Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-17-621517-A
Application for Reopening Motion No. 527085
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Mary M. Frey, Assistant Prosecuting Attorney,
R. Keslar, pro se.
JOURNAL ENTRY AND OPINION
RAYMOND C. HEADEN, J.
1} Applicant, Gary R. Keslar, pursuant to App.R.
26(B), timely seeks to reopen his appeal in State v.
Keslar, 8th Dist. Cuyahoga No. 107088, 2019-Ohio-540. He
claims that appellate counsel was ineffective for not arguing
that trial counsel was ineffective for failing to object to
consecutive sentences. We deny the application.
and Substantive History
2} Keslar was convicted of seven counts of burglary
that resulted from a series of seven burglaries. He was
sentenced to an aggregate 11-year prison term. In his direct
appeal, appellate counsel raised assignments of error
challenging the validity of his guilty pleas, the imposition
of over $23, 000 in restitution, and the ineffectiveness of
his trial counsel in failing to object to the imposition of
restitution. This court overruled each assigned error and
affirmed Keslar's convictions. Id. at ¶ 26.
3} Keslar then timely filed an application to reopen
his appeal, claiming that appellate counsel was ineffective
for failing to argue that trial counsel was ineffective when
counsel did not lodge an objection to consecutive sentences.
The state timely opposed the application.
4} App.R. 26(B)(1) provides that "[a] defendant
in a criminal case may apply for reopening of the appeal from
the judgment of conviction and sentence, based on a claim of
ineffective assistance of appellate counsel." The
application shall be granted if "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 counsel
requires defendants to show (1) that counsel's
performance was deficient and (2) the deficient performance
prejudiced them. Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this
test, a criminal defendant seeking to reopen an appeal must
demonstrate that appellate counsel was deficient for failing
to raise the issue presented in the application for reopening
and that there was a reasonable probability of success had
that issue been raised on appeal. State v. Spivey,
84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998).
Here, Keslar asserts that appellate counsel was ineffective
for not challenging the consecutive nature of some of his
sentences. He alleges that consecutive sentences are not
appropriate based on the facts of the case, the trial court
engaged in impermissible fact-findings, and consecutive
sentences are not warranted because some sentences were
6} An appellate court may overturn the imposition of
consecutive sentences only if it clearly and convincingly
finds either that "the record does not support the
sentencing court's findings under R.C.
2929.14(C)(4)," or "the sentence is otherwise
contrary to law." R.C. 2953.08(G). R.C. 2929.14(C)(4)
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect
the public from future crime or to punish the offender and
that consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to ...