the court of appeals denies the motion for delayed
reconsideration, T.A. may seek a delayed appeal in this court. Id.8
January Term, 2022
{¶ 20} In practice, courts of appeals should not be indifferent to the
substance of such claims based on the form in which they are presented.1 As this
court explained in Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221,
“Murnahan softened the effect that res judicata would have in a delayed appeal,”
id. at ¶ 10, and “evinced a preference against purely procedural dismissals” because
“Murnahan sought to balance a just application of res judicata against the merits of
a defendant’s claim of ineffective assistance of appellate counsel,” id. at ¶ 12. In
Murnahan, this court explained, “[W]here the circumstances render the application
of res judicata unjust,” the claim can proceed. Id. at 66. And we explained that
“[b]efore granting reconsideration, the court of appeals should determine whether
there are substantive grounds for relief.” Id. But this court in Murnahan did not
contemplate the dismissal on purely res judicata grounds of a delayed appeal filed
by an appellant in a juvenile case merely because the juvenile did not raise the claim
of ineffective assistance of appellate counsel within the time provided for seeking
reconsideration or a direct appeal to this court.
{¶ 21} Finally, there is no disagreement between the parties that
App.R. 26(B) should be amended so that it applies to appeals from juvenile
adjudications. There is no practical or substantive difference between appeals by
adults from their criminal convictions and appeals by juveniles from their
1. T.A.’s counsel asserted during oral argument that courts of appeals have dismissed applications
for delayed reconsideration under circumstances like those involved here because they were not
filed under App.R. 26(B). Although counsel has not provided this court with a specific example of
such an occurrence, we nonetheless take notice of the concern regarding such rulings and emphasize
that this decision should be read as making clear to the courts of appeals that because App.R. 26(B)
is not a permissible means to reopen a direct appeal from a juvenile adjudication based on a claim
of ineffective assistance of appellate counsel, the failure to file an App.R. 26(B) application to
present such a claim is not a procedural bar to a court of appeals’ consideration of the merits of such
a claim brought through a motion for delayed reconsideration. We also note the state’s
representation in its brief that “[i]t is the State of Ohio’s position that ineffective assistance of
appellate counsel can be raised by juveniles outside of App.R. 26(B) in the other ways that
Murnahan describes.” Thus, the state suggests that it would not object on procedural grounds to an
application for delayed reconsideration of a court of appeals’ direct-appeal decision filed by a
juvenile offender who seeks to present a claim of ineffective assistance of appellate counsel.
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delinquency adjudications that may justify the procedures within App.R. 26(B) not
applying to appeals from juvenile adjudications.
{¶ 22} “While we continue to characterize juvenile proceedings as civil
rather than criminal in nature, [Hand], 149 Ohio St.3d 94, 2016-Ohio-5504, 73
N.E.3d 448, [at] ¶ 15, citing [In re] Anderson, 92 Ohio St.3d [63, 65], 748 N.E.2d
67 [(2001)], and In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177,
¶ 40, the criminal aspect of delinquency proceedings is undeniable.” State v.
Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, 103 N.E.3d 784, ¶ 48. “Our
jurisprudence requires that protections afforded adult criminal defendants, when
appropriate, be extended to juveniles who stand in equal jeopardy of having their
liberties taken.” Id. at ¶ 49. Thus, the civil nature of juvenile-delinquency
proceedings is not a reason to withhold from juvenile offenders the ability to argue
that they did not receive effective assistance of appellate counsel, a right to which
they are constitutionally entitled.
{¶ 23} In light of the foregoing, and as the Ninth District requested, we
recommend that the Commission on the Rules of Practice and Procedure review the
issue discussed herein for a possible rule amendment.
CONCLUSION
{¶ 24} For the foregoing reasons, we answer the certified question in the
negative and affirm the judgment of the Ninth District Court of Appeals.
Judgment affirmed.
DEWINE, DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by FISCHER, J.
FISCHER, J., dissents, with an opinion.
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KENNEDY, J., dissenting.
{¶ 25} Because the Ninth District Court of Appeals’ order certifying a
conflict in this case does not point to any judgment by another court of appeals with
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which its judgment conflicts on the same question of law, I dissent and would
dismiss the matter as having been improvidently certified.
{¶ 26} Article IV, Section 3(B)(4) of the Ohio Constitution provides that
“[w]henever the judges of a court of appeals find that a judgment upon which they
have agreed is in conflict with a judgment pronounced upon the same question by
any other court of appeals of the state, the judges shall certify the record of the case
to the supreme court for review and final determination.” In construing this
language, we have explained that “there must be an actual conflict between
appellate judicial districts on a rule of law before certification of a case to [this
court] for review and final determination is proper.” Whitelock v. Gilbane Bldg.
Co., 66 Ohio St.3d 594, 613 N.E.2d 1032 (1993), paragraph one of the syllabus.
We will therefore dismiss a certified-conflict case when, upon review, we discover
that the matter is not properly before us because no actual conflict on a rule of law
exists. See, e.g., State v. Pettus, 163 Ohio St.3d 55, 2020-Ohio-4836, 168 N.E.3d
406, ¶ 6.
{¶ 27} There is no conflict between the Ninth District’s judgment below
and the Sixth District Court of Appeals’ judgment in In re L.N., 6th Dist. Wood No.
WD-16-043, 2017-Ohio-9062, the case cited by the Ninth District as being in
conflict with its judgment. In L.N., the appellant, whose adjudication of
delinquency had been affirmed on direct appeal, timely filed an App.R. 26(B)
application to reopen the appeal, arguing that his appellate counsel had been
ineffective for failing to file a complete record for the appellate court’s review. Id.
at ¶ 1, 7, 12. The Sixth District granted the application. Id. at ¶ 14, 16. However,
the appellate court did not analyze the issue whether a person adjudicated a juvenile
delinquent may reopen his or her direct appeal from the adjudication based on a
claim of ineffective assistance of appellate counsel under App.R. 26(B). See id. at
¶ 12-15. Also, nothing in L.N. indicates that that issue was raised or argued by the
parties. Therefore, there is no “actual conflict * * * on a rule of law,” Whitelock at
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paragraph one of the syllabus, between the Ninth District’s judgment in this case
and the Sixth District’s judgment in L.N.
{¶ 28} Because a conflict between the judgments of different appellate
districts on the same rule of law is required before a conflict may be certified to this
court, the question certified by the Ninth District is not properly before us. For that
reason, I would dismiss this matter as having been improvidently certified. Because
the majority does not, I dissent.
FISCHER, J., concurs in the foregoing opinion.
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FISCHER, J., dissenting.
{¶ 29} I agree fully with the analysis in the first dissenting opinion. For the
reasons set forth in that opinion and based on the analysis in my dissent in State v.
Maddox, ___ Ohio St.3d ___, 2022-Ohio-764, ___ N.E.3d ___, ¶ 31 (Fischer, J.,
dissenting), I join the first dissenting opinion.
_________________
S. Forrest Thompson, Medina County Prosecuting Attorney, and Vincent
V. Vigluicci, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Timothy B. Hackett, Assistant
Public Defender, for appellant.
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