State v. Rosemond

         [Cite as State v. Rosemond, 

.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :    APPEAL NO. C-180221
                                                       TRIAL NO. B-1507143
        Plaintiff-Appellee,                       :

  vs.                                             :       O P I N I O N.

ANTHONY ROSEMOND,                                 :

    Defendant-Appellant.                          :




Judgment of the Court: Application to Reopen Appeal Granted

Date of Judgment Entry: March 12, 2021




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Anthony Rosemond, pro se.
                     OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, Presiding Judge.

       {¶1}   Defendant-appellant Anthony Rosemond has filed a timely application

under App.R. 26(B) to reopen this appeal.       We grant the application, because it

demonstrates a genuine issue as to a colorable claim of ineffective assistance of

appellate counsel in failing to assign as error trial counsel’s ineffectiveness

concerning the imposition of an unauthorized five-year period of postrelease control

for murder.

                               Procedural Posture
       {¶2}   Rosemond was convicted on multiple counts of murder, felonious

assault, having weapons while under a disability, and drug trafficking. In the direct

appeal, this court affirmed his convictions, but remanded for proper calculation and

award of jail-time credit. State v. Rosemond, 1st Dist. Hamilton No. C-180221, 2019-

Ohio-5356, appeal not accepted, 

, 

, 

.

       {¶3}   In his application to reopen his direct appeal, Rosemond asserts that

his appellate counsel was ineffective in not presenting on appeal assignments of

error challenging the adequacy of his judgment of conviction and his trial counsel’s

effectiveness concerning postrelease control and the joinder of his offenses for trial.

The state has responded with a memorandum in opposition, asking this court to

deny reopening on the grounds that the application was not signed as required by

Civ.R. 11 and did not include the “sworn statement” required by App.R. 26(B)(2)(d).

Rosemond has moved to amend the application with an affidavit attesting to the

truth of the matters presented there.

       {¶4}   We grant the motion to amend the application. And we reopen the

appeal.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                               Standard of Review
       {¶5}   An application to reopen an appeal must be granted if the applicant

establishes “a ‘genuine issue’ as to whether he has a ‘colorable claim’ of ineffective

assistance of counsel on appeal.” State v. Spivey, 

, 

 (1998); App.R. 26(B)(5). The standard for determining whether an applicant

was denied the effective assistance of appellate counsel is that set forth by the United

States Supreme Court in Strickland v. Washington, 

, 

, 

 (1984). See State v. Simpson, Slip Opinion No. 

(“reaffirm[ing]” the court’s holding in State v. Reed, 

, 

 (1996), “that the two-prong standard articulated in Strickland …

applies to App.R. 26(B) applications”). The applicant must prove “that his counsel

[performed deficiently in] failing to raise the issues he now presents and that there

was a reasonable probability of success had [counsel] presented those claims on

appeal.” State v. Sheppard, 

, 

 (2001), citing

State v. Bradley, 

, 

 (1989), paragraph three of the

syllabus.

      A Genuine Issue as to Appellate Counsel’s Ineffectiveness
       {¶6}   The trial court did not advise Rosemond about postrelease control at

his sentencing hearing.      In the judgment of conviction, the court imposed

postrelease-control periods of three years for felonious assault and heroin trafficking,

up to three years for cocaine trafficking and the weapons charges, and five years for

murder.

       {¶7}   Multiple periods of postrelease control must be served concurrently.

R.C. 2967.28(F)(4)(c). Thus, the judgment of conviction requires that Rosemond be

placed on five years of postrelease control upon his release from prison.

       {¶8}   But an offender like Rosemond, who has been sentenced to an

indefinite term of confinement for the unclassified felony of murder, is not subject to



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                     OHIO FIRST DISTRICT COURT OF APPEALS



postrelease-control supervision upon release from confinement, but may, when

eligible, gain release on parole to complete the sentence. See State v. Clark, 

, 

, 

; R.C. 2967.13. Therefore, the trial

court erred in imposing postrelease control as part of Rosemond’s sentence for

murder.

       {¶9}   App.R. 26(B)(5) mandates that “[a]n 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.” And in the wake of the Ohio Supreme

Court’s decision in State v. Harper, 

, 

, 

, any error in the imposition of postrelease control must be raised in

the direct appeal. If Rosemond’s appellate counsel had assigned as error on direct

appeal trial counsel’s ineffectiveness concerning the imposition of the unauthorized

period of postrelease control, this court would have sustained the assignment of

error and remanded for sentencing in conformity with the postrelease-control

statutes. See State ex rel. Roberts v. Marsh, 

, 

,

. Because that proposed assignment of error would have

presented a reasonable probability of success had it been advanced on appeal,

Rosemond has demonstrated a genuine              issue   as to   appellate counsel’s

ineffectiveness. Thus, App.R. 26(B)(5), by its terms, mandates reopening the appeal.

                            Procedural Deficiencies
       {¶10} The state, in its opposing memorandum, does not address the

application on its merits. Instead, the state urges this court to deny reopening on the

ground that the application does not comply with Civ.R. 11’s requirement that

Rosemond “sign the … document” or on the ground that the application does not

include the “sworn statement” required by App.R. 26(B)(2)(d). We decline to do so.

       {¶11} Civ.R. 11 signature requirement. App.R. 26(B) provides the
procedure for a civil, collateral postconviction remedy. Morgan v. Eads, 

                     OHIO FIRST DISTRICT COURT OF APPEALS



St.3d 142, 

, 

, ¶ 9. Thus, Civ.R. 11 applies, providing

in relevant part as follows:

       A party who is not represented by an attorney shall sign the pleading,

       motion, or other document …. The signature of … [a] pro se party

       constitutes a certificate by the … party that the … party has read

       the document; that to the best of the … party’s knowledge,

       information, and belief there is good ground to support it; and that it is

       not interposed for delay. If a document is not signed …, it may be

       stricken as sham and false ….

Rosemond did not strictly satisfy Civ.R. 11’s signature requirement.         His hand-

written application for reopening provided a line for his signature, but was not

signed.

       {¶12} This court has never denied an App.R. 26(B) application for reopening

based on the applicant’s failure to satisfy Civ.R. 11’s signature requirement.        In

urging the court to do so here, the state cites the decision of the Court of Appeals for

the Eighth Appellate District in State v. Lester, 8th Dist. Cuyahoga No. 105992,

. We agree with the court in Lester that an App.R. 26(B)

application may be stricken under Civ.R. 11 for failure to satisfy the rule’s signature

requirement. But Civ.R. 11 commits that decision to the sound discretion of the

court. See State ex rel. Fant v. Sykes, 

, 

 (1987)

(holding that Civ.R. 11 does not mandate striking an unsigned civil document). We

decline to exercise that discretion here.

       {¶13} Under Civ.R. 11, a party’s “signature … constitutes a certificate by
the … party that the … party has read the document; that to the best of the …

party’s knowledge, information, and belief there is good ground to support it; and

that it is not interposed for delay.” Without that “certificat[ion],” the document “may

be stricken as sham and false.”



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶14} Rosemond’s application for reopening, as amended by our decision
here, includes his signed and sworn affidavit “declar[ing] that the information

contained in the [application] to reopen is true and correct to the best of [his]

knowledge and belief.”         Thus, the application as amended, while technically

deficient, effectively satisfies the express purposes of Civ.R. 11’s signature

requirement.    We, therefore, decline to exercise our discretion to strike the

application based on that deficiency.

       {¶15} App.R. 26(B)(2)(d) sworn-statement requirement. Nor are

we precluded from reopening this appeal by Rosemond’s failure to provide with his

application the “sworn statement” required by App.R. 26(B)(2)(d).

       {¶16} App.R. 26(B) provides in pertinent part as follows:
       (B)(1) … An application for reopening shall be filed in the court of

       appeals where the appeal was decided within ninety days from

       journalization of the appellate judgment unless the applicant shows

       good cause for filing at a later time.

       (2) An application for reopening shall contain all of the following:

                                           …

       (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 …;



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       (e) Any parts of the record available to the applicant and all

       supplemental affidavits upon which the applicant relies.

The state asserts that this court must deny reopening because Rosemond failed to

satisfy App.R. 26(B)(2)(d)’s requirement that he provide a sworn statement of the

basis for the claim that appellate counsel’s representation was deficient and the

manner in which that alleged deficiency prejudicially affected the outcome of his

appeal. In urging this court to deny reopening based on this deficiency alone, the

state cites State v. Lechner, 

, 

 (1995).

       {¶17} In Lechner, the Fourth Appellate District had denied reopening solely

because the application did not include an App.R. 26(B)(2)(d) sworn statement. The

Ohio Supreme Court agreed with the Fourth District’s characterization of the sworn

statement as “mandatory” and affirmed the appeals court’s judgment. 

.

       {¶18} Lechner was decided on the same day as State v. Franklin, 

, 

 (1995).     In Franklin, the Eighth Appellate District had

denied reopening on the grounds that Franklin did not demonstrate good cause for

his delay in filing his application and failed to provide the sworn statement required

by App.R. 26(B)(2)(d). In affirming the appeals court’s judgment, the Supreme

Court spoke specifically to the sworn-statement deficiency. The court concluded that

Franklin had not satisfied the sworn-statement requirement by attaching to his

application “an affidavit swearing to the truth of the allegations of his application.”

Such an affidavit, the court determined, “falls short of the particularity required by

the rule.” 

.

       {¶19} Rosemond did not include a sworn statement with his original

application. As amended, the application includes his signed and sworn affidavit

“declar[ing] that the information contained in the [application] to reopen is true and

correct to the best of [his] knowledge and belief.” The affidavit does not, as App.R.



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                    OHIO FIRST DISTRICT COURT OF APPEALS



26(B)(2)(d) requires, state the basis for his claim that his appellate counsel’s

representation was deficient or how counsel’s deficient representation affected the

outcome of his appeal. Therefore, under the rule of Franklin, the application does

not satisfy the sworn-statement requirement.

       {¶20} In cases involving unjustifiably late or multiply deficient reopening

applications, Lechner has been cited for the proposition that the lack of an App.R.

26(B)(2)(d)-compliant sworn statement alone provides a basis for denying

reopening. See, e.g., State v. Jones, 8th Dist. Cuyahoga No. 108050, 2020-Ohio-

5175; State v. McKinnon, 7th Dist. Columbiana No. 

, 

;

State v. Dingess, 10th Dist. Franklin No. 10AP-848, 

. Lechner has

also been cited to deny reopening solely for the lack of a sworn statement. See State

v. Fortson, 8th Dist. Cuyahoga No. 92337, 

; see also State v. Davie, 

, 

 (1996) (citing Lechner to affirm the Ninth District’s

denial of reopening for lack of the sworn statement).

       {¶21} But in State v. Smiley, 8th Dist. Cuyahoga No. 72026, 

 (Apr. 22, 1998), the Eighth District reopened an appeal despite the lack of a

sworn statement, upon finding a genuine issue as to appellate counsel’s

ineffectiveness in failing to challenge trial counsel’s conduct during closing

argument. The court in Smiley acknowledged that the application complied with

App.R. 26(B) in all respects other than the sworn statement, and that under Lechner,

“[t]his omission alone can be fatal to an application for reopening.” Smiley at *1.

But the court noted that App.R. 26(B)(5) mandates reopening when an application

demonstrates a genuine issue of appellate counsel’s ineffectiveness, and that the

court had previously “overlooked” both sworn-statement and other “App.R. 26(B)

procedural deficiencies” to reach the merits of a reopening application. Moreover,

the court determined that “justice would not be served … [by] den[ying] the

application on procedural grounds, especially when a review of the merits



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                     OHIO FIRST DISTRICT COURT OF APPEALS



demonstrates a genuine issue of ineffective assistance of appellate counsel.” Smiley

at *2. For those reasons, the court concluded that “an application for reopening with

merit should supersede any procedural deficiency of the application.” Id.; see State

v. Smiley, 8th Dist. Cuyahoga No. 72026, 

 (Oct. 28, 1999), appeal

not allowed, 

, 

 (2000) (in the reopened appeal,

reversing and remanding for a new trial on grounds of ineffective appellate and trial

counsel).

       {¶22} Similarly, in State v. Smith, 1st Dist. Hamilton Nos. C-020336, C-

020337 and C-020341 (Feb. 27, 2003), this court granted reopening despite App.R.

26(B)(2) deficiencies in the application. Smith’s direct appeals had been dismissed

because appellate counsel had failed to file a trial transcript. The state asserted that

Smith was not “entitled” to reopen the appeal, because his application did not satisfy

App.R. 26(B)(2)’s requirements that the application “contain” assignments of error,

a sworn statement, and portions of the record on which the application relied. See

App.R. 26(B)(2)(c), (d) and (e). This court held, to the contrary, that despite the

application’s “procedural deficiencies,” App.R. 26(B)(5) mandated reopening,

because the record demonstrated a genuine issue as to appellate counsel’s

ineffectiveness, when appellate counsel’s inaction had effectively denied Smith his

right to appeal. See State v. Smith, 1st Dist. Hamilton Nos. C-020336, C-020337 and

C-020341 (Oct. 1, 2003) (in the reopened appeal, reversing and remanding for

resentencing).

       {¶23} The Supreme Court in Lechner viewed App.R. 26(B)(2)(d)’s sworn-

statement requirement, along with App.R. 26(B)(2)(c)’s requirement of proposed

assignments of error or arguments not previously considered on the merits, as

providing a curb on abuses of the reopening procedure, by “mak[ing] it obvious that

the rule is … not an invitation to raise old issues previously adjudicated.” Lechner,

, 

. But in its 2008 decision in State v. Davis, 119



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                     OHIO FIRST DISTRICT COURT OF APPEALS



Ohio St.3d 422, 

, 

, the Supreme Court read the rule

in a manner supportive of the Eighth District’s decision in Smiley and this court’s

decision in Smith.

        {¶24} In Davis, the Supreme Court held that a pending motion for a

discretionary appeal does not bar an appeals court’s merit ruling on a timely filed

App.R. 26(B) application to reopen an appeal. Id. at ¶ 5. In so holding, the court

elaborated upon the purposes and principles underlying the reopening procedure.

The court noted that App.R. 26(B) was adopted in 1993 to provide a forum for

vindicating an appellant’s constitutionally secured right to the effective assistance of

counsel on appeal.     Id. at ¶ 26.     The rule “emanates directly” from State v.

Murnahan, 

, 

 (1992), which “evinced a preference

against purely procedural dismissals” of claims of ineffective assistance of appellate

counsel. Id. at ¶ 12-13. And the rule states that “[a]n 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.” (Emphasis added.)         App.R. 26(B)(5).

Thus, the court concluded, when an appellant has timely applied for reopening, the

appeals court’s “mandate … is to determine whether that ‘genuine issue’ exists.”

Id. at ¶ 17.

        {¶25} The Supreme Court further found App.R. 26(B) to evince a “clear

intent … for the appellate court to function as the trier of fact” in determining

whether a “genuine issue” exists. Id. at ¶ 21. And the rule “provides the court [of

appeals with] the necessary evidentiary tools for making its determination.” Id. at ¶

18.    Specifically, the court declared, App.R. 26(B)(2)(d) and (e) afford “the

opportunity for a meaningful review of the record,” by requiring that a sworn

statement and relevant portions of the record be provided, and by permitting the

submission of supplemental affidavits and other evidentiary materials. Id.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                                Reopening Granted
       {¶26} Rosemond’s application to reopen this appeal establishes a genuine

issue as to a colorable claim of his appellate counsel’s ineffectiveness in failing to

assign as error trial counsel’s ineffectiveness concerning the imposition of

postrelease control. Rosemond has satisfied the Civ.R. 11 requirement that he sign

the application by amending his application with his signed and sworn affidavit

attesting to his belief in the truth and accuracy of the application. This affidavit does

not satisfy App.R. 26(B)(2)(d)’s sworn-statement requirement.            But the sworn

statement is not an “evidentiary tool[]” that is “necessary” to this court’s

determination under App.R. 26(B)(5) that there exists a genuine issue as to appellate

counsel’s ineffectiveness. See Davis at ¶ 18. Accordingly, we follow the mandate of

App.R. 26(B)(5) and reopen this appeal.

                                                                    Application granted.

MYERS and BOCK, JJ., concur.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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