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State v. Wade

Court of Appeals of Ohio, Seventh District, Jefferson

June 5, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ANDRE WADE DEFENDANT-APPELLANT

         Application for Reopening

          For Plaintiff-Appellee Attorney Jane Hanlin Jefferson County Prosecutor Attorney Edward Littlejohn Assistant Prosecutor

          For Defendant-Appellant Andre Wade, Pro-se #662403

          JUDGES: Hon. Mary DeGenaro Hon. Cheryl L. Waite Hon. Carol Ann Robb

          OPINION AND JUDGMENT ENTRY

          PER CURIAM.

         {¶1} Appellant Andre Wade has filed a timely pro-se App.R. 26(B) application to reopen his appeal based on a claim of ineffective assistance of appellate counsel. Because Wade has failed to demonstrate a genuine issue as to whether he was deprived of effective assistance of counsel on appeal, his application is denied.

         {¶2} Following a jury trial, Wade was convicted of one count of rape under R.C. 2907.02(A)(2); one count of possession of drugs, under R.C. 2925.11(A) and (C)(4)(a); and one count of misdemeanor assault under R.C. 2903.13(A). Wade happened upon two minor high school students in a wooded area and raped the female, KS, after punching the male, CD, in the face. Wade was sentenced to an aggregate prison term of 12 years.

         {¶3} On appeal, Wade's appellate counsel raised four assignments of error: trial counsel was ineffective; the trial court erred by permitting a witness to testify about statements Wade made to him about the alleged crimes during a sanity evaluation; and, his rape conviction was not supported by sufficient evidence or was against the manifest weight of the evidence. We concluded these assignments of error were meritless and affirmed the judgment of the trial court in State v. Wade, 2016-Ohio-8546, 71 N.E.3d 311 (7th Dist.).

         {¶4} Wade filed a timely application to reopen his appeal pursuant to App.R. 26(B). He attached an affidavit wherein he states his belief that his appellate counsel failed to provide him with effective assistance. The State opposed his motion.

         {¶5} 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 ...

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