Court of Appeals of Ohio, Seventh District, Belmont
Plaintiff-Appellee Attorney Daniel P. Fry Belmont County
Prosecutor Attorney J. Flanagan Assistant Prosecutor
Defendant-Appellant Buck A. Ward, Pro-se
Mary DeGenaro Hon. Gene Donofrio Hon. Carol Ann Robb, Judges
OPINION AND JUDGMENT ENTRY
Appellant Buck Allen Ward filed a timely pro-se application
to reopen our judgment in his direct appeal, State v.
Ward, ___ N.E.3d ___, 2017-Ohio- 4381 (7th Dist.). Ward
pled guilty to one count of robbery pursuant to a plea
agreement. The trial court sentenced Ward to a maximum term
of 36 months in prison and up to three years of discretionary
post-release control, ordered Ward to pay monetary
restitution and gave him jail-time credit for 48 days.
Ward, supra, ¶ 1-3.
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.
Contrary to App.R.26(B)(2)(e), Ward's application failed
to include the pertinent portions of the record upon which he
relies. "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 denied." State v.
McNeill, 83 Ohio St.3d 457, 459, 700 N.E.2d 613. In
McNeill, the court inferred that the defendant had
access to the record because his application cited the
record. Id. at 458-459. The Court further noted that
the defendant could have requested the clerk's office to
release the record. Id. Ward cites to and appears to
quote portions of the record, thus demonstrating his access.
For this reason alone, dismissal of his application is
More problematic is that Ward failed to file a sworn
statement to indicate how appellate counsel was deficient
with respect to his assignments of error and the manner in
which any deficiency prejudicially affected the outcome of
the appeal. App.R. 26(B)(2)(d). The sworn statement
requirement is mandatory. State v. Lechner, 72 Ohio
St.3d 374, 375, 650 N.E.2d 449 (1995). Thus, we need not
reach the merits.
Even if Ward had complied with App.R. 26, his application
does not present a colorable claim necessary to demonstrate a
genuine issue that merits reopening his appeal. State v.
Sanders,75 Ohio St.3d 607, 607, 665 N.E.2d 199. To show
ineffective assistance of appellate counsel, the applicant
must demonstrate deficient performance of counsel and
resulting prejudice. Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See
also App.R. 26(B)(9). Ward raises issues of improper
extradition, judicial bias by the trial court, breach of the
plea agreement by the prosecutor, improper calculation of
jail-time credit, sentencing issues, and appellate
counsel's failure to request oral argument. ...