[Cite as In re L.N., 2017-Ohio-9062.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


In re L.N.                                         Court of Appeals No. WD-16-043

                                                   Trial Court No. 2014JA0881



                                                   DECISION AND JUDGMENT

                                                   Decided: December 15, 2017

                                         *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Timothy Young, Ohio Public Defender, and Victoria Bader,
        Assistant State Public Defender, for appellant.

                                         *****

       OSOWIK, J.

        {¶ 1} L.N. has filed a timely App.R. 26(B) application to reopen his appeal. For

the following reasons, we grant the application.
                                    Procedural History

       {¶ 2} By decision journalized on October 29, 2014, the Wood County Court of

Common Pleas, Juvenile Division, adjudicated L.N. delinquent to the offense of one

count of gross sexual imposition, in violation of R.C. 2907.05(A)(4), a third-degree

felony in delinquency. The conviction stemmed from the charge that L.N., then 15 years

old, had unlawful sexual contact with his four-year-old sister. The court committed L.N.

to the Ohio Department of Youth Services (ODYS) and then immediately suspended its

disposition, on the condition that L.N. complete treatment at the Juvenile Residential

Center of Northwest Ohio (JRCNO).

       {¶ 3} On April 7, 2015, while receiving treatment at JRCNO, L.N. was charged in

a separate case of gross sexual imposition, alleged to have occurred when L.N. was 13

years old.

       {¶ 4} On June 23, 2015, following an adjudication proceeding, the juvenile court

terminated L.N.’s probation in the first case and committed him to ODYS based upon the

new case.

       {¶ 5} L.N. remained in ODYS until August 4, 2016. On that day, the juvenile

court held a sexual offender registration and tier classification hearing, at the conclusion

of which it classified L.N. as a Tier II sex offender.

       {¶ 6} L.N. appealed. He argued that the trial court committed plain error by

failing to conduct the hearing in accordance with R.C. 2152.83(B)(1). The statute

requires that a classification hearing be held “at the time of disposition of the child” or “at




2.
the time of the child’s release from the secure facility.” L.N. argued that the juvenile

court should have held the hearing at the time it ordered him to JRCNO (on October 29,

2014) or at the time it released L.N. from JRCNO and immediately ordered him to ODYS

(on June 23, 2015).

       {¶ 7} On June 23, 2017, we affirmed the juvenile court’s decision. In re. L.N., 6th

Dist. Wood No. WD-16-043, 2017-Ohio-7107. We held,

              We need not, and indeed cannot, decide whether the trial court’s

       decision to hold L.N.’s classification hearing [on August 4, 2016] was

       reasonable, or not, for the reason that the record before us is incomplete.

       * * * Because L.N. did not request the transcript in his praecipe or

       otherwise provide this court with a transcript of the juvenile court’s

       proceedings, most notably the classification hearing held on July 18 and

       August 4, 2016, we must presume that the court’s rulings, with respect to

       his assignment of error, were correct. State v. Vascik, 6th Dist. Lucas No.

       L-10-1130, 2011-Ohio-975, ¶ 18-19, citing Knapp v. Edwards

       Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1989). Id. at ¶ 19,

       22.

       {¶ 8} On September 15, 2017, the Office of the Ohio Public Defender filed an

application to reopen the appeal and the state filed a response.




3.
                                       Law and Analysis

       {¶ 9} Under App.R. 26(B)(1), a criminal defendant can apply for reopening of his

appeal from a judgment of conviction and sentence based on a claim of ineffective

assistance of appellate counsel. The application for reopening “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).

       {¶ 10} The two-prong analysis found in Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 67 (1984) is the appropriate standard to assess a defense

request for reopening under App.R. 26(B)(5). State v. Spivey, 84 Ohio St.3d 24, 25, 701

N.E.2d 696 (1998). Thus, the applicant “must prove that his counsel were deficient for

failing to raise the issues he now presents, as well as showing that had he presented those

claims on appeal, there was a “reasonable probability” that he would have been

successful.” Id. citing State v. Reed, 74 Ohio St.3d 534, 535, 660 N.E.2d 456 (1996).

The applicant “bears the burden of establishing that there was a ‘genuine issue’ as to

whether he has a ‘colorable claim’ of ineffective assistance of counsel on appeal.” Id.,

citing Reed.

       {¶ 11} An application to reopen “shall include * * * [o]ne or more * * * arguments

in support of assignments of error that previously * * * were considered on an incomplete

record because of appellate counsel’s deficient representation.”

       {¶ 12} L.N. argues that his appeal—on the issue of the timing of his classification

hearing—was considered on an incomplete record and that his counsel was responsible




4.
for that omission. Indeed, the duty to provide a transcript for appellate review falls upon

the appellant. Knapp, 61 Ohio St.2d at 199, 400 N.E.2d 384. See also App.R. 9(B)(3)

(“[T]he appellant shall order the transcript in writing and shall file a copy of the transcript

order with the clerk of the trial court.”).

       {¶ 13} The state counters that the appeal should not be reopened because the

proposed assignments of error can be resolved without reference to the transcripts and

because L.N.’s appellate counsel made a “sound strategic decision” to avoid having the

hearings transcribed.

       {¶ 14} We disagree with the state. Whether L.N.’s original appellate counsel

made a conscious decision or not to order the transcript of proceedings, it was incumbent

on counsel to do so. Moreover, the absence of the record was prejudicial to L.N.

inasmuch as it precluded our review of the merits of his assignment of error.

Accordingly, we find that there is genuine issue as to whether, if the transcript of

proceedings had been available for this court’s review, L.N. would have had a reasonable

probability of successfully demonstrating that the juvenile court erred in holding the

classification hearing when it did. Under App.R. 26(B), this court shall grant the

application upon finding such an issue. Therefore, L.N.’s motion for reopening is

granted.

       {¶ 15} This case shall proceed as on an initial appeal on the sole issues presented

in L.N.’s application, pursuant to App.R. 26(B)(7). L.N.’s brief shall be filed within 20

days of the date of this judgment. The state may serve and file its brief within twenty




5.
days after service of L.N.’s brief, and L.N. shall file any reply within ten days after

service of the state’s brief. See App.R. 18(A).

       {¶ 16} The clerk shall serve notice of journalization of the entry of this order on

the parties and the clerk of the trial court. It is so ordered.


                                                                        Application granted.




Mark L. Pietrykowski, J.                          _______________________________
                                                              JUDGE
Arlene Singer, P.J.
                                                  _______________________________
Thomas J. Osowik, J.                                          JUDGE
CONCUR.
                                                  _______________________________
                                                              JUDGE




6.
