[Cite as State v. Tyson,
2025-Ohio-4588.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 114691
v. :
TAIJUAN TYSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: September 30, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-24-693158-A
Application for Reopening
Motion No. 586886
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Matthew W. Moretto, Assistant Prosecuting
Attorney, for appellee.
Taijuan Tyson, pro se.
MICHELLE J. SHEEHAN, P.J.:
Pursuant to App.R. 26(B), applicant Taijuan Tyson seeks to reopen
his appeal in State v. Tyson, 2025-Ohio-3074 (8th Dist.), in which this court
affirmed his convictions for extortion and attempted pandering sexually oriented
matter involving a minor. Tyson alleges that appellate counsel was ineffective for
failing to advance assignments of error related to the trial court’s alleged (1) denial
of his “speedy trial rights,” (2) “misidentification” of Tyson during arraignment,
(3) “unlawful detention,” and (4) “manipulation” and “backdating” of the trial court
docket. Tyson also claims appellate counsel failed to adequately communicate and
consult with him before filing his appellate brief.
For the reasons that follow, Tyson has not demonstrated a genuine
issue of a colorable claim of ineffectiveness of appellate counsel as it relates to the
proposed assignments of error identified in his application. Accordingly, we deny
his application for reopening.
I. Facts and Procedural History
Pursuant to a plea agreement, Tyson pled guilty to one count of
extortion (Count 1) and one count of attempted pandering sexually oriented matter
involving a minor (amended Count 5) in Cuyahoga C.P. No. CR-24-693158-A
(“693158”). Prior to sentencing, Tyson moved to withdraw his guilty pleas. The trial
court denied the motion.
At the sentencing hearing, the trial court sentenced Tyson to 18
months in prison on each count and ordered that the sentences be served
concurrently. The trial court also imposed a $10,000 fine (suspended) and costs
and provided notifications regarding postrelease control and Tyson’s classification
and registration requirements as a Tier II sex offender. Tyson appealed his
convictions and sentences.
On appeal, Tyson argued that his guilty pleas were not entered
knowingly, intelligently, and voluntarily because the trial court did not advise Tyson,
prior to the entry of his guilty pleas, that by pleading guilty to attempted pandering
sexually oriented matter to a minor, he would (1) be subject to a mandatory term of
five years of postrelease control (and of the consequences of violating postrelease
control) and (2) be classified as a Tier II sex offender (and of the registration
requirements associated with that classification). Tyson also argued that the trial
court’s sentencing entry was clearly and convincingly contrary to law because it
stated that (1) Tyson was classified as a Tier III sex offender (instead of a Tier II sex
offender) and (2) Tyson was subject to five years of mandatory postrelease control
on both counts (instead of on only amended Count 5). Finally, Tyson argued that
the trial court had erred and abused its discretion in denying Tyson’s presentence
motion to withdraw his guilty pleas.
On August 5, 2025, before a decision was entered in his appeal, Tyson,
pro se, filed an application to reopen his appeal pursuant to App.R. 26(B). In his
application, Tyson sets forth two proposed assignments of error “not considered on
appeal due to appellate counsel’s ineffectiveness”:
First Assignment of Error
Appellate counsel was ineffective for failing to raise violations of the
Sixth and Fourteenth Amendments to the United States Constitution.
Second Assignment of Error
Appellate counsel did not consult with Mr. Tyson before filing the brief.
In support of his application, Tyson attached an “unsworn
declaration” “in lieu of affidavit,” which stated:
I, Taijuan Tyson, declare under penalty of perjury that the facts stated
in the attached motion to reopen appeal are true and correct to the best
of my knowledge.
I did not have effective assistance of appellate counsel. My attorney . . .
failed to consult with me or raise serious concerns about constitutional
violations, including docket manipulation, unlawful detention and
backdating.
I was not able to participate in my own appeal, and this has caused
serious prejudice to my rights. I respectfully request the court reopen
my appeal.
Executed on 8/5/25.
Taijuan Tyson (unavailable, blocked from communication)
In addition to his “unsworn declaration,” Tyson attached copies of
various other documents to his application, including (1) an “arraignment
appearance notice” in Cuyahoga C.P. No. CR-24-687979-A (“687979”) for a pretrial
on January 18, 2024; (2) an “arraignment appearance notice” in 693158 for a
pretrial on August 13, 2024; (3) a “Court Supervised Release Contract” related to
conditions of bond in 687979, dated January 18, 2024; (4) a “Statement of Account,”
dated June 13, 2024, from Aladdin Bail Bonds; (5) an email from Tawanna Tyson to
Tyson’s trial counsel dated October 1, 2024; (6) an “affidavit establishing probable
cause” from the Cleveland Municipal Court, dated December 28, 2023, with various
handwritten notations; and (7) what appear to be screenshots or printouts of
excerpts of online case information and/or court dockets (with various handwritten
notations) from 687979 and 693158.
On August 28, 2025, we issued our appellate judgment affirming
Tyson’s convictions. We held that although the trial court did not fully comply with
Crim.R. 11(C)(2)(a) with respect to postrelease control and sex-offender
classification, Tyson did not establish that he was prejudiced by the trial court’s
incomplete advisements. We further held that the trial court did not abuse its
discretion in denying Tyson’s motion to withdraw his guilty pleas. Tyson, 2025-
Ohio-3074, at ¶ 2-5, 41, 50, 68 (8th Dist.). We remanded the case to the trial court
to issue a nunc pro tunc sentencing entry to correct clerical errors related to
postrelease control and Tyson’s sex-offender classification, so that the sentencing
entry would reflect what had actually occurred at the sentencing hearing. Id. at ¶ 5,
56, 70 (8th Dist.).
On September 2, 2025, the State filed a timely opposition to Tyson’s
application for reopening.
II. Law and Analysis
A. Standard for Reopening Appeal Based on a Claim of Ineffective
Assistance of Appellate Counsel
Under App.R. 26(B), a defendant in a criminal case may apply to
reopen his or her appeal from the judgment of conviction and sentence based on a
claim of ineffective assistance of appellate counsel. The application must be filed
“within ninety days from journalization of the appellate judgment” unless the
applicant shows good cause for filing at a later time. App.R. 26(B)(1). An application
for reopening shall include (1) one or more assignments of error or arguments in
support of assignments of error that were not previously considered on the merits
in the case by the appellate court or that were considered on an incomplete record
because of appellate counsel’s deficient representation, (2) 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 in the application and the
manner in which the deficiency prejudicially affected the outcome of the appeal, and
(3) any parts of the record available to the applicant and supplemental affidavits
upon which the applicant relies. App.R. 26(B)(2)(c)-(e).
Claims of ineffective assistance of appellate counsel are evaluated
under the same standard applied to claims of ineffective assistance of trial counsel
announced in Strickland v. Washington, 466 U.S. 668 (1984). State v. Leyh, 2022-
Ohio-292, ¶ 17. Under this standard, “an applicant must show that (1) appellate
counsel’s performance was objectively unreasonable, [Strickland] at 687, and
(2) there is ‘a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different,’ [Strickland] at 694.” Leyh
at ¶ 18.
App.R. 26(B) establishes a two-stage procedure for adjudicating
claims of ineffective assistance of appellate counsel. Id. at ¶ 19. An applicant must
first make a threshold showing that appellate counsel was ineffective. Id. at ¶ 19, 35.
An 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.’”
Id. at ¶ 21, quoting App.R. 26(B)(5). “The burden is on the applicant to demonstrate
a ‘genuine issue’ as to whether there is a ‘colorable claim’ of ineffective assistance of
appellate counsel.” Leyh at ¶ 21, citing State v. Spivey, 84 Ohio St.3d 24, 25 (1998).
“[A]ppellate counsel need not raise every possible issue in order to render
constitutionally effective assistance.” State v. Tenace,
2006-Ohio-2987, ¶ 7, citing
Jones v. Barnes,
463 U.S. 745, 751 (1983), and State v. Sanders,
94 Ohio St.3d 150,
151-152 (2002).
If the applicant makes the required threshold showing,
demonstrating 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,” then the application shall be granted and the appeal reopened.
Leyh at ¶ 25, citing App.R. 26(B)(5). The matter then “proceeds to the second stage
of the procedure, which ‘involves filing appellate briefs and supporting materials
with the assistance of new counsel, in order to establish that prejudicial errors were
made in the trial court and that ineffective assistance of appellate counsel in the
prior appellate proceedings prevented these errors from being presented effectively
to the court of appeals.’” Leyh at ¶ 22, quoting 1993 Staff Notes to App.R. 26(B).
B. Tyson’s Application for Reopening
Because Tyson’s application for reopening was filed prematurely —
before we issued our appellate judgment — we treat his application as having been
filed immediately after our appellate judgment was issued.
In his first proposed assignment of error, Tyson asserts that appellate
counsel was ineffective for not advancing assignments of error challenging (1) “the
denial of a speedy trial” and “the validity of the indictment timeline” based on the
“delay” between Tyson’s arrest on December 28, 2023, and his indictment six
months later on June 26, 2024, (2) the “misidentification” of Tyson as “Christopher
Tyson” and generation of a “duplicate bond number” during his July 24, 2024
arraignment, (3) Tyson’s “unlawful detention,” and (4) “the manipulation and
backdating of the [trial] court docket,” including “entries showing case information
was entered before the indictment was filed” and “missing arraignment records.”
Tyson contends that these alleged failures by the trial court “undermined the
integrity of the judicial process” and violated his right to due process.
In his second proposed assignment of error, Tyson claims that
appellate counsel was ineffective because he “failed to include exculpatory evidence
or witness tampering issues” and “ignored key misconduct by the trial court and
prosecution” in the appeal. Tyson further asserts that he was denied effective
assistance of appellate counsel because of communication issues with appellate
counsel.
Tyson has not shown a genuine issue of a colorable claim of ineffective
assistance of appellate counsel based on the arguments and proposed assignments
of error raised in his application.
1. Effect of Guilty Pleas
First, Tyson’s convictions were based on guilty pleas. By entering
guilty pleas, Tyson waived all appealable errors that may have occurred in the trial
court except to the extent that those errors were based on jurisdictional defects or
prevented Tyson from entering knowing, intelligent, and voluntary guilty pleas. See,
e.g., State v. Littlejohn, 2025-Ohio-1444, ¶ 5, 7 (8th Dist.); State v. Morris, 2024-
Ohio-6190, ¶ 10 (8th Dist.). Tyson does not claim that any of the alleged errors
identified in his application were jurisdictional or prevented him from entering
knowing, intelligent, and voluntary guilty pleas. Appellate counsel was not
ineffective for failing to raise alleged issues on appeal Tyson had waived by his guilty
pleas. See, e.g.,
Littlejohn at ¶ 5, 7; see also State v. Robinson,
2017-Ohio-8055, ¶ 11
(8th Dist.) (appellate counsel was not ineffective for failing to raise a futile argument
on appeal).
Further, even if Tyson had not waived the alleged errors raised in his
proposed assignments of error by entering his guilty pleas, we would not find
grounds for reopening Tyson’s appeal.
2. First Proposed Assignment of Error
Tyson’s claims of “speedy trial violation,” “misidentification,”
“unlawful detention” and docket “manipulation” and “backdating” are not
supported by the record. Review of the dockets in 687979 and 693158 show that
693158 was a refiling of 687979.1 Tyson was arrested on December 23, 2023, and
was indicted in 687979 on January 9, 2024. A superseding indictment was issued
on June 26, 2024 — Tyson was reindicted on four of the original counts and on three
1 Appellate courts may take judicial notice of publicly available, online court dockets
when considering assignments of error. See, e.g., State v. White, 2024-Ohio-5916, ¶ 2,
fn. 1 (8th Dist.); State v. Estridge,
2022-Ohio-208, ¶ 12, fn. 1 (2d Dist.); State v. Kempton,
2018-Ohio-928, ¶ 17 (4th Dist.).
new counts in 693158. 687979 was later dismissed without prejudice because of the
reindictment in 693158. Tyson has not raised a colorable claim of a speedy-trial
violation based solely on the time lapse between his arrest and his reindictment in
the case at issue.
With respect to his claims of “misidentification” as “Christopher
Tyson” and “unlawful detainment,” Tyson has not pointed to any evidence in the
trial court record showing that this occurred or offered any legal authority showing
that, even assuming it did occur, it is an error for which this court could provide a
remedy in the context of his appeal, such that appellate counsel was deficient for
failing to raise the issue. See, e.g., State v. Burke, 2002-Ohio-5310, ¶ 10-11
(“[D]eclining to raise claims without record support cannot constitute ineffective
assistance of appellate counsel. . . . ‘[T]the effectiveness of appellate counsel [cannot]
be judged by adding new matter to the record and then arguing that counsel should
have raised these new issues revealed by this newly added material.’”), quoting State
v. Moore,
93 Ohio St.3d 649, 650 (2001); State v. Buckhalter,
2025-Ohio-619, ¶ 8
(8th Dist.) (“It is well settled that matters outside the record do not provide a basis
for reopening. . . . Allegations of ineffectiveness based on facts not appearing in the
trial record . . . cannot be raised through an App.R. 26(B) application for
reopening”). As such, it would not provide a basis for reopening Tyson’s appeal.
Tyson’s claim of “backdated” docket entries appears to relate to
notations on the docket stating, “12/16/2024 – Unknown,” that follow the docket
entries reflecting the filing of certain motions. Although there does not appear to be
anything in the record specifically indicating why those notations were made, the
dates of filing of each of the motions at issue are properly reflected in the trial court’s
docket and match the date stamps that appear on the documents themselves. There
is nothing to indicate any “backdating” occurred.
Similarly, the “case information” entered on the docket before the
indictment was filed in 693158 consists of docket entries identifying the date of the
offense and Tyson’s date of arrest and a “Complaint Summary” form that sets forth
basic information regarding Tyson, the alleged incident, and the alleged offenses.
And although Tyson contends that there were “missing arraignment records,” he
does not indicate what records he contends were missing or why they were
significant for his appeal. The online dockets reflect that Tyson was arraigned in
687979 on January 12, 2024, and that he was arraigned in 693158 on July 24, 2024.
Tyson has not shown that he was prejudiced or explained how he could have been
prejudiced by appellate counsel’s failure to raise these issues in his appeal.
Accordingly, Tyson’s first proposed assignment of error does not
provide a basis for reopening his appeal.
3. Second Proposed Assignment of Error
Tyson’s second proposed assignment of error consists of general
assertions that appellate counsel was ineffective because he failed to raise issues
related to “exculpatory evidence,” “witness tampering,” and “key misconduct” by the
trial court and prosecution in the appeal. Tyson also claims that appellate counsel
was ineffective for not allowing him to actively participate in the appellate process.
Specifically, he contends that appellate counsel never consulted with Tyson
regarding the arguments that should be made on appeal before counsel filed his
appellate brief and that Tyson and his family members “faced barriers” in
attempting to obtain transcripts and other documents from, and otherwise
communicating with, appellate counsel.
First, to the extent they differ from issues raised in his first proposed
assignment of error, Tyson has failed to identify or describe the exculpatory
evidence, witness tampering, or misconduct that appellate counsel allegedly
ignored. “‘Merely reciting assignments of error . . . without presenting legal
argument and analysis’” explaining how appellate counsel’s performance was
allegedly deficient and how the applicant was allegedly prejudiced thereby “‘is not
sufficient to support an App.R. 26(B) application for reopening.’” State v. Abraham,
2025-Ohio-1446, ¶ 18 (8th Dist.) (an applicant’s “laundry list of complaints does not
fulfill the requisites of App.R. 26(B)”), quoting State v. Townsend,
2022-Ohio-4398,
¶ 7 (8th Dist.), citing State v. Gaughan,
2009-Ohio-2702 (8th Dist.); see also State
v. Pennington,
2025-Ohio-1445, ¶ 14 (8th Dist.) (application that “merely list[ed]
errors, rather than argue and develop them with legal authority other than a
conclusory statement” was “defective”).
Further, Tyson has not shown or explained (1) how appellate counsel
was allegedly ineffective for failing to adequately communicate with him (or his
family) or by failing to provide him (or his family) with copies of transcripts or other
documents or (2) how any such failures prejudicially impacted the success of his
appeal. This court has previously stated that “‘not contacting the appellant is not,’”
in and of itself, “‘ineffective assistance of appellate counsel’” for purposes of an
application for reopening an appeal. Morris, 2024-Ohio-6190, at ¶ 18 (8th Dist.),
quoting State v. Thomas,
2015-Ohio-4486, ¶ 6 (8th Dist.); see also State v.
Anderson,
2018-Ohio-82, ¶ 16 (8th Dist.) (Appellant’s “dissatisfaction with his
appellate counsel, in not communicating with him more, and not sending him a copy
of the transcript, is not considered ineffective assistance of appellate counsel for
purposes of App.R. 26(B).”).
Tyson does not support his claims with legal argument or analysis
that demonstrates the existence of a genuine issue of a colorable claim of ineffective
assistance of appellate counsel. Accordingly, Tyson’s second proposed assignment
of error does not provide a basis for reopening his appeal.
Finally, failure to provide a sworn statement setting forth the basis for
appellant’s claim that appellate counsel’s representation was deficient with respect
to the assignments of error or arguments raised in the application and the manner
in which the deficiency prejudicially affected the outcome of the appeal can be
grounds for denying an application for reopening. See, e.g., State v. McFarland,
2024-Ohio-60, ¶ 5 (8th Dist.) (“[T]he failure to provide the required sworn
statement” is “a sufficient basis” to deny an application for reopening under
App.R. 26(B).); State v. Thompson,
2021-Ohio-2926, ¶ 5 (8th Dist.) (“The sworn
statement is mandatory, and the failure to comply with this requirement warrants
denial of an application to reopen.”), citing State v. Lechner,
72 Ohio St.3d 374
(1995). Tyson has not cited any legal authority to support the proposition that his
unsworn declaration could be used as a substitute for, or submitted “in lieu of,” the
sworn statement required by App.R. 26(B)(2)(d). Compare Lisboa v. Kleinman (In
re Donnelly),
2011-Ohio-7080, ¶ 3 (“[U]nder Ohio law, unsworn written statements
that are signed under penalty of perjury cannot be substituted for affidavits.”), citing
Toledo Bar Assn. v. Neller,
2004-Ohio-2895, ¶ 22-24. Further, it is not clear, from
the parenthetical that follows Tyson’s handprinted name at the bottom of the
declaration — “(unavailable, blocked from communication)” — whether the
declaration was subscribed by Tyson. We need not resolve these issues here because
even if we were to consider Tyson’s unsworn declaration, we would still find that
Tyson has not shown a genuine issue of a colorable claim of ineffective assistance of
appellate counsel to warrant reopening his appeal for the reasons set forth above.
Tyson’s application for reopening is denied.
MICHELLE J. SHEEHAN, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
WILLIAM A. KLATT, J.,* CONCUR
(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of
Appeals.)
