Background
Kenneth L. Houser, Jr. was convicted by a jury of three counts of raping children under age 13 and one count of gross sexual imposition. The Tenth District affirmed his convictions and sentence in January 2026, and the Supreme Court of Ohio declined jurisdiction.
Houser timely applied under Ohio Appellate Rule 26(B) to reopen his direct appeal, alleging ineffective assistance of appellate counsel. He argued that counsel inadequately communicated with him, failed to attend oral argument, omitted a judicial-conflict claim, failed to challenge the sufficiency and manifest weight of the evidence, and failed to raise trial counsel’s alleged failure to investigate.
The Court’s Holding
The court denied reopening because Houser failed to present a genuine issue that appellate counsel performed deficiently and prejudiced the appeal. Counsel’s failure to attend oral argument did not constitute abandonment: counsel had filed a brief, App.R. 21(F) permits an appeal to be decided on the briefs when counsel does not appear, and no order required counsel’s attendance. Houser also did not show that counsel’s alleged lack of communication affected the appeal.
The omitted evidence challenges lacked a reasonable probability of success. The victims’ testimony, if believed, was sufficient to establish the offenses, and the jury did not clearly lose its way by crediting that testimony over Houser’s. The trial judge’s prior role in a separate case in which Houser was a victim or witness did not establish the claimed familial relationship or conflict under the cited judicial-conduct rule, and the appellate court lacked authority to adjudicate the alleged judicial-conduct violation. Finally, res judicata barred Houser’s attempt to relitigate trial counsel’s alleged failure to investigate after denial of his untimely postconviction petition.
Key Takeaways
- An App.R. 26(B) applicant must identify a genuine issue that appellate counsel was deficient and that the deficiency prejudiced the direct appeal.
- Appellate counsel’s absence from oral argument did not amount to abandonment where counsel filed a brief and no court order mandated an appearance.
- Victim testimony can provide sufficient evidence of child-sex offenses without corroborating physical or medical evidence.
Why It Matters
The decision underscores that reopening is not granted merely because appellate counsel omitted arguments or did not appear for oral argument. The applicant must show that counsel’s conduct created a reasonable probability of a different appellate result.
It also illustrates the limits of App.R. 26(B): the procedure cannot be used to recycle collateral claims already barred by res judicata or to obtain review of judicial-disqualification issues outside the proper process.