The Supreme Court of Ohio today rejected a Medina County man’s claim that the attorney handling the appeal of his criminal convictions was ineffective because the man failed to specify how his attorney was ineffective.

The Supreme Court unanimously affirmed a Ninth District Court of Appeals decision to overrule Thomas Clark’s claim that his appellate attorney was ineffective. The Ninth District ruled that Clark’s request to reopen his appeal to challenge his attorney’s performance needed to include specifics about how the attorney’s representation harmed him.

Writing for the Court majority, Justice Megan E. Shanahan noted some appeals courts require a claim of ineffective assistance of counsel to detail the failings, while other appeals courts have not required specifics but instead examined the allegations and made their own determinations about whether the lawyer was ineffective.

“An appellant's reopened appeal may succeed only if the appellate court ‘finds that the performance of appellate counsel was deficient and the applicant was prejudiced by that deficiency,’” Justice Shanahan wrote. “The appellant’s failure to assert an argument regarding the ineffectiveness of appellate counsel prevents the court from making such a finding.”

Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine and Joseph T. Deters joined Justice Shanahan’s opinion.

In a concurring opinion, Justice Daniel R. Hawkins agreed that the Ninth District did nothing wrong in rejecting Clark’s appeal. However, he noted appeals courts have another option. In a reopened appeal, the appeals court can order “supplemental briefing,” directing the party to provide specific arguments about whether the prior attorney’s performance was ineffective.

Justices Patrick F. Fischer and Jennifer Brunner joined Justice Hawkins’ opinion.

Offender Claims Lawyer Bungled Conviction Appeal
In December 2016, Clark was charged with multiple counts of sex crimes involving a minor. He pleaded guilty to three counts of rape and 10 counts of gross sexual imposition, and the remaining charges were dismissed.

After Clark pleaded guilty, but before his sentencing, his trial lawyer withdrew from the case, and a new lawyer was appointed. Despite having a new lawyer, Clark filed several motions on his own, including a motion to represent himself, and a motion to withdraw his guilty pleas. The trial judge allowed him to fire his second lawyer, but refused to allow him to withdraw his guilty pleas.

Before his sentencing hearing, Clark asked for a third lawyer, who was appointed. That attorney was present at the sentencing in which Clark received three 25-years-to-life-in-prison sentences for rape. For each gross sexual imposition charge, he received a three-year sentence. The sentences were imposed to run concurrently.

Clark appealed his convictions to the Ninth District. The Ninth District ruled that the trial court wrongly accepted Clark’s waiver of his right to be represented by an attorney when he tried to withdraw his guilty plea. In 2018, the Ninth District reversed the trial court’s judgment and remanded the case to the trial court.

Appeals Court Ruling Disputed
When the case returned to the Medina County Common Pleas Court, Clark and the county prosecutor’s office disputed the Ninth District’s order. Clark maintained that the appeals court reversed his convictions, and his guilty pleas were not valid. The prosecutor argued the Ninth District allowed the guilty pleas to stand, and the case was only sent back to resentence Clark.

Before Clark could be resentenced, he filed for a writ of habeas corpus on his own in 2019, seeking to be released from jail based on the time that transpired while the trial court contemplated how to proceed. The Ninth District denied his writ. In 2020, the trial court agreed with the prosecutor’s position, only requiring Clark to be resentenced. The judge imposed the same sentence as the original.

Represented by an attorney, Clark again appealed to the Ninth District, which affirmed the judgment of the trial court and upheld his convictions.

Offender Challenges Lawyer’s Efforts
After losing his second appeal, Clark filed an application under the Ohio Rules of Appellate Procedure, requesting that his appeal be reopened. Through a new attorney, Clark argued that the attorney who filed his appeal provided ineffective counsel.

The appeals court agreed there was a genuine issue whether his appeals counsel was ineffective and reopened his appeal. The rules for reopening an appeal require the parties to submit briefs and, in those briefs, address “the claim that representation by prior appellate counsel was deficient and that Appellant was prejudiced by that deficiency.”

After receiving the briefs, the Ninth District was split on the matter. Two judges ruled that the brief submitted by Clark failed to address how his former attorney was ineffective. The dissenting judge noted that other appeals court have not required the brief to specifically state how the attorney was ineffective. As long as Clark’s brief specified errors made in the appeal, the appeals court should examine the errors and make its own decision on whether his counsel was ineffective, the dissenting judge stated.

The Ninth District rejected his reopened appeal, and Clark appealed to the Supreme Court. The Ninth District noted its ruling conflicted with other appellate courts. The Court also agreed to consider the conflict.

Supreme Court Analyzed Requirements For Appeals
Following a 1992 decision in State v. Murnahan, the Court noted that a criminal defendant might not be able to discover the attorney handling the appeal was ineffective in time for the defendant to ask the appeals court to reconsider its ruling, Justice Shanahan explained. The Court then developed a process to give the defendant extra time to assess the performance of the attorney and seek to have the appeal reopened.

Reopening an appeal is a two-step process, the opinion noted. The appeals court must first find there is a genuine issue of whether the attorney was ineffective. Clark met the first step when the Ninth District agreed to accept his application to reopen the case. The Court noted the rules then allow the reopened appeal to proceed as if it were starting over with the initial appeal.

Justice Shanahan wrote the second step states the parties must address in their briefs how the prior attorney was deficient and how that deficiency harmed the defendant.

A reopened appeal examines both the claims that the trial court’s decision was wrong and that the lawyer handling the appeals was ineffective in arguing for overturning the trial court’s decision, the opinion noted.

In Clark’s brief, his new attorney included a “Statement of Assignment of Error” and presented three categories of errors. Within the three categories, his brief argued that several errors were made by his trial attorney, by the trial court, and by his appellate attorney.

Instead of presenting the reasons to support his contentions for each error, Clark’s brief was labeled as “The Top Ten – a Saga of Error.”

The Court ruled that Clark did not make a separate argument challenging the effectiveness of appellate counsel in his brief.

“He made no argument asserting that appellate counsel’s performance fell below an objective standard,” the opinion stated. “While he made passing references to his appellate counsel’s performance being ineffective, it is not the role of an appellate court to cobble together an argument for the appellant.”

Because Clark failed to show his prior attorney’s performance was deficient and harmed his case, the Court affirmed the Ninth District’s ruling.

Court Could Seek Clarification, Concurrence Maintained
The Ninth District had another option other than rejecting Clark’s reopened appeal because it failed to specify the deficiency of his former attorney, Justice Hawkins wrote in his concurrence.

Court rules allow an appeals court to order supplemental briefing when it finds deficiencies in the written arguments. The rules provide the appeals court with discretion, allowing it to reject appeals for inadequate briefs, but not mandating that they submit additional briefs.

An appeals court would overstep its role by creating arguments for those filing appeals, but can direct that additional briefs be filed so information can be gathered that the appeals court deems necessary to resolve a reopened appeal, the concurrence stated.

By permitting or ordering supplemental briefing, the defendant must still explain how their former attorney was ineffective, the concurrence noted. If the explanation was provided, the appeals court could address the merits of the arguments, the concurrence concluded.

2024-0401 and 2024-0539. State v. Clark, Slip Opinion No. 2025-Ohio-4410.

View oral argument video of this case.

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