[Cite as In re L.N., 2017-Ohio-9062.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
In re L.N. Court of Appeals No. WD-16-043
Trial Court No. 2014JA0881
DECISION AND JUDGMENT
Decided: December 15, 2017
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Victoria Bader,
Assistant State Public Defender, for appellant.
*****
OSOWIK, J.
{¶ 1} L.N. has filed a timely App.R. 26(B) application to reopen his appeal. For
the following reasons, we grant the application.
Procedural History
{¶ 2} By decision journalized on October 29, 2014, the Wood County Court of
Common Pleas, Juvenile Division, adjudicated L.N. delinquent to the offense of one
count of gross sexual imposition, in violation of R.C. 2907.05(A)(4), a third-degree
felony in delinquency. The conviction stemmed from the charge that L.N., then 15 years
old, had unlawful sexual contact with his four-year-old sister. The court committed L.N.
to the Ohio Department of Youth Services (ODYS) and then immediately suspended its
disposition, on the condition that L.N. complete treatment at the Juvenile Residential
Center of Northwest Ohio (JRCNO).
{¶ 3} On April 7, 2015, while receiving treatment at JRCNO, L.N. was charged in
a separate case of gross sexual imposition, alleged to have occurred when L.N. was 13
years old.
{¶ 4} On June 23, 2015, following an adjudication proceeding, the juvenile court
terminated L.N.’s probation in the first case and committed him to ODYS based upon the
new case.
{¶ 5} L.N. remained in ODYS until August 4, 2016. On that day, the juvenile
court held a sexual offender registration and tier classification hearing, at the conclusion
of which it classified L.N. as a Tier II sex offender.
{¶ 6} L.N. appealed. He argued that the trial court committed plain error by
failing to conduct the hearing in accordance with R.C. 2152.83(B)(1). The statute
requires that a classification hearing be held “at the time of disposition of the child” or “at
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the time of the child’s release from the secure facility.” L.N. argued that the juvenile
court should have held the hearing at the time it ordered him to JRCNO (on October 29,
2014) or at the time it released L.N. from JRCNO and immediately ordered him to ODYS
(on June 23, 2015).
{¶ 7} On June 23, 2017, we affirmed the juvenile court’s decision. In re. L.N., 6th
Dist. Wood No. WD-16-043, 2017-Ohio-7107. We held,
We need not, and indeed cannot, decide whether the trial court’s
decision to hold L.N.’s classification hearing [on August 4, 2016] was
reasonable, or not, for the reason that the record before us is incomplete.
* * * Because L.N. did not request the transcript in his praecipe or
otherwise provide this court with a transcript of the juvenile court’s
proceedings, most notably the classification hearing held on July 18 and
August 4, 2016, we must presume that the court’s rulings, with respect to
his assignment of error, were correct. State v. Vascik, 6th Dist. Lucas No.
L-10-1130, 2011-Ohio-975, ¶ 18-19, citing Knapp v. Edwards
Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1989). Id. at ¶ 19,
22.
{¶ 8} On September 15, 2017, the Office of the Ohio Public Defender filed an
application to reopen the appeal and the state filed a response.
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Law and Analysis
{¶ 9} Under App.R. 26(B)(1), a criminal defendant can apply for reopening of his
appeal from a judgment of conviction and sentence based on a claim of ineffective
assistance of appellate counsel. The application for reopening “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).
{¶ 10} The two-prong analysis found in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 67 (1984) is the appropriate standard to assess a defense
request for reopening under App.R. 26(B)(5). State v. Spivey, 84 Ohio St.3d 24, 25, 701
N.E.2d 696 (1998). Thus, the applicant “must prove that his counsel were deficient for
failing to raise the issues 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.” Id. citing State v. Reed, 74 Ohio St.3d 534, 535, 660 N.E.2d 456 (1996).
The applicant “bears the burden of establishing that there was a ‘genuine issue’ as to
whether he has a ‘colorable claim’ of ineffective assistance of counsel on appeal.” Id.,
citing Reed.
{¶ 11} An application to reopen “shall include * * * [o]ne or more * * * arguments
in support of assignments of error that previously * * * were considered on an incomplete
record because of appellate counsel’s deficient representation.”
{¶ 12} L.N. argues that his appeal—on the issue of the timing of his classification
hearing—was considered on an incomplete record and that his counsel was responsible
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for that omission. Indeed, the duty to provide a transcript for appellate review falls upon
the appellant. Knapp, 61 Ohio St.2d at 199, 400 N.E.2d 384. See also App.R. 9(B)(3)
(“[T]he appellant shall order the transcript in writing and shall file a copy of the transcript
order with the clerk of the trial court.”).
{¶ 13} The state counters that the appeal should not be reopened because the
proposed assignments of error can be resolved without reference to the transcripts and
because L.N.’s appellate counsel made a “sound strategic decision” to avoid having the
hearings transcribed.
{¶ 14} We disagree with the state. Whether L.N.’s original appellate counsel
made a conscious decision or not to order the transcript of proceedings, it was incumbent
on counsel to do so. Moreover, the absence of the record was prejudicial to L.N.
inasmuch as it precluded our review of the merits of his assignment of error.
Accordingly, we find that there is genuine issue as to whether, if the transcript of
proceedings had been available for this court’s review, L.N. would have had a reasonable
probability of successfully demonstrating that the juvenile court erred in holding the
classification hearing when it did. Under App.R. 26(B), this court shall grant the
application upon finding such an issue. Therefore, L.N.’s motion for reopening is
granted.
{¶ 15} This case shall proceed as on an initial appeal on the sole issues presented
in L.N.’s application, pursuant to App.R. 26(B)(7). L.N.’s brief shall be filed within 20
days of the date of this judgment. The state may serve and file its brief within twenty
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days after service of L.N.’s brief, and L.N. shall file any reply within ten days after
service of the state’s brief. See App.R. 18(A).
{¶ 16} The clerk shall serve notice of journalization of the entry of this order on
the parties and the clerk of the trial court. It is so ordered.
Application granted.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, P.J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
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