In Reopened Appeals, Appellants Must Brief Deficiency and Prejudice: No Presumption of Ineffective Assistance Under App.R. 26(B)

In Reopened Appeals, Appellants Must Brief Deficiency and Prejudice: No Presumption of Ineffective Assistance Under App.R. 26(B)

Introduction

In State v. Clark, Slip Opinion No. 2025-Ohio-4410, the Supreme Court of Ohio resolved a certified conflict among the districts and announced a clear, statewide rule governing reopened appeals under App.R. 26(B). The Court held that when an appeal is reopened on a claim of ineffective assistance of appellate counsel, the appellant’s merits brief must itself address both components of the Strickland v. Washington test—deficient performance by prior appellate counsel and resulting prejudice. Appellate courts may not presume ineffective assistance merely because newly raised assignments of error appear meritorious. If the appellant does not present a separate Strickland analysis, the court of appeals must confirm its prior judgment.

The decision arose from Thomas Clark’s reopened appeal following his convictions for rape and gross sexual imposition. After the Ninth District granted Clark’s App.R. 26(B) application, Clark’s merits brief cataloged numerous alleged errors but did not separately argue how prior appellate counsel’s performance was deficient or how that deficiency prejudiced him. The Ninth District confirmed its prior affirmance, and a division among Ohio’s appellate districts on whether courts could “presume” ineffective assistance in that situation brought the issue to the Supreme Court.

The Court affirmed the Ninth District, clarified the mandatory nature of App.R. 26(B)(7), and declined to address a proposed back-up route to relief premised on State v. Murnahan (delayed reconsideration) as an advisory matter. A concurrence underscored that, while courts must refrain from crafting Strickland arguments for parties, they retain discretion to order supplemental briefing to ensure orderly and fair adjudication.

Summary of the Opinion

The Court (Shanahan, J., for the Court; Kennedy, C.J., and DeWine and Deters, JJ., joining) held:

  • App.R. 26(B) imposes a two-step process. After an App.R. 26(B) application is granted upon a “genuine issue” showing, the reopened appeal “proceeds as on an initial appeal” but with an express additional requirement: the appellant’s brief must “address … that representation by prior appellate counsel was deficient and that the applicant was prejudiced by that deficiency.” App.R. 26(B)(7), (B)(9).
  • Appellate courts cannot presume ineffective assistance from the apparent merit of new assignments of error. The appellant must make—and the court must be able to find—both Strickland prongs: deficient performance and prejudice. App.R. 26(B)(9).
  • Failure to brief the Strickland claim breaks the “link” that App.R. 26(B) provides to overcome res judicata. In that circumstance, the appellate court must confirm its prior judgment.
  • The Court therefore affirmed the Ninth District’s decision confirming its prior affirmance because Clark’s reopened merits brief did not separately argue deficient performance or prejudice.
  • The Court declined to address Clark’s alternative proposition asking for a subsequent delayed reconsideration under Murnahan if the reopened-appeal brief is deficient; that request called for an advisory opinion.

A concurrence (Hawkins, J., joined by Fischer and Brunner, JJ.) agreed with the disposition and the rule’s mandatory nature but emphasized that appellate courts, while not obligated to do so, retain discretion to order supplemental briefing to address Strickland where a reopened-appeal brief is deficient, consistent with party-presentation principles and the appellate rules.

Case Background

Clark was indicted in 2016 on multiple counts involving a minor. He pleaded guilty to three counts of rape and ten counts of gross sexual imposition; other counts were dismissed. After his pleas, Clark cycled between appointed counsel and self-representation. He moved to withdraw his pleas and to represent himself; the trial court permitted self-representation and denied withdrawal, then later reappointed counsel for sentencing. He received an aggregate 25-years-to-life sentence on each rape count and concurrent 36-month terms on each GSI count, all to run concurrently.

In his first direct appeal, the Ninth District reversed and remanded because the trial court accepted Clark’s waiver of counsel without proper colloquy and without a written waiver, violating Crim.R. 44(A). On remand, the parties disputed whether the guilty pleas remained intact. The trial court proceeded from the point of the motion to withdraw plea and ultimately reimposed the same sentence. The Ninth District affirmed that judgment in 2021.

Clark then pursued an App.R. 26(B) application to reopen, claiming ineffective assistance of appellate counsel, including failure to challenge the remand’s scope. The Ninth District found a “genuine issue” as to ineffective assistance and granted reopening, ordering the parties to brief the Strickland issues as required by App.R. 26(B)(7). Clark’s brief, however, did not separately argue deficient performance or prejudice. The Ninth District, in a split decision, confirmed its prior judgment. The dissent would have followed the Eleventh District’s approach in State v. Talley, presuming an ineffective-assistance claim where the merits appeared sound.

The Ninth District certified a conflict with the Eleventh and Fourth Districts. The Supreme Court accepted the conflict and Clark’s discretionary appeal, but ultimately affirmed the Ninth District.

Analysis

Precedents and Authorities Cited

  • Strickland v. Washington, 466 U.S. 668 (1984): Establishes the two-prong test for ineffective assistance—(1) deficient performance fell below an objective standard of reasonableness, and (2) prejudice: a reasonable probability that, but for counsel’s errors, the outcome would have been different. The Court applies Strickland to ineffective assistance of appellate counsel claims.
  • Smith v. Robbins, 528 U.S. 259 (2000): Confirms that Strickland’s framework applies to appellate counsel; notes the difficulty of proving appellate counsel incompetence.
  • Jones v. Barnes, 463 U.S. 745 (1983): Appellate counsel need not raise every nonfrivolous issue; strategic selection of issues is permissible.
  • State v. Hutton, 2003-Ohio-5607: No constitutional right to counsel on a second appeal, but the Strickland standard governs the effectiveness of appellate counsel.
  • State v. Murnahan, 63 Ohio St.3d 60 (1991): Previously allowed delayed reconsideration to raise ineffective assistance of appellate counsel when time limits otherwise barred review; later “superseded by rule” with adoption of App.R. 26(B). Murnahan’s balancing of res judicata and fairness underlies the creation of App.R. 26(B).
  • State v. Davis, 2008-Ohio-4608 (Ohio Supreme Court) and related lower-court Davis citation: Clarify that App.R. 26(B) provides the procedural mechanism to adjudicate these claims and that res judicata would otherwise bar issues not raised on direct appeal absent an ineffective-assistance “link.”
  • State v. Leyh, 2022-Ohio-292: Describes App.R. 26(B)’s two-step structure and confirms that success requires establishing both the merits of the direct-appeal issue and ineffective assistance under Strickland.
  • State v. Talley, 2023-Ohio-883 (11th Dist.) and State v. Carver, 2023-Ohio-2839 (4th Dist.): District decisions that reviewed reopened-appeal assignments of error and either presumed or effectively bypassed explicit Strickland briefing; State v. Clark disapproves this approach.
  • Appellate Rules:
    • App.R. 26(B)(5): Application granted upon a “genuine issue” of ineffective assistance of appellate counsel.
    • App.R. 26(B)(7): In the reopened appeal, parties must brief deficient performance and prejudice.
    • App.R. 26(B)(8): Court may hold an evidentiary hearing if necessary.
    • App.R. 26(B)(9): Court may vacate its prior judgment only if it finds deficient performance and prejudice; if not, it must confirm the prior judgment.
    • App.R. 16(A)(7): Requires arguments for each assignment of error with citations to authority and the record.
    • App.R. 12(A)(2): Appellate courts may disregard inadequately briefed assignments of error.
    • App.R. 16(C) (concurrence): Authorizes acceptance of additional briefing.
  • Party-presentation and supplemental briefing principles (concurrence): United States v. Sineneng-Smith; Greenlaw v. United States; Ohio cases such as Sizemore v. Smith; State v. Peagler; State v. Tate; 1981 Dodge Ram Van emphasize deciding issues raised by parties and allowing supplemental briefing when courts consider issues not presented by the parties.

Legal Reasoning

The Court’s analysis is primarily textual and structural, grounded in App.R. 26(B) and Strickland.

  • Mandatory text of App.R. 26(B)(7) and (B)(9): The rule’s language is explicit. After reopening, the appeal proceeds “as on an initial appeal,” but with an express, additional requirement: the parties must “address in their briefs” the claim that prior appellate counsel’s representation was deficient and that the deficiency prejudiced the appellant. App.R. 26(B)(9) in turn authorizes vacating the prior judgment only upon findings of both deficiency and prejudice. The logical corollary is that, if a brief contains no such argument, the court cannot make those findings, and confirmation of the prior judgment is required.
  • Res judicata and the “link” provided by App.R. 26(B): Ordinarily, res judicata bars issues that could have been raised on direct appeal. App.R. 26(B) provides an avenue—a “link”—to overcome that bar, but only through a successful ineffective-assistance showing. Without the Strickland argument in the reopened brief, the link fails, and the assignments are barred.
  • Rejection of presumption based on merits-alone review: Some districts presumed that if a new assignment of error had merit, prior counsel must have been ineffective for not raising it. The Court rejected that presumption. Strickland requires a focused, case-specific, two-prong analysis; appellate counsel is not required to raise every issue (Jones v. Barnes), and ineffectiveness cannot be inferred from outcome alone. The rule requires argument, not conjecture.
  • Briefing disciplines apply: App.R. 16(A)(7) still governs reopened appeals. An appellant must articulate arguments, support them with authority and record citations, and distinctly address Strickland’s prongs for each challenged omission by prior counsel. Courts are not to “cobble together” arguments for appellants.
  • Advisory opinions avoided: The Court declined to address Clark’s alternative proposition—whether a second, delayed Murnahan-type reconsideration should be allowed if reopened-appeal counsel fails to brief Strickland—because that question was not properly before the Court and would require an advisory opinion.

The Concurrence: Supplemental Briefing Discretion

Justice Hawkins, joined by Justices Fischer and Brunner, concurred in full but explained that an appellate court confronting a deficient reopened-appeal brief has two permissible courses:

  • Overrule the assignments because the appellant failed to make the required Strickland showing; or
  • Order supplemental briefing to obtain the necessary Strickland-focused arguments, consistent with App.R. 16(C), App.R. 26(B)(8), and longstanding party-presentation norms.

The concurrence stresses that courts should not construct Strickland arguments sua sponte for appellants. But they may preserve fairness and judicial neutrality by requesting additional briefing where appropriate, thereby potentially avoiding iterative ineffective-assistance litigation about the reopened appeal itself.

Impact and Implications

State v. Clark establishes uniform statewide practice and eliminates the district split:

  • Uniform rule for reopened appeals: Appellants must include a dedicated Strickland analysis in their merits briefing. Courts may not presume ineffective assistance from new issues’ apparent merit.
  • Finality and procedural regularity: The decision fortifies the finality interests that underlie res judicata. Reopened appeals are exceptional, and the Strickland “link” is a necessary condition to reach issues otherwise defaulted.
  • Practice discipline: Lawyers handling reopened appeals must structure briefs to:
    • Identify the specific omissions or errors by prior appellate counsel.
    • Explain why the omissions fell below an objective standard of reasonable appellate advocacy, mindful of Jones v. Barnes’s recognition that counsel may strategically winnow issues.
    • Demonstrate a reasonable probability that, but for those omissions, the appeal would have had a different outcome.
    • Support each showing with authority and record citations, consistent with App.R. 16(A)(7).
  • Effect on pro se appellants and access to justice: The rule is rigorous and may prove challenging for self-represented litigants. The concurrence’s reminder that courts may order supplemental briefing gives appellate courts a tool to mitigate potential injustices in appropriate cases while respecting party presentation.
  • No automatic “second bite” via Murnahan: The Court left open—and did not endorse—the idea that a litigant could obtain yet another layer of appellate review if counsel on the reopened appeal fails to brief Strickland. That question remains for another day and case.
  • Guidance to appellate courts: Absent Strickland briefing, courts must confirm prior judgments. They retain discretion to request supplemental briefing but may not invent arguments on the parties’ behalf.

Complex Concepts Simplified

  • Reopened appeal under App.R. 26(B): A special procedure that lets a defendant argue that his first appellate lawyer was constitutionally ineffective. It’s a two-step process—first, show a “genuine issue” of ineffective assistance to reopen; second, in the merits brief, prove both deficient performance and prejudice under Strickland.
  • Ineffective assistance of appellate counsel: Not just showing that the appeal could have been better. The appellant must show (1) prior appellate counsel’s performance fell below reasonable professional standards, and (2) this likely changed the appeal’s outcome.
  • Res judicata: A final judgment generally prevents re-raising issues that could have been raised earlier. App.R. 26(B) creates a narrow exception if the appellant proves ineffective assistance of appellate counsel. Without that showing, res judicata applies.
  • “Proceed as on an initial appeal” with an extra requirement: The reopened appeal uses normal briefing and review rules, but with the added obligation to brief Strickland’s two prongs regarding prior appellate counsel.
  • “Confirm prior judgment”: If the court cannot find both deficiency and prejudice, it must leave its earlier decision in place.
  • Party-presentation principle: Courts decide the issues the parties present; they don’t craft missing arguments. If a crucial argument is not made, the court may reject the claim—or, in its discretion, order supplemental briefing.

Practical Guidance for Practitioners

A reopened-appeal merits brief should include a distinct section titled “Ineffective Assistance of Appellate Counsel” that:

  • Identifies each omitted issue or mishandled argument by prior appellate counsel.
  • Explains why omitting or mishandling the issue was objectively unreasonable, considering strategic selection of issues.
  • Demonstrates prejudice—show a reasonable probability that the direct appeal would have come out differently but for counsel’s error.
  • For each underlying assignment of error, tether the Strickland analysis to record citations and applicable authority (App.R. 16(A)(7)).
  • Requests relief permitted by App.R. 26(B)(9) if both prongs are satisfied (vacatur of the prior judgment and entry of the appropriate judgment).

Avoid generalized or passing references to “ineffective assistance.” Lists of trial or appellate errors unaccompanied by Strickland analysis will not suffice. If time or record constraints impede a full showing, consider requesting supplemental procedures authorized by App.R. 26(B)(8) and additional briefing under App.R. 16(C).

Conclusion

State v. Clark establishes a clear rule for Ohio reopened appeals: the appellant’s merits brief must present a full Strickland analysis of prior appellate counsel’s performance and resulting prejudice. Courts cannot presume ineffective assistance from the mere existence of arguable reversible error in newly raised issues. Failure to brief Strickland requires confirmation of the prior judgment. The decision harmonizes Ohio appellate practice, strengthens the finality interests underlying res judicata, and clarifies the distinct role of App.R. 26(B) as a narrow mechanism for relief from defective appellate representation.

The concurrence’s emphasis on courts’ discretion to order supplemental briefing offers a practical tool to maintain fairness without compromising party-presentation principles. For litigants and lawyers, the message is direct: in reopened appeals, success turns on making—and proving—the ineffective-assistance case, not merely on identifying potential trial-court errors.

Case Information

  • Case: State v. Clark
  • Slip Opinion No.: 2025-Ohio-4410
  • Court: Supreme Court of Ohio
  • Date: September 24, 2025
  • Disposition: Judgment of the Ninth District Court of Appeals affirmed.
  • Opinions: Majority by Shanahan, J. (Kennedy, C.J., and DeWine and Deters, JJ., joining); Concurrence by Hawkins, J. (joined by Fischer and Brunner, JJ.).

Case Details

Year: 2025
Court: Supreme Court of Ohio

Judge(s)

Shanahan, J.

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