State v. Lentz, No. 92-2400

• Court: United States State Supreme Court of Ohio
• Writing for the Court: PFEIFER; MOYER; FRANCIS E. SWEENEY, Sr.; WRIGHT; A. WILLIAM SWEENEY
• Citation: 70 Ohio St.3d 527,639 N.E.2d 784
• Parties: The STATE of Ohio, Appellant, v. LENTZ, Appellee.
• Decision Date: 12 October 1994
• Docket Number: No. 92-2400

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70 Ohio St.3d 527 639 N.E.2d 784 The STATE of Ohio, Appellant,
v.
LENTZ, Appellee. No. 92-2400. Supreme Court of Ohio. Submitted Jan. 5, 1994.
Decided Oct. 12, 1994. SYLLABUS BY THE COURT

When a criminal defendant is represented by two different attorneys from the same public defender's office at trial and on direct appeal, res judicata bars a claim of ineffective assistance of trial counsel raised for the first time in a

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petition for postconviction relief when such claim could have been made on direct appeal without resort to evidence beyond the record, unless the defendant proves that an actual conflict of interest enjoined appellate counsel from raising ineffective assistance of trial counsel on direct appeal.

Defendant-appellee, George Lentz, was tried before a jury on two counts of rape. Prior to trial, appellee's counsel, an attorney from the Trumbull County Public Defender's Office, filed a motion in limine to exclude evidence of Lentz's sexual conduct subsequent to the alleged rapes. The trial court overruled the motion and the state introduced the evidence at trial. The evidence consisted of the testimony of three witnesses, and trial counsel failed to properly object to their testimony at trial. Subsequently, Lentz was convicted of both counts of rape.

On appeal, another attorney from the Trumbull County Public Defender's Office represented Lentz. Appellate counsel's sole assignment of error was that the trial court improperly admitted the other-acts evidence. The appellate court found that while the evidence of Lentz's other sex acts was not admissible under Evid.R. 404(B), the fact that Lentz failed to object at trial resulted in a waiver of his right to assign as error the [639 N.E.2d 785] admission of such evidence. Appellate counsel failed to raise a claim of ineffective assistance of trial counsel, and Lentz's conviction was thus affirmed.

On May 23, 1991, Lentz filed a petition for postconviction relief in which he alleged that he was denied effective assistance of counsel at both the trial and appellate levels. Lentz argued that trial counsel was deficient in failing to properly object during the trial to the introduction of the other-acts evidence, and that appellate counsel was deficient for failing to raise trial counsel's ineffective assistance.

The trial court dismissed Lentz's petition, finding that res judicata barred Lentz's claim of ineffectiveness of trial counsel, since appellate counsel failed to raise the issue on direct appeal. Also, the trial court decided that it lacked jurisdiction to consider the issue of ineffective assistance of appellate counsel, pursuant to State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204.

The appellate court found that the trial court erred when it held that res judicata barred Lentz's petition for postconviction relief, and reversed the trial court on this issue. The appellate court reasoned that under State v. Cole (1982), 2 Ohio St.3d 112, 2 OBR 661, 443 N.E.2d 169, res judicata would apply only if Lentz was represented by new counsel on appeal. Since appellate counsel was

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from the same public defender's office as the trial counsel, the court concluded that such counsel was not new under Cole. The appellate court found that "[j]ust as there is a conflict of interest in an attorney arguing his own ineffectiveness on appeal, so is there a conflict in a public defender arguing the ineffectiveness of his fellow public defender."

The court of appeals, finding its decision on this issue to be in conflict with the decisions of the Eighth Appellate District in State v. Jenkins (1987), 42 Ohio App.3d 97, 536 N.E.2d 667, and State v. Washington (Jan. 31, 1991), No. 57921, unreported, 1991 WL 8586, certified the record of the case to this court for review and final determination.

Dennis Watkins, Trumbull County Pros. Atty. and Patrick F. McCarthy, Asst. Pros. Atty., for appellant.

J. Dean Carro and C. Michael Walsh, Akron, for appellee.

Beverly J. Pyle and Margaret O. Isquick, Cleveland, urging affirmance, for amicus curiae, Cuyahoga County Public Defender.

PFEIFER, Justice.

We hold that when a criminal defendant is represented by two different attorneys from the same public defender's office at trial and on direct appeal, res judicata bars a claim of ineffective assistance of trial counsel raised for the first time in a petition for postconviction relief when such claim could have been made on direct appeal without resort to evidence beyond the record, unless the defendant proves that an actual conflict of interest enjoined appellate counsel from raising a claim of ineffective assistance of trial counsel on direct appeal.

In State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, this court found res judicata to be a proper basis upon which to dismiss without hearing a petition for postconviction relief. This court held that res judicata bars a convicted defendant from raising in a postconviction relief petition any defense that was raised or could have been raised by the defendant at trial or on direct appeal. Id. at paragraph nine of the syllabus.

After Perry, this court and lower courts recognized exceptions to the absolute application of res judicata in postconviction relief proceedings where a claim of ineffective assistance of counsel is raised. This court's decision in Cole, supra, addressed and distilled those post-Perry decisions and forms the applicable law in the area. Cole approvingly attributes to State v. Carter (1973), 36 Ohio Misc. 170, 65 O.O.2d 276, 304 N.E.2d 415, the notion that since "counsel cannot realistically be expected to argue his own incompetence, res judicata does not act to bar a defendant represented by the same counsel at trial and upon direct appeal from

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raising a claim of ineffective assistance of counsel in a petition for postconviction relief." Cole, 2 Ohio St.3d at 114, 2 OBR at 663, 443 N.E.2d at 171, fn. 1.

[639 N.E.2d 786] That statement is implicitly included in the Cole syllabus, which states:

"Where defendant, represented by new counsel upon direct appeal, fails to raise therein the issue of competent trial counsel and said issue could fairly have been determined without resort to evidence [beyond] the record, res judicata is a proper basis for dismissing defendant's petition for postconviction relief." (Emphasis added.) Cole at syllabus.

Cole recognizes that res judicata does not apply when trial and appellate counsel are the same, due to the lawyer's inherent conflict of interest. The applicability of that conflict of interest to co-workers is questionable--Cole recognizes a conflict of interest that is highly personal, and thus it may be logically argued that the exception to res judicata applies only when trial and appellate counsel are the same person.

However, Ohio's Code of Professional Responsibility states that a lawyer's conflict of interest is imputed to his law firm. DR 5-105(D). Therefore, an important question is whether a private law firm and a county public defender's office are analogous in regard to the question at hand.

At the threshold level, the lack of a financial stake in the case's outcome sets the public defender apart from the private firm. A lawyer in private practice who is still being paid by a defendant would be less willing to admit that his firm's representation in an earlier stage of the proceedings was substandard. Also, unlike the public defender, the private attorney is in competition with other law firms for clients' business, so diminished reputation more directly affects the finances of private sector attorneys.

While a public defender's office may not have the financial conflicts of a private law firm, conflicts driven by loyalty, reputation and esprit de corps may be just as likely to arise in a public defender's office as in a private law firm.

Still, the doubts or awkwardness such feelings engender does not give rise to the same level of conflict of...