[Cite as State v. Wagner, 2022-Ohio-801.]

 COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 109678 

 v. : 

 

DAVID WAGNER, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: APPLICATION GRANTED 

RELEASED AND JOURNALIZED: March 16, 2022

 

 Cuyahoga County Court of Common Pleas 

Case No. CR-19-636068-B 

Application for Reopening 

Motion No. 551045 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Mary M. Frey, Assistant Prosecuting 

Attorney, for appellee. 

John P. Parker, for appellant. 

EMANUELLA D. GROVES, J.: 

David Wagner has filed a timely application for reopening pursuant 

to App.R. 26(B). Wagner seeks to reopen the appeal, rendered in State v. Wagner, 

8th Dist. Cuyahoga No. 109678, 2021-Ohio-3107, that affirmed the trial court’s 
imposition of consecutive sentences, totaling 15 years, in State v. Wagner, Cuyahoga 

C.P. No. CR-19-636068-B. We grant Wagner’s application for reopening. 

Pursuant to App.R. 26(B)(1), an appellant in a criminal matter may 

move to reopen an appeal based on a claim of ineffective assistance of appellate 

counsel. The test for ineffective assistance of trial counsel, found in Strickland v. 

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is the 

appropriate standard to determine whether appellate counsel was ineffective 

under App.R. 26(B)(5). The applicant “must prove that his counsel [was] deficient 

for failing to raise the issue he now presents, as well as showing that had he 

presented those claims on appeal, there was a ‘reasonable probability’ that he would 

have been successful.” State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). 

To prevail on an application to reopen, defendant must establish “a colorable claim” 

of ineffective assistance of appellate counsel under the standard established 

in Strickland. 

The Supreme Court of Ohio, in State v. Leyh, Slip Opinion No. 2022-

Ohio-292, a very recent opinion issued on February 8, 2022, reversed the Ninth 

District Court of Appeals on the basis that the applicant, through his App.R. 26(B) 

application for reopening, had demonstrated that there existed a genuine issue as to 

whether he was deprived of the effective assistance of appellate counsel. The Ohio 

Supreme Court further held that the applicant is not initially required, through his 

application for reopening, to conclusively establish ineffective assistance of 

appellate counsel. 
Thus, the two-stage procedure prescribed by App.R. 26(B) requires 

that the applicant seeking permission to reopen his direct appeal show 

at the first stage that there is at least a genuine issue — that is, 

legitimate grounds — to support the claim that the applicant was 

deprived of the effective assistance of counsel on appeal. See App.R. 

26(B)(5). If that showing is made and the application is granted, the 

applicant must then establish at the second stage the merits of both the 

direct appeal and the claim for ineffective assistance of appellate 

counsel. See App.R. 26(B)(9). 

Leyh at ¶ 25. 

The facts, pertinent to Leyh, involved the failure of appellate counsel 

to include as part of the record, a transcript, and a confidential presentenceinvestigation report (“PSI”). Similar to the facts in Leyh, Wagner argues that there 

exists a genuine issue as to whether appellate counsel was ineffective for failing to 

raise on appeal the failure of trial counsel to include a competency evaluation and a 

PSI as part of the trial court record. Specifically, Wagner argues that the competency 

report and the PSI contained mitigation information that may have resulted in the 

trial court imposing a lesser sentence of incarceration. As stated by the Supreme 

Court of Ohio: 

As we have noted, the structure and text of App.R. 26(B) plainly 

contemplate stages of analysis. In this case, Leyh had to show only at 

the first stage of the procedure a genuine issue that he was deprived of 

the effective assistance of appellate counsel. He was not required to 

conclusively establish ineffective assistance of appellate counsel just to 

be allowed to argue in a reopened appeal that he was deprived of the 

effective assistance of appellate counsel. Contrary to the reasoning of 

the court of appeals, Leyh did not have to prove that he would win the 

reopened direct appeal and prevail on his claim of ineffective assistance 

of appellate counsel as a precondition to reopening the direct appeal 

for further legal proceedings to contest the trial court’s alleged failure 

to merge allied offenses. 
Leyh at ¶ 35. 

Herein, there exists a genuine issue as to whether Wagner was 

deprived of the assistance of appellate counsel. We further find that there exists a 

reasonable probability that had appellate counsel presented the proposed 

assignments of error contained within the application for reopening, the results of 

the appeal may have been different. As a result, we find that the application for 

reopening is well taken. State v. Nix, 8th Dist. Cuyahoga No. 106894, 2019-Ohio1640; State v. Rosemond, 1st Dist. Hamilton No. C-180221, 2011-Ohio-768. 

The reopened appeal will be limited to the issues raised in Wagner’s 

eight proposed assignments of error in support of the application for reopening. 

Issues previously addressed by this court, in Wagner’s original appeal, shall not be 

considered. See App.R. 26(B)(7). 

The court appoints John P. Parker, 988 East 18th Street, Cleveland, 

Ohio 44119, 216-881-0900, to represent Wagner. Counsel is instructed to apply for 

compensation within 30 days after journalization of this court’s final decision in the 

reopened appeal. See Loc.App.R. 46(C). 

The clerk of courts is ordered to reassemble and transmit, within 45 

days of the date of this entry, the record in 8th Dist. Cuyahoga No. 109678 as it 

existed during the court’s original review of the judgment rendered in State v. 

Wagner, Cuyahoga C.P. No. CR-19-636068-B. Wagner is permitted to supplement 

the reassembled record with the competency report, the PSI, and any other material 
that has been omitted from the record “by error or accident or is misstated.” See

App.R. 9(E) and 26(B)(2)(e). 

Briefs of the parties shall be filed in accordance with the time frames 

established within Loc.App.R. 16 and shall conform to the App.R. 16 and 19. 

Application for reopening is granted. 

_________________________ 

EMANUELLA D. GROVES, JUDGE 

KATHLEEN ANN KEOUGH, P.J., and 

CORNELIUS J. O’SULLIVAN, J., CONCUR