[Cite as State v. Hall, 2026-Ohio-3223.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 115264
v. :
MARK HALL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: August 19, 2026
Cuyahoga County Court of Common Pleas
Case No. CR-24-695031-A
Application for Reopening
Motion No. 596056
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristen L. Hatcher, Assistant Prosecuting
Attorney, for appellee.
Mark Hall, pro se.
TIMOTHY W. CLARY, J.:
Mark Hall (“Hall”), pro se, has filed an application for reopening
pursuant to App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60 (1991), based
on claims of ineffective assistance of appellate counsel. Hall is attempting to reopen this court’s judgment in State v. Hall, 2026-Ohio-1042 (8th Dist.), in which this
court affirmed Hall’s convictions and sentence. For the reasons that follow, we deny
Hall’s application to reopen the appeal.
In September 2024, Hall was named in a ten-count indictment in
Cuyahoga C.P. No. CR-24-695031-A, charging him two counts of rape (Counts 1 and
2), two counts of attempted rape (Count 3 and 4), two counts of kidnapping (Counts
5 and 6), a single count of felonious assault (Count 7), two counts of strangulation
(Counts 8 and 9), and a single count of operating a motor vehicle under the influence
of drugs or alcohol (“OVI”) (Count 10). Several of the charges included repeatviolent-offender (“RVO”) specifications, sexually violent predator (“SVP”)
specifications, and notice-of-prior-conviction (“NPC”) specifications, and one count
of strangulation included a furthermore clause. The indictment stemmed from
allegations that Hall physically and sexually assaulted the alleged victim, M.A., in
August 2024.
Following a jury trial, Hall was convicted of two counts of kidnapping
(Counts 5 and 6), two counts of strangulation (Counts 8 and 9), and single counts of
rape (Count 1), attempted vaginal rape (Count 3), felonious assault (Count 7), and
OVI (Count 10). The jury subsequently found that Hall was a sexually violent
predator, as alleged in the indictment.
In May 2025, Hall was sentenced to an aggregate prison term of “life
imprisonment with parole eligibility after serving a full 39 years of imprisonment.”
Hall was also classified as a Tier III sex offender.
In June 2025, Hall filed a direct appeal from his convictions and
sentence. Therein, Hall raised seven assignments of error, arguing (1) the State
failed to present sufficient evidence to support a conviction for each offense, (2) his
convictions are against the manifest weight of the evidence, (3) he was denied his
right to effective assistance of counsel, (4) the trial court erred by admitting highly
prejudicial and inadmissible evidence during the SVP hearing, (5) the trial court
erred by refusing to provide jury instructions on lesser-included and inferior
offenses, (6) the trial court erred by failing to merge allied offenses of similar import
for the purposes of sentencing, and (7) the trial court’s imposition of consecutive
sentences was contrary to law. Upon review, this court found no merit to Hall’s
claims and affirmed the trial court’s judgment. State v. Hall, 2026-Ohio-1042 (8th
Dist.).
On April 29, 2026, Hall filed a timely application to reopen his appeal.
However, this court struck the original application because it exceeded the ten-page
limitation established by App.R. 26(B). With leave of court, Hall filed a complying,
amended application to reopen on June 5, 2026. The amended application does not
set forth definitive, proposed assignments of error as contemplated under App.R.
26(B)(2)(c). Instead, Hall generally argues that appellate counsel rendered
ineffective assistance of counsel by failing to challenge (1) trial counsel’s failure to
challenge the credibility of Hall’s accuser, (2) the denial of Hall’s rights to a 90-day
speedy trial, full discovery, a suppression hearing, and “facial grooming prior to
trial,” and (3) trial counsel’s erroneous legal advice regarding a possible plea, which caused Hall to doubt future advice from counsel. Hall further suggests that appellate
counsel was ineffective for failing to speak with him in preparation for his appeal.
On July 27, 2026, the State filed a brief in opposition to the amended
application for reopening, arguing that Hall “has failed to show that there is a
genuine issue that he was deprived of the effective assistance of counsel on appeal.”
II. Law and Analysis
A. Standard of Review
Under App.R. 26(B), a defendant in a criminal case may apply to
reopen his or her direct appeal of the judgment of conviction and sentence based on
a claim of ineffective assistance of appellate counsel. The application must be filed
within ninety days from journalization of the appellate judgment unless the
applicant shows good cause for filing at a later time. App.R. 26(B)(1).
App.R. 26(B) establishes a two-stage procedure for adjudicating
claims of ineffective assistance of appellate counsel. State v. Leyh, 2022-Ohio-292,
¶ 19. An applicant must first make a threshold showing that appellate counsel was
ineffective. Id. at ¶ 19, 35. At this stage, an applicant is “not required to conclusively
establish ineffective assistance of appellate counsel[.]” Id. at ¶ 35. Rather, “[t]he
burden is on the applicant to demonstrate a ‘genuine issue’ as to whether there is a
‘colorable claim’ of ineffective assistance of appellate counsel.” Id. at ¶ 21, quoting
State v. Spivey, 84 Ohio St.3d 24, 25 (1998).
If the applicant makes the required threshold showing,
demonstrating that “there is at least a genuine issue — that is, legitimate grounds — to support the claim that the applicant was deprived of the effective assistance of
counsel on appeal,” then the application shall be granted and the appeal reopened.
Id. at ¶ 25, citing App.R. 26(B)(5). The matter then “proceeds to the second stage of
the procedure, which ‘involves filing appellate briefs and supporting materials with
the assistance of new counsel, in order to establish that prejudicial errors were made
in the trial court and that ineffective assistance of appellate counsel in the prior
appellate proceedings prevented these errors from being presented effectively to the
court of appeals.’” Id. at ¶ 22, quoting 1993 Staff Notes to App.R. 26(B).
Claims of ineffective assistance of appellate counsel under App.R.
26(B) are subject to the two-pronged analysis enunciated in Strickland v.
Washington, 466 U.S. 668 (1984). See State v. Simpson, 2020-Ohio-6719, ¶ 14, id.
at ¶ 23 (O’Connor, C.J., concurring). In accordance with the Strickland analysis, an
applicant must show that (1) appellate counsel’s performance was objectively
unreasonable, and (2) there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Smith v. Robbins, 528 U.S. 259, 285-286 (2000). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland at 694.
In considering Hall’s application, we are mindful that appellate
counsel is afforded deference in determining which issues to argue on appeal. State
v. Burke, 2002-Ohio-5310, ¶ 7. As this court has previously explained:
With respect to claims of ineffective assistance of appellate counsel, the
United States Supreme Court has upheld the appellate advocate’s
prerogative to decide strategy and tactics by selecting the most
promising arguments and focusing on one central issue or, at most, a
few key issues. State v. Barrow, 2015-Ohio-4579, ¶ 7 (8th Dist.), citing
Jones v. Barnes, 463 U.S. 745, 751-52 (1983). See also State v. Ware,
2014-Ohio-815, ¶ 5 (8th Dist.) (“Appellate counsel cannot be
considered ineffective for failing to raise every conceivable assignment
of error on appeal.”).
State v. Doumbas, 2016-Ohio-956, ¶ 6 (8th Dist.).
B. Credibility of the Accuser
In the first proposed assignment of error, Hall argues appellate
counsel was ineffective for not advancing an assignment of error challenging trial
counsel’s failure to impeach his accuser’s credibility, including trial counsel’s failure
to obtain critical evidence that established his accuser’s actual state of mind on the
night of the alleged incident.
Upon review, we find no merit to Hall’s suggestion that trial counsel
failed to challenge the credibility of his accuser. A review of the record reveals that
M.A. was thoroughly cross-examined by trial counsel and the veracity of her
testimony, including the implications of her alleged behavior and intoxication on the
night in question, was repeatedly addressed by counsel throughout the trial.
Because the bulk of trial counsel’s defense focused on M.A.’s truthfulness, or alleged
lack thereof, we find Hall has failed to present a viable claim of ineffective assistance
of appellate counsel regarding M.A.’s credibility. State v. Stewart, 2011-Ohio-1667,
¶ 4 (8th Dist.) (“[A]ppellate counsel is not required to raise and argue assignments
of error that are meritless.”).
With that stated, we further note that the credibility of M.A.’s
testimony was previously raised and argued by appellate counsel on direct appeal.
Specifically, appellate counsel argued that Hall’s convictions were not supported by
the manifest weight of the evidence because (1) M.A.’s version of events “was not
believable,” and (2) her testimony was contradicted by the physical evidence
presented at trial. Ultimately, this court rejected appellate counsel’s argument,
finding “Halls convictions are not against the manifest weight of the evidence simply
because the jury chose to believe M.A.’s version of the events rather than the
appellant’s story.” Hall at ¶ 124.
This court has routinely recognized that in an application for
reopening, “‘[r]es judicata bars the relitigation of an issue that was previously
addressed, even if cast in a slightly different form.’” State v. Robinson, 2022-Ohio3033, ¶ 10 (8th Dist.), quoting State v. Barnes, 2020-Ohio-4988, ¶ 13 (8th Dist.).
Thus, “issues previously addressed on appeal are not subject to a second review in
reopening.” Id. Because the credibility of the State’s witnesses was fully considered
on appeal, we decline Hall’s request to reexamine the weight of the evidence
supporting his convictions.
Finally, to the extent Hall challenges the scope of trial counsel’s
pretrial preparation and investigation, we find his argument relies substantially on
statements or other materials that are not part of the trial record. For this reason, it
was proper for appellate counsel to disregard the argument. Appellate review is
strictly limited to the record. Thus, “a reviewing court cannot add matter to the record that was not part of the trial court’s proceedings and then decide the appeal
on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402 (1978),
paragraph one of the syllabus. “Nor can the effectiveness of appellate counsel be
judged by adding new matter to the record and then arguing that counsel should
have raised these new issues revealed by the newly added material.” State v. Moore,
2001-Ohio-1892, ¶ 5. As such, “declining to raise claims without record support
cannot constitute ineffective assistance of appellate counsel.” State v. Burke, 2002-Ohio-5310, ¶ 10.
In this case, the record does not contain specific information
regarding trial counsel’s pretrial performance or the materials and statements Hall
allegedly urged trial counsel to introduce on his behalf. Under these circumstances,
appellate counsel could not have successfully challenged trial counsel’s preparation
and investigation in the direct appeal because such claim would require speculation
or consideration of evidence that is outside of the record. See State v. Brown, 2022-Ohio-3032, ¶ 14 (8th Dist.)(“It is well settled that a court cannot infer a failure to
investigate from a silent record.”); State v. Lenard, 2018-Ohio-4847, ¶ 12 (8th Dist.)
(“Allegations of ineffectiveness based on facts not appearing in the trial record must
be reviewed through post-conviction remedies and cannot be raised through an
App.R. 26(B) application for reopening.”).
Based on the foregoing, we find Hall has not shown a colorable claim
of ineffective assistance of appellate counsel. Accordingly, the first proposed
assignment of error does not provide legitimate grounds for reopening Hall’s appeal. C. Denial of Rights
In the second proposed assignment of error, Hall argues appellate
counsel was ineffective for failing to advance an assignment of error challenging the
denial of his rights to a speedy trial, full discovery, a suppression hearing, and facial
grooming prior to trial. Beyond a single, conclusory sentence, Hall does not support
this proposed assignment of error with legal arguments and authorities; rather he
just states the argument. Under these circumstances, this court has no basis to
assess the merits of Hall’s claims.
“Merely reciting assignments of error, without demonstrating
prejudice and presenting legal argument and analysis, is not sufficient to support an
App.R. 26(B) application for reopening.” State v. Townsend, 2022-Ohio-4398, ¶ 7
(8th Dist.), citing State v. Gaughan, 2009-Ohio-2702 (8th Dist.); see also State v.
Pennington, 2025-Ohio-1445, ¶ 14 (8th Dist.) (holding that application that “merely
list[ed] errors, rather than argue and develop them with legal authority other than a
conclusory statement” was “defective”). In the absence of specific legal arguments,
this court will not second guess appellate counsel’s exercise of professional
judgment. Accordingly, we find the second proposed assignment of error does not
provide legitimate grounds for reopening Hall’s appeal.
D. Deficient Legal Advice
In the third proposed assignment of error, Hall argues appellate
counsel was ineffective for failing to advance an assignment of error challenging trial
counsel’s allegedly erroneous legal advice during pretrial plea negotiations. Hall contends that trial counsel’s inaccurate advice regarding the availability of probation
violated “the client/attorney trust” and caused him to second guess counsel’s advice
during the remainder of the criminal proceedings. Hall suggests that his
deteriorated relationship with trial counsel led to his decision to keep his jail
clothing on during trial and in the presence of the jury.
In this case, appellate counsel pursued claims of ineffective assistance
of trial counsel in Hall’s direct appeal, including arguments that (1) counsel failed to
have Hall wear street clothes rather than the jail-issued uniform during trial, (2)
counsel failed to assert the defense of involuntary intoxication, and (3) counsel did
not seek dismissal of the SVP specification associated with Count 5, kidnapping.
Ultimately, this court found no merit to these claims, noting that Hall routinely
ignored the advice of trial counsel.
To the extent Hall now claims that appellate counsel should have
raised an additional claim of ineffective assistance of counsel regarding trial
counsel’s alleged violation of trust, we find such an argument would have relied
significantly on off-the-record conversations between Hall and trial counsel. We
recognize that Hall briefly discussed his frustrations with trial counsel’s
performance during the SVP hearing held on May 7, 2025. However, the specific
nature of his conversations with counsel regarding a potential plea deal and
sentence do not appear in the record. Again, “declining to raise claims without
record support cannot constitute ineffective assistance of appellate counsel.” State
v. Anderson, 2018-Ohio-82, ¶ 13 (8th Dist.). Moreover, Hall’s application does not explain why the advice provided by trial counsel regarding a potential plea was
erroneous or how he was prejudiced by counsel’s performance in this regard. Under
these circumstances, we find the third proposed assignment of error does not
provide legitimate grounds for reopening Hall’s appeal.
E. Appellate Counsel Preparation
In the final proposed assignment of error, Hall argues appellate
counsel rendered ineffective assistance of counsel by failing to consult with him in
preparation for the appellate proceedings. We find no merit to Hall’s position.
This court has previously stated that “‘not contacting the appellant is
not,’” in and of itself, “‘ineffective assistance of appellate counsel’” for purposes of
an application for reopening an appeal. State v. Morris, 2024-Ohio-6190, ¶ 18 (8th
Dist.), quoting State v. Thomas, 2015-Ohio-4486, ¶ 6 (8th Dist.); see also State v.
Anderson, 2018-Ohio-82, ¶ 16 (8th Dist.) (Appellant’s “dissatisfaction with his
appellate counsel, in not communicating with him more, and not sending him a copy
of the transcript, is not considered ineffective assistance of appellate counsel for
purposes of App.R. 26(B).”). Accordingly, we find the fourth proposed assignment
of error does not provide legitimate grounds for reopening Hall’s appeal.
III. Conclusion
Based on the foregoing, we find Hall has failed to present a colorable
claim of ineffective assistance of appellate counsel. Accordingly, the application for
reopening is denied.
Application denied.
TIMOTHY W. CLARY, JUDGE
EMANUELLA D. GROVES, P.J., and
MICHAEL JOHN RYAN, J., CONCUR