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State v. Hall

2026-08-19

Summary

Holding. The application to reopen the appeal is denied because Hall failed to demonstrate a genuine issue or colorable claim of ineffective assistance of appellate counsel at the threshold stage.

Mark Hall sought to reopen his direct appeal, arguing that his appellate counsel provided ineffective assistance by failing to raise certain assignments of error. Hall's underlying convictions included rape, attempted rape, kidnapping, strangulation, felonious assault, and OVI, and he received a life sentence with parole eligibility after 39 years. On appeal, Hall claimed counsel should have challenged his accuser's credibility, certain pretrial rights denials, alleged erroneous legal advice from trial counsel, and counsel's lack of communication during appeal preparation.

The appellate court applied a two-stage test requiring Hall to first demonstrate a genuine issue—legitimate grounds—supporting a colorable claim of ineffective assistance. The court rejected each of Hall's proposed assignments of error. Regarding the accuser's credibility, the court found trial counsel had thoroughly cross-examined the witness and that appellate counsel had already raised the manifest weight issue on direct appeal, making relitigation barred by res judicata. For the other claims, the court determined Hall either failed to provide adequate legal argument, relied on matters outside the trial record, or raised issues already considered on direct appeal.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Ineffective assistance of appellate counsel under App.R. 26(B)
  • Appellate counsel's strategic choice not to raise additional assignments of error
  • Whether claims based on facts outside the trial record support reopening
  • Res judicata bar to relitigating issues previously addressed on direct appeal

Procedural posture

Hall filed a timely amended application to reopen his direct appeal following affirmance of his convictions and sentence in State v. Hall, 2026-Ohio-1042, claiming ineffective assistance of appellate counsel.

Authorities cited

Opinion

majority opinion

[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