Morgan v. Eads, 2004 Ohio 6110 (OH 11/22/2004)
| Decision Date | 22 November 2004 |
| Docket Number | Case No. 2004-0141. |
| Citation | ___ Ohio St.3d ___,2004 Ohio 6110 |
| Parties | Morgan v. Eads. |
| Court | Ohio Supreme Court |
Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, and M. Scott Criss, Assistant Solicitor, for petitioner, John Morgan.
J. Dean Carro, for respondent, Daniel T. Eads.
{¶1} This case is here on certified questions of state law from the United States District Court for the Northern District of Ohio. That court has asked us to answer two questions:
{¶2} "1. Is an application to reopen an appeal under Ohio Rule of Appellate Procedure 26(B) part of the direct appeal from a judgment of conviction?
{¶3}
{¶4} We now answer no to the first question. In light of that answer, we consider the second question moot.
{¶5} Ohio's App.R. 26(B)(1) states:
{¶6} We adopted App.R. 26(B), effective on July 1, 1993, in the wake of our decision the year before in State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204. See 1993 Staff Notes to App.R. 26. In Murnahan, we held that "[c]laims of ineffective assistance of appellate counsel are not cognizable in postconviction proceedings pursuant to R.C. 2953.21." Id. at paragraph one of the syllabus. We based our decision in Murnahan on our view that claims of ineffective assistance of appellate counsel should be considered and disposed of in the appellate court where the alleged error occurred, and not in the state's trial courts, where postconviction claims are first raised by Ohio criminal defendants under R.C. 2953.21. In Murnahan, we explained that "appellate judges are in the best position to recognize" whether a criminal defendant has received and been prejudiced by the ineffective assistance of appellate counsel. Id. at 65, 584 N.E.2d 1204. Allowing ineffective-appellate-counsel claims to be raised in Ohio trial courts like other postconviction claims "could in effect permit trial courts to second-guess superior appellate courts." Id. Thus, our reasoning in Murnahan concerned the appropriate court in which to bring a collateral challenge to the effectiveness of appellate counsel. However, we never suggested that such a collateral challenge, when brought, was part of the initial appeal.
{¶7} Although our rationale underlying Murnahan was sound, we recognized when we issued that decision that Ohio "ha[d] no statutory authority or court rules dedicated to the procedure to be followed by defendants who allege ineffective assistance of appellate counsel." Id. at 66, 584 N.E.2d 1204, fn. 6. The next year, we adopted App.R. 26(B) to establish a collateral postconviction process by which criminal defendants could raise claims of ineffective assistance of appellate counsel.
{¶8} The provisions of App.R. 26(B) were specifically designed to provide for a specialized type of postconviction process. The rule was designed to offer defendants a separate collateral opportunity to raise ineffective-appellatecounsel claims beyond the opportunities that exist through traditional motions for reconsideration and discretionary appeals to our court or the Supreme Court of the United States.
{¶9} An application under App.R. 26(B), whether successful or not, was never intended to constitute part of the original appeal. Simply because we initially created this remedy in the Murnahan decision, and then codified the remedy in App.R. 26(B), does not affect its status as a postconviction remedy. Moreover, simply because the App.R. 26(B) remedy is initiated by an application in the court of appeals, instead of the trial court, does not alter its status as a collateral postconviction remedy. An application for postconviction relief under R.C. 2953.21 is not part of the original trial simply because it begins in the trial court, and an App.R. 26(B) application is not part of the original appeal simply because it is filed in the court of appeals.
{¶10} Several reasons support our conclusion that proceedings under App.R. 26(B) are collateral postconviction proceedings and not part of the original appeal process.
{¶11} First, the application process under App.R. 26(B) requires that an applicant submit additional matter not in the record of the trial to support claims that appellate counsel was ineffective. See App.R. 26(B)(2)(d) (); 26(B)(2)(e) (). See, also, App.R. 26(B)(8) ().
{¶12} This procedure under App.R. 26(B) bears a strong resemblance to the process that follows when a postconviction petition is filed in a trial court. See R.C. 2953.21(A)(1)(a) (); 2953.21(C); 2953.21(E) (); 2953.22 ("Testimony * * * may be offered by deposition"). Thus, in postconviction proceedings under R.C. 2953.21 et seq., trial courts consider additional material outside the record, and appellate courts do the same in App.R. 26(B) proceedings.
{¶13} In stark contrast to this practice of submitting additional material, a bedrock principle of appellate practice in Ohio is that an appeals court is limited to the record of the proceedings at trial. In State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500, we reversed the judgment of a court of appeals that had considered, in an appeal from a postconviction proceeding, a transcript that was not before the trial court in the proceeding that was appealed. In Ishmail, we declared: "A reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter." Id. at paragraph one of the syllabus. We have consistently enforced this holding. See, e.g., State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 62; State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 50. The fact that a court of appeals can consider additional material under App.R. 26(B), or order a hearing to do so, represents a fundamental difference between such an application and an original appeal. That fact reinforces our view that the App.R. 26(B) process is a separate postconviction process and is not part of the original appeal.
{¶14} Second, differences in applicable rules of jurisdiction support our conclusion that App.R. 26(B) provides a distinct postconviction remedy and not a continuation of the original appeal. If a case is pending on appeal in this court, an Ohio court of appeals has no jurisdiction to alter or amend the judgment it previously rendered. In contrast, under our rules of jurisdiction, a court of appeals has the authority to consider an application under App.R. 26(B), even though an appeal of the case is pending before this court. See S.Ct.Prac.R. II(2)(D)(1) ("After an appeal is perfected, from a court of appeals * * *, the court of appeals is divested of jurisdiction, except * * * to rule on an application timely filed * * * pursuant to App.R. 26"). (Emphasis added.)
{¶15} In this respect as well, the procedure under App.R. 26(B) resembles a postconviction proceeding under R.C. 2953.21. Trial courts routinely consider petitions for postconviction relief even while an appeal from the conviction is pending either in the court of appeals or in this court. See, e.g., R.C. 2953.21(C) (); 2953.21(A)(2) ().
{¶16} Thus, the fact that the court of appeals has authority to grant an App.R. 26(B) application, even while the case is on appeal here, demonstrates that the App.R. 26(B) process is not part of the original appeal. It defies logic to assume that two original direct appeals are occurring simultaneously in this court and in the court of appeals.
{¶17} Third, the App.R. 26(B) process bears a marked resemblance to postconviction review in several other ways. For example, while a trial court is considering a postconviction petition under R.C. 2953.21, the trial court's decision remains in effect. Likewise, while a court of appeals is considering an application filed under App.R. 26(B), and even after it grants the application, the previous appellate judgment remains in effect until vacated. See App.R. 26(B)(9). Moreover, App.R. 26(B)(6) requires the court to "state in the entry the reasons for denial." A parallel provision in R.C. 2953.21(G) requires "findings of fact and conclusions of law." Under App.R. 26(B)(7), the court of appeals "may limit its review to those assignments of error and arguments not previously considered." Thus, an applicant under App.R. 26(B) does not start the appeal process all over again, just as the postconviction process under R.C. 2953.21 is not equivalent to a new trial. These similarities support our conclusion that an App.R. 26(B) application initiates a distinct collateral postconviction...
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