State v. Wesley

[Cite as State v. Wesley, 2017-Ohio-5706.]

STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT

STATE OF OHIO )
)
PLAINTIFF-APPELLEE )
) CASE NO. 15 JE 0006
VS. )
) OPINION
JEREK WESLEY ) AND
) JUDGMENT ENTRY
DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Application for Reopening

JUDGMENT: Denied.

APPEARANCES:
For Plaintiff-Appellee Attorney Jane Hanlin
Jefferson County Prosecutor
16001 State Route 7
Steubenville, Ohio 43952

For Defendant-Appellant Jerek Wesley, Pro-Se
Inmate No. A664-499
Ross Correctional Institution
P.O. Box 7010
Chillicothe, Ohio 45601

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite

Dated: June 29, 2017
[Cite as State v. Wesley, 2017-Ohio-5706.]
PER CURIAM.

{¶1} On June 5, 2017, Wesley filed an application for reopening pursuant to
App.R. 26(B). Because Wesley has failed to meet the requirements of App.R. 26 and
failed to demonstrate a genuine issue as to whether he was deprived of effective
assistance of counsel on appeal, his application is denied.
{¶2} The facts of this case were detailed in State v. Wesley, 7th Dist. No. 15
JE 0006, 2017–Ohio–799, ¶ 2–7. Wesley pled no contest to one weapons under
disability count and was found guilty by a jury on three additional counts: weapons
under disability, improper handling and failure to comply. The trial court imposed
consecutive sentences for all four convictions resulting in an aggregate prison term of
nine and a half years.
{¶3} A criminal defendant “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). An application for reopening shall contain:

(c) One or more assignments of error or arguments in support of assignments
of error that previously were not considered on the merits in the case by any
appellate court or that were considered on an incomplete record because of
appellate counsel's deficient representation;
(d) A sworn statement of the basis for the claim that appellate counsel's
representation was deficient with respect to the assignments of error or
arguments raised pursuant to division (B)(2)(c) of this rule and the manner in
which the deficiency prejudicially affected the outcome of the appeal, which
may include citations to applicable authorities and references to the record;
(e) Any parts of the record available to the applicant and all supplemental
affidavits upon which the applicant relies.

App.R. 26(B)(2)(c)-(e).
{¶4} Pursuant to App.R.26(B)(2)(e) Wesley's application fails to cite to the
record to support his argument. “App.R. 26(B)(2)(e) places the responsibility squarely
upon the applicant to provide the court of appeals with such portions of the record as
are available to him.” Where an applicant fails to do so, “his application [is] properly
 -2-

denied.” State v. McNeill, 83 Ohio St.3d 457, 459, 1998-Ohio-38, 700 N.E.2d 613.
{¶5} More problematic, Wesley’s sworn statement fails to indicate how his
appellate counsel was deficient with respect to his assignments of error, nor does it
state the manner in which any deficiency prejudicially affected the outcome of the
appeal. App.R. 26(B)(2)(d). In his affidavit Wesley states that his attorney “did not
raise the issues that I was concerned about.” This does not rise to the level of
deficient performance. As such, we need not reach the merits of Wesley’s
assignments of error.
{¶6} Even if Wesley had satisfied the requirements of App.R. 26, his
application does not present a “colorable claim of ineffective assistance of counsel”
necessary to demonstrate a genuine issue that merits reopening. State v. Sanders,
75 Ohio St.3d 607, 607, 1995-Ohio-28, 665 N.E.2d 199. To show ineffective
assistance of appellate counsel, the two-prong test outlined in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) must be met.
Pursuant to Strickland, the applicant must demonstrate deficient performance of
counsel and resulting prejudice. Id. at 687. See also App.R. 26(B)(9).
{¶7} Because Wesley has failed to meet the procedural requirements of
App.R 26 and likewise failed to demonstrate a genuine issue as to whether he was
deprived of effective assistance of counsel on appeal, his application for reopening is
denied.

DeGenaro, J., concurs.
Donofrio, J., concurs.
Waite, J., concurs.