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State v. Keslar

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 10, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
GARY R. KESLAR, Defendant-Appellant.

          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, for appellee.

          Gary 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.

         Procedural 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.

         Law and Analysis

         {¶ 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).

         Consecutive Sentences

         {¶5} 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 imposed concurrently.

         {¶ 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) provides,

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 ...

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