[Cite as State v. Foster, 2026-Ohio-1860.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 114642 v. :
MARCUS FOSTER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: May 20, 2026
Cuyahoga County Court of Common Pleas Case No. CR-24-692914-A Application for Reopening Motion No. 593545
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Michael R. Wajda, Assistant Prosecuting Attorney, for appellee.
Marcus Foster, pro se.
EILEEN A. GALLAGHER, P.J.:
Marcus Foster (“Foster”), pro se, has filed a timely application for
reopening his appeal 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. Foster
seeks to reopen the appeal in State v. Foster, 2025-Ohio-5626 (8th Dist.), in which
this court affirmed the trial court’s judgment, finding that his trial counsel was not
ineffective and the court did not err by denying his motions to suppress evidence.
For the reasons that follow, we deny Foster’s application to reopen the appeal.
I. Standard of Review – Application to Reopen Appeal Based on Claim of Ineffective Assistance of Appellate Counsel
Pursuant to App.R. 26(B)(5), this court shall grant an application to
reopen an appeal if a genuine issue exists as to whether the applicant was deprived
of the effective assistance of appellate counsel. To establish a claim of ineffective
assistance of appellate counsel, an applicant is required to show that the
performance of his appellate counsel was deficient, and the deficiency resulted in
prejudice. Strickland v. Washington, 466 U.S. 668 (1984); State v. Bradley, 42
Ohio St.3d 136 (1989). Put another way, “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.’” State v. Leyh, 2022-Ohio-292, ¶ 18 quoting
Strickland at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland at 694.
The United States Supreme Court has held that “[j]udicial scrutiny of
counsel’s performance must be highly deferential. It is all too tempting for a
defendant to second-guess counsel’s assistance after conviction or adverse sentence,
and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable.” Id. at 689. “Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance . . . .” Id.
“App.R. 26(B) establishes a two-stage procedure to adjudicate claims of
ineffective assistance of appellate counsel.” Leyh at ¶ 19. At the first stage, an
applicant must make a “threshold showing” to obtain permission to file new
appellate briefs. Id. Pursuant to App.R. 26(B)(5), “[a]n 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.” If the applicant is successful, the
case moves to the second stage and is “treated as if it were an initial direct appeal,
with briefs and oral argument.” State v. Simpson, 2020-Ohio-6719, ¶ 13.
II. Analysis
A. First Proposed Assignment of Error
In his first proposed assignment of error, Foster argues that his
“appellate counsel was ineffective for failing to challenge the sufficiency and
manifest weight of the evidence.” Upon review, we find that Foster has not
established colorable claims for ineffective assistance of appellate counsel regarding
these issues.
A challenge to the sufficiency of the evidence supporting a conviction
requires a determination of whether the State has met its burden of production at
trial. State v. Hunter, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390 (1997). Whether the evidence is legally sufficient to support a verdict is a
question of law. Thompkins at 386.
“An appellate court’s function when reviewing the sufficiency of
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince a reasonable
juror of the defendant’s guilt beyond a reasonable doubt.” State v. Balinski, 2022-
Ohio-3227, ¶ 43 (8th Dist.). See also State v. Bankston, 2009-Ohio-754, ¶ 4 (10th
Dist.) (“[I]n a sufficiency of the evidence review, an appellate court does not engage
in a determination of witness credibility; rather, it essentially assumes the State’s
witnesses testified truthfully and determines if that testimony satisfies each element
of the crime.”).
A manifest-weight-of-the-evidence challenge attacks the credibility of
the evidence presented and questions whether the State met its burden of
persuasion. State v. Whitsett, 2014-Ohio-4933, ¶ 26 (8th Dist.). Weight of the
evidence “addresses the evidence’s effect of inducing belief,” i.e., “whose evidence is
more persuasive — the state’s or the defendant’s?” State v. Wilson, 2007-Ohio-
2202, ¶ 25, citing Thompkins at 386-387. When considering an appellant’s claim
that a conviction is against the manifest weight of the evidence, the appellate court
functions as a “thirteenth juror” and may disagree “with the factfinder’s resolution
of . . . conflicting testimony.” Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31,
42 (1982). Furthermore, in State v. Jordan, 2023-Ohio-3800, ¶ 17, the Ohio
Supreme Court held that “[s]itting as the ‘thirteenth juror,’ the court of appeals considers whether the evidence should be believed and may overturn a verdict if it
disagrees with the trier of fact’s conclusion.”
Under this proposed assignment of error, Foster first argues that his
ankle monitor GPS did not place him at the scene of the crime. Evidence in the
record shows that Foster’s ankle monitor GPS placed him approximately one-half
block away from the crime scene at the time of the shooting. Foster next argues that
neither his, nor the victim’s, DNA was found in the Chevy Traverse at issue in this
case. DNA evidence is not required for a conviction, and one would not expect the
victim’s DNA to be found in the car involved in a drive-by shooting. Foster also
argues that there was no evidence of a “violation alert” for his ankle monitor in this
case. Foster is correct, but there is no allegation of an ankle monitor “violation alert”
in this case. Foster was charged, tried, and convicted of murder and associated
offenses. Whether his ankle monitor alerted is irrelevant to those charges.
Upon review, we find that Foster failed to present a viable argument
that his appellate counsel was deficient and that he was prejudiced when his
appellate counsel failed to raise sufficiency and manifest weight of the evidence in
his direct appeal. Evidence in the record shows that the victim was killed in a drive-
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[Cite as State v. Foster, 2026-Ohio-1860.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 114642 v. :
MARCUS FOSTER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: May 20, 2026
Cuyahoga County Court of Common Pleas Case No. CR-24-692914-A Application for Reopening Motion No. 593545
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Michael R. Wajda, Assistant Prosecuting Attorney, for appellee.
Marcus Foster, pro se.
EILEEN A. GALLAGHER, P.J.:
Marcus Foster (“Foster”), pro se, has filed a timely application for
reopening his appeal 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. Foster
seeks to reopen the appeal in State v. Foster, 2025-Ohio-5626 (8th Dist.), in which
this court affirmed the trial court’s judgment, finding that his trial counsel was not
ineffective and the court did not err by denying his motions to suppress evidence.
For the reasons that follow, we deny Foster’s application to reopen the appeal.
I. Standard of Review – Application to Reopen Appeal Based on Claim of Ineffective Assistance of Appellate Counsel
Pursuant to App.R. 26(B)(5), this court shall grant an application to
reopen an appeal if a genuine issue exists as to whether the applicant was deprived
of the effective assistance of appellate counsel. To establish a claim of ineffective
assistance of appellate counsel, an applicant is required to show that the
performance of his appellate counsel was deficient, and the deficiency resulted in
prejudice. Strickland v. Washington, 466 U.S. 668 (1984); State v. Bradley, 42
Ohio St.3d 136 (1989). Put another way, “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.’” State v. Leyh, 2022-Ohio-292, ¶ 18 quoting
Strickland at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland at 694.
The United States Supreme Court has held that “[j]udicial scrutiny of
counsel’s performance must be highly deferential. It is all too tempting for a
defendant to second-guess counsel’s assistance after conviction or adverse sentence,
and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable.” Id. at 689. “Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance . . . .” Id.
“App.R. 26(B) establishes a two-stage procedure to adjudicate claims of
ineffective assistance of appellate counsel.” Leyh at ¶ 19. At the first stage, an
applicant must make a “threshold showing” to obtain permission to file new
appellate briefs. Id. Pursuant to App.R. 26(B)(5), “[a]n 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.” If the applicant is successful, the
case moves to the second stage and is “treated as if it were an initial direct appeal,
with briefs and oral argument.” State v. Simpson, 2020-Ohio-6719, ¶ 13.
II. Analysis
A. First Proposed Assignment of Error
In his first proposed assignment of error, Foster argues that his
“appellate counsel was ineffective for failing to challenge the sufficiency and
manifest weight of the evidence.” Upon review, we find that Foster has not
established colorable claims for ineffective assistance of appellate counsel regarding
these issues.
A challenge to the sufficiency of the evidence supporting a conviction
requires a determination of whether the State has met its burden of production at
trial. State v. Hunter, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390 (1997). Whether the evidence is legally sufficient to support a verdict is a
question of law. Thompkins at 386.
“An appellate court’s function when reviewing the sufficiency of
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince a reasonable
juror of the defendant’s guilt beyond a reasonable doubt.” State v. Balinski, 2022-
Ohio-3227, ¶ 43 (8th Dist.). See also State v. Bankston, 2009-Ohio-754, ¶ 4 (10th
Dist.) (“[I]n a sufficiency of the evidence review, an appellate court does not engage
in a determination of witness credibility; rather, it essentially assumes the State’s
witnesses testified truthfully and determines if that testimony satisfies each element
of the crime.”).
A manifest-weight-of-the-evidence challenge attacks the credibility of
the evidence presented and questions whether the State met its burden of
persuasion. State v. Whitsett, 2014-Ohio-4933, ¶ 26 (8th Dist.). Weight of the
evidence “addresses the evidence’s effect of inducing belief,” i.e., “whose evidence is
more persuasive — the state’s or the defendant’s?” State v. Wilson, 2007-Ohio-
2202, ¶ 25, citing Thompkins at 386-387. When considering an appellant’s claim
that a conviction is against the manifest weight of the evidence, the appellate court
functions as a “thirteenth juror” and may disagree “with the factfinder’s resolution
of . . . conflicting testimony.” Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31,
42 (1982). Furthermore, in State v. Jordan, 2023-Ohio-3800, ¶ 17, the Ohio
Supreme Court held that “[s]itting as the ‘thirteenth juror,’ the court of appeals considers whether the evidence should be believed and may overturn a verdict if it
disagrees with the trier of fact’s conclusion.”
Under this proposed assignment of error, Foster first argues that his
ankle monitor GPS did not place him at the scene of the crime. Evidence in the
record shows that Foster’s ankle monitor GPS placed him approximately one-half
block away from the crime scene at the time of the shooting. Foster next argues that
neither his, nor the victim’s, DNA was found in the Chevy Traverse at issue in this
case. DNA evidence is not required for a conviction, and one would not expect the
victim’s DNA to be found in the car involved in a drive-by shooting. Foster also
argues that there was no evidence of a “violation alert” for his ankle monitor in this
case. Foster is correct, but there is no allegation of an ankle monitor “violation alert”
in this case. Foster was charged, tried, and convicted of murder and associated
offenses. Whether his ankle monitor alerted is irrelevant to those charges.
Upon review, we find that Foster failed to present a viable argument
that his appellate counsel was deficient and that he was prejudiced when his
appellate counsel failed to raise sufficiency and manifest weight of the evidence in
his direct appeal. Evidence in the record shows that the victim was killed in a drive-
by shooting, and a gray Chevy Traverse was seen by eyewitnesses, as well as recorded
by video cameras, leaving the scene of the crime at the time of the shooting. Through
video footage, the Traverse was found parked outside its owner’s house.
Approximately five hours after the shooting, Foster and a woman got into the Traverse and drove away. Foster’s ankle monitor GPS placed him near the scene of
the crime at the time of the shooting.
Courts have consistently held that “appellate counsel is not required to
raise and argue assignments of error that are meritless.” State v. Stewart, 2011-
Ohio-1667, ¶ 4 (8th Dist.) citing Jones v. Barnes, 463 U.S. 745, 754 (1983).
“Appellate counsel cannot be considered ineffective for failing to raise every
conceivable assignment of error on appeal.” Id.
Accordingly, there is no colorable claim of ineffective assistance of
appellate counsel under App.R. 26 for failing to challenge the sufficiency and
manifest weight of the evidence.
B. Second Proposed Assignment of Error
In his second proposed assignment of error, Foster argues that his
“appellate counsel was ineffective for framing the GPS issue as trial counsel IAC,
causing this court to dismiss it procedurally without reaching the merits.”
Specifically, Foster argues that the “GPS issue had a second, independent viable
theory [trial counsel] never pursued: a direct challenge to admissibility as plain error
under Crim.R. 52(B), completely independent of trial counsel’s conduct.” According
to Foster, the State failed to satisfy Evid.R. 803(6)’s requirement that “business
records . . . be authenticated by a qualified custodian” and that “records be made at
or near the time of the event . . . .”
Evid.R. 803(6) states, in part, that a “data compilation . . . of acts,
events, or conditions, made at or near the time . . . as shown by the testimony of the custodian or other qualified witness” is admissible at trial. Additionally, Evid.R.
901(A) states, in part, that evidence is authenticated by “a finding that the matter in
question is what its proponent claims.”
In this case, a representative from the Adult Parole Authority testified
about Foster’s GPS ankle monitor, which had been placed on him on June 16, 2023,
and transmitted his “position” at all times he was wearing it. The representative ran
“a report memorializing [Foster’s] location data for June 19, 2023,” which was the
day of the shooting in this case. This report was introduced at Foster’s trial and the
representative authenticated it, stating that it was “the GPS points for Marcus Foster
on the dates [sic] of June 19th from midnight to 10:00 a.m.” The report tracked
Foster’s location “minute-by-minute” and placed him one half of a block away from
the shooting at the time of the shooting.
Thus, upon review, we cannot say that Foster’s appellate counsel was
ineffective for failing to challenge the admissibility of his ankle monitor GPS
information because this assignment of error would have been meritless.
C. Third Proposed Assignment of Error
In his third proposed assignment of error, Foster argues that his
“appellate counsel was ineffective for failing to argue that trial counsel’s conduct
constituted a complete denial of counsel under United States v. Cronic, which
presumes prejudice.”
In this case, it is undisputed that Foster’s appellate counsel raised two
assignments of error in the direct appeal alleging that Foster’s trial counsel was ineffective. Foster’s appellate counsel supported these arguments by citing the
following law: the Sixth Amendment to the United States Constitution; McMann v.
Richardon, 397 U.S. 759 (1970); State v. Houston, 2019-Ohio-4787 (8th Dist.);
Strickland, 466 U.S. at 668; Bradley, 42 Ohio St.3d at 136; and State v. Lytle, 48
Ohio St.2d 391 (1976).
However, in this application for reopening his appeal, Foster argues
that his appellate counsel should also have cited United States v. Cronic, 466 U.S.
648 (1984), which analyzes the following situation: “if counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing, then there has been
a denial of Sixth Amendment rights that makes the adversary process itself
presumptively unreliable. No specific showing of prejudice was required . . . .” Id.
at 659.
This court was aware, of course, of Cronic prior to Foster’s direct
appeal, and if Cronic applied to his case, we would have cited it. But it did not and
we did not. Counsel’s failure to cite a particular case within an assignment of error
will not serve as a basis to reopen Foster’s appeal.
Accordingly, Foster’s application for reopening is denied.
___ EILEEN A. GALLAGHER, PRESIDING JUDGE
LISA B. FORBES, J., and EILEEN T. GALLAGHER, J., CONCUR