State v. Hooks

• Decision Date: 20 June 2001
• Docket Number: No. 00-1771.,00-1771.
• Citation: 92 Ohio St.3d 83,748 NE 2d 528
• Parties: THE STATE OF OHIO, APPELLEE, v. HOOKS, APPELLANT.
• Court: Ohio Supreme Court

92 Ohio St.3d 83

748 NE 2d 528

THE STATE OF OHIO, APPELLEE, v. HOOKS, APPELLANT.

No. 00-1771.

Supreme Court of Ohio.

Submitted March 27, 2001.

Decided June 20, 2001.

Charles L. Willie, Clinton County Special Assistant Prosecuting Attorney, and Deborah Quigley, Clinton County Assistant Prosecuting Attorney, for appellee.

Buell & Sipe Co., L.P.A., and Dennis L. Sipe; and Donald C. Schumacher, for appellant.

Per Curiam.

Appellant, Danny E. Hooks, was convicted of the aggravated murders of Donald Danes, his wife, Karen Danes, and their sixteen-year-old son, Rodney Danes, and sentenced to death. He was also convicted and sentenced to prison for three counts of aggravated robbery and one count of aggravated burglary. The court of appeals affirmed his convictions and sentences. State v. Hooks (Oct. 22, 1986), Montgomery App. No. CA 9275, unreported, 1986 WL 11906. We also affirmed Hooks's convictions and death sentences. State v. Hooks (1988), 39 Ohio St.3d 67, 529 N.E.2d 429, certiorari denied, Hooks v. Ohio (1989), 490 U.S. 1012, 109 S.Ct. 1657, 104 L.Ed.2d 171.

Subsequently, the court of appeals affirmed the trial court's decision to deny Hooks's petition for postconviction relief. State v. Hooks (Oct. 30, 1998), Montgomery App. Nos. 16978 and 17007, unreported, 1998 WL 754574. We refused to accept Hooks's appeal of that decision. State v. Hooks (1999), 85 Ohio St.3d 1424, 707 N.E.2d 515.

On March 17, 2000, Hooks filed an application with the court of appeals to reopen his initial appeal pursuant to App.R. 26(B) and State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, alleging ineffective assistance of his appellate counsel before the court of appeals in his first appeal. However, the court of appeals found that Hooks had failed to demonstrate that a genuine issue existed and denied Hooks's application to reopen his appeal. State v. Hooks (Aug. 23, 2000), Montgomery App. No. 9275, unreported. The cause is now before this court upon an appeal as of right.

Hooks raises three issues in this appeal. First, Hooks seeks an evidentiary hearing to perfect his claim of appellate counsel's ineffectiveness. However, a reviewing court cannot add matter to the record before it that was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter. See State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500. Nor can the effectiveness of appellate counsel be judged by adding new matter to the record and then arguing that counsel should have raised these new issues revealed by this newly added material. Thus, Hooks's request for an evidentiary hearing lacks merit.

In his second issue, Hooks argues that his appellate counsel suffered from a conflict of interest because his trial attorneys also represented Hooks on appeal. Hooks argues that a conflict exists, since such counsel were precluded from raising their own ineffectiveness at trial. Admittedly, appellate counsel cannot realistically be expected to argue their own ineffectiveness. State v. Lentz (1994), 70 Ohio St.3d 527, 639 N.E.2d 784; see, also, State v. Cole (1982), 2 Ohio St.3d 112, 2 OBR 661, 443 N.E.2d 169.

However, "`[i]n order to establish a violation of the Sixth Amendment, a defendant * * * must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.' A possible conflict is insufficient." (Citations omitted and emphasis deleted.) State v. Getsy (1998), 84 Ohio St.3d 180, 187, 702 N.E.2d 866, 877. The same rationale applies to Murnahan claims. As we shall discuss, Hooks has failed to demonstrate that his allegations of ineffectiveness of appellate counsel have any merit. See State v. Dillon (1995), 74 Ohio St.3d 166, 657 N.E.2d 273. New counsel on this appeal represent Hooks, and no possible conflict of interest exists now.

Hooks's third issue reaches the merits of issues that he claims his former appellate lawyers should have raised. Hooks claims that his appellate counsel were constitutionally ineffective because they failed to raise eleven specific assignments of error on his direct appeal before the court of appeals.

The two-pronged analysis found in Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693, is the appropriate standard to assess whether Hooks has raised a "genuine issue" as to the ineffectiveness of appellate counsel, in his request under App.R. 26(B)(5). State v. Spivey (1998), 84 Ohio St.3d 24, 25, 701 N.E.2d 696, 697; State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458.

To show ineffectiveness of counsel, Hooks must prove that his counsel were deficient for failing to raise the issues he now presents and that there was a reasonable probability of success had those claims been presented on appeal. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. Moreover, to justify reopening his appeal, Hooks "bears the burden of establishing that there was a `genuine issue' as to whether he has a `colorable claim' of ineffective assistance of counsel on appeal." State v. Spivey, 84 Ohio St.3d at 25, 701 N.E.2d at 696-697.

Our review of Hooks's eleven assignments of error demonstrates that they had no reasonable probability of success, even if they had been raised on appeal. Hooks's alleged errors are precluded by settled law, involve decisions within the discretion of the trial judge, or otherwise lack merit. Additionally, the court of appeals noted that Hooks failed to raise many of these issues at trial and thereby waived them on appeal. Nor has Hooks demonstrated that the trial court abused its discretion in areas within that discretion.

Hooks, for example, first claims that Ohio's death penalty violates three international agreements, but that claim lacks merit. See State v. Bey (1999), 85 Ohio St.3d 487, 709 N.E.2d 484; State v. Phillips (1995), 74 Ohio St.3d 72, 103-104, 656 N.E.2d 643, 670-671. Second, Hooks asserts that he was denied a fair proportionality review, but that issue was resolved by State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383.

Hooks's remaining assertions raise issues not previously raised at trial. Waiver therefore precludes those issues absent plain error, and Hooks has failed to demonstrate outcome-determinative plain error. State v. Wade (1978), 53 Ohio St.2d 182, 7 O.O.3d 362, 373 N.E.2d 1244.

Finally, Hooks's contention that cumulative errors committed in his case resulted in substantial prejudice is without merit, since "[s]uch errors cannot become prejudicial by sheer weight of numbers." State v. Hill (1996), 75 Ohio St.3d 195, 212, 661 N.E.2d 1068, 1084.

Consequently, after reviewing Hooks's assertions of deficient performance by appellate counsel, we find that Hooks has failed to raise "a genuine issue as to whether [he] was deprived of the effective assistance of counsel on appeal" before the court of appeals as required under App.R. 26(B)(5).

Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER ...