State v. Gillard, 98-1157
| Decision Date | 28 April 1999 |
| Docket Number | No. 98-1157,98-1157 |
| Citation | 85 Ohio St.3d 363,708 N.E.2d 708 |
| Parties | The STATE of Ohio, Appellee, v. GILLARD, Appellant. |
| Court | Ohio Supreme Court |
Appellant, John Grant Gillard, was convicted of aggravated murder and sentenced to death. In 1987, the Court of Appeals for Stark County reversed his conviction and sentence. State v. Gillard (Jan. 21, 1987), Stark App. No. CA-6701, unreported, 1987 WL 5768. The state sought and obtained this court's leave to appeal. Also by leave of court, Gillard cross-appealed on two assignments of error that the court of appeals had overruled. We sustained the state's six propositions of law, overruled Gillard's two propositions on cross-appeal, reversed the court of appeals' judgment, and remanded to that court for independent review of the death sentence. State v. Gillard (1988), 40 Ohio St.3d 226, 533 N.E.2d 272 (Gillard I ).
On remand, the court of appeals affirmed the death sentence. State v. Gillard (June 25, 1990), Stark App. No. CA-6701, unreported, 1990 WL 94632. Gillard appealed that judgment to this court. In the process, he added a number of new claims, one of which involved a claimed conflict of interest on the part of his trial counsel. We remanded to the Stark County Court of Common Pleas with instructions to determine whether or not a conflict existed, hold a new trial if it found a conflict, and return the cause to this court if not. State v. Gillard (1992), 64 Ohio St.3d 304, 595 N.E.2d 878 (Gillard II ).
The trial court found that no conflict existed and returned the cause to this court. We affirmed the trial court's finding. State v. Gillard (1997), 78 Ohio St.3d 548, 550-555, 679 N.E.2d 276, 280-283 (Gillard III ). We also conducted our independent review, R.C. 2929.05(A), and affirmed Gillard's death sentence. Id., 78 Ohio St.3d at 555-558, 679 N.E.2d at 283-285. In that proceeding, Gillard again tried to raise new issues, which we declined to consider because they were beyond the scope of our remand and also because they were res judicata, Gillard having failed to raise them in his 1988 cross-appeal to this court. 78 Ohio St.3d at 550, 679 N.E.2d at 279-280.
On July 7, 1997, Gillard filed in the court of appeals an application to reopen his direct appeal under App.R. 26(B). He alleged that his appellate counsel had rendered ineffective assistance before the court of appeals by failing to raise certain issues during his 1987 appeal to that court. When the state failed to respond, the court of appeals granted the application, thereby reinstating Gillard's direct appeal. On the reinstated appeal, the court of appeals reaffirmed the judgment of the common pleas court. State v. Gillard (Apr. 27, 1998), Stark App. No. CA-6701, unreported. From the court of appeals' judgment, Gillard appeals as of right.
Robert D. Horowitz, Stark County Prosecuting Attorney, and Ronald Mark Caldwell, Chief, Appellate Division, for appellee.
David H. Bodiker, Ohio Public Defender, Jennifer P. Hite and Laurence E. Komp, Assistant Public Defenders, for appellant.
Gillard is not entitled to relief under App.R. 26(B). A prerequisite for such relief is a finding that "the performance of appellate counsel was deficient and the applicant was prejudiced by that deficiency." App.R. 26(B)(9).
Gillard was not denied the effective assistance of counsel on his first appeal as of right - i.e., his direct appeal to the court of appeals in 1987. 1 His counsel won the appeal for him. We cannot see how the assistance of counsel could have been more effective than that.
Moreover, assuming that Gillard had a viable ineffective-assistance claim against his appellate counsel, he should have raised any such claim in his 1988 cross-appeal to this court. See Gillard III, 78 Ohio St.3d at 549, 679 N.E.2d at 279. In that proceeding, Gillard was represented by different counsel. Hence, there was no obstacle to his presenting to us any ineffective-assistance claim he may have had. 2 Cf. State v. Lentz (1994), 70 Ohio St.3d 527, 529-530, 639 N.E.2d 784, 785-786 (...
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State v. Hutton
...res judicata would ordinarily bar him from raising it in his application for reopening under App.R. 26(B). See State v. Gillard (1999), 85 Ohio St.3d 363, 365, 708 N.E.2d 708. {¶ 39} However, Hutton points out that the attorney who had represented him in Hutton I continued to represent him ......
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State v. Hutton, 100 Ohio St.3d 176 (Ohio 11/5/2003), 2000-0816.
...res judicata would ordinarily bar him from raising it in his application for reopening under App.R. 26(B). See State v. Gillard (1999), 85 Ohio St.3d 363, 365, 708 N.E.2d 708. {¶39} However, Hutton points out that the attorney who had represented him in Hutton I continued to represent him b......
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Gillard v. Mitchell
...his motion but concluded that the claims were meritless, and the Ohio Supreme Court affirmed. See State v. Gillard, 85 Ohio St.3d 363, 708 N.E.2d 708, 709-10 (Ohio 1999) (per curiam). In 1999, Gillard sought habeas relief in federal court under 28 U.S.C. § 2254. The district court granted r......
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State v. Krzywkowski, 80392.
...652 N.E.2d 987; State v. Hill, 78 Ohio St.3d 174, 1997-Ohio-293, 677 N.E.2d 337; and State v. Gillard, 85 Ohio St.3d 363, 1999-Ohio-385, 708 N.E.2d 708. Furthermore, it seems just to apply res judicata when a defendant has previously raised the identical general issue, effective assistance ......