Court of Appeals of Ohio, Seventh District, Mahoning
Paul J. Gains, Mahoning County Prosecutor and Atty. Nicholas
A. Brevetta, Assistant Prosecuting Attorney for
J. Reinthaler, Jr., Pro se
BEFORE: Cheryl L. Waite, Carol Ann Robb, Kathleen Bartlett,
OPINION AND JUDGMENT ENTRY
Appellant Joseph J. Reinthaler, Jr. has filed an Application
for Reopening his appeal pursuant to App.R. 26(B). Appellant
pleaded guilty and was convicted of one count of tampering
with records in violation of R.C. 2913.42(A)(2), (B)(1)(4), a
felony of the third degree, one count of forgery in violation
of R.C. 2913. (A)(3)(C), a felony of the fifth degree, one
count of engaging in a pattern of corrupt activity in
violation of R.C. 2923.32(A)(3), (B)(1), a felony of the
first degree, and sixty-seven counts of tampering with
records in violation of R.C. 2913.42(A)(2), (B)(1)(4),
felonies of the third degree.
His guilty plea and conviction were based on a pattern of
corrupt activity at his automobile dealership, where he would
accept used automobiles in trade, then resell them without
discharging the lien of the previous owner. On direct appeal,
Appellant challenged the voluntary nature of his plea, as
well as propriety of the trial court's imposition of
consecutive sentences. We affirmed his convictions and
sentence, but remanded the matter for the limited purpose of
entering a nunc pro tunc entry that memorialized the
trial court's findings with respect to consecutive
sentences at the sentencing hearing. As of the date of this
order, no nunc pro tunc order has been filed by the
A criminal defendant may apply for reopening of his appeal
from the judgment of conviction and sentence based on a claim
of ineffective assistance of appellate counsel. App.R.
26(B)(1). The application for reopening cannot merely allege
that appellate counsel rendered ineffective assistance for
failing to brief certain issues. Rather, the application must
demonstrate that there is a "genuine issue as to whether
the applicant was deprived of the effective assistance of
counsel on appeal." App.R. 26(B)(5).
The test for ineffective assistance of appellate counsel has
two parts: establishing that counsel's performance was
deficient, and that this resulted in prejudice. State v.
Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d
1, ¶ 5, citing Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); App.R.
26(B)(9). Appellant must show that counsel's performance
was so deficient that it fell below an objective standard of
reasonableness and, but for this substandard representation,
the outcome of the case would have been different.
Strickland at 687. Establishing ineffective
assistance of appellate counsel means that the applicant must
prove that counsel was deficient for failing to raise the
issues he now presents and that there was a reasonable
probability of success had he presented those claims on
appeal. State v. Were, 120 Ohio St.3d 85,
2008-Ohio-5277, 896 N.E.2d 699, ¶ 10-11.
However, appellate counsel need not raise every possible
issue in order to render constitutionally effective
assistance. Tenace at ¶ 7, citing Jones v.
Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d
987 (1983). Counsel is expected to focus on the stronger
arguments and leave out the weaker ones, as this strategy is
generally accepted as the most effective means of presenting
a case on appeal. State v. Adams, 7th Dist. No. 08
MA 246, 2012-Ohio-2719, ¶ 8-12.
First, it is important to note that Appellant did not fulfill
the requirements of App.R. 26(B)(2)(d), insofar as he failed
to submit a sworn statement of the basis for his claim that
appellate counsel's representation was deficient with
respect to the assignments of error or arguments raised
pursuant to division (B)(2)(c), and the manner in which the
deficiency prejudicially affected the outcome of the appeal.
Appellant advances four assignments of error. First, he
argues that the trial court imposed an aggregate sentence of
thirteen years at the sentencing hearing, but an aggregate
sentence of fourteen years in the judgment entry of
In fact, the trial court imposed twelve-month concurrent
sentences for each of the sixty-seven counts of tampering
with records. At the sentencing hearing, the trial court
stated that the twelve-month concurrent sentences were to be
served concurrently with the twelve-year consecutive
sentences imposed for counts one, two, and three. In the
judgment entry, the trial court wrote that the twelve-month
concurrent sentences were to be served consecutively to the
twelve-year consecutive sentence imposed for counts one, two,
Crim.R. 43(A) provides that "the defendant must be
physically present at every stage of the criminal proceeding
and trial, including * * * the imposition of sentence."
Because a defendant is required to be present when sentence
is imposed, it constitutes reversible error for the trial
court to impose a sentence in its judgment entry different
than the sentence announced at the sentencing hearing in
defendant's presence. If there exists a variance between
the sentence pronounced in open court and the sentence
imposed by a court's judgment entry, a remand for
resentencing is required. State v. Williams, 6th
Dist. No. L-11-1084, 2013-Ohio-726, 987 N.E.2d 322, ¶
49. See also State v. Quinones, 8th Dist. No. 89221,
2007-Ohio-6077, ¶ 5; State v. Hess, 7th Dist.
No. 00-JE-40, 2001-Ohio-3463. Therefore, Appellant's
first assignment of error has merit.
Next, Appellant asserts that the summary of his crimes
provided at the sentencing hearing by the prosecutor and
Amanda Butler, a Bureau of Motor Vehicles investigator,
misstated his criminal conduct. (11/3/16 Sent. Hrg., pp.
4-5.) He specifically denies in his brief that he
intentionally failed to discharge pre-existing liens before
re-selling the used automobiles but, as previously stated,
offered no affidavit containing a sworn statement. More
importantly, Appellant was given an opportunity to allocute
at the sentencing hearing. In other words, ...