State v. Banks

Citations

• 2021 Ohio 511

Syllabus

App.R. (26)(B), application to reopen, ineffective assistance of trial counsel, ineffective assistance of appellate counsel, expert qualification, gang membership, seizure of cell phone, Fourth Amendment, overwhelming evidence, and lack of prejudice. The court denied an App.R. 26(B) application to reopen. Appellate counsel was not ineffective for failing to argue that the seizure of a gang member's cell phone violated the Fourth Amendment, that trial counsel should have sought a limiting instruction on other acts evidence, and that the trial court erred in denying a motion in limine regarding a gang expert. Applicant failed to show prejudice because of the overwhelming evidence of guilt. Evidence from cell phone was admissible to show gang membership as charged. Appellate counsel did argue the qualifications of the gang expert. Appellate counsel in the exercise of professional judgment could decline to argue the seizure of the phone given the uncertainty of facts of the seizure, the appellant's consent to search, the existence of a search warrant, and existing precedent.